8-K
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 19, 2020

 

 

F-STAR THERAPEUTICS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-37718   52-2386345

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

Eddeva B920 Baraham Research Campus

Cambridge, United Kingdom CB22 3AT

(Address of principal executive offices)

+44-1223-497400

Registrant’s telephone number, including area code

Spring Bank Pharmaceuticals, Inc.

35 Parkwood Drive, Suite 210

Hopkinton, Massachusetts 01748

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter.

Emerging growth company                  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

 

 

 


Item 2.01

Completion of Acquisition or Disposition of Assets.

The Transaction

On November 20, 2020, F-star Therapeutics, Inc., formerly known as “Spring Bank Pharmaceuticals, Inc.” (the “Company”), completed its business combination (the “Transaction”) with F-star Therapeutics Limited (“F-star”) in accordance with the terms of the Share Exchange Agreement, dated as of July 29, 2020 (the “Exchange Agreement”), by and among the Company, F-star and the holders of issued shares in the capital stock of F-star and the holders of convertible notes of F-star each as set forth therein (each a “Seller”, and collectively with holders of F-star securities who subsequently became parties to the Exchange Agreement, the “Sellers”). Pursuant to the Exchange Agreement, each ordinary share of F-star outstanding immediately prior to the closing of the Transaction (the “Closing”) was exchanged by the Seller that owns such F-star shares for such number of duly authorized, validly issued, fully paid and non-assessable shares of Company common stock as is equal to the exchange ratio formula determined pursuant to the Exchange Agreement (the “Exchange Ratio”), rounded to the nearest whole share of Company common stock (after aggregating all fractional shares of Company common stock issuable to such Seller) and, as a result, the Company became F-star Therapeutics, Inc. Also on November 20, 2020, in connection with, and prior to completion of, the Transaction, the Company effected a 1-for-4 reverse stock split of its common stock (the “Reverse Stock Split”) and, following the completion of the Transaction, changed its name to “F-star Therapeutics, Inc.” Following the completion of the Transaction, the business of the Company became the business conducted by F-star, which is a clinical stage immuno-oncology company focused on cancer treatment through its proprietary tetravalent bispecific antibody programs. Unless otherwise noted, all references to share amounts in this Current Report on Form 8-K reflect the Reverse Stock Split.

Under the terms of the Exchange Agreement, at the Closing, the Company issued an aggregate of 4,620,618 shares of its common stock to F-star shareholders, based on an exchange ratio of 0.1125 shares of the Company’s common stock for each F-star ordinary share and stock option and RSU outstanding immediately prior to the Closing. The exchange ratio was determined through arms-length negotiations between the Company and F-star pursuant to a formula set forth in the Exchange Agreement.

Pursuant to the Exchange Agreement, immediately prior to the Closing, certain investors in F-star purchased $15.0 million of F-star’s ordinary shares (the “Pre-Closing Financing”). These ordinary shares of F-star were then exchanged at the Closing for shares of the Company’s common stock in the Transaction.

Pursuant to the Exchange Agreement, all outstanding options to purchase Company common stock were accelerated immediately prior to the Closing and each outstanding option with an exercise price greater than the trading price of the Company common stock as of the close of trading on the Closing Date was exercised in full and all other outstanding options to purchase Company common stock were cancelled effective as of the Closing Date. In addition, effective on November 19, 2020, all performance and other conditions to the lapsing of restrictions on each outstanding Company restricted stock unit and performance stock unit, whether vested or unvested, were deemed to be satisfied and an aggregate of 532,000 shares of Company common stock were issued in respect thereof, prior to giving effect to the Reverse Stock Split.

Immediately following the Reverse Stock Split and the Closing, there were approximately 4,449,800 shares of the Company’s common stock outstanding. Following the Closing, the former F-star shareholders beneficially owned approximately 53.7% of the Company’s common stock and the existing stockholders of the Company beneficially owned approximately 46.3% of the Company’s common stock outstanding. Concurrently with the execution of the Exchange Agreement, certain officers and directors of the Company and F-star and certain shareholders of F-star entered into lock-up agreements (the “Lock-up Agreements”), pursuant to which they agreed to certain restrictions on transfers of any shares of the Company’s common stock for the 180-day period following the Closing, other than the shares of the Company’s common stock received in exchange for ordinary shares of F-star subscribed for in the Pre-Closing Financing and pursuant to certain other limited exceptions.


In addition, at the Closing, the Company, F-star, a representative of the Company stockholders prior to the Closing, and Computershare Trust Company N.A., as the Rights Agent, entered into a STING Agonist Contingent Value Rights Agreement (the “STING Agonist CVR Agreement”). Pursuant to the Exchange Agreement and the STING Agonist CVR Agreement, each post-Reverse Stock Split share of Company common stock held by Spring Bank stockholders as of the record date on November 19, 2020 immediately prior to the Closing received a dividend of one contingent value right (“STING Agonist CVR”), payable on a post-Reverse Stock Split basis, entitling such holders to receive, in connection with certain transactions involving Spring Bank’s proprietary STimulator of INterferon Genes (STING) agonist compound designated as SB 11285 occurring on or prior to the STING Agonist CVR Expiration Date (as defined below) that result in aggregate Net Proceeds (as defined in the STING Agonist CVR Agreement) at least equal to the Target Payment Amount (as defined below): an aggregate amount equal to the greater of (i) 25% of the Net Proceeds received from all CVR Transactions (as defined in the STING Agonist CVR Agreement) and (ii) an aggregate amount equal to the product of $1.00 and the total number of shares of Company common stock outstanding as of such record date (not to exceed an aggregate amount of $18.0 million) (the “Target Payment Amount”).

The CVR payment obligations expire on the later of 18 months following the Closing or the one-year anniversary of the date of the final database lock of the Company’s current STING Trial (as defined in the STING Agonist CVR Agreement) (the “STING Agonist CVR Expiration Date”). The STING Agonist CVRs will not be transferable, except in certain limited circumstances, will not be certificated or evidenced by any instrument, will not accrue interest and will not be registered with the Securities and Exchange Commission (the “SEC”) or listed for trading on any exchange. Until the STING Agonist CVR Expiration Date, subject to certain exceptions, F-star will be required to use commercially reasonable efforts to (a) complete the STING Trial and (b) pursue CVR Transactions. Unless terminated earlier in accordance with its terms, the STING Agonist CVR Agreement became effective upon the Closing will continue in effect until the payment of all CVR payment amounts payable pursuant to its terms.

At the Closing, Spring Bank, F-star, a representative of the Spring Bank stockholders prior to the Closing, and Computershare Trust Company N.A., as the Rights Agent, also entered into a STING Antagonist Contingent Value Rights Agreement (the “STING Antagonist CVR Agreement”). Pursuant to the Exchange Agreement and the STING Antagonist CVR Agreement, each share of Spring Bank common stock held by Spring Bank stockholders as of a record date immediately prior to the Closing will receive a dividend of one contingent value right (“STING Antagonist CVR”) entitling such holders to receive, in connection with the execution of a potential development agreement (the “Approved Development Agreement”) and certain other transactions involving Spring Bank’s proprietary STING antagonist compound occurring on or prior to the STING Antagonist CVR Expiration Date (as defined below) equal to: 80% of all Net Proceeds (as defined in the STING Antagonist CVR Agreement) received by the Company after the Closing pursuant to (i) the Approved Development Agreement, if any, and (ii) all CVR Transactions (as defined in the STING Antagonist CVR Agreement) entered into prior to the STING Antagonist CVR Expiration Date (as defined below).

The CVR payment obligations expire on the seventh anniversary of the Closing (the “STING Antagonist CVR Expiration Date”). The STING Antagonist CVRs will not be transferable, except in certain limited circumstances, will not be certificated or evidenced by any instrument, will not accrue interest and will not be registered with the SEC or listed for trading on any exchange. Until the STING Antagonist CVR Expiration Date, subject to certain exceptions, F-star will be required to use commercially reasonable efforts to (a) consummate the Approved Development Agreement to the extent not entered into prior to Closing, (b) to perform the terms of the Approved Development Agreement and (c) pursue CVR Transactions. Unless terminated earlier in accordance with its terms, the STING Antagonist CVR Agreement became effective upon the Closing and will continue in effect until the payment of all CVR payment amounts payable pursuant to its terms.

All issued and outstanding F-star share options granted under F-star’s three legacy equity incentive plans became exercisable in full immediately prior to the Closing. At the Closing, all issued share options and restricted stock units granted by F-star under the F-star Therapeutics Limited 2019 Equity Incentive Plan were replaced by options (“Replacement Options”) and awards (“Replacement RSUs”), on the same terms (including vesting), for Company common stock, based on the Exchange Ratio.

The Company’s common stock, which is listed on The NASDAQ Capital Market, traded through the close of business on Friday, November 20, 2020 under the ticker symbol “SBPH” and will continue trading on The NASDAQ Capital Market, on a post-Reverse Stock Split adjusted basis, under the ticker symbol “FSTX” beginning on Monday, November 23, 2020. Commencing on November 23, 2020, the Company’s common stock will be represented by a new CUSIP number, 30315R 107.

The foregoing description of the Exchange Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the Exchange Agreement, which is attached hereto as Exhibit 2.1 and incorporated herein by reference.


Item 3.03.

Material Modification to Rights of Security Holders.

As disclosed below under Item 5.07, at a special meeting of the Company’s stockholders held on November 19, 2020 (the “Special Meeting”), the Company’s stockholders approved an amendment to the Company’s amended and restated certificate of incorporation, as amended (the “Restated Certificate”), to effect a reverse stock split of the Company’s common stock at a ratio between one-for-three and one-for-seven the exact ratio of which would be determined by the Company and F-star (the “Split Amendment”). Additionally, at the Special Meeting, the Company’s stockholders approved an amendment to the Company’s Restated Certificate to change the Company’s name from “Spring Bank Pharmaceuticals, Inc.” to “F-star Therapeutics, Inc.” (the “Name Change Amendment”).

On November 20, 2020, immediately prior to the Closing, the Company filed the Split Amendment with the Secretary of State of the State of Delaware and, immediately after the Closing, the Company filed the Name Change Amendment with the Secretary of State of the State of Delaware. As a result of the Reverse Stock Split, the number of issued and outstanding shares of the Company’s common stock immediately prior to the Reverse Stock Split was reduced into a smaller number of shares, such that every four shares of the Company’s common stock held by a stockholder immediately prior to the Reverse Stock Split were combined and reclassified into one share of the Company’s common stock. Immediately following the Reverse Stock Split and the Transaction, there were approximately 9,070,418 shares of the Company’s common stock outstanding.

No fractional shares were issued in connection with the Reverse Stock Split. Stockholders of record who otherwise would be entitled to receive fractional shares because they hold a number of pre-split shares not evenly divisible by the number of pre-split shares for which each post-split share is to be reclassified, will be entitled to a cash payment equal to the product of such fraction to which the stockholder would otherwise be entitled multiplied by the closing price of the Company’s common stock on the Nasdaq Capital Market on the last trading day prior to the Reverse Stock Split effective time (as adjusted to give effect to the Reverse Stock Split), rounded up to the nearest whole cent.

The foregoing description of the Split Amendment and Name Change Amendment is not complete and is subject to and qualified in its entirety by reference to the Split Amendment and Name Change Amendment, copies of which are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and incorporated herein by reference.

 

Item 4.01

Change in Registrant’s Certifying Accountant.

(a) Dismissal of Previous Independent Registered Public Accounting Firm

At the completion of the Transaction on November 20, 2020, the audit committee of the Company’s board of directors dismissed RSM US LLP (“RSM”) as the Company’s independent registered public accounting firm. At the completion of the Transaction, on November 20, 2020, the Company’s board of directors engaged PricewaterhouseCoopers LLP, a United Kingdom entity (“PwC”) as the independent registered public accounting firm to audit the Company’s financial statements for the fiscal year ending December 31, 2020.

The reports of RSM on the Company’s financial statements for each of the two fiscal years ended December 31, 2019 and December 31, 2018 did not contain an adverse opinion or a disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles.

In connection with the audits of the Company’s financial statements for each of the two fiscal years ended December 31, 2019 and December 31, 2018 and the subsequent interim period through November 20, 2020, there were no “disagreements” (as that term is defined in Item 304(a)(1)(iv) of Regulation S-K and related instructions) between the Company and RSM on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure which, if not resolved to the satisfaction of RSM, would have caused RSM to make reference to the subject matter of the disagreement in its reports. During the two fiscal years ended December 31, 2019 and 2018 and in the subsequent interim period through November 20, 2020 there were no “reportable events” as that term is described in Item 304(a)(1)(v) of Regulation S-K.

The Company provided RSM with a copy of the disclosures it is making in this Current Report on Form 8-K and requested that RSM furnish the Company with a letter addressed to the SEC stating whether it agrees with the statements contained herein. RSM’s letter, dated November 20, 2020, is filed as Exhibit 16.1 to this Current Report on Form 8-K.

(b) Appointment of New Independent Registered Public Accounting Firm

On November 20, 2020, the audit committee approved the appointment of PwC as the Company’s new independent registered public accounting firm to audit the Company’s consolidated financial statements for the year ending December 31, 2020. PwC served as independent registered public accounting firm of F-star Therapeutics Limited prior to the Transaction.

During the fiscal years ended December 31, 2019 and 2018, and the subsequent interim period through November 20, 2020, neither the Company nor anyone acting on behalf of the Company had consulted PwC regarding either: (i) the application of accounting principles to a specified transaction, either completed or proposed, the type of audit opinion that might be rendered on the Company’s financial statements, and PwC did not provide either a written report or oral advice to the Company that was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issues; or (ii) any matter that was either the subject of a “disagreement” (as defined above) or a “reportable event” (as defined above).


Item 5.01

Changes in Control of Registrant.

The information set forth in Item 2.01 regarding the Transaction and the information set forth in Item 5.02 regarding the Company’s board of directors and executive officers following the Transaction are incorporated by reference into this Item 5.01.

 

Item. 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Departure of Directors and Officers

In accordance with the Exchange Agreement, on November 20, 2020, effective immediately prior to the Closing, each of Timothy Clackson, Ph.D., Martin Driscoll, Kurt Eichler and Scott Smith resigned from the Company’s board of directors and any committees or subcommittees of the board of directors on which they respectively served, which resignations were not the result of any disagreements with the Company relating to the Company’s operations, policies or practices.

Immediately prior to the Closing, the employment of each of Martin Driscoll, R. P. “Kris” Iyer, Ph.D., Lori Firmani and Garrett Winslow, was terminated without cause and each of such persons is entitled to certain severance payments and benefits, including the vesting of his or her outstanding options, as described in his or her severance agreements, respectively. For additional information regarding these payments, please refer to “The Transaction — Interests of the Spring Bank Directors and Executive Officers in the Transaction” on pages 142-146 of the proxy statement/prospectus filed by the Company on October 20, 2020, which is incorporated by reference herein (the “Proxy Statement/Prospectus”).

Appointment of Directors

In accordance with the Exchange Agreement, immediately after the Closing, the size of the Company’s board of directors was fixed at eight members, consisting of three members designated by the Company, who are David Arkowitz, Todd Brady, M.D., Ph.D. and Pamela Klein, MD, and five members designated by F-star, who are Eliot Forster, Ph.D., Nessan Bermingham, Ph.D., Edward Benz, Jr., M.D., Geoffrey Race, and Patrick Krol. In accordance with the Exchange Agreement, at the Closing on November 20, 2020, the board of directors and its committees were reconstituted, with Pamela Klein, M.D., Patrick Krol, and Geoffrey Race, being appointed as Class I directors of the Company, whose terms expire at the Company’s 2022 annual meeting of stockholders, David Arkowitz, Nessan Bermingham, Ph.D., and Eliot Forster, Ph.D., being appointed as Class II directors of the Company, whose terms expire at the Company’s 2023 annual meeting of stockholders, and Todd Brady, M.D., Ph.D. and Edward Benz, Jr., M.D., being appointed as Class III directors of the Company, whose terms expire at the Company’s 2021 annual meeting of stockholders. David Arkowitz, Geoffrey Race, and Todd Brady, M.D., Ph.D. were appointed to the Company’s Audit Committee (with Mr. Arkowitz appointed to serve as chair of the committee); Geoffrey Race and Nessan Bermingham, Ph.D. were appointed to the Company’s Compensation Committee (with Mr. Race appointed to serve as chair of the committee); and Nessan Bermingham, Ph.D. and Pamela Klein, M.D. were appointed to the Nominating and Governance Committee (with Dr. Bermingham appointed to serve as chair of the committee).

Biographical information regarding the Company’s newly appointed directors is set forth under the caption “Management Following the Exchange” in the Proxy Statement/Prospectus and is incorporated by reference herein.

For a discussion of “related person” transactions (as such term is defined in Item 404(a) of Regulation S-K) with respect to the Company’s directors, please refer to “Related Party Transactions of Combined Organization” on pages 336-342 of the Proxy Statement/Prospectus, which information is incorporated herein by reference.


Appointment of Officers

In accordance with the Exchange Agreement, effective immediately after the Closing, on November 20, 2020, the Company’s board of directors appointed: Eliot Forster, Ph.D. as President and Chief Executive Officer; Darlene Deptula-Hicks as Chief Financial Officer and Treasurer; Neil Brewis, Ph.D. as Chief Scientific Officer; and Louis Kayitalire, M.D. Chief Medical Officer.

Biographical information regarding the Company’s newly appointed directors is set forth under the caption “Management Following the Exchange” in the Proxy Statement/Prospectus and is incorporated by reference herein.

There are no family relationships among any of Company’s directors or executive officers.

These executive officers received the following Company securities in connection with the Closing:

 

   

Dr. Forster received 24,228 shares of the Company’s common stock in exchange of his F-star shares and Replacement Options to purchase 250,322 shares of the Company’s common stock;

 

   

Darlene Deptula-Hicks received Replacement Options to purchase 28,401 shares of the Company’s common stock and Replacement RSUs to acquire 26,414 shares of the Company’s common stock;

 

   

Dr. Brewis received 22,099 shares of the Company’s common stock in exchange of his F-star shares and Replacement Options to purchase 76,552 shares of the Company’s common stock; and

 

   

Dr. Kayitalire received Replacement Options to purchase 27,265 shares and Replacement RSUs to acquire 26,414 of the Company’s common stock.

Indemnification Agreements

On November 20, 2020, the Company entered into indemnification agreements with each of its directors and executive officers, Eliot Forster, Ph.D., Darlene Deptula-Hicks, Neil Brewis, Ph.D., Louis Kayitalire, M.D., David Arkowitz, Edward Benz, Jr., M.D., Nessan Bermingham, Ph.D., Todd Brady, M.D., Ph.D., Pamela Klein, M.D., Patrick Krol, and Geoffrey Race. Pursuant to the indemnification agreements, the Company has agreed to indemnify and hold harmless these directors and officers to the fullest extent permitted by the Delaware General Corporation Law. The agreements generally cover expenses that a director or officer incurs or amounts that a director or officer becomes obligated to pay in connection with any proceeding in any way connected with, resulting from or relating to his or her service as a current or former director, officer, employee or agent of the Company or any direct or indirect subsidiary of the Company. The agreements also provide for the advancement of expenses to the directors and officers subject to specified conditions. There are certain exceptions to the Company’s obligation to indemnify the directors and officers, including with respect to “short-swing” profit claims under Section 16(b) of the Securities Exchange Act of 1934, as amended; with respect to conduct by him or her that is established to be knowingly fraudulent or deliberately dishonest or constituted willful misconduct; and, with certain exceptions, with respect to proceedings that he or she initiates.

The foregoing description of the indemnification agreements is not complete and is subject to and qualified in its entirety by reference to the form of indemnification agreement, which is attached as Exhibit 10.5 hereto and incorporated herein by reference.


Item 5.03

Amendments to Articles of Incorporation or Bylaws.

The information set forth in Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference.

 

Item 5.07

Submission of Matters to a Vote of Security Holders.

The Company held the Special Meeting on November 19, 2020. 12,934,162 shares of common stock representing 74.9% of the outstanding common stock entitled to vote, were represented by proxy or via live webcast. The stockholders of the Company voted as set forth below on Proposal No. 1 through 4, each of which is described in detail in the proxy statement/prospectus.

The final voting results for each matter submitted to a vote of the Company’s stockholders, which share amounts do not reflect the Reverse Stock Split, are as follows:

Proposal No. 1. Approval of the Issuance of Common Stock in the Exchange.

Proposal to approve the issuance of Spring Bank common stock to the holders of F-star share capital in the Exchange, including holders who purchase ordinary shares of F-star in the Pre-Closing Financing, in accordance with the terms of Exchange Agreement, in an amount representing more than 20% of the shares of Spring Bank common stock outstanding immediately prior to the Exchange, which will also constitute stockholder approval of a change of control of Spring Bank, pursuant to Nasdaq Listing Rules 5635(a) and 5635(b), respectively.

 

Votes For   Votes Against   Abstentions   Broker Non-Votes
8,576,562   38,359   958,932   3,360,309

Proposal No. 2. Approval of the Amendment to the Amended and Restated Certificate of Incorporation of the Company to Effect the Reverse Stock Split.

Proposal to approve an amendment to the amended and restated certificate of incorporation of the Company to effect a reverse stock split of the Company’s common stock at a split ratio as mutually agreed to by the Company and F-star in the range of one new share for every three (3) shares to one new share for every seven (7) shares outstanding (or any number in between).

 

Votes For   Votes Against   Abstentions   Broker Non-Votes
11,772,720   190,455   970,987   0

Proposal No. 3. Amendment to Spring Bank’s Amended and Restated Certificate of Incorporation to change the Corporate name of Spring Bank from “Spring Bank Pharmaceuticals, Inc.” to “F-star Therapeutics, Inc.”.

Proposal to approve an amendment to Spring Bank’s amended and restated certificate of incorporation to change the corporate name of Spring Bank from “Spring Bank Pharmaceuticals, Inc.” to “F-star Therapeutics, Inc.” effective upon the closing of the Exchange.

 

Votes For   Votes Against   Abstentions   Broker Non-Votes
11,878,812   85,197   970,153   0

Proposal No. 4. Approval of a Postponement or Adjournment of the Special Meeting.

Proposal to approve a postponement or adjournment of the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposal Nos. 1, 2 or 3.

Proposal was not necessary


Item 7.01

Regulation FD Disclosure

On November 20, 2020, the Company announced the completion of the Transaction. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein. A copy of the slide presentation of the Company is attached hereto as Exhibit 99.2. The information in this paragraph (including Exhibits 99.1 and 99.2) shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act.


Item 8.01

Other Events.

Shares of the Company’s common stock were previously listed on the Nasdaq Capital Market under the symbol “SBPH.” The Company’s common stock is expected to begin trading on the Nasdaq Capital Market under the symbol “FSTX” on November 23, 2020. The new CUSIP number for the Company’s common stock is 30315R 107. Additionally, the shares of Company common stock issued in the Transaction have been approved for listing on the Nasdaq Capital Market

 

Item 9.01.

Financial Statements and Exhibits.

(a) Financial Statements of Businesses Acquired.

The Company intends to file the financial statements required by Item 9.01(a) as part of an amendment to this Current Report on Form 8-K no later than 71 calendar days after the required filing date for this Current Report on Form 8-K.

(b) Pro Forma Financial Information.

The Company intends to file the financial statements required by Item 9.01(b) as part of an amendment to this Current Report on Form 8-K no later than 71 calendar days after the required filing date for this Current Report on Form 8-K.


(d) Exhibits

 

Exhibit
Number
   Description
    2.1    Share Exchange Agreement, dated as of July 29, 2020, by and among Spring Bank Pharmaceuticals, Inc., F-star Therapeutics Limited and the persons listed therein (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 30, 2020).
    3.1    Certificate of Amendment (Reverse Stock Split) to the Amended and Restated Certificate of Incorporation of the Company, dated November 20, 2020.
    3.2    Certificate of Amendment (Name Change) to the Amended and Restated Certificate of Incorporation of the Company, dated November 20, 2020.
  10.1*    Executive Service Agreement, dated as of October 1, 2018, as amended July 22, 2020, by and between F-star Biotechnology Limited and Eliot Forster, Ph.D.
  10.2*    Consulting Agreement, dated as of May 1, 2019, by and between F-star Therapeutics LLC and Darlene Deptula-Hicks.
  10.3*    Service Agreement, dated as of July 23, 2020, by and between F-star Biotechnology Limited and Neil Brewis, Ph.D.
  10.4*    Employment Agreement, dated as of July 24, 2020, by and between F-star Therapeutics LLC and Louis Kayitalire, M.D.
  10.5*    Form of Indemnification Agreement, by and between F-star Therapeutics, Inc. and each of its directors and executive officers.
  10.6    STING Agonist Contingent Value Rights Agreement, dated as of November 20, 2020, by and between Spring Bank Pharmaceuticals, Inc., F-star Therapeutics Limited, Computershare Inc., Computershare Trust Company, N.A., and the Holder Representative.
  10.7    STING Antagonist Contingent Value Rights Agreement, dated as of November 20, 2020, by and between Spring Bank Pharmaceuticals, Inc., F-star Therapeutics Limited, Computershare Inc., Computershare Trust Company, N.A., and the Holder Representative.
  16.1    Letter from RSM US LLP dated November 20, 2020.
  99.1    Press Release dated November 20, 2020.
  99.2    Presentation.
  104   

Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

*

Management contract or compensatory plan or arrangement.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      F-STAR THERAPEUTICS, INC.
Date: November 20, 2020      

/s/ Darlene Deptula-Hicks

      Darlene Deptula-Hicks
      Chief Financial Officer and Treasurer
EX-3.1

Exhibit 3.1

CERTIFICATE OF AMENDMENT

TO THE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SPRING BANK PHARMACEUTICALS, INC.

SPRING BANK PHARMACEUTICALS, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

FIRST: The name of the corporation is Spring Bank Pharmaceuticals, Inc. (the “Corporation”).

SECOND: The Corporation was incorporated under the name Spring Bank Pharmaceuticals, Inc. pursuant to an original Certificate of Incorporation filed with the Secretary of State of the State of Delaware (the “Delaware Secretary”) on May 12, 2008. An Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the DGCL on May 11, 2016.

THIRD: The Board of Directors (the “Board”) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Certificate of Incorporation as follows:

RESOLVED, that Article FOURTH of the Amended and Restated Certificate of Incorporation, as presently in effect, of the Corporation is amended to add the following to the end of Section (a):

“Immediately upon filing of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Effective Time”), the shares of the Corporation’s Common Stock, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each four, as determined by the Board, shares of issued and outstanding Common Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.0001 per share (the “Reverse Split”). Notwithstanding the immediately preceding sentence, no fractional shares shall be issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after aggregating all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash payment equal to the fraction to which such holder would otherwise be entitled multiplied by the closing price of the Corporation’s Common Stock as reported on the Nasdaq Capital Market on the date of the filing of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (as adjusted to give effect to the Reverse Split, rounded up to the nearest whole cent).

Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the number of whole shares of Common stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.”


FOURTH: Thereafter, pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed amendment has been adopted in accordance with Section 242 of the DGCL.

FIFTH: This Certificate of Amendment will be effective at immediately upon filing.

IN WITNESS WHEREOF, SPRING BANK PHARMACEUTICALS, INC. has caused this Certificate of Amendment to be signed by Martin Driscoll, its duly authorized officer on November 20, 2020.

 

SPRING BANK PHARMACEUTICALS, INC.
By:  

/s/ Martin Driscoll

Name:   Martin Driscoll
Title:   President and Chief Executive Officer
EX-3.2

Exhibit 3.2

CERTIFICATE OF AMENDMENT

TO THE

RESTATED

CERTIFICATE OF INCORPORATION

OF

SPRING BANK PHARMACEUTICALS, INC.

Spring Bank Pharmaceuticals, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), hereby certifies as follows:

A. The name of the Corporation is Spring Bank Pharmaceuticals, Inc., and the original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on May 12, 2008. A Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on May 11, 2016 (the “Prior Certificate”). A certificate of Amendment to the Prior Certificate was filed with the Secretary of State of the State of Delaware on November 20, 2020.

B. This Certificate of Amendment to the Restated Certificate of Incorporation (the “Certificate of Amendment”) amends the Prior Certificate, as amended, and has been duly adopted by the Corporation’s Board of Directors and stockholders in accordance with the provisions of Sections 141, 211 and 242 of the DGCL.

C. Article FIRST of the Prior Certificate, as amended, is hereby amended and restated to read as follows:

“FIRST: The name of the Corporation is F-star Therapeutics, Inc.”

D. The Certificate of Amendment so adopted reads in full as set forth above and is hereby incorporated by reference. All other provisions of the Prior Certificate, as amended, remain in full force and effect.

IN WITNESS WHEREOF, Spring Bank Pharmaceuticals, Inc. has caused this Certificate of Amendment to be signed by Eliot Forster, a duly authorized officer of the Corporation, on November 20, 2020.

 

SPRING BANK PHARMACEUTICALS, INC.
By:  

/s/ Eliot Forster, Ph.D.

  Name:   Eliot Forster, Ph.D.
  Title:     President and Chief Executive Officer
EX-10.1

Exhibit 10.1

 

Private & Confidential  

FINAL (22 July 2020)

 

4043241-0017

DATED July 22, 2020

 

 

  F-Star Biotechnology Limited    (1)   
 

 

and

 

Eliot Forster

   (2)   

 

 

 

 

SERVICE AGREEMENT

 

 


Contents

 

1  

Definitions and interpretation

     1  
2  

Appointment

     4  
3  

Duration of the Employment

     5  
4  

Scope of the Employment

     6  
5  

Training

     8  
6  

Hours of work

     9  
7  

Place of work

     9  
8  

Remuneration

     9  
9  

Expenses and Insurance

     10  
10  

Holidays

     10  
11  

Sickness benefits

     11  
12  

Pension

     12  
13  

Death benefits and medical insurance

     13  
14  

Restrictions during the Employment

     13  
15  

Confidential Information and Employer documents

     14  
16  

Inventions and other intellectual property

     16  
17  

Termination

     17  
18  

Severance benefits upon termination

     19  
19  

Post-termination restrictions

     24  
20  

No personal dealings

     28  
21  

Grievance and disciplinary procedures

     28  
22  

Deductions and Clawback

     29  
23  

Anti-corruption provisions

     30  
24  

Staff Handbook

     30  
25  

Data protection

     30  
26  

Notices

     31  
27  

Former contracts of employment or other arrangements

     31  


28  

Variations and amendments

     32  
29  

Choice of law and submission to jurisdiction

     32  
30  

Miscellaneous

     32  


THIS AGREEMENT IS A DEED and is made on                    2020

BETWEEN:

 

(1)

F-Star Biotechnology Limited (Company Registration Number: 08067987) whose registered office is at Eddeva B920, Babraham Research Campus, Cambridge CB22 3AT (“Employer”/ “we”/ “us”), and

 

(2)

Eliot Forster of [ADDRESS] (“you”).

IT IS AGREED as follows:

 

1

Definitions and interpretation

 

1.1

In this Agreement unless the context otherwise requires the following expressions have the following meanings:

Board” means the Board of Directors from time to time of the Employer;

Confidential Information” means information in whatever form relating to the business, products, services, clients, customers, affairs and finances of the Employer or of any Group Company from time to time being confidential to it or to them or treated by it or them as such and trade secrets (including, without limitation, technical data and know-how) relating to the business of the Employer or of any Group Company or of any of its or their suppliers, clients or customers including by way of illustration only and without limitation:

 

  (a)

any trade secret or confidential or secret information concerning the business development, affairs, future plans, business methods, connections, operations, accounts, finances, organisation, processes, policies or practices, designs, dealings, trading, software, or know-how relating or belonging to the Employer or to any Group Company or any of its suppliers, agents, distributors, clients or customers;

 

  (b)

confidential computer software, computer-related know-how, passwords, computer programmes, specifications, object codes, source codes, network designs, business processes, business logic, inventions, improvements and/or modifications relating to or belonging to the Employer or any Group Company;

 

1


  (c)

details of the Employer’s or any Group Company’s financial projections or projects, prices or pricing strategy, advertising, marketing or development plans, product development plans or strategies, fee levels, commissions and commission structures, market share and pricing statistics, marketing surveys and research reports and their interpretation;

 

  (d)

any confidential research, report or development undertaken by or for the Employer or any Group Company;

 

  (e)

details of relationships or arrangements with, or knowledge of the needs or the requirements of, the Employer’s or any Group Company’s actual or potential clients or customers;

 

  (f)

information supplied in confidence by customers, clients or any third party to which the Employer or any Group Company owes an obligation of confidentiality;

 

  (g)

lists and details of contracts with the Employer’s or any Group Company’s actual or potential suppliers;

 

  (h)

information of a personal or otherwise of a confidential nature relating to fellow employees, directors or officers of, or consultants to, the Employer or any Group Company for which you may from time to time provide services; and

 

  (i)

confidential information concerning, or details of, any competitive business pitches, or target details;

Data Protection Legislation” means the General Data Protection Regulation (EU) 2016/679 (“GDPR”), Data Protection Act 2018 (“DPA”), and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or any successor to the GDPR, DPA, or Privacy and Electronic Communications Regulations) and the applicable version at the relevant time of any guidance or codes of practice issued by the Information Commissioner’s Office from time to time;

Employer Intellectual Property” means any Intellectual Property made, created or discovered by you during the Employment (whether or not in the course of the Employment or during normal hours of work or using our facilities) which:

 

  (a)

in any way affects or relates to the business of the Employer or any Group Company; or

 

2


  (b)

is capable of being used or adapted for use in or in connection with such business;

Employment” means your employment under this Agreement;

Financial Year” has the meaning ascribed to it in section 390 of the Companies Act 2006

ERA” means the Employment Rights Act 1996;

Group Company” means any company which is for the time being a subsidiary or holding company of the Employer and any subsidiary of any such holding company and for the purposes of this Agreement the terms “subsidiary” and “holding company” shall have the meanings ascribed to them by section 1159 Companies Act 2006;

Intellectual Property” means all intellectual and industrial property rights which may now or in the future subsist in any country of the world, including without limitation:

 

  (a)

patents, utility models, supplementary protection certificates and any other rights in inventions, discoveries and improvements;

 

  (b)

registered and unregistered trade marks, including any trade, brand or business names and get-ups(s), rights to sue for passing off or unfair competition and rights in domain names, devices and logos;

 

  (c)

registered and unregistered design rights;

 

  (d)

copyright (including all such rights in any information, know-how or techniques relating to the Employer’s business, and in any computer software and typographical rights) database rights and moral rights;

 

  (e)

all industrial, commercial and technical and accounts records and information (wherever located) relating to the activities of the Employer;

 

  (f)

the Confidential Information; and

 

  (g)

applications for registration and the right to apply for any registration of the above in any country in the world;

 

3


WTR” means the Working Time Regulations 1998.

 

1.2

References to clauses and schedules are unless otherwise stated to clauses of and schedules to this Agreement.

 

1.3

Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

 

1.4

A reference to a statute, statutory provision or regulation:

 

  (a)

is a reference to it as amended, extended or re-enacted from time to time (including as a result of the exercise of powers conferred on Ministers under the European Union (Withdrawal) Act 2018 or any similar legislation); and

 

  (b)

shall in the case of a statue or statutory provision include all subordinate legislation made from time to time under that statute or statutory provision.

 

1.5

The headings to the clauses are for convenience only and shall not affect the construction or interpretation of this Agreement.

 

2

Appointment

 

2.1

We appoint you and you agree to act as Chief Executive Officer of the Employer or in such other capacity as we may from time to time reasonably direct on the terms of this Agreement. You recognise that this position is one of trust and confidence and that you will have access to Confidential Information. This is a key position in which you have a special obligation to further the interests of the Employer and any Group Company and to develop its or their businesses.

 

2.2

You represent and warrant that you are not bound by or subject to any court order, agreement, arrangement or undertaking which in any way restricts or prohibits you from entering into this Agreement, performing your duties under it or holding office as a director of the Employer or any Group Company.

 

2.3

You warrant that you are entitled to work in the United Kingdom without any additional approvals and will notify us immediately if you cease to be so entitled during the Employment.

 

4


3

Duration of the Employment

 

3.1

Your Employment commenced on 1 October 2018 and, subject to the provisions of this Agreement, shall continue unless and until terminated by either party giving to the other not less than six months’ written notice.

 

3.2

We shall have the discretion to terminate the Employment lawfully with immediate effect or on notice less than that required by clause 3.1 by notifying you that we are exercising our right under this clause 3.2 and that we will make within 28 days a payment in lieu of notice (“Payment in Lieu”) to you. The Payment in Lieu shall be a sum equal to, but no more than, the basic annual salary under clause 8.1 in respect of that part of the period of notice in clause 3.1 which we have not given to you. The Payment in Lieu shall be paid to you less any appropriate tax and other statutory deductions.

 

3.3

For the avoidance of doubt, the Payment in Lieu under clause 3.2 shall not include:

 

  3.3.1

any bonus or commission payments that might otherwise have been due;

 

  3.3.2

any benefits you would have been entitled to receive; or

 

  3.3.3

any holiday entitlement that would have accrued,

during the period by reference to which the payment is made (“Relevant Period”).

 

3.4

You will have no right to receive a Payment in Lieu unless the Employer has exercised its discretion under clause 3.2.

 

3.5

Notwithstanding the fact that we have purported to exercise our discretion to make a Payment in Lieu under clause 3.2, you shall nonetheless not be entitled to any such payment if we would have been entitled to terminate the Employment without notice in accordance with clause 17.2. In that case we shall be entitled to recover from you any Payment in Lieu already made.

 

3.6

At any time following service of notice of termination in accordance with clause 3.1 (whether given by us or you), we shall be entitled, by written notice to you, to place you on leave (“Garden Leave”) for the whole or any part of the period of the Employment remaining after the service of such notice.

 

5


3.7

During any period of Garden Leave:

 

  3.7.1

we shall be under no obligation to assign any duties to you and may revoke any powers you hold on behalf of the Employer or any Group Company and may remove you from any office held by you in the Employer or any Group Company;

 

  3.7.2

we may require you to carry out alternative duties or to only perform such specific duties as are expressly assigned to you, at such location (including your home) as we may decide;

 

  3.7.3

you shall ensure that the Employer knows where you will be and how you can be contacted during each working day (except during any periods taken as holiday in the usual way);

 

  3.7.4

we shall be entitled to exclude you from our premises and to instruct you not to contact (or attempt to contact) the officers, employees, agents, clients or customers of the Employer or of any Group Company;

 

  3.7.5

your entitlement to receive your normal salary and other contractual benefits shall continue, subject always to the relevant scheme or policy relating to such benefits; and

 

  3.7.6

you shall remain our employee and shall be bound by the terms of the Employment (other than to perform your duties under this Agreement unless specifically required to do so). In particular, but without limitation, you will remain bound by your obligations of loyalty and good faith, of exclusive service and of confidentiality, which preclude you taking up any other employment.

 

3.8

There is no probationary period applicable to the Employment.

 

3.9

For the purposes of the ERA your period of continuous employment began on 1 October 2018.

 

4

Scope of the Employment

 

4.1

During the Employment you shall:

 

  4.1.1

serve the Employer and each Group Company to the best of your ability;

 

6


  4.1.2

unless prevented by ill-health or incapacity devote the whole of your working time, attention and skill to the business and affairs of the Employer and to such other duties within the Employer or any Group Company consistent with your position as may be assigned to you during the continuance of the Employment;

 

  4.1.3

faithfully and diligently perform such duties and exercise such powers consistent with your position as may from time to time be assigned to or vested in you by the Board;

 

  4.1.4

do all reasonably in your power to protect, promote, develop and extend the business interests and reputation of the Employer and each Group Company;

 

  4.1.5

obey the reasonable and lawful directions of the Board;

 

  4.1.6

comply with the Memorandum and Articles of Association and of any Group Company and all other rules, regulations, policies and procedures from time to time in force in relation to the Employer or any Group Company;

 

  4.1.7

abide by any statutory, fiduciary or common law duties to the Employer or any Group Company of which you are a director;

 

  4.1.8

not do anything that would cause you to be disqualified from acting as a director;

 

  4.1.9

keep the Board at all times promptly and fully informed (in writing if so requested) of your conduct of the business of the Employer and any Group Company and provide such explanations in connection with it as the Board may require; and

 

  4.1.10

report your own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Employer or of any Group Company to the Board immediately on becoming aware of it.

 

4.2

You shall if and so long as we require and without any further remuneration carry out your duties on behalf of any Group Company and act as a director or officer of any Group Company.

 

7


4.3

You shall promptly disclose to the Board any information that comes into your possession which adversely affects or may adversely affect the Employer or any Group Company or the business of the Employer or any Group Company including, but not limited to:

 

  4.3.1

the plans of any other senior employee to leave the Employer or any Group Company (whether alone or in concert with any other employee), including, but not limited to, the plans of such an employee to join a competitor or to establish a business in competition with the Employer or any Group Company; and

 

  4.3.2

the misuse by any employee of any Confidential Information belonging to the Employer or any Group Company; and

 

  4.3.3

the conduct of any employee, agent or service provider which constitutes bribery within the meaning of the Bribery Act 2010.

 

4.4

We are not obliged to ensure that you remain a director of the Employer, and your removal from the Board in accordance with the Employer’s Articles of Association or otherwise will not be a breach of this Agreement by us.

 

4.5

We take a zero tolerance approach to tax evasion. You must not engage in any form of facilitating tax evasion, whether under UK law or under the law of any foreign country. You must immediately report to the Board any request or demand from a third party to facilitate the evasion of tax or any concerns that such a request or demand may have been made.

 

5

Training

 

5.1

As a senior employee, you are responsible for identifying and attending any training that is necessary for you to perform your duties to the high standard expected of you. The cost of such training will be normally be met by the Employer, providing that prior approval has been obtained in accordance with the Employer’s current training policy. You are also required to attend any training that we stipulate as mandatory.

 

5.2

Subject to any provision to the contrary elsewhere in this Agreement, there is no other training which the Employer requires you to complete and which the Employer will not pay for.

 

8


6

Hours of work

 

6.1

Our normal business hours are 9:00 am to 5:00 pm Monday to Friday.

 

6.2

Your remuneration package is calculated on the basis that you will not only work during normal business hours but also such additional hours as shall be necessary in order properly to perform your duties. You are therefore not entitled to any additional remuneration for work done outside normal business hours.

 

6.3

You agree that on account of the specific characteristics of your role and your responsibilities, all of your “working time” (as such expression is defined by the WTR) is not measured or predetermined. Accordingly you agree that the exemption under regulation 20(1) WTR shall apply to the Employment.

 

6.4

Notwithstanding that the Employment is likely to be exempt (in accordance with clause 6.3 above), you nevertheless agree that the maximum average working time of 48 hours for each 7 day period which is contained in regulation 4(1) WTR shall not apply in relation to the Employment.

 

6.5

You may terminate your agreement to opt-out of regulation 4(1) WTR pursuant to clause 6.4 at any time by giving three months’ written notice to us of such termination. Upon such termination the other terms of the Employment will remain in force and shall not be affected.

 

7

Place of work

 

7.1

Your normal place of work will be our offices at Eddeva B920, Babraham Research Campus, Cambridge CB22 3AT but we may require you to work at any place (whether inside or outside the United Kingdom) for such periods as we may from time to time require (provided that the Board will provide you with at least two months’ notice of any change of your workplace and you will always be entitled to be based at the headquarters of the Employer) but not outside the United Kingdom for periods exceeding one month in any one year.

 

8

Remuneration

 

8.1

We shall pay you a salary at the rate of £437,750 per annum, on or before the last day of each calendar month by credit transfer to your bank account payable by equal monthly instalments in arrears (or such other sum as may from time to time be agreed). The rate of salary will be reviewed annually, but with no guarantee of salary increase.

 

9


8.2

The salary specified in clause 8.1 shall be inclusive of any fees to which you may be entitled as a director of the Employer or any Group Company.

 

8.3

In addition to your annual salary, the Employer may in its absolute discretion pay you a bonus of such amount and at such intervals as the Employer may in its absolute discretion determine but shall not exceed 50% of your annual salary, taking into account specific performance targets as may be notified to you from time to time. If the Employer makes a bonus payment to you in respect of a Financial Year, it shall not be obliged to make subsequent bonus payments in respect of any subsequent Financial Year. You shall in any event have no right to a bonus (or a pro-rated bonus) if your employment terminates for any reason or you are under notice of termination (whether given by or received by you) at or prior to the date when a bonus might otherwise have been payable. Any bonus payment shall not be pensionable.

 

9

Expenses and Insurance

 

9.1

We shall reimburse you in respect of all expenses reasonably incurred by you in the proper performance of your duties, subject to you providing such receipts or other evidence as we may require.

 

9.2

You shall abide by the Employer’s policies on expenses as communicated to you from time to time.

 

9.3

The Employer has directors’ and officers’ liability insurance and it is intended to maintain such cover for the full term of the Employment and thereafter if the maintenance of such cover is required to provide proper protection with regard to claims arising out of any acts or omissions by you during the Employment.

 

10

Holidays

 

10.1

You shall be entitled, in addition to all bank and public holidays normally observed in England, to 25 working days’ holiday, in each Holiday Year (being the period from January 1 to 31 December). This includes your entitlement under the WTR, which shall be deemed to have been taken first. You are required to take a minimum of 20 working days holiday (including bank and public holidays) in each Holiday Year. You may only take your holiday at such times as are agreed with the Board. Regulations 15(1) to 15(4) WTR shall not apply to the Employment.

 

10.2

You shall be entitled to be paid at the rate of 1/260th of the annual remuneration set out in clause 8.1 for each day of holiday to which you are entitled under this clause.

 

10


10.3

In the Holiday Year in which the Employment terminates, your entitlement to holiday shall be deemed to accrue on a pro rata basis for each completed calendar month of service during the relevant year. If, on the termination of the Employment, you have exceeded your accrued holiday entitlement, the excess may be deducted from any sums due to you.

 

10.4

Other than where you are prevented from taking holiday as a result of illness or injury, you shall not be entitled to carry forward more than five days’ holiday entitlement from one Holiday Year to the next (such carried forward holiday, if any, to be taken by 31 March of the next Holiday Year) without the prior written consent of the Board.

 

10.5

If either party has served notice to terminate the Employment, we may require you to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 3.6.

 

11

Sickness benefits

 

11.1

On condition that you comply with clause 11.2 and subject to our right to terminate this Agreement (whether on grounds of ill health or otherwise), we shall continue to pay your salary and benefits during any period of absence on medical grounds up to a maximum of 26 weeks in any rolling period of 12 months.

 

11.2

You shall if required:

 

  11.2.1

supply us with medical certificates covering any period of sickness or incapacity;

 

  11.2.2

consent to the application by us to any medical practitioner treating you for a medical report, and the provision of such a report to us; and

 

  11.2.3

undergo at any time at our expense a medical examination by a doctor appointed by us.

 

11.3

Payment in respect of any other or further period of absence shall be at our discretion. Any payment to you pursuant to clause 11.1 shall be subject to set off by us in respect of any Statutory Sick Pay and any Social Security Sickness Benefit or other benefits to which you may be entitled.

 

11


11.4

If your absence shall be occasioned wholly or partly by any act or omission of a third party in respect of which damages or compensation are recoverable, then you shall not be entitled to any remuneration (other than Statutory Sick Pay) but we may in our absolute discretion advance sums not exceeding the remuneration to which you would otherwise be entitled against your entitlement to damages or compensation (including interest at such rate as you are entitled to recover in respect of a claim for loss of earnings) and you shall:

 

  11.4.1

notify us immediately of all the relevant circumstances and of any claim, compromise, settlement or judgement made or awarded in connection with it; and

 

  11.4.2

if we so require, refund to us any amount received by you from any such third party provided that the refund shall be no more than the amount which you had recovered in respect of remuneration (plus interest).

 

11.5

Any payments made under clause 11.4 shall be subject to the maximum aggregate sum which we are permitted to lend under the restrictions relating to loans to directors contained in the Companies Act 2006.

 

12

Pension

 

12.1

You are eligible for membership of the Employer’s group personal pension scheme (“Pension Scheme”) subject to the rules of the Pension Scheme from time to time in place. Any contributions shall be payable in equal monthly instalments in arrears, and shall be subject to the rules of the Pension Scheme and any statutory or other regulatory limits and restrictions from time to time in force. Your contributions shall be made by way of deduction from your salary. The Employer will comply with the requirement to make employer contributions and deductions in respect of employee contributions in accordance with Part 1 of the Pensions Act 2008. In the event that you opt out of membership of the Pension Scheme due to the fact that the assets of the various pension schemes benefitting you have in aggregate reached (or nearly reached) the lifetime allowance permitted by HMRC rules, you shall be entitled to receive a salary supplement equivalent to 8% of your basic salary from time to time in lieu of the Employer’s pension contributions that you would forego by opting out of the Pension Scheme. This salary supplement paid will be paid monthly, subject to deductions in the normal way. This amount will not form part of your basic salary and will be excluded when calculating any payments that may be due to you based on a percentage of base salary (e.g. bonus payments). This salary supplement will be increased each year in line with the Employer’s annual salary review (if applicable).

 

12


13

Death benefits and medical insurance

 

13.1

We shall during the continuance of the employment, provide you with life assurance cover which in the event of death during the continuance of the Employment, will pay a lump sum equal to 4 times the then annual rate of salary payable in accordance with clause 8.1 (provided that the provision of cover shall be subject to you complying with and satisfying requirements of the relevant insurers and subject to the insurance premiums being at reasonable and standard rates).

 

13.2

During the Employment you shall participate in such permanent health insurance and medical expenses insurance schemes as we shall from time to time maintain for your benefit, and, in the case of medical expenses insurance, your spouse and children under 21 subject to our right to terminate this Agreement and subject to the insurer accepting you (and your spouse and children) for cover under the relevant scheme and at normal rates and subject to the rules of such scheme or policy from time to time. Success or failure of a claim under such schemes is entirely a matter for the scheme insurer and we accept no obligation to take any legal or other proceedings to challenge or enforce the scheme insurer’s decision in respect of any such claim.

 

13.3

If the scheme insurer of any permanent health insurance scheme paid for or maintained by us accepts any claim by you under such scheme, you shall no longer, with effect from the date such claim is accepted, be eligible for or entitled to receive any remuneration or other benefits under this Agreement and you shall resign as director of the Employer and any Group Company if so requested by us.

 

14

Restrictions during the Employment

 

14.1

During the Employment you shall not:

 

  14.1.1

be directly or indirectly employed, engaged, concerned or interested in any other business or undertaking save that nothing in this Agreement shall prevent you from engaging in limited external advisory or consultancy activities (or similar), whether or not of a remunerative nature, provided that such external activities shall not in any way conflict with or interfere in any way with your obligations under this Agreement or be prejudicial to the interests of the Employer or any Group Company; or

 

13


  14.1.2

engage in any activity which the Board reasonably considers may be, or become harmful to the interests of the Employer or of any Group Company or which might reasonably be considered to interfere with the performance of your duties under this Agreement.

 

14.2

Notwithstanding clause 4.1, you shall be entitled to continue with your role as Chairman of Avacta Plc, subject to any conflict of interests arising that would make your retention of this role untenable, and only to the extent that the discharge of your duties under this Agreement is not impaired as a result. We shall be entitled to withdraw the consent given by this clause to pursue such activities at any time if we believe that to continue with them would no longer reasonably be considered to be in the best interests of the Employer.

 

14.3

Clause 14.1 shall not apply:

 

  14.3.1

to you holding (directly or through nominees) investments listed on the London Stock Exchange or in respect of which dealing takes place in the Alternative Investment Market on the London Stock Exchange or any recognised stock exchange as long as you do not hold more than 5% of the issued shares or other securities of any class of any one company; or

 

  14.3.2

to the interest permitted by clause 14.2; or

 

  14.3.3

to any act undertaken by you with the prior written consent of the Board.

 

14.4

You confirm that you have disclosed to us (and will continue to do so promptly throughout the Employment) all circumstances in respect of which there is or might be a conflict of interest between you (or members of your immediate family) and the Employer or any Group Company.

 

15

Confidential Information and Employer documents

 

15.1

Without prejudice to your common law duties and your obligations under clause 25, you shall neither during the Employment (except in the proper performance of your duties) nor at any time after the termination of the Employment (howsoever caused):

 

  15.1.1

disclose to any person, company, business entity or other organisation;

 

  15.1.2

use for your own purposes or for any purposes other than those of the Employer or any Group Company; or

 

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  15.1.3

through any failure to exercise due care and diligence, permit or cause any unauthorised disclosure of

any Confidential Information, save as required by law. These restrictions shall cease to apply to any information which shall become available to the public generally (otherwise than through your default or the default of any third party connected in any way with you).

 

15.2

All notes and records (both originals and copies) wherever located and whether on paper, computer disk, computer memory, smartphone, tablet, memory stick or other media, which contain any Confidential Information or which you have made or acquired in the course of the Employment:

 

  15.2.1

shall be and remain the property of the Employer or the relevant Group Company;

 

  15.2.2

shall not be removed from the Employer’s premises (or the premises of any Group Company) except in the course of your duties; and

 

  15.2.3

shall be handed over by you to the Employer or to the relevant Group Company on demand and in any event on the termination of the Employment (for whatever reason).

 

15.3

You shall on demand by us and in any event on the termination of the Employment (howsoever caused) irretrievably delete any Confidential Information stored on any magnetic or optical disk or memory, including personal computer networks, personal e-mail accounts or personal accounts on websites, and all matter derived from such sources which is in your possession or under your control outside our premises. For the purposes of this clause 15 you agree that any business connections added during the Employment to any personal LinkedIn accounts (or to any other personal social media accounts used by you in whole or in part for the purposes of Employer’s business) shall be regarded as the property of the Employer (whether or not Confidential Information) and shall be deleted on termination of the Employment.

 

15.4

You shall provide written confirmation that you have made a diligent search for, and delivered to us, all the notes and records described in clause 15.2 and have irretrievably deleted any Confidential Information described in clause 15.3 when requested to do so by us, whether during or after the Employment together with such reasonable evidence of compliance as we may request.

 

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15.5

Nothing in this clause 15 shall prevent you from making a protected disclosure within the meaning of section 43A ERA or a relevant pay disclosure as defined in section 77 Equality Act 2010. In circumstances where you consider it is necessary to make such a disclosure, you should first raise the issue with the Board, or if your concerns relate to certain members of the Board, to an officer or officers of the Employer who you believe are not involved or implicated in the relevant matter.

 

16

Inventions and other intellectual property

 

16.1

You acknowledge that you may make, discover or create Intellectual Property in the course of your duties and agree that in this respect you have a special obligation to further the interests of the Employer and any Group Company.

 

16.2

You agree to disclose to us in writing full details of any Employer Intellectual Property promptly following its making, creation or discovery.

 

16.3

You agree that any Employer Intellectual Property shall so far as the law permits belong to and be the absolute property of the Employer or any other Group Company as the Employer may direct upon creation and:

 

  16.3.1

to the extent that the same does not automatically belong to us upon creation, undertake to hold any such Employer Intellectual Property upon trust for the benefit of the Employer until such time as it shall be vested absolutely in the Employer or such other Group Company; and

 

  16.3.2

hereby assign to the Employer or such other Group Company with full title guarantee by way of present and future assignment all such Employer Intellectual Property.

 

16.4

If and when we require you so to do you shall, at our expense, as the Employer or any other Group Company may direct:

 

  16.4.1

give and supply to the Employer or such Group Company all such information, data, drawings and assistance as the Employer or such Group Company may require in order to exploit the Employer Intellectual Property to best advantage;

 

  16.4.2

apply or join with the Employer or such Group Company in applying for patents or other protection or registration in the United Kingdom and in any other part of the world for the Employer Intellectual Property; and

 

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  16.4.3

execute and do all instruments and things necessary for vesting in the Employer or such Group Company or in such other person as the Employer may specify, as sole beneficial owner, any Employer Intellectual Property including such patents or other protection or registration when obtained and all right, title and interest to and in them absolutely.

 

16.5

You irrevocably and unconditionally waive any and all moral rights in connection with your authorship of any existing or future copyright work made or created by you during the Employment.

 

16.6

You irrevocably appoint the Employer to be your attorney in your name and on your behalf to execute and do any such instrument or thing and generally to use your name for the purpose of giving to the Employer the full benefit of this clause. In favour of any third party, a certificate in writing signed by any director or by the secretary of the Employer that any instrument or act falls within the authority conferred by this clause shall be conclusive evidence that such is the case.

 

16.7

The rights and obligations under this clause shall continue in force after termination of this Agreement in respect of Employer Intellectual Property and shall be binding on your representatives.

 

16.8

Nothing in this clause shall be construed as restricting your rights under sections 39 to 43 Patents Act 1977.

 

17

Termination

 

17.1

For the avoidance of doubt, where there are no circumstances justifying summary dismissal under clause 17.2 the methods by which we may terminate this Agreement are not confined to the giving of notice as provided elsewhere in this Agreement or the making of a Payment in Lieu in accordance with clause 3.2. Accordingly if we terminate this Agreement without notice or a Payment in Lieu then any damages to which you may be entitled shall be calculated in accordance with ordinary common law principles including those relating to mitigation of loss.

 

17


17.2

Notwithstanding any other provisions of this Agreement in any of the following circumstances we may terminate the Employment immediately by serving written notice on you to that effect. In such event you shall not be entitled to any further payment from us except such sums as shall have accrued due at that time. The circumstances are if you:

 

  17.2.1

commit any serious breach of this Agreement or are guilty of any gross misconduct or any wilful neglect in the discharge of your duties;

 

  17.2.2

repeat or continue (after warning) any breach of this Agreement;

 

  17.2.3

are guilty of any fraud, dishonesty or conduct tending to bring you, the Employer, or any Group Company into disrepute;

 

  17.2.4

are declared bankrupt or make any arrangement with or for the benefit of your creditors or have a county court administration order made against you under the County Court Act 1984;

 

  17.2.5

are convicted of any criminal offence (other than minor road traffic offences for which a fine or non-custodial penalty is imposed) which might reasonably be thought to affect adversely the performance of your duties;

 

  17.2.6

cease to be eligible to work in the United Kingdom;

 

  17.2.7

refuse (without reasonable cause) to accept the novation by the Employer of this Agreement, or an offer of employment on terms no less favourable to you than the terms of this Agreement, by any company which acquires or agrees to acquire not less than 90 per cent of the issued equity share capital of the Employer; or

 

  17.2.8

resign (otherwise than at our request) as, or otherwise cease to be, or become prohibited by law from being, a director of the Employer or any Group Company.

 

17.3

If at any time you are unable to perform your duties properly because of ill health, accident or otherwise for a period or periods totalling at least three months in any period of 12 consecutive calendar months then we may appoint another person to act in your place in any position to which you may be assigned during the Employment.

 

17.4

On the termination of the Employment or upon either us or you having served notice of such termination, you shall:

 

  17.4.1

at our request resign from office as a director of the Employer and all offices you hold in any Group Company, without claim for compensation for loss of office, provided however that such resignation shall be without prejudice to any claims which you may have against the Employer or any Group Company arising out of the termination of the Employment;

 

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  17.4.2

at our request resign from all trusteeships you hold of any pensions scheme or other trusts established by the Employer or any Group Company; and

 

  17.4.3

immediately deliver to us all materials within the scope of clause 15.2 and your lap-top, tablet and any other computer or similar equipment, all computer and other passwords, keys, ID or access cards, credit cards, mobile phones (including the original sim card), and other property of or relating to the business of the Employer or of any Group Company which may be in your possession or under your power or control,

and you irrevocably authorise us to appoint any person in your name and on your behalf to sign any documents and do any things necessary or requisite to give effect to your obligations under this clause 17.4.

 

17.5

Following termination of the Employment you agree to make yourself available to, and to cooperate with, us or our advisers in any internal investigation or regulatory proceedings arising out of matters which formed part of your responsibilities during the Employment. You acknowledge that this could involve, but is not limited to, responding to or defending any regulatory or legal process, providing information in relation to any such process, preparing witness statements and giving evidence in person on our behalf.

 

17.6

On termination of the Employment (howsoever caused) you shall not be entitled to any compensation for the loss of any rights or benefits under any share option, bonus, long-term incentive plan or other profit sharing scheme operated by the Employer or any Group Company in which you may participate.

 

17.7

Any delay in exercising the right of termination conferred by this clause 17 shall not constitute a waiver of it.

 

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18

Severance benefits upon termination

 

18.1

For the purposes of this clause 18 the following words and phrases shall have the following meanings:

Basic Salary” means your basic annual salary (in accordance with clause 8.1) as at the date of the termination of your Employment.

Cause” means any of the circumstances set out in clause 17.2 and/or where the Employer has a potentially fair reason to terminate the Employment pursuant to s.98 ERA.

Change of Control” means the occurrence of any of the following events:

 

  (a)

a sale, lease or other disposition of all or substantially all of the assets of the Employer; or

 

  (b)

a consolidation or merger of the Employer with or into any other corporation or other entity or person, or any other corporate reorganisation, in which the shareholders of the Employer immediately prior to such consolidation, merger or reorganisation, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (and its parent) following the consolidation, merger or reorganisation; or

 

  (c)

any transaction (or series of related transactions involving a person or entity, or a group of affiliated persons or entities) in which in excess of fifty percent (50%) of the Employer’s outstanding voting power is transferred.

For the avoidance of doubt, the transactions contemplated by the Exchange Agreement shall not be considered a Change of Control for purposes of this Agreement.

Exchange Agreement” means the share exchange agreement to be entered into by (i) F-Star Therapeutics Ltd; (ii) Spring Bank Pharmaceuticals, Inc.; and (iii) others.

Good Reason” means:

 

  (a)

a material diminution in the nature or scope of your title, duties, or responsibilities occurring without your consent; or

 

  (b)

a material reduction in your Basic Salary, which for purposes of this Agreement shall mean a reduction of more than fifteen percent (15%) in the aggregate, other than any reduction applying in a similar fashion to similarly situated executives of the Employer, without your consent.

 

 

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Severance Sum” shall mean either:

 

  (a)

a sum equal to 18 months’ Basic Salary, in circumstances where a Qualifying Termination takes effect during the 12 month period immediately following a Change of Control; or

 

  (b)

a sum equal to 12 months’ Basic Salary, in circumstances where a Qualifying Termination takes effect more than 12 months following a Change of Control.

Qualifying Termination” means termination of the Employment

 

  (a)

by the Employer (whether with or without notice) without Cause; or

 

  (b)

by you for Good Reason.

 

18.2

In the event of a Qualifying Termination the Employer shall pay to you the Severance Sum (as adjusted in accordance with clauses 18.3 and 18.4 below) in accordance with the provisions set out in this clause 18 SUBJECT ALWAYS to the provisions of clauses 18.5, 18.6 and 18.10 being satisfied.

 

18.3

If the Employer terminates the Employment without Cause by giving you a period of notice, (whether under clause 3.1 or otherwise), the Severance Sum shall be reduced by a sum equal to the salary, benefits and any other payments received by you from the Employer during your notice period (whether such notice period is worked by you or whether some or all of it is spent on Garden Leave in accordance with clause 3.6).

 

18.4

If the Employer terminates the Employment without Cause by making a Payment In Lieu to you in accordance with clause 3.2, the Severance Sum shall be reduced by a sum equal to the Payment in Lieu received you.

 

18.5

The payment or provision of the Severance Sum shall be subject to and conditional on (and in consideration of) the following:

 

  18.5.1

the Employment being subject to a Qualifying Termination;

 

  18.5.2

you having complied with your obligations under clause 17.4;

 

  18.5.3

the Employer (acting reasonably) determining that, as at the Termination Date, you had met all of your applicable performance conditions and/or targets for the Financial Year in which the Employment terminates (pro-rated as appropriate);

 

21


  18.5.4

you having complied with and continuing to comply with:

 

  (i)

the implied duty of fidelity and common law duty of confidentiality; and

 

  (ii)

your express obligations relating to confidentiality, intellectual property and post-termination restrictions as set out in clauses 15, 16 and 19 respectively; and

 

  18.5.5

the restrictive covenants contained in clause 19 being reaffirmed by you so that they shall apply and you shall continue to be bound by them, notwithstanding that the Employment may, or without the payment of the Severance Sum might, otherwise have been repudiated by the Employer.

 

18.6

In circumstances where a Qualifying Termination takes effect during the 12 month period immediately following a Change of Control, in addition to your right to receive the Severance Sum in accordance with this clause 18, any options or RSUs granted to you under any equity incentive plan adopted or to-be-adopted by the Employer shall, to the extent not assumed by an acquirer, vest in full

 

18.7

The Severance Sum shall be paid less such deductions as are required by law, and shall be in full and final settlement of all claims or rights of action which you have or may have against the Employer or any Group Company and their respective officers, non-executive directors, shareholders, employees or agents, arising out of or in connection with your Employment or its termination or otherwise whether arising under statute, contract, at common law, in equity or any other legislation or regulation applicable under English, European or US law. You shall not be entitled to any further compensation in respect of the termination of your employment and you agree to waive, release and discharge any or all such rights and claims. You acknowledge that it is a condition of the receipt of the Severance Sum that you shall enter into a legally binding settlement agreement with the Employer (and any such additional documents as may be reasonably required), in a form acceptable to the Employer (“Settlement Agreement”).

 

18.8

The Severance Sum shall be paid to you within 28 days of the Settlement Agreement becoming legally binding or the Termination Date (whichever is later).

 

18.9

For the avoidance of doubt the payment or provision of the Severance Sum shall not affect your entitlement as at the Termination Date to any of the following:

 

  18.9.1

any accrued but unpaid salary;

 

22


  18.9.2

any payment in lieu of accrued but unused holiday; or

 

  18.9.3

the reimbursement of your expenses, provided that all claims for reimbursement are submitted within 14 days of the Termination Date.

 

18.10

For the avoidance of doubt, the Employer shall not pay the Severance Sum to you in circumstances where:

 

  18.10.1

you serve notice to terminate the Employment for any reason other than for Good Reason;

 

  18.10.2

you terminate the Employment without giving due notice for any reason whatsoever (including but not limited to where this is in response to an alleged breach of contract by the Employer);

 

  18.10.3

the Employer is entitled to terminate the Employment without notice and without a Payment in Lieu in accordance with clause 17.2; or

 

  18.10.4

as at the Termination Date the Employer has made a resolution for its winding up, an arrangement or composition with its creditors or has made an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order has been made or an administrator or receiver has been appointed in relation to the Employer.

 

18.11

If at any time during the 12 month period immediately following the payment of the Severance Sum to you under this clause 18, the Employer subsequently becomes aware that:

 

  18.11.1

it would have been entitled to terminate the Employment without notice and without a Payment in Lieu in accordance with clause 17.2; or

 

  18.11.2

you had, on or before the Termination Date, committed a breach of either:

 

  (i)

the provisions of clauses 14, 15, 16 or 19; and/or

 

  (ii)

the implied duty of fidelity or common law duty of confidentiality

then the Employer shall be entitled to claw-back and recover the Severance Sum from you in its entirety. In such event, you shall, if so required by the Employer and without prejudice to the Employer’s other remedies, immediately repay on demand an amount equal to the Severance Sum paid to you (after deductions for income tax and National Insurance) plus, if requested any sum in respect of income tax and National Insurance paid on the Severance Sum which you can recover from HM Revenue and Customs (or its successors). The sum to be repaid shall be payable to the Employer within 28 days of the demand and shall be recoverable by the Employer as a debt.

 

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19

Post-termination restrictions

 

19.1

For the purposes of clause 19.2 the following words shall have the following meanings:

Confidential Information” shall have the meaning ascribed thereto in clause 1.1;

Customer” shall mean any person, firm, company or other organisation whatsoever to whom or which the Employer distributed, sold or supplied Employer Goods or Employer Services during the twelve months immediately preceding the Termination Date, (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the twelve month period immediately preceding the commencement of that Garden Leave) and with whom or which, during such period:

 

  (a)

you had personal dealings in the course of the Employment; or

 

  (b)

any employee who was under your direct or indirect supervision had personal dealings in the course of the Employment;

Employer Goods” shall mean any product, process, platform, design, research, development, manufacture, production, sale or distribution of antibodies or fragments containing antigen-binding sites engineered into non-CDR loops, or otherwise relating to the activities which your duties were concerned or for which you were responsible during the twelve months immediately preceding the Termination Date;

Employer Services” shall mean any services (including but not limited to technical and product support, technical advice and customer services) supplied by the Employer with which your duties were concerned or for which you were responsible during the twelve months immediately preceding the Termination Date;

Key Employee” shall mean any person who immediately prior to the Termination Date was a senior employee or director or consultant of the Employer with whom you worked closely or supervised during the twelve months immediately preceding the Termination Date;

 

24


Prospective Customer” shall mean any person, firm, company or other organisation whatsoever with whom or which the Employer shall have had negotiations or discussions regarding the possible distribution, sale or supply of Employer Goods or Employer Services during the twelve months immediately preceding the Termination Date (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the twelve month period immediately preceding the commencement of that Garden Leave) and with whom or which, during such period:

 

  (a)

you shall have had personal dealings in the course of the Employment; or

 

  (b)

any employee who was under your direct or indirect supervision shall have had personal dealings in the course of the Employment;

Restricted Area” shall mean:

 

  (a)

England, Scotland, Wales; and

 

  (b)

any other country in the world where, on the Termination Date, the Employer was engaged in the research into, development, manufacture, distribution, sale or supply or otherwise dealt with Employer Goods or Employer Services;

Restricted Goods” shall mean Employer Good or goods of a similar kind;

Restricted Period” shall mean the period of twelve months immediately following the Termination Date, provided always that if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, it shall mean the period of twelve months immediately following the commencement of the Garden Leave period;

Restricted Services” shall mean Employer Services or services of a similar kind;

Supplier” shall mean any person firm or company or other organisation whatsoever which supplied goods or services to the Employer which it required to produce Employer Goods or to supply Employer Services during the two years immediately preceding the Termination Date (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the two year period immediately preceding the commencement of that Garden Leave) and with whom or which, during such period:

 

  (a)

you had personal dealings in the course of the Employment; or

 

  (b)

any employee who was under your direct or indirect supervision shall have had personal dealings in the course of the Employment;

 

25


Termination Date” means the date of termination of the Employment (howsoever caused).

 

19.2

Without prejudice to clause 14.1 you hereby undertake that you will neither during the Employment nor during the Restricted Period without our prior written consent (such consent not to be unreasonably withheld) whether on your own behalf or on behalf of any other person, firm, company or other organisation, directly or indirectly:

 

  19.2.1

in competition with the Employer within the Restricted Area, be employed or engaged or otherwise interested in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Goods or Restricted Services;

 

  19.2.2

in competition with the Employer, solicit business from or canvass any Customer if such solicitation or canvassing is in respect of Restricted Goods or Restricted Services;

 

  19.2.3

in competition with the Employer, accept orders for Restricted Goods or Restricted Services from any Customer;

 

  19.2.4

in competition with the Employer, solicit business from or canvass any Prospective Customer if such solicitation or canvassing is in respect of Restricted Goods or Restricted Services;

 

  19.2.5

in competition with the Employer, accept orders for Restricted Goods or Restricted Services from any Prospective Customer;

 

  19.2.6

in competition with the Employer, entice or seek to entice away from the Employer, or otherwise interfere with the relationship between the Employer and any Supplier;

 

  19.2.7

solicit or induce or endeavour to solicit or induce any Key Employee to cease working for or providing services to the Employer, whether or not they would thereby commit a breach of contract;

 

  19.2.8

cause or permit any third party directly or indirectly under your control to do any of the acts or things specified above.

 

19.3

Clause 19.2 shall also apply as though there were substituted for references to “the Employer” references to each Group Company in relation to which you have in the course of your duties for the Employer or by reason of rendering services to or holding office in such Group Company:

 

  19.3.1

acquired knowledge of its trade secrets or Confidential Information; or

 

26


  19.3.2

had personal dealings with its Customers or Prospective Customers; or

 

  19.3.3

supervised employees having personal dealings with its Customers or Prospective Customers

but so that references in clauses 19.1 and 19.2 to “Employer” shall for this purpose be deemed to be replaced by references to the relevant Group Company. The obligations undertaken by you pursuant to this clause 19.3 shall, with respect to each Group Company, constitute a separate and distinct covenant and the invalidity or unenforceability of any such covenant shall not affect the validity or enforceability of the covenants in favour of any other Group Company or the Employer.

 

19.4

The benefit of the restrictions in clause 19.3 is held by the Employer for itself and on trust for each Group Company and shall be enforceable on behalf of each Group Company as though it were a party to this Agreement.

 

19.5

You shall not at any time after the Termination Date directly or indirectly represent yourself as being interested in or employed by or in any way connected with the Employer or any Group Company, other than as a former employee of the Employer and you shall not (whether directly or indirectly and whether on your own or through an association of any kind with any third party) make use of any corporate or business name which is used by the Employer or any Group Company, or which is similar to or likely to be confused with any such name.

 

19.6

None of the restrictions in this clause 19 shall prevent you from:

 

  19.6.1

holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or

 

  19.6.2

being engaged or concerned in any business concern insofar as your duties or work shall relate solely to geographical areas where the business concern is not in competition with the Employer in respect of any Restricted Goods or Restricted Services; or

 

27


  19.6.3

being engaged or concerned in any business concern, provided that your duties or work shall relate solely to services or activities of a kind with which you were not concerned to a material extent in the twelve months before the Termination Date.

 

19.7

While the restrictions in this clause 19 are considered by the parties to be reasonable in all the circumstances, it is agreed that if any such restrictions, by themselves, or taken together, shall be adjudged to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Employer or a Group Company but would be adjudged reasonable if part or parts of the wording thereof were deleted, the relevant restriction or restrictions shall apply with such deletion(s) as may be necessary to make it or them valid and effective.

 

19.8

If your employment is transferred to any firm, company, person or entity other than a Group Company (the “New Employer”) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, you will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding to those restrictions in this clause 19, protecting the confidential information, trade secrets and business connections of the New Employer.

 

19.9

You will, at our request and our expense, enter into a separate agreement with any Group Company in which you agree to be bound by restrictions corresponding to those restrictions in this clause 19 (or such of those restrictions as we deem appropriate) in relation to that Group Company.

 

20

No personal dealings

 

20.1

You shall not without the written consent of the Board make or seek to make on your behalf or (otherwise than properly in the performance of your duties to the Employer) on behalf of any other person, firm or company any contract or other arrangement of a commercial nature with any actual or prospective customer, contractor or supplier of the Employer or any Group Company.

 

21

Grievance and disciplinary procedures

 

21.1

You are subject to the Employer’s disciplinary and grievance procedures, copies of which are available from the Employer. These procedures do not form part of your contract of employment and may be modified at any time.

 

28


21.2

If you want to raise a grievance, you may apply in writing to Chair of the Board (or his nominee) in accordance with the Employer’s grievance procedure.

 

21.3

If you wish to appeal against a disciplinary decision you may apply in writing to Chair of the Board (or his nominee) in accordance with the Employer’s disciplinary procedure.

 

21.4

We may at any time suspend you from any or all of your duties during any period in which we are carrying out any disciplinary investigation involving you, or while any disciplinary procedure against you is outstanding.

 

21.5

During any period of suspension in accordance with clause 21.4:

 

  21.5.1

your entitlement to receive your normal salary and other contractual benefits shall continue, subject always to the relevant scheme or policy relating to such benefits;

 

  21.5.2

you shall remain an employee of the Employer and shall be bound by the terms of the Employment;

 

  21.5.3

you shall ensure that the Employer knows where you will be and how you can be contacted during each working day (except during any periods taken as holiday in the usual way);

 

  21.5.4

we shall be entitled to exclude you from our premises and to instruct you not to contact (or attempt to contact) the employees, agents, clients or customers of the Employer or of any Group Company; and

 

  21.5.5

we may require you to lodge with us all or any of the items referred to in clause 17.4.3.

 

21.6

The provisions of this clause shall not apply to any action taken by the Employer under clause 17.3.

 

22

Deductions and Clawback

 

22.1

For the purposes of the ERA you authorise us at any time during the Employment, and in any event on termination howsoever arising, to deduct from your remuneration under this Agreement (which for this purpose includes salary, commission, bonus, holiday pay, sick pay and pay in lieu of notice) any monies due from you to us including, but not limited to, any outstanding loans, advances, the cost of repairing any damage or loss of our property caused by you (and of recovering it), excess holiday, and any other monies owed by you to us.

 

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23

Anti-corruption provisions

 

23.1

We take a zero tolerance approach to bribery and corruption. You must comply with the Bribery Act 2010 and related procedures at all times.

 

23.2

In particular you shall not during the term of this Agreement without the consent of the Board seek or accept from any actual or prospective customer, contractor or supplier of the Employer or any Group Company any gift, gratuity or benefit of more than a trivial value or any hospitality otherwise than properly in the performance of your duties to the Employer or any Group Company of a kind and value.

 

24

Staff Handbook

 

24.1

Your attention is drawn to the policies and procedures set out in the Employer’s Staff Handbook a copy of which has been supplied to you. You agree to abide by those policies and procedures.

 

24.2

The Staff Handbook also includes details of any paid leave to which you are entitled, in addition to your entitlement to sick pay and holiday pay set out above.

 

24.3

Save as set out in this Agreement or referred to in clause 24.2 you are not entitled to any other benefits provided by the Employer.

 

25

Data protection

 

25.1

You agree to act in accordance with Data Protection Legislation at all times both during the Employment and following its termination (for any reason) and to comply at all times with any policy introduced by us in order to comply with Data Protection Legislation, including any policy on the transfer of data outside the European Economic Area.

 

25.2

You acknowledge that we will process personal data about you in accordance with and to the extent permitted by Data Protection Legislation in order for us to perform our obligations under this Agreement, for example paying your salary, or to pursue our legitimate interests. Personal data relating to you may be kept electronically or in hard copy format.

 

25.3

You acknowledge that we will process special category personal data relating to you in accordance with and to the extent permitted by Data Protection Legislation in order for us to perform or exercise obligations or rights imposed or conferred by law on us in connection with employment, social security or social protection.

 

30


25.4

We agree to abide by our commitments under any policy introduced by us in order to comply with Data Protection Legislation and to process personal data (including special category personal data) in relation to you in accordance with any privacy/fair processing notices notified to you.

 

25.5

In this clause the expressions “personal data” and “special category personal data” have the same meanings as those expressions bear in the General Data Protection Regulation (EU) 2016/679.

 

26

Notices

 

26.1

Any notice or other document to be given under this Agreement shall be in writing and may be given personally to you or to the Secretary of the Employer or may be sent by first class post or other fast postal service or by facsimile transmission to, in the case of the Employer, its registered office for the time being and in your case either to your address shown on the face of this Agreement or to your last known place of residence.

 

26.2

Any such notice shall (unless the contrary is proved) be deemed served when in the ordinary course of the means of transmission it would be first received by the addressee in normal business hours. In proving such service it shall be sufficient to prove, where appropriate, that the notice was addressed properly and posted, or that the facsimile transmission was despatched.

 

26.3

A notice required to be given under this Agreement shall not be validly given if sent by e-mail.

 

26.4

The provisions of this clause do not apply to the service of legal proceedings.

 

27

Former contracts of employment or other arrangements

 

27.1

This Agreement, and any agreements referred to in it, contains the entire understanding between the parties and supersedes any previous agreements and arrangements (if any), relating to your employment, which shall be deemed to have been terminated by mutual consent as from the date of this Agreement and you acknowledge that you have no outstanding claims of any kind against the Employer or any Group Company in respect of any such agreement or arrangement.

 

31


28

Variations and amendments

 

28.1

No modification, variation or amendment to this Agreement shall be effective unless it is in writing and signed by or on behalf of each party.

 

29

Choice of law and submission to jurisdiction

 

29.1

The validity, construction and performance of this Agreement, and any claim, dispute or matter arising under or in connection with it or its enforceability, shall be governed by and construed in accordance with English law.

 

29.2

The parties submit to the exclusive jurisdiction of the English Courts over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability or the legal relationships established by this Agreement.

 

30

Miscellaneous

 

30.1

No provisions of this Agreement may be enforced by a person who is not a party to this Agreement in their own right, and the whole or any part of this Agreement may be rescinded or varied without the consent of any such third party.

 

30.2

You confirm that prior to entering into this Agreement you took independent legal advice on the nature, extent and enforceability of your obligations under this Agreement and confirm that you were advised that each of the separate covenants set out in clause 19 are enforceable against you. You confirm you understand that your remuneration under this Agreement has been agreed on the basis that such covenants are binding on you and enforceable against you.

 

30.3

You agree that if you apply for or are offered employment or any other engagement with any other person or organisation during the Employment, or while any or the post-termination restrictions in clause 19 remain in force, you will supply any such third party with a copy of this Agreement before entering into any such arrangement to ensure that that party is fully aware of your obligations to us.

 

30.4

There are no collective agreements applicable to the Employment.

 

30.5

The expiration or termination of this Agreement shall not prejudice any claim which either party may have against the other in respect of any pre-existing breach of this Agreement nor shall it prejudice the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to or has the effect of coming into or continuing in force on or after such expiration or termination.

 

32


30.6

This Agreement constitutes your written statement of the terms of your employment provided in compliance with Part I of the ERA.

This document has been executed as a DEED and is delivered and takes effect on the date stated at the beginning of it.

 

Executed as a DEED by F-STAR BIOTECHNOLOGY LIMITED acting by a
director and the secretary:
    

)

)

)

 

 

 

  

/s/ John P. Fitzpatrick

  
     )      Director’s signature   
     

John P. Fitzpatrick

  
  

Director’s name

  

Witness’ signature:

      /s/ Laura Hare   

Witness’ name (BLOCK CAPITALS):

      LAURA HARE   

Witness’ address:

      [ADDRESS]   

Witness’ occupation:

      [OCCUPATION]   
Signed by ELIOT FORSTER as a DEED in
the presence of:
    

)

)

 

 

  

/s/ Eliot Forster

  
Witness’ signature:       /s/ Katherine Johnson   
Witness’ name (BLOCK CAPITALS):       KATHERINE JOHNSON   
Witness’ address:       [ADDRESS]   
Witness’ occupation:       [OCCUPATION]   

 

33

EX-10.2

Exhibit 10.2

STRICTLY CONFIDENTIAL

 

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (the “Agreement”) by and between F-star Therapeutics LLC (“Client”) and Darlene Deptula-Hicks, an individual (“Consultant”) is effective as of May 1, 2019 (the “Effective Date”).

RECITALS

WHEREAS the parties desire for the Client to engage Consultant to perform the services described herein and for Consultant to provide such services on the terms and conditions described herein; and

WHEREAS, the parties desire to use Consultant’s independent skill and expertise pursuant to this Agreement as an independent contractor;

NOW THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto, intending to be legally bound, agree as follows:

1. Engagement of Services. Consultant agrees to provide consulting services to include performing various services and creating deliverables related to such services for the Client and its Affiliates, such Affiliates to include the following entities: F-star Biotechnology Limited, a company registered in England and Wales; F-star Therapeutics Limited, a company registered in England and Wales; F-star Alpha Limited, a company registered in England and Wales; F-star Beta Limited, a company registered in England and Wales; F-star Delta Limited, a company registered in England and Wales; and F-star Biotechnologische Forschungs- und Entwicklungsges.m.b.H, a company registered in Austria (collectively referred to herein as the “Affiliates”). These services and deliverables (collectively, the “Services”) shall include the following: (a) providing accounting services and the support necessary to complete the financial reporting responsibilities of the business of the Client and its Affiliates and related services, including the following (i) consulting with the Client’s and its Affiliate’s Board of Directors, the officers of the Client and its Affiliates, and the Client and its Affiliate’s staff, as required to perform the services and provide the deliverables, (ii) being responsible for overseeing all aspects of the Client’s financial results, in particular, in preparing financial statements and the required preparation work for audits and other such financial reporting obligations of the Client and its Affiliates (iii) and generally, serving as the acting Chief Financial Officer of the group of companies consisting of the Client and its Affiliates; and (b) other services upon request of the Chief Executive Officer of the Client (the “Executive”). Consultant shall provide deliverables under this Section to the Executive or such other person designated by the Executive.

2. Duty of Care and Covenants. Consultant agrees to exercise the highest degree of professionalism and utilize his/her expertise and creative talents in performing the Services. Consultant agrees to make him/herself available to perform such consulting Services throughout the Consulting Period, which shall include a minimum of 20 business days per month throughout the Consulting Period, and to be reasonably available to meet with the Client at its offices or otherwise. In connection with the provision of the Services, the Consultant acknowledges, covenants and agrees the following:

2.1    The Services shall be provided for such hours and at such places as are necessary for the proper performance of the Services and the Consultant shall travel to such places (whether in or outside the United States) and in such manner and on such occasion as the Client may from time to time reasonably require in connection with the provision of the Services.

 


STRICTLY CONFIDENTIAL

 

2.2    The Consultant shall promptly give to the Executive or to whomsoever the Executive may lawfully direct (in writing if so requested) all such information as it may reasonably require in connection with matters relating to the provision of the Services or the business of Client or its Affiliates.

2.3    The Consultant will provide the Services in compliance with all Applicable Law, where “Applicable Law” means federal, state, local, national and supra-national laws, statutes, rules, and regulations, including any rules, regulations, guidelines, or other requirements of any relevant regulatory authorities, including securities exchanges or securities listing organizations, that may be in effect from time to time during the term of this Agreement and are applicable to the Services, the Client or its Affiliates or the Consultant.

2.4    Without limiting the generality of Section 2.3, the Consultant shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the Foreign Corrupt Practices Act, and shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct was or had been carried out in the UK or under the Foreign Corrupt Practices Act.

2.5    The Consultant will provide the Contracted Services in compliance with Client’s and its Affiliates then-current (a) code of conduct; (b) whistleblowing policy; (c) anti-bribery policy; (d) data protection policy; and (e) such other policies as Client or its Affiliates makes available to Consultant during the term of this Agreement, provided in each case that a copy of such policies has been provided to Consultant.

3. Compensation and Payment Terms.

3.1    In consideration for the Services rendered pursuant to this Agreement and for the assignment of certain of Consultant’s right, title and interest pursuant hereto, Client will pay Consultant a consulting fee of $250.00 USD per hour for Services rendered during the Consulting Period (“Hourly Fees”).

3.2    Subject to the limits of this Section 3.2, the Client shall reimburse Consultant for all reasonable and necessary expenses incurred by Consultant in providing the Services under this Agreement (“Expenses”), provided that all such Expenses are billed at cost, and the Consultant has submitted related receipts and documentation with the relevant request for reimbursement (“Expense Report”). Any Expense in excess of US$ 5,000 shall require the prior approval of the Client. For the avoidance of doubt, Client will not reimburse for Consultant’s supplies, equipment, and operating costs, except as required for the Services and for the following types of expenses: meals and entertainment; travel; subsistence; mobile phone usage, airport parking, professional expenses, and other similar expenses associated with providing the Services.

 

2


STRICTLY CONFIDENTIAL

 

3.3    The Consultant will be eligible to receive each of (1) a one-time success fee of $50,000 USD, subject to and upon completion of a cross over financing, subsequent to the Effective Date and prior to the completion of the Client’s IPO (as defined below), with gross proceeds of US$50,000,000 or more (“Crossover Financing”), and (2) a one-time success fee of $50,000, subject to and upon completion of an initial public offering of the Client on the Nasdaq Stock Market LLC or another recognized U.S. stock exchange (“IPO”) (each of (1) and (2), a “Success Fee”). Each respective Success Fee shall only be payable if the Consultant is providing services to the Client at the time of the completion of the Crossover Financing or the IPO, as applicable, and neither the Consultant (for any reason) nor the Client (for Material Breach as defined below) has served notice of termination prior to the date that the completions of the Crossover Financing and the IPO, as applicable, occur.

3.4    Subject to the approval of the Board of Directors of F-star Therapeutics Limited (the “F-star Board”), the Client’s Affiliate, the Client, through F-star Therapeutics Limited, shall grant the Consultant an option to purchase 252,676 shares of F-star Therapeutics Limited (the “Option”) at the fair market value as determined by the F-star Board as of the date of grant. The Option shall vest in accordance with and subject to the terms of the 2019 Equity Incentive Plan: Non-Employee Sub-Plan of F-star Therapeutics Limited and the related grant documentation and option agreement.

3.5    The Hourly Fees and Expenses shall be invoiced and be paid monthly, and within 5 business days of the date of the receipt of the invoice for the Hourly Fees and the Expenses (provided that an Expense Report has been provided). Invoices shall be issued to the person or entity designated to receive such invoice by the Client (such designation to be made in writing by the Client) and shall include a time sheet identifying the number of hours of Services provided during the relevant period.

4. Intellectual Property

4.1    For the purposes of this Agreement: (a) “Intellectual Property” means patents, rights to inventions, registered and unregistered trade and service marks, copyrights (including moral rights), rights in the nature of copyright, registered designs and unregistered design rights, rights in trade secrets and know-how and all other intellectual property rights and analogous rights as may exist anywhere in the world for the full term of those rights together with all reversions, revisions, extensions and renewals, all registrations and pending registrations, the benefit of any pending applications for such registrations and the right to apply for registrations or for the protection of such rights and all rights of action, powers or benefits belonging or accrued in relation to such rights (including the right to sue for and recover damages for past infringement); and (b) “Work Product” means all Intellectual Property created by the Consultant in connection with the Services, including without limitation, any document, discovery, development, invention, technique, improvement, design, process, formula, idea, information, computer program, copyright work (including, but not limited to, drawings, designs, graphics, reports and typographical arrangements), business or trade name or get-up (whether capable of being patented or registered or not), including all Intellectual Property rights related thereto, made, created, devised, developed or discovered by the Consultant either alone or with any other person during the course of this Agreement or capable of being used or adapted for use by the Client or its Affiliates or in connection with the business of the Client or its Affiliates.

 

3


STRICTLY CONFIDENTIAL

 

4.2    Ownership of Work Product and F-star Intellectual Property. Consultant hereby irrevocably assigns, grants and conveys to Client all right, title and interest now existing or that may exist in the future throughout the world in and to any document, development or Work Product, that is made, authored, developed, conceived, reduced to practice or created by Consultant, to which Consultant contributes, or which relates to Consultant’s Services provided pursuant to this Agreement, including all copyrights, trademarks and other Intellectual Property (including but not limited to patent rights) or other proprietary rights relating thereto. Consultant acknowledges and agrees that: (a) any and all Work Product shall be and remain the property of Client; (b) Consultant does not have any ownership interest in the Work Product or any Intellectual Property owned by the Client or its Affiliates; and (c) all Intellectual Property owned by the Client or its Affiliates shall be the exclusive property of the Client or its Affiliates. Consultant agrees to disclose all Work Product or any other Intellectual Property made, authored, developed, conceived, reduced to practice or created by Consultant in connection with the Services, fully and in writing, to the Client promptly after development of the same, and at any time upon request. Consultant will not include property belonging to any third party in the Services, Work Product or any deliverables without Client’s prior written consent.

4.3    Assistance Relating to Intellectual Property. Consultant agrees to execute, at Client’s request and expense, all documents and other instruments necessary or desirable to (a) confirm such assignment referred to in Section 4.2 and (b) secure to the Client and its Affiliates the rights set forth in this Agreement with respect to the Work Product and any other Intellectual Property made, authored, developed, conceived, reduced to practice or created by the Consultant in connection with the Services, including but not limited to: (i) apply or join with the Client or its Affiliates in applying for patent, copyright, registered design, trade mark or other protection or registration in the United States, the United Kingdom and in any other part of the world; (ii) execute and do all instruments and things necessary for vesting such patents, copyrights, registered designs, trade marks or other protection or registration when obtained and all right title and interest to and in the same absolutely and as sole beneficial owner in the Client or in such other person or entity as Client may specify; and (iii) sign and execute all such documents and do all such things as the Client may reasonably require in respect of any proceedings in respect of such applications and any publication or application for revocation of such patent, copyrights, registered designs, trade marks or other protection. In the event that Consultant does not, for any reason, execute such documents within a reasonable time of Client’s request, but in any case within five (5) business days, the Consultant hereby irrevocably appoints Client as Consultant’s attorney-in-fact for the purpose of executing such documents on Consultant’s behalf and for the purpose of giving to Client the full benefit of this Section 4, which appointment is coupled with an interest. Consultant shall not attempt to register any Work Product or other Intellectual Property created by Consultant pursuant to this Agreement at the U.S. Copyright Office, the U.S. Patent & Trademark Office, or any foreign copyright, patent, or trademark registry. Consultant retains no rights in the Work Product and agrees not to challenge Client’s ownership of the rights embodied in the Work Product or any other Intellectual Property owned by the Client or its Affiliates. Consultant further agrees to assist Client in every proper way to enforce Client’s rights relating to the Work Product in any and all countries, including, but not limited to, executing, verifying and delivering such documents and performing such other acts (including appearing as a witness) as Client may reasonably request for use in obtaining, perfecting, evidencing, sustaining and enforcing Client’s rights relating to the Work Product.

 

4


STRICTLY CONFIDENTIAL

 

4.4    Artist’s, Moral, and Other Rights. If Consultant has any rights, including without limitation “artist’s rights” or “moral rights,” in the Work Product which cannot be assigned (the “Non-Assignable Rights”), Consultant agrees to waive enforcement worldwide of such rights against Client. In the event that Consultant has any such rights that cannot be assigned or waived Consultant hereby grants to Client a royalty-free, paid-up, exclusive, worldwide, irrevocable, perpetual license under the Non-Assignable Rights to (i) use, make, sell, offer to sell, have made, and further sublicense the Work Product, and (ii) reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product in any medium or format, whether now known or later developed.

5. Representations and Warranties. Consultant represents and warrants and covenants that: (a) Consultant has the full right and authority to enter into this Agreement and perform his/her obligations hereunder; (b) Consultant has the right and unrestricted ability to assign the Work Product to Client as set forth in Sections 4; (c) the Work Product has not heretofore been published in its entirety; and (d) the Work Product will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other Intellectual Property right or other proprietary right of any person, whether contractual, statutory or common law.

6. Independent Contractor Relationship. Consultant is an independent contractor and not an employee of the Client. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. The manner and means by which Consultant chooses to complete the consulting services are in Consultant’s sole discretion and control. In completing the consulting services, Consultant agrees to provide his/her own equipment, tools and other materials at his/her own expense, other than equipment required to be provided by Client for security reasons or in order for the Consultant to provide the Services. Consultant is not authorized to represent that he/she is an agent, employee, or legal representative of the Client, other than as authorized in writing by the Executive. Consultant is not authorized to make any representation, contract, or commitment on behalf of Client or incur any liabilities or obligations of any kind in the name of or on behalf of the Client, other than as authorized in writing by the Executive or as is expected of the Chief Financial Officer. Consultant shall be free at all times to arrange the time and manner of performance of the consulting services. Consultant is not required to maintain any schedule of duties or assignments. Consultant is also not required to provide reports to the Client, other than as requested in writing by the Executive.

7. Consultant’s Responsibilities. As an independent contractor, the mode, manner, method and means used by Consultant in the performance of services shall be of Consultant’s selection and under the sole control and direction of Consultant. Consultant shall be responsible for all risks incurred in the operation of Consultant’s business and shall enjoy all the benefits thereof. Any persons employed by or subcontracting with Consultant to perform any part of Consultant’s obligations hereunder shall be under the sole control and direction of Consultant and Consultant shall be solely responsible for all liabilities and expenses thereof. The Client shall have no right or authority with respect to the selection, control, direction, or compensation of such persons.

8. Tax Treatment. Consultant and the Client agree that the Client will treat Consultant as an independent contractor for purposes of all tax laws (local, state and federal) and file forms consistent with that status. Consultant agrees, as an independent contractor, that neither he/she nor his/her employees are entitled to unemployment benefits in the event this Agreement terminates, or workers’ compensation benefits in the event that Consultant, or any employee of Consultant, is injured in any manner while performing obligations under this Agreement. Consultant will be solely responsible to pay any and all local, state, and/or federal income, social security and unemployment taxes for Consultant and his/her employees. The Client will not withhold any taxes or prepare W-2 Forms for Consultant, but will provide Consultant with a Form 1099, if required by law. Consultant is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement, except as provided herein. No part of Consultant’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to Consultant with the appropriate taxing authorities, as required by law.

 

5


STRICTLY CONFIDENTIAL

 

9. No Employee Benefits. Consultant acknowledges and agrees that neither he/she nor anyone acting on his/her behalf shall receive any employee benefits of any kind from the Client. Consultant (and Consultant’s agents, employees, and subcontractors) is excluded from participating in any fringe benefit plans or programs as a result of the performance of services under this Agreement, without regard to Consultant’s independent contractor status. In addition, Consultant (on behalf of its/his/herself and on behalf of Consultant’s agents, employees, and contractors) waives any and all rights, if any, to participation in any of the Client’s fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by the Client to its employees.

10. Expenses and Liabilities. Except for specifically approved Expenses reimbursed in accordance with the terms set forth in Section 3.2 above, Consultant agrees that as an independent contractor, he/she is solely responsible for all operating costs and profits/losses she incurs in connection with the performance of the Services. Consultant understands that he/she will not be reimbursed for any supplies, equipment, or operating costs, nor will these costs of doing business be defrayed in any way by the Client, except for the specifically approved Expenses reimbursed in accordance with Section 3.2 above. In addition, the Client does not guarantee to Consultant that fees derived from Consultant’s business will exceed Consultant’s costs.

11. Non-Exclusivity. The Client reserves the right to engage other consultants to perform services, without giving Consultant a right of first refusal or any other exclusive rights. Consultant reserves the right to perform services for other persons, provided that the performance of such services do not conflict or interfere with services provided pursuant to or obligations under this Agreement and such activity does not cause a breach of Consultant’s obligations to provide the Services.

12. No Conflict of Interest. During the term of this Agreement, unless written permission is given by the Executive, Consultant will not: accept work, enter into a contract, or provide services to any Competitive Company that provides products or services which compete with the products or services provided by the Client (where “Competitive Company” shall mean any company that is active in a business field, i.e., Fc-based protein therapeutics, not including full-length monoclonal antibodies) of the Client or its Affiliates; enter into any agreement or perform any services which would conflict or interfere with the Services provided pursuant to or the obligations under this Agreement. Consultant represents and warrants to the Client: that there is no other contract or duty on his/her part that prevents or impedes Consultant’s performance under this Agreement; and that Consultant does not have any express or implied obligation to any third party, which in any way conflicts with any of the obligations relating to this Agreement. The Consultant shall disclose in advance to the Client any potential conflict of interest and immediately disclose any conflict of interest which arises in relation to the provision of the Services as a result of any present or future appointment, employment, consulting engagement, investment or other interest of the Consultant. Consultant agrees: not to disclose to the Client or its Affiliates any knowledge, information, inventions, discoveries and ideas which Consultant possesses under an obligation of confidentiality to a third party; and to indemnify Client and its Affiliates from any and all loss or liability incurred by reason of the alleged breach by Consultant of any services agreement with any third party.

 

6


STRICTLY CONFIDENTIAL

 

13. Non-disclosure Obligations

13.1    Confidential Information. Consultant agrees to hold Client’s Confidential Information (as defined below) in strict confidence and not to disclose such Confidential Information to any third parties. Consultant also agrees not to use any of Client’s Confidential Information for any purpose other than performance of Consultant’s services hereunder. “Confidential Information” as used in this Agreement shall mean all information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) disclosed by Client or its Affiliates to Consultant, or otherwise, regarding Client, its Affiliates or its business obtained by Consultant pursuant to Services provided under this Agreement that is not generally known in the Client’s trade or industry and shall include, without limitation, (a) information relating to the current, future and proposed products or services of the Client or its Affiliates and its suppliers or end clients; (b) information relating to the Client’s or its Affiliates’ business methods, plans, systems, finances or projects, training and development and research or development projects; (c) trade secrets, drawings, inventions, know-how, copyrighted works (including documents and software programs) or any information relating to the Intellectual Property owned by the Client or its Affiliates or the Work Product; (d) information relating to the identity and business affairs of the Client’s and its Affiliates’ customers and clients, potential customers and clients, and including proprietary or confidential information of any third party who may disclose such information to Client or its Affiliates or Consultant in the course of Client’s or its Affiliate’s business; (e) information relating to the provision of products or services to which the Client or its Affiliates attach confidentiality or in respect of which they hold an obligation of confidentiality to a third party; (f) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (g) information relating to the Client or its Affiliates that is not in the public domain and relates to raw materials, research and developments, formulae, formulations, methods of treatment, processing, manufacture or production, process and production controls including quality controls, suppliers and their production and delivery capabilities, customers and details of their particular requirements, costings, profit margins, discounts, rebates and other financial information, marketing strategies and tactics, current activities and current and future plans; (h) information regarding the skills and compensation of employees, contractors or other agents of the Client or its Affiliates; and (i) information which comes to the Consultant’s attention or possession and which is regarded or could reasonably be regarded as confidential, whether or not any such information is marked “confidential”. Consultant’s obligations set forth in this Section shall not apply with respect to any portion of the Confidential Information that Consultant can document by competent proof that such portion: (i) is in the public domain through no fault of Consultant; (ii) has been rightfully independently communicated to Consultant free of any obligation of confidence; or (iii) was developed by Consultant independently of and without reference to any information communicated to Consultant by Client. In addition, Consultant may disclose Client’s Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Consultant by Client or its Affiliates is the sole and exclusive property of Client or its suppliers or customers. Upon request by Client, Consultant agrees to promptly deliver to Client the original and any copies of such Confidential Information. Notwithstanding the foregoing or anything to the contrary in this Agreement or any other agreement between Client and Consultant, nothing in this Agreement shall limit Consultant’s right to discuss Consultant’s engagement with the Client or report possible violations of law or regulation with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, or other federal government agency or similar state or local agency or to discuss the terms and conditions of Consultant’s engagement with others to the extent expressly permitted by applicable provisions of law or regulation, including but not limited to “whistleblower” statutes or other similar provisions that protect such disclosure. Further, notwithstanding the foregoing, pursuant to 18 U.S.C. Section 1833(b), Consultant shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (1) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

 

7


STRICTLY CONFIDENTIAL

 

13.2    Data Protection.

(a)    For the purposes of this Agreement: (i) “Data Protection Legislation” means unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation/GDPR ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR or the Data Protection Act 2018; “Data Subject” has the meaning set out in the Data Protection Legislation; and “Personal Data” has the meaning set out in the Data Protection Legislation.

(b)    Where the Consultant is acting as Client’s or its Affiliates data processor for the purposes of the Data Protection Legislation, the Consultant (and Client) shall comply with the provisions of Exhibit A.

(c)    The Consultant shall comply with all other data protection legislation in any Applicable Law.

 

8


STRICTLY CONFIDENTIAL

 

14. Term and Termination.

14.1    Term. The term of this Agreement and the “Consulting Period” is for twelve (12) months from the Effective Date set forth above, and shall automatically renew at the end of the Consulting Period for an additional 12 month Consulting Period, unless (a) terminated with ninety (90) days’ notice prior to the end of the second Consulting Period or (b) unless earlier terminated as provided in this Agreement (i.e., Without Cause Termination or For Cause Termination).

14.2    Termination. Either party may terminate this Agreement for any reason, or no reason, upon ninety (90) days’ advance written notice (“Without Cause Termination). The Client may terminate this Agreement before its expiration immediately if the Consultant Materially Breaches the Agreement (“For Cause Termination”). The parties agree that a “Material Breach” by Consultant shall occur if she: (i) fails to abide by any recognized professional standard, including any ethical standard; (ii) fails to provide services as reasonably requested by the Executive; (iii) secures other full-time employment that prohibits his/her ability to provide services to the Client; (iv) breaches any other material obligations of this Agreement, or (v) violates the Applicable Law.

14.3    Effect of Termination. Upon any termination or expiration of this Agreement, Consultant (i) shall immediately discontinue all use of Client’s Confidential Information delivered under this Agreement; (ii) shall delete any such Client Confidential Information from Consultant’s computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) shall return to Client, or, at Client’s option, destroy, all copies of such Confidential Information then in Consultant’s possession. In the event the Client terminates this Agreement, or if Consultant terminates this Agreement, Consultant will not receive any additional consulting fees or other compensation as of the date of termination.

14.4    Survival. The rights and obligations contained in Sections 4-6, 8-9, 13, 14.3, 14.4, and 15-23 will survive any termination or expiration of this Agreement.

15. Indemnification. Client shall indemnify and hold harmless the Consultant for any claims brought or liabilities imposed against the Consultant by Client or by any other party (including private parties, governmental bodies and courts), including claims related to worker’s compensation, wage and hour laws, employment taxes, and benefits, and whether relating to Consultant’s status as an independent contractor, or any other matters involving the acts or omissions of Consultant. Indemnification shall be for any and all losses and damages, including costs and attorneys’ fees.

16. Successors and Assigns. Consultant may not subcontract or otherwise delegate his/her obligations under this Agreement without Client’s prior written consent. Client may assign this Agreement. Subject to the foregoing, this Agreement will be for the benefit of Client’s successors and assigns, and will be binding on Consultant’s subcontractors or delegatees.

17. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by overnight courier upon written verification of receipt; or (ii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.

 

9


STRICTLY CONFIDENTIAL

 

17.1    In the case of the Client:

Eliot Forster, CEO

F-star Biotechnology Limited

Eddeva B920 Babraham Research Campus

Cambridge, CB22 3AT

CC: COO and General Counsel at the same address.

17.2    In the case of Darlene Deptula-Hicks:

30 Crane Crossing Road

Plaistow, NH 03865 USA

18. Governing Law. This Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts.

19. Arbitration.

19.1    Procedure. Any and all disputes or controversies arising out of or relating to this Agreement and Consultant’s performance of the Services shall be exclusively and finally resolved by binding confidential arbitration by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or its successor, under the then applicable JAMS rules, in the Boston, Massachusetts metropolitan area. Any award made shall be final, binding and conclusive on the parties for all purposes, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. The parties each further agree that the arbitration provisions of this Agreement shall provide each party with its exclusive remedy, and each party expressly waives any right it might have to seek redress in any other forum, except as otherwise expressly provided in this Agreement. By election arbitration as the means for final settlement of all claims, the parties hereby waive their respective rights to, and agree not to, sue each other in any action in a Federal, State or local court with respect to such claims, but may seek to enforce in court an arbitration award rendered pursuant to this Agreement. The parties specifically agree to waive their respective rights to a trial by jury, and further agree that no demand, request or motion will be made for trial by jury.

19.2    Appointment of Arbitrators, Rules. The arbitration shall be conducted by an arbitrator reasonably knowledgeable about the pharmaceutical, biotechnology or technology industries, with at least ten (10) years’ experience as a qualified lawyer and a partner in an international law firm (collectively, the “Qualifications”), and acceptable to the parties. If the parties cannot agree on a single arbitrator within 30 days after a demand for arbitration has been made, Client shall appoint an arbitrator with the Qualifications, Consultant shall appoint an arbitrator with the Qualifications , the two arbitrators shall appoint a third arbitrator with the Qualifications, and the three arbitrators shall hear and decide the issue in controversy. If either party fails to appoint an arbitrator or the arbitrators fail to appoint a third arbitrator within 45 days after service of the demand for arbitration, then JAMS shall appoint an arbitrator for a party who has not appointed an arbitrator and JAMS shall appoint the third arbitrator, in each case with the Qualifications, and the three arbitrators so appointed shall arbitrate any controversy in accordance with this Section 19. Except as to the selection of arbitrators, the arbitration proceedings shall be conducted promptly and in accordance with the JAMS rules then in effect.

 

10


STRICTLY CONFIDENTIAL

 

19.3    Fees and Expenses. The arbitrator’s fees and expenses and all administrative fees and expenses associated with the filing of the arbitration shall be borne by the Client; provided, however, that at Consultant’s option, Consultant may voluntarily pay up to one-half the costs and fees.

19.4    Confidentiality of Proceedings. All arbitration proceedings hereunder shall be confidential and the arbitrator(s) shall issue appropriate protective orders to safeguard each party’s Confidential Information. Except as required by law, no party shall make (or instruct the arbitrator(s) to make) any public announcement with respect to the proceedings or decision of the arbitrator(s) without prior written consent of the other party.

19.5    Interim Equitable Relief. Notwithstanding this Section 19, each party shall not be precluded from seeking equitable relief (including but not limited to interim injunctive relief) in any court having jurisdiction to protect its interests.

19.6    Binding Effect. The provisions of this Section 19 shall survive any termination of this Agreement, and shall be severable and binding on the parties hereto, notwithstanding that any other provision of this Agreement may be held or declared to be invalid, illegal or unenforceable.

20. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

21. Waiver. The waiver by Client of a breach of any provision of this Agreement by Consultant shall not operate or be construed as a waiver of any other or subsequent breach by Consultant.

22. Injunctive Relief for Breach. Consultant’s obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate and attorney’s fees).

23. Entire Agreement. This Agreement constitutes the entire understanding of the parties relating to the subject matter and supersedes any previous oral or written communications, representations, understanding, or agreement between the parties concerning such subject matter. This Agreement shall not be changed, modified, supplemented or amended except by express written agreement signed by Consultant and the Client.

[The remainder of this page is intentionally blank. Signature page follows.]

 

11


IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above.

“CLIENT

 

F-STAR THERAPEUTICS LLC
By: /s/ Eliot Forster, Ph.D.
Name (print): Eliot Forster, Ph.D.
Title: Chief Executive Officer
“CONSULTANT
DARLENE DEPTULA-HICKS
By: /s/ Darlene Deptula-Hicks
Name (print): Darlene Deptula-Hicks


STRICTLY CONFIDENTIAL

 

Exhibit A

Data Protection

1.    All parties to the Agreement will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. The Consultant shall process any Personal Data in accordance with the Data Protection Legislation

2.    The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Consultant is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Annex 1 sets out the scope, nature and purpose of processing by the Consultant, the duration of the processing and the types of Personal Data and categories of Data Subject.

3.    Without prejudice to the generality of clause 1, Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Consultant for the duration and purposes of this agreement, if any such Personal Data is to be transferred.

4.    Without prejudice to the generality of clause 1, the Consultant shall, in relation to any Personal Data processed in connection with the performance by the Consultant of its obligations under this agreement:

a.    process that Personal Data only on the written instructions of Client unless the Consultant is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Consultant to process Personal Data. Where the Consultant is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Consultant shall promptly notify the Client of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Consultant from so notifying the Client;

b.    ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

c.    keep the Personal Data confidential; and

d.    not transfer any Personal Data outside of the European Economic Area unless the prior written consent of Client has been obtained and the following conditions are fulfilled:

 

 

Exhibit A-1


STRICTLY CONFIDENTIAL

 

i.    Client or the Consultant has provided appropriate safeguards in relation to the transfer;

ii.    the data subject has enforceable rights and effective legal remedies;

iii.    the Consultant complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

iv.    the Consultant complies with reasonable instructions notified to it in advance by Client with respect to the processing of the Personal Data;

e.    assist Client, at Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

f.    notify Client without undue delay on becoming aware of a Personal Data breach;

g.    at the written direction of Client, delete or return Personal Data and copies thereof to Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and

h.    maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by Client or Client’s designated auditor.

5.    Client does not consent to the Consultant appointing any third party processor of Personal Data under this agreement.

6.    Client may, at any time on not less than 30 days’ notice, revise this Exhibit by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

Annex 1 to Exhibit A

Processing, Personal Data and Data Subjects

Processing by the Consultant

Scope/Subject matter

To ensure the Consultant can comply with the obligations to Client and provide the Services to Client as required by the Agreement.

Nature

Organisation, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, erasure or destruction of data.

Purpose of processing

To perform the Services.

 

Exhibit A-2


STRICTLY CONFIDENTIAL

 

Duration of the processing

The term of the Agreement.

Types of personal data

In relation to existing and ex-staff of the Client or its Affiliates (including but not limited to employees, directors, consultants, temporary works, agency workers and apprentices), names, addresses, email addresses, dates of birth, NI number, employee number, telephone number, salary information and other financial data, performance records, training records, professional qualifications, employment history, benefits (such as medical insurance), images or photos and health data.

In relation to job applicants, contact details, including name, address, email address and telephone number, dates of birth, NI number, professional qualifications, employment history and images or photos.

Contact details of suppliers, including name, address, email address and telephone number.

Health data of clinical trial subjects.

Contact details of customers, including name, address, email address and telephone number.

Contact details of investors, including name, address, email address, telephone number and financial information.

Categories of data subject

Existing and ex-staff of Client and its Affiliates (including but not limited to employees, directors, consultants, temporary works, agency workers and apprentices), job applicants, suppliers, clinical trial subjects, customers and investors.

 

Exhibit A-3

EX-10.3

Exhibit 10.3

 

Private & Confidential

      FINAL (23 July 2020)
      4043241-0017

 

  DATED August 17, 2020           

            

  F-STAR BIOTECHNOLOGY LIMITED      (1  
  and     
 

NEIL BREWIS

 

    

 

(2

 

 

 
   
 

SERVICE AGREEMENT

 

          

 

 

LOGO


Contents

 

1  

Definitions and interpretation

     1  
2  

Appointment

     4  
3  

Duration of the Employment

     5  
4  

Scope of the Employment

     6  
5  

Training

     8  
6  

Hours of work

     9  
7  

Place of work

     9  
8  

Remuneration

     9  
9  

Expenses

     10  
10  

Holidays

     10  
11  

Sickness benefits

     11  
12  

Pension

     12  
13  

Death benefits and medical insurance

     13  
14  

Restrictions during the Employment

     13  
15  

Confidential Information and Employer documents

     14  
16  

Inventions and other intellectual property

     16  
17  

Termination

     17  
18  

Severance benefits upon termination

     19  
19  

Post-termination restrictions

     23  
20  

No personal dealings

     28  
21  

Grievance and disciplinary procedures

     28  
22  

Deductions and Clawback

     29  
23  

Anti-corruption provisions

     30  
24  

Staff Handbook

     30  
25  

Data protection

     30  
26  

Notices

     31  
27  

Former contracts of employment or other arrangements

     31  


28  

Variations and amendments

     32  
29  

Choice of law and submission to jurisdiction

     32  
30  

Miscellaneous

     32  


THIS AGREEMENT IS A DEED and is made on

   2020

BETWEEN:

 

(1)

F-Star Biotechnology Limited (Company Registration Number: 08067987) whose registered office is at Eddeva B920, Babraham Research Campus, Cambridge CB22 3AT (“Employer”/ “we”/ “us”), and

 

(2)

Neil Brewis of [ADDRESS] (“you”).

IT IS AGREED as follows:

 

1

Definitions and interpretation

 

1.1

In this Agreement unless the context otherwise requires the following expressions have the following meanings:

Board” means the Board of Directors from time to time of the Employer;

Confidential Information” means information in whatever form relating to the business, products, services, clients, customers, affairs and finances of the Employer or of any Group Company from time to time being confidential to it or to them or treated by it or them as such and trade secrets (including, without limitation, technical data and know-how) relating to the business of the Employer or of any Group Company or of any of its or their suppliers, clients or customers including by way of illustration only and without limitation:

 

  (a)

any trade secret or confidential or secret information concerning the business development, affairs, future plans, business methods, connections, operations, accounts, finances, organisation, processes, policies or practices, designs, dealings, trading, software, or know-how relating or belonging to the Employer or to any Group Company or any of its suppliers, agents, distributors, clients or customers;

 

  (b)

confidential computer software, computer-related know-how, passwords, computer programmes, specifications, object codes, source codes, network designs, business processes, business logic, inventions, improvements and/or modifications relating to or belonging to the Employer or any Group Company;

 

1


  (c)

details of the Employer’s or any Group Company’s financial projections or projects, prices or pricing strategy, advertising, marketing or development plans, product development plans or strategies, fee levels, commissions and commission structures, market share and pricing statistics, marketing surveys and research reports and their interpretation;

 

  (d)

any confidential research, report or development undertaken by or for the Employer or any Group Company;

 

  (e)

details of relationships or arrangements with, or knowledge of the needs or the requirements of, the Employer’s or any Group Company’s actual or potential clients or customers;

 

  (f)

information supplied in confidence by customers, clients or any third party to which the Employer or any Group Company owes an obligation of confidentiality;

 

  (g)

lists and details of contracts with the Employer’s or any Group Company’s actual or potential suppliers;

 

  (h)

information of a personal or otherwise of a confidential nature relating to fellow employees, directors or officers of, or consultants to, the Employer or any Group Company for which you may from time to time provide services; and

 

  (i)

confidential information concerning, or details of, any competitive business pitches, or target details;

Data Protection Legislation” means the General Data Protection Regulation (EU) 2016/679 (“GDPR”), Data Protection Act 2018 (“DPA”), and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or any successor to the GDPR, DPA, or Privacy and Electronic Communications Regulations) and the applicable version at the relevant time of any guidance or codes of practice issued by the Information Commissioner’s Office from time to time;

Employer Intellectual Property” means any Intellectual Property made, created or discovered by you during the Employment (whether or not in the course of the Employment or during normal hours of work or using our facilities) which:

 

  (a)

in any way affects or relates to the business of the Employer or any Group Company; or

 

2


  (b)

is capable of being used or adapted for use in or in connection with such business;

Employment” means your employment under this Agreement;

Financial Year” has the meaning ascribed to it in section 390 of the Companies Act 2006

ERA” means the Employment Rights Act 1996;

Group Company” means any company which is for the time being a subsidiary or holding company of the Employer and any subsidiary of any such holding company and for the purposes of this Agreement the terms “subsidiary” and “holding company” shall have the meanings ascribed to them by section 1159 Companies Act 2006;

Intellectual Property” means all intellectual and industrial property rights which may now or in the future subsist in any country of the world, including without limitation:

 

  (a)

patents, utility models, supplementary protection certificates and any other rights in inventions, discoveries and improvements;

 

  (b)

registered and unregistered trade marks, including any trade, brand or business names and get-ups(s), rights to sue for passing off or unfair competition and rights in domain names, devices and logos;

 

  (c)

registered and unregistered design rights;

 

  (d)

copyright (including all such rights in any information, know-how or techniques relating to the Employer’s business, and in any computer software and typographical rights) database rights and moral rights;

 

  (e)

all industrial, commercial and technical and accounts records and information (wherever located) relating to the activities of the Employer;

 

  (f)

the Confidential Information; and

 

  (g)

applications for registration and the right to apply for any registration of the above in any country in the world;

 

3


WTR” means the Working Time Regulations 1998.

 

1.2

References to clauses and schedules are unless otherwise stated to clauses of and schedules to this Agreement.

 

1.3

Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

 

1.4

A reference to a statute, statutory provision or regulation:

 

  (a)

is a reference to it as amended, extended or re-enacted from time to time (including as a result of the exercise of powers conferred on Ministers under the European Union (Withdrawal) Act 2018 or any similar legislation); and

 

  (b)

shall in the case of a statue or statutory provision include all subordinate legislation made from time to time under that statute or statutory provision.

 

1.5

The headings to the clauses are for convenience only and shall not affect the construction or interpretation of this Agreement.

 

2

Appointment

 

2.1

We appoint you and you agree to act as Chief Scientific Officer of the Employer or in such other capacity as we may from time to time reasonably direct on the terms of this Agreement. You recognise that this position is one of trust and confidence and that you will have access to Confidential Information. This is a key position in which you have a special obligation to further the interests of the Employer and any Group Company and to develop its or their businesses.

 

2.2

You represent and warrant that you are not bound by or subject to any court order, agreement, arrangement or undertaking which in any way restricts or prohibits you from entering into this Agreement, performing your duties under it or holding office as a director of the Employer or any Group Company.

 

2.3

You warrant that you are entitled to work in the United Kingdom without any additional approvals and will notify us immediately if you cease to be so entitled during the Employment.

 

4


3

Duration of the Employment

 

3.1

Your Employment commenced on 2 November 2015 and, subject to the provisions of this Agreement, shall continue unless and until terminated by either party giving to the other not less than six months’ written notice.

 

3.2

We shall have the discretion to terminate the Employment lawfully with immediate effect or on notice less than that required by clause 3.1 by notifying you that we are exercising our right under this clause 3.2 and that we will make within 28 days a payment in lieu of notice (“Payment in Lieu”) to you. The Payment in Lieu shall be a sum equal to, but no more than, the basic annual salary under clause 8.1 in respect of that part of the period of notice in clause 3.1 which we have not given to you. The Payment in Lieu shall be paid to you less any appropriate tax and other statutory deductions.

 

3.3

For the avoidance of doubt, the Payment in Lieu under clause 3.2 shall not include:

 

  3.3.1

any bonus or commission payments that might otherwise have been due;

 

  3.3.2

any benefits you would have been entitled to receive; or

 

  3.3.3

any holiday entitlement that would have accrued,

during the period by reference to which the payment is made (“Relevant Period”).

 

3.4

You will have no right to receive a Payment in Lieu unless the Employer has exercised its discretion under clause 3.2.

 

3.5

Notwithstanding the fact that we have purported to exercise our discretion to make a Payment in Lieu under clause 3.2, you shall nonetheless not be entitled to any such payment if we would have been entitled to terminate the Employment without notice in accordance with clause 17.2. In that case we shall be entitled to recover from you any Payment in Lieu already made.

 

3.6

At any time following service of notice of termination in accordance with clause 3.1 (whether given by us or you), we shall be entitled, by written notice to you, to place you on leave (“Garden Leave”) for the whole or any part of the period of the Employment remaining after the service of such notice.

 

5


3.7

During any period of Garden Leave:

 

  3.7.1

we shall be under no obligation to assign any duties to you and may revoke any powers you hold on behalf of the Employer or any Group Company and may remove you from any office held by you in the Employer or any Group Company;

 

  3.7.2

we may require you to carry out alternative duties or to only perform such specific duties as are expressly assigned to you, at such location (including your home) as we may decide;

 

  3.7.3

you shall ensure that the Employer knows where you will be and how you can be contacted during each working day (except during any periods taken as holiday in the usual way);

 

  3.7.4

we shall be entitled to exclude you from our premises and to instruct you not to contact (or attempt to contact) the officers, employees, agents, clients or customers of the Employer or of any Group Company;

 

  3.7.5

your entitlement to receive your normal salary and other contractual benefits shall continue, subject always to the relevant scheme or policy relating to such benefits; and

 

  3.7.6

you shall remain our employee and shall be bound by the terms of the Employment (other than to perform your duties under this Agreement unless specifically required to do so). In particular, but without limitation, you will remain bound by your obligations of loyalty and good faith, of exclusive service and of confidentiality, which preclude you taking up any other employment.

 

3.8

There is no probationary period applicable to the Employment.

 

3.9

For the purposes of the ERA your period of continuous employment began on 2 November 2015.

 

4

Scope of the Employment

 

4.1

During the Employment you shall:

 

  4.1.1

serve the Employer and each Group Company to the best of your ability;

 

6


  4.1.2

unless prevented by ill-health or incapacity devote the whole of your working time, attention and skill to the business and affairs of the Employer and to such other duties within the Employer or any Group Company consistent with your position as may be assigned to you during the continuance of the Employment;

 

  4.1.3

faithfully and diligently perform such duties and exercise such powers consistent with your position as may from time to time be assigned to or vested in you by the Board;

 

  4.1.4

do all reasonably in your power to protect, promote, develop and extend the business interests and reputation of the Employer and each Group Company;

 

  4.1.5

obey the reasonable and lawful directions of the Board;

 

  4.1.6

comply with the Memorandum and Articles of Association and of any Group Company and all other rules, regulations, policies and procedures from time to time in force in relation to the Employer or any Group Company;

 

  4.1.7

abide by any statutory, fiduciary or common law duties to the Employer or any Group Company of which you are a director;

 

  4.1.8

not do anything that would cause you to be disqualified from acting as a director;

 

  4.1.9

keep the Board at all times promptly and fully informed (in writing if so requested) of your conduct of the business of the Employer and any Group Company and provide such explanations in connection with it as the Board may require; and

 

  4.1.10

report your own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Employer or of any Group Company to the Board immediately on becoming aware of it.

 

4.2

You shall if and so long as we require and without any further remuneration carry out your duties on behalf of any Group Company and act as a director or officer of any Group Company.

 

7


4.3

You shall promptly disclose to the Board any information that comes into your possession which adversely affects or may adversely affect the Employer or any Group Company or the business of the Employer or any Group Company including, but not limited to:

 

  4.3.1

the plans of any other senior employee to leave the Employer or any Group Company (whether alone or in concert with any other employee), including, but not limited to, the plans of such an employee to join a competitor or to establish a business in competition with the Employer or any Group Company; and

 

  4.3.2

the misuse by any employee of any Confidential Information belonging to the Employer or any Group Company; and

 

  4.3.3

the conduct of any employee, agent or service provider which constitutes bribery within the meaning of the Bribery Act 2010.

 

4.4

We are not obliged to ensure that you become or remain a director of the Employer, and if you are/do become a director of the Employer, any removal from the Board in accordance with the Employer’s Articles of Association or otherwise will not be a breach of this Agreement by us.

 

4.5

We take a zero tolerance approach to tax evasion. You must not engage in any form of facilitating tax evasion, whether under UK law or under the law of any foreign country. You must immediately report to the Board any request or demand from a third party to facilitate the evasion of tax or any concerns that such a request or demand may have been made.

 

5

Training

 

5.1

As a senior employee, you are responsible for identifying and attending any training that is necessary for you to perform your duties to the high standard expected of you. The cost of such training will be normally be met by the Employer, providing that prior approval has been obtained in accordance with the Employer’s current training policy. You are also required to attend any training that we stipulate as mandatory.

 

5.2

Subject to any provision to the contrary elsewhere in this Agreement, there is no other training which the Employer requires you to complete and which the Employer will not pay for.

 

8


6

Hours of work

 

6.1

Our normal business hours are 9:00 am to 5:15 pm Monday to Friday.

 

6.2

Your remuneration package is calculated on the basis that you will not only work during normal business hours but also such additional hours as shall be necessary in order properly to perform your duties. You are therefore not entitled to any additional remuneration for work done outside normal business hours.

 

6.3

You agree that on account of the specific characteristics of your role and your responsibilities, all of your “working time” (as such expression is defined by the WTR) is not measured or predetermined. Accordingly you agree that the exemption under regulation 20(1) WTR shall apply to the Employment

 

6.4

Notwithstanding that the Employment is likely to be exempt (in accordance with clause 6.3 above), you nevertheless agree that the maximum average working time of 48 hours for each 7 day period which is contained in regulation 4(1) WTR shall not apply in relation to the Employment.

 

6.5

You may terminate your agreement to opt-out of regulation 4(1) WTR pursuant to clause 6.4 at any time by giving three months’ written notice to us of such termination. Upon such termination the other terms of the Employment will remain in force and shall not be affected.

 

7

Place of work

 

7.1

Your normal place of work will be our offices at Eddeva B920, Babraham Research Campus, Cambridge CB22 3AT but we may require you to work at any place (whether inside or outside the United Kingdom) for such periods as we may from time to time require (provided that the Board will provide you with at least two months’ notice of any change of your workplace and you will always be entitled to be based at the headquarters of the Employer) but not outside the United Kingdom for periods exceeding one month in any one year.

 

8

Remuneration

 

8.1

We shall pay you a salary at the rate of £250,000 per annum, on or before the last day of each calendar month by credit transfer to your bank account payable by equal monthly instalments in arrears (or such other sum as may from time to time be agreed). The rate of salary will be reviewed annually, but with no guarantee of salary increase.

 

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8.2

The salary specified in clause 8.1 shall be inclusive of any fees to which you may be entitled as a director of the Employer or any Group Company.

 

8.3

In addition to your annual salary, the Employer may in its absolute discretion pay you a bonus of such amount and at such intervals as the Employer may in its absolute discretion determine but shall not exceed 40% of your annual salary, taking into account specific performance targets as may be notified to you from time to time. If the Employer makes a bonus payment to you in respect of a Financial Year, it shall not be obliged to make subsequent bonus payments in respect of any subsequent Financial Year. You shall in any event have no right to a bonus (or a pro-rated bonus) if your employment terminates for any reason or you are under notice of termination (whether given by or received by you) at or prior to the date when a bonus might otherwise have been payable. Any bonus payment shall not be pensionable.

 

9

Expenses

 

9.1

We shall reimburse you in respect of all expenses reasonably incurred by you in the proper performance of your duties, subject to you providing such receipts or other evidence as we may require.

 

9.2

You shall abide by the Employer’s policies on expenses as communicated to you from time to time.

 

10

Holidays

 

10.1

You shall be entitled, in addition to all bank and public holidays normally observed in England, to 25 working days’ holiday, in each Holiday Year (being the period from January 1 to 31 December). Your holiday entitlement shall increase to 26 working days’ holiday in each Holiday Year after five years’ service and to 27 working days’ holiday in each Holiday Year after ten years’ service. This includes your entitlement under the WTR, which shall be deemed to have been taken first. You are required to take a minimum of 20 working days holiday (including bank and public holidays) in each Holiday Year. You may only take your holiday at such times as are agreed with the Board. Regulations 15(1) to 15(4) WTR shall not apply to the Employment.

 

10.2

You shall be entitled to be paid at the rate of 1/260th of the annual remuneration set out in clause 8.1 for each day of holiday to which you are entitled under this clause.

 

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10.3

The Employer reserves the right to nominate up to 4 days each year when holiday must be taken. These days are normally reserved for the period between Christmas and New Year.

 

10.4

In the Holiday Year in which the Employment terminates, your entitlement to holiday shall be deemed to accrue on a pro rata basis for each completed calendar month of service during the relevant year. If, on the termination of the Employment, you have exceeded your accrued holiday entitlement, the excess may be deducted from any sums due to you.

 

10.5

Other than where you are prevented from taking holiday as a result of illness or injury, you shall not be entitled to carry forward holiday entitlement from one Holiday Year to the next without the prior written consent of the Board.

 

10.6

If either party has served notice to terminate the Employment, we may require you to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 3.6.

 

11

Sickness benefits

 

11.1

On condition that you comply with clause 11.2 and subject to our right to terminate this Agreement (whether on grounds of ill health or otherwise), we shall continue to pay your salary and benefits during any period of absence on medical grounds up to a maximum of 26 weeks in any rolling period of 12 months.

 

11.2

You shall if required:

 

  11.2.1

supply us with medical certificates covering any period of sickness or incapacity;

 

  11.2.2

consent to the application by us to any medical practitioner treating you for a medical report, and the provision of such a report to us; and

 

  11.2.3

undergo at any time at our expense a medical examination by a doctor appointed by us.

 

11.3

Payment in respect of any other or further period of absence shall be at our discretion. Any payment to you pursuant to clause 11.1 shall be subject to set off by us in respect of any Statutory Sick Pay and any Social Security Sickness Benefit or other benefits to which you may be entitled.

 

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11.4

If your absence shall be occasioned wholly or partly by any act or omission of a third party in respect of which damages or compensation are recoverable, then you shall not be entitled to any remuneration (other than Statutory Sick Pay) but we may in our absolute discretion advance sums not exceeding the remuneration to which you would otherwise be entitled against your entitlement to damages or compensation (including interest at such rate as you are entitled to recover in respect of a claim for loss of earnings) and you shall:

 

  11.4.1

notify us immediately of all the relevant circumstances and of any claim, compromise, settlement or judgement made or awarded in connection with it; and

 

  11.4.2

if we so require, refund to us any amount received by you from any such third party provided that the refund shall be no more than the amount which you had recovered in respect of remuneration (plus interest).

 

11.5

Any payments made under clause 11.4 shall be subject to the maximum aggregate sum which we are permitted to lend under the restrictions relating to loans to directors contained in the Companies Act 2006.

 

12

Pension

 

12.1

You may join the Employer’s group personal pension scheme or such other registered pension scheme as may be set up by the Employer (“Pension Scheme”) subject to satisfying certain eligibility criteria and the rules of the Pension Scheme as amended from time to time.

 

12.2

If you join the Pension Scheme, the Employer shall contribute an amount equal to 8% of your basic salary to the Scheme during each year of the Employment. The Employer’s contributions to the Pension Scheme shall be payable in equal monthly instalments in arrears, and shall be subject to the rules of the Pension Scheme and the tax reliefs and exemptions available from HM Revenue & Customs, as amended from time to time.

 

12.3

The Pension Scheme currently operates via a salary exchange (“Salary Exchange”), whereby you agree to exchange part of your salary for a non-cash benefit, (in this case pension contributions) and to give up your contractual right to future cash remuneration

 

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  for the amount of salary exchanged whilst you are in receipt of these benefits. Under Salary Exchange you will receive all of your eligible tax relief immediately and pay reduced National Insurance contributions.

 

12.4

Your basic salary before the Salary Exchange will be known as your ‘notional basic salary’, and any salary review will be based on the ‘notional basic salary’. The Employer will not allow you to enter into the Salary Exchange if it takes you below the National Minimum Wage. All earnings related payments or benefits that you receive from the Employer will be based upon the ‘notional basic salary’.

 

12.5

You may opt out of the Salary Exchange arrangement if you wish.

 

13

Death benefits and medical insurance

 

13.1

We shall during the continuance of the employment, provide you with life assurance cover which in the event of death during the continuance of the Employment, will pay a lump sum equal to 4 times the then annual rate of salary payable in accordance with clause 8.1 (provided that the provision of cover shall be subject to you complying with and satisfying requirements of the relevant insurers and subject to the insurance premiums being at reasonable and standard rates).

 

13.2

During the Employment you shall participate in such expenses insurance schemes as we shall from time to time maintain for your benefit, subject to our right to terminate this Agreement and subject to the insurer accepting you for cover under the relevant scheme and at normal rates and subject to the rules of such scheme or policy from time to time. Success or failure of a claim under such scheme is entirely a matter for the scheme insurer and we accept no obligation to take any legal or other proceedings to challenge or enforce the scheme insurer’s decision in respect of any such claim.

 

14

Restrictions during the Employment

 

14.1

During the Employment you shall not:

 

  14.1.1

be directly or indirectly employed, engaged, concerned or interested in any other business or undertaking save that nothing in this Agreement shall prevent you from engaging in limited external advisory or consultancy activities (or similar) and whether or not of a remunerative nature provided that such external activities shall not in any way conflict with or interfere in any way with your obligations under this Agreement or be prejudicial to the interests of the Employer or any Group Company; or

 

13


  14.1.2

engage in any activity which the Board reasonably considers may be, or become harmful to the interests of the Employer or of any Group Company or which might reasonably be considered to interfere with the performance of your duties under this Agreement.

 

14.2

Clause 14.1 shall not apply:

 

  14.2.1

to you holding (directly or through nominees) investments listed on the London Stock Exchange or in respect of which dealing takes place in the Alternative Investment Market on the London Stock Exchange or any recognised stock exchange as long as you do not hold more than 5% of the issued shares or other securities of any class of any one company; or

 

  14.2.2

to any act undertaken by you with the prior written consent of the Board.

 

14.3

You confirm that you have disclosed to us (and will continue to do so promptly throughout the Employment) all circumstances in respect of which there is or might be a conflict of interest between you (or members of your immediate family) and the Employer or any Group Company.

 

15

Confidential Information and Employer documents

 

15.1

Without prejudice to your common law duties and your obligations under clause 25, you shall neither during the Employment (except in the proper performance of your duties) nor at any time after the termination of the Employment (howsoever caused):

 

  15.1.1

disclose to any person, company, business entity or other organisation;

 

  15.1.2

use for your own purposes or for any purposes other than those of the Employer or any Group Company; or

 

  15.1.3

through any failure to exercise due care and diligence, permit or cause any unauthorised disclosure of

any Confidential Information, save as required by law. These restrictions shall cease to apply to any information which shall become available to the public generally (otherwise than through your default or the default of any third party connected in any way with you).

 

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15.2

All notes and records (both originals and copies) wherever located and whether on paper, computer disk, computer memory, smartphone, tablet, memory stick or other media, which contain any Confidential Information or which you have made or acquired in the course of the Employment:

 

  15.2.1

shall be and remain the property of the Employer or the relevant Group Company;

 

  15.2.2

shall not be removed from the Employer’s premises (or the premises of any Group Company) except in the course of your duties; and

 

  15.2.3

shall be handed over by you to the Employer or to the relevant Group Company on demand and in any event on the termination of the Employment (for whatever reason).

 

15.3

You shall on demand by us and in any event on the termination of the Employment (howsoever caused) irretrievably delete any Confidential Information stored on any magnetic or optical disk or memory, including personal computer networks, personal e-mail accounts or personal accounts on websites, and all matter derived from such sources which is in your possession or under your control outside our premises. For the purposes of this clause 15 you agree that any business connections added during the Employment to any personal LinkedIn accounts (or to any other personal social media accounts used by you in whole or in part for the purposes of Employer’s business) shall be regarded as the property of the Employer (whether or not Confidential Information) and shall be deleted on termination of the Employment.

 

15.4

You shall provide written confirmation that you have made a diligent search for, and delivered to us, all the notes and records described in clause 15.2 and have irretrievably deleted any Confidential Information described in clause 15.3 when requested to do so by us, whether during or after the Employment together with such reasonable evidence of compliance as we may request.

 

15.5

Nothing in this clause 15 shall prevent you from making a protected disclosure within the meaning of section 43A ERA or a relevant pay disclosure as defined in section 77 Equality Act 2010. In circumstances where you consider it is necessary to make such a disclosure, you should first raise the issue with the Board, or if your concerns relate to certain members of the Board, to an officer or officers of the Employer who you believe are not involved or implicated in the relevant matter.

 

15


16

Inventions and other intellectual property

 

16.1

You acknowledge that you may make, discover or create Intellectual Property in the course of your duties and agree that in this respect you have a special obligation to further the interests of the Employer and any Group Company.

 

16.2

You agree to disclose to us in writing full details of any Employer Intellectual Property promptly following its making, creation or discovery.

 

16.3

You agree that any Employer Intellectual Property shall so far as the law permits belong to and be the absolute property of the Employer or any other Group Company as the Employer may direct upon creation and:

 

  16.3.1

to the extent that the same does not automatically belong to us upon creation, undertake to hold any such Employer Intellectual Property upon trust for the benefit of the Employer until such time as it shall be vested absolutely in the Employer or such other Group Company; and

 

  16.3.2

hereby assign to the Employer or such other Group Company with full title guarantee by way of present and future assignment all such Employer Intellectual Property.

 

16.4

If and when we require you so to do you shall, at our expense, as the Employer or any other Group Company may direct:

 

  16.4.1

give and supply to the Employer or such Group Company all such information, data, drawings and assistance as the Employer or such Group Company may require in order to exploit the Employer Intellectual Property to best advantage;

 

  16.4.2

apply or join with the Employer or such Group Company in applying for patents or other protection or registration in the United Kingdom and in any other part of the world for the Employer Intellectual Property; and

 

  16.4.3

execute and do all instruments and things necessary for vesting in the Employer or such Group Company or in such other person as the Employer may specify, as sole beneficial owner, any Employer Intellectual Property including such patents or other protection or registration when obtained and all right, title and interest to and in them absolutely.

 

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16.5

You irrevocably and unconditionally waive any and all moral rights in connection with your authorship of any existing or future copyright work made or created by you during the Employment. For the avoidance of doubt, this clause 16.5 will not apply to any copyright work made or created by you in the course of your carrying out such external activities as are permitted under clause 14.1.1.

 

16.6

You irrevocably appoint the Employer to be your attorney in your name and on your behalf to execute and do any such instrument or thing and generally to use your name for the purpose of giving to the Employer the full benefit of this clause. In favour of any third party, a certificate in writing signed by any director or by the secretary of the Employer that any instrument or act falls within the authority conferred by this clause shall be conclusive evidence that such is the case.

 

16.7

The rights and obligations under this clause shall continue in force after termination of this Agreement in respect of Employer Intellectual Property and shall be binding on your representatives.

 

16.8

Nothing in this clause shall be construed as restricting your rights under sections 39 to 43 Patents Act 1977.

 

17

Termination

 

17.1

For the avoidance of doubt, where there are no circumstances justifying summary dismissal under clause 17.2 the methods by which we may terminate this Agreement are not confined to the giving of notice as provided elsewhere in this Agreement or the making of a Payment in Lieu in accordance with clause 3.2. Accordingly if we terminate this Agreement without notice or a Payment in Lieu then any damages to which you may be entitled shall be calculated in accordance with ordinary common law principles including those relating to mitigation of loss.

 

17.2

Notwithstanding any other provisions of this Agreement in any of the following circumstances we may terminate the Employment immediately by serving written notice on you to that effect. In such event you shall not be entitled to any further payment from us except such sums as shall have accrued due at that time. The circumstances are if you:

 

  17.2.1

commit any serious breach of this Agreement or are guilty of any gross misconduct or any wilful neglect in the discharge of your duties;

 

  17.2.2

repeat or continue (after warning) any breach of this Agreement;

 

17


  17.2.3

are guilty of any fraud, dishonesty or conduct tending to bring you, the Employer, or any Group Company into disrepute;

 

  17.2.4

are declared bankrupt or make any arrangement with or for the benefit of your creditors or have a county court administration order made against you under the County Court Act 1984;

 

  17.2.5

are convicted of any criminal offence (other than minor road traffic offences for which a fine or non-custodial penalty is imposed) which might reasonably be thought to affect adversely the performance of your duties;

 

  17.2.6

cease to be eligible to work in the United Kingdom;

 

  17.2.7

refuse (without reasonable cause) to accept the novation by the Employer of this Agreement, or an offer of employment on terms no less favourable to you than the terms of this Agreement, by any company which acquires or agrees to acquire not less than 90 per cent of the issued equity share capital of the Employer; or

 

  17.2.8

resign (otherwise than at our request) as, or otherwise cease to be, or become prohibited by law from being, a director of the Employer or any Group Company.

 

17.3

If at any time you are unable to perform your duties properly because of ill health, accident or otherwise for a period or periods totalling at least three months in any period of 12 consecutive calendar months then we may appoint another person to act in your place in any position to which you may be assigned during the Employment.

 

17.4

On the termination of the Employment or upon either us or you having served notice of such termination, you shall:

 

  17.4.1

at our request resign from office as a director of the Employer and all offices you hold in any Group Company, without claim for compensation for loss of office, provided however that such resignation shall be without prejudice to any claims which you may have against the Employer or any Group Company arising out of the termination of the Employment;

 

  17.4.2

at our request resign from all trusteeships you hold of any pensions scheme or other trusts established by the Employer or any Group Company; and

 

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  17.4.3

immediately deliver to us all materials within the scope of clause 15.2 and your lap-top, tablet and any other computer or similar equipment, all computer and other passwords, keys, ID or access cards, credit cards, mobile phones (including the original sim card), and other property of or relating to the business of the Employer or of any Group Company which may be in your possession or under your power or control,

and you irrevocably authorise us to appoint any person in your name and on your behalf to sign any documents and do any things necessary or requisite to give effect to your obligations under this clause 17.4.

 

17.5

Following termination of the Employment you agree to make yourself available to, and to cooperate with, us or our advisers in any internal investigation or regulatory proceedings arising out of matters which formed part of your responsibilities during the Employment. You acknowledge that this could involve, but is not limited to, responding to or defending any regulatory or legal process, providing information in relation to any such process, preparing witness statements and giving evidence in person on our behalf.

 

17.6

On termination of the Employment (howsoever caused) you shall not be entitled to any compensation for the loss of any rights or benefits under any share option, bonus, long-term incentive plan or other profit sharing scheme operated by the Employer or any Group Company in which you may participate.

 

17.7

Any delay in exercising the right of termination conferred by this clause 17 shall not constitute a waiver of it.

 

18

Severance benefits upon termination

 

18.1

For the purposes of this clause 18 the following words and phrases shall have the following meanings:

Basic Salary” means your basic annual salary (in accordance with clause 8.1) as at the date of the termination of your Employment.

Cause” means any of the circumstances set out in clause 17.2 and/or where the Employer has a potentially far reason to terminate the Employment pursuant to s.98 ERA.

 

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Change of Control” means the occurrence of any of the following events:

 

  (a)

a sale, lease or other disposition of all or substantially all of the assets of the Employer; or

 

  (b)

a consolidation or merger of the Employer with or into any other corporation or other entity or person, or any other corporate reorganisation, in which the shareholders of the Employer immediately prior to such consolidation, merger or reorganisation, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (and its parent) following the consolidation, merger or reorganisation; or

 

  (c)

any transaction (or series of related transactions involving a person or entity, or a group of affiliated persons or entities) in which in excess of fifty percent (50%) of the Employer’s outstanding voting power is transferred.

For the avoidance of doubt, the transactions contemplated by the Exchange Agreement shall not be considered a Change of Control for purposes of this Agreement.

Exchange Agreement” means the share exchange agreement to be entered into by (i) F-star Therapeutics Ltd; (ii) Spring Bank Pharmaceuticals, Inc.; and (iii) others.

Good Reason” means:

 

  (a)

a material diminution in the nature or scope of your title, duties, or responsibilities occurring without your consent; or

 

  (b)

a material reduction in your Basic Salary, which for purposes of this Agreement shall mean a reduction of more than fifteen percent (15%) in the aggregate, other than any reduction applying in a similar fashion to similarly situated executives of the Employer, without your consent.

Severance Sum” shall mean either:

 

  (a)

a sum equal to 12 months’ Basic Salary, in circumstances where a Qualifying Termination takes effect during the 12 month period immediately following a Change of Control; or

 

  (b)

a sum equal to 9 months’ Salary, in circumstances where a Qualifying Termination takes effect more than 12 months following a Change of Control.

Qualifying Termination” means termination of the Employment

 

20


  (a)

by the Employer (whether with or without notice) without Cause; or

 

  (b)

by you for Good Reason.

 

18.2

In the event of a Qualifying Termination the Employer shall pay to you the Severance Sum (as adjusted in accordance with clauses 18.3 and 18.4 below) in accordance with the provisions set out in this clause 18. SUBJECT ALWAYS to the provisions of clauses 18.5, 18.6 and 18.10 being satisfied.

 

18.3

If the Employer terminates the Employment without Cause by giving you a period of notice, (whether under clause 3.1 or otherwise), the Severance Sum shall be reduced by a sum equal to the salary, benefits and any other payments received by you from the Employer during your notice period (whether such notice period is worked by you or whether some or all of it is spent on Garden Leave in accordance with clause 3.6.

 

18.4

If the Employer terminates the Employment without Cause by making a Payment In Lieu to you in accordance with clause 3.2, the Severance Sum shall be reduced by a sum equal to the Payment in Lieu received you.

 

18.5

The payment or provision of the Severance Sum shall be subject to and conditional on (and in consideration of) the following:

 

  18.5.1

the Employment subject to a Qualifying Termination;

 

  18.5.2

you having complied with your obligations under clause 17.4;

 

  18.5.3

the Employer (acting reasonably) determining that, as at the Termination Date, you had met all of your applicable performance conditions and/or targets for the Financial Year in which the Employment terminates (pro-rated as appropriate);

 

  18.5.4

you having complied with and continuing to comply with:

 

  (i)

the implied duty of fidelity and common law duty of confidentiality; and

 

  (ii)

your express obligations relating to confidentiality, intellectual property and post-termination restrictions as set out in clauses 15, 16 and 19 respectively; and

 

21


  18.5.5

the restrictive covenants contained in clause 19 being reaffirmed by you so that they shall apply and you shall continue to be bound by them, notwithstanding that the Employment may, or without the payment of the Severance Sum might, otherwise have been repudiated by the Employer.

 

18.6

In circumstances where a Qualifying Termination takes effect during the 12 month period immediately following a Change of Control, in addition to your right to receive the Severance Sum in accordance with this clause 18, any options or RSUs granted to you under any equity incentive plan adopted or to-be-adopted by the Employer shall, to the extent not assumed by an acquirer, vest in full.

 

18.7

The Severance Sum shall be paid less such deductions as are required by law, and shall be in full and final settlement of all claims or rights of action which you have or may have against the Employer or any Group Company and their respective officers, non-executive directors, shareholders, employees or agents, arising out of or in connection with your Employment or its termination or otherwise whether arising under statute, contract, at common law, in equity or any other legislation or regulation applicable under English, European or US law. You shall not be entitled to any further compensation in respect of the termination of your employment and you agree to waive, release and discharge any or all such rights and claims. You acknowledge that it is a condition of the receipt of the Severance Sum that you shall enter into a legally binding settlement agreement with the Employer (and any such additional documents as may be reasonably required), in a form acceptable to the Employer (“Settlement Agreement”).

 

18.8

The Severance Sum shall be paid to you within 28 days of the Settlement Agreement becoming legally binding or the Termination Date (whichever is later).

 

18.9

For the avoidance of doubt the payment or provision of the Severance Sum shall not affect your entitlement as at the Termination Date to any of the following:

 

  18.9.1

any accrued but unpaid salary;

 

  18.9.2

any payment in lieu of accrued but unused holiday; or

 

  18.9.3

the reimbursement of your expenses, provided that all claims for reimbursement are submitted within 14 days of the Termination Date.

 

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18.10

For the avoidance of doubt, the Employer shall not pay the Severance Sum to you in circumstances where:

 

  18.10.1

you serve notice to terminate the Employment for any reason other than for Good Reason;

 

  18.10.2

you terminate the Employment without giving due notice for any reason whatsoever (including but not limited to where this is in response to an alleged breach of contract by the Employer);

 

  18.10.3

the Employer is entitled to terminate the Employment without notice and without a Payment in Lieu in accordance with clause 17.2; or

 

  18.10.4

as at the Termination Date the Employer has made a resolution for its winding up, an arrangement or composition with its creditors or has made an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order has been made or an administrator or receiver has been appointed in relation to the Employer.

 

18.11

If at any time during the 12 month period immediately following the payment of the Severance Sum to you under this clause 18, the Employer subsequently becomes aware that:

 

  18.11.1

it would have been entitled to terminate the Employment without notice and without a Payment in Lieu in accordance with clause 17.2; or

 

  18.11.2

you had, on or before the Termination Date, committed a breach of either:

 

  (i)

the provisions of clauses 14, 15, 16 or 19; and/or

 

  (ii)

the implied duty of fidelity or common law duty of confidentiality

then the Employer shall be entitled to claw-back and recover the Severance Sum from you in its entirety. In such event, you shall, if so required by the Employer and without prejudice to the Employer’s other remedies, immediately repay on demand an amount equal to the Severance Sum paid to you (after deductions for income tax and National Insurance) plus, if requested any sum in respect of income tax and National Insurance paid on the Severance Sum which you can recover from HM Revenue and Customs (or its successors). The sum to be repaid shall be payable to the Employer within 28 days of the demand and shall be recoverable by the Employer as a debt.

 

19

Post-termination restrictions

 

19.1

For the purposes of clause 19.2 the following words shall have the following meanings:

Confidential Information” shall have the meaning ascribed thereto in clause 1.1;

 

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Counterparty” shall mean any supplier, client, customer, person, firm, company or other entity whatsoever:

 

  (a)

who or which is an investor in the Employer at the Termination Date or who or which invested in the Employer at any time in the period of 12 months immediately preceding the Termination Date;

 

  (b)

who or which had regular dealings with the Employer in connection with or arising out of the business of the Employer at the Termination Date or at any time in the period of 12 months immediately preceding the Termination Date (and shall include without limitation any person, company, or other entity with whom there was an actual arrangement for a joint venture with the Employer or an arrangement for the provision of goods or services to, by, or in conjunction with the Employer);

 

  (c)

who or which is a client or customer of the Employer at the Termination Date or who or which was a client or customer of the Employer at any time in the period of 12 months immediately preceding the Termination Date;

and in each case, during the 12 months immediately preceding the Termination Date, (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the 12 month period immediately preceding the commencement of that Garden Leave):

 

  (a)

with whom or with which you had material dealings in the course of the Employment;

 

  (b)

of or about whom you acquired Confidential Information or trade secrets or material knowledge or material information in the course of the Employment; or

 

  (c)

with whom or with which any employee who was under your direct or indirect supervision had material dealings in the course of his employment.

Prospective Counterparty” means any supplier, client, customer, person, firm, company or other entity whatsoever with whom or with which the Employer during the 12 months immediately preceding the Termination Date had negotiations or discussions regarding:

 

  (a)

possible investment in the Employer;

 

24


  (b)

having regular dealings with the Employer in connection with or arising out of the business of the Employer;

and in each case, during the 12 months immediately preceding the Termination Date, (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the 12 month period immediately preceding the commencement of that Garden Leave):

 

  (a)

with whom or which you had material dealings in the course of the Employment;

 

  (b)

of whom or which you acquired Confidential Information or trade secrets or material knowledge or material information in the course of the Employment; or

 

  (c)

with whom or which any employee who was under your direct or indirect supervision had material dealings in the course of his employment.

Restricted Business” means the business of the Employer related to the design, manufacture, production, research or sale of antibodies or fragments containing antigen-binding sites engineered into non-CDR loops, relating to the activities with which you were concerned or involved in the course of your employment during the 12 months immediately preceding the Termination Date, (or, if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, the 12 month period immediately preceding the commencement of that Garden Leave) or for which you had been responsible during such period.

Restricted Period” means the period of 12 months immediately following the Termination Date, provided always that if the Employer exercises its rights under clause 3.6 to place you on Garden Leave, it shall mean the period of 12 months immediately following the commencement of the Garden Leave period.

Restricted Person” means any person who is employed at the Termination Date or has at any time in the period of 12 months prior to the Termination Date been:

 

  (d)

employed by the Employer; or

 

  (e)

engaged as a consultant to the Employer;

and in either case is in a senior employee or a senior technical or senior advisory capacity in the Restricted Business and who was known to or worked with you during that period.

 

25


Termination Date” means the date of termination of the Employment (howsoever caused).

 

19.2

Without prejudice to clause 14.1 you hereby undertake that you will neither during the Employment nor during the Restricted Period without our prior written consent (such consent not to be unreasonably withheld) whether on your own behalf or on behalf of any other person, firm, company or other organisation, directly or indirectly:

 

  19.2.1

in competition with the Employer, be employed or engaged or otherwise interested in any Restricted Business;

 

  19.2.2

in competition with the Employer, in respect of Restricted Business, solicit business from or canvass or entice away or endeavour to solicit business from, or canvass or entice away any Counterparty or Prospective Counterparty;

 

  19.2.3

in competition with the Employer, in respect of Restricted Business, have any business dealings with, any Counterparty or Prospective Counterparty;

 

  19.2.4

interfere or take such steps as may be likely to interfere with the continuance of supplies to the Employer in respect of the Restricted Business (or the terms relating to such supplies) from any Counterparty or Prospective Counterparty or seek to damage the relationship between any such person and the Employer;

 

  19.2.5

solicit or induce or endeavour to solicit or induce any person who, on the Termination Date, was a Restricted Person to cease working for or providing services to the Employer, whether or not any such person would thereby commit a breach of contract;

 

  19.2.6

employ or otherwise engage in Restricted Business any person who, on the Termination Date was a Restricted Person; or

 

  19.2.7

cause or permit any third party directly or indirectly under your control to do any of the acts or things specified above.

 

26


19.3

Clause 19.2 shall also apply as though there were substituted for references to “the Employer” references to each Group Company in relation to which you have in the course of your duties for the Employer or by reason of rendering services to or holding office in such Group Company:

 

  19.3.1

acquired knowledge of its trade secrets or Confidential Information; or

 

  19.3.2

had personal dealings with its Counterparties or Prospective Counterparties; or

 

  19.3.3

supervised employees having personal dealings with its Counterparties or Prospective Counterparties

but so that references in clauses 19.1 and 19.2 to “Employer” shall for this purpose be deemed to be replaced by references to the relevant Group Company. The obligations undertaken by you pursuant to this clause 19.3 shall, with respect to each Group Company, constitute a separate and distinct covenant and the invalidity or unenforceability of any such covenant shall not affect the validity or enforceability of the covenants in favour of any other Group Company or the Employer.

 

19.4

The benefit of the restrictions in clause 19.3 is held by the Employer for itself and on trust for each Group Company and shall be enforceable on behalf of each Group Company as though it were a party to this Agreement.

 

19.5

You shall not at any time after the Termination Date directly or indirectly represent yourself as being interested in or employed by or in any way connected with the Employer or any Group Company, other than as a former employee of the Employer and you shall not (whether directly or indirectly and whether on your own or through an association of any kind with any third party) make use of any corporate or business name which is used by the Employer or any Group Company, or which is similar to or likely to be confused with any such name.

 

19.6

None of the restrictions in this clause 19 shall prevent you from:

 

  19.6.1

holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or

 

  19.6.2

being engaged or concerned in any business concern insofar as your duties or work shall relate solely to geographical areas where the business concern is not in competition with the Employer in respect of any Restricted Business; or

 

27


  19.6.3

being engaged or concerned in any business concern, provided that your duties or work shall relate solely to services or activities of a kind with which you were not concerned to a material extent in the 12 months before the Termination Date.

 

19.7

While the restrictions in this clause 19 are considered by the parties to be reasonable in all the circumstances, it is agreed that if any such restrictions, by themselves, or taken together, shall be adjudged to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Employer or a Group Company but would be adjudged reasonable if part or parts of the wording thereof were deleted, the relevant restriction or restrictions shall apply with such deletion(s) as may be necessary to make it or them valid and effective.

 

19.8

If your employment is transferred to any firm, company, person or entity other than a Group Company (the “New Employer”) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, you will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding to those restrictions in this clause 19, protecting the confidential information, trade secrets and business connections of the New Employer.

 

19.9

You will, at our request and our expense, enter into a separate agreement with any Group Company in which you agree to be bound by restrictions corresponding to those restrictions in this clause 19 (or such of those restrictions as we deem appropriate) in relation to that Group Company.

 

20

No personal dealings

 

20.1

You shall not without the written consent of the Board make or seek to make on your behalf or (otherwise than properly in the performance of your duties to the Employer) on behalf of any other person, firm or company any contract or other arrangement of a commercial nature with any actual or prospective customer, contractor or supplier of the Employer or any Group Company.

 

21

Grievance and disciplinary procedures

 

21.1

You are subject to the Employer’s disciplinary and grievance procedures, copies of which are available from the Employer. These procedures do not form part of your contract of employment and may be modified at any time.

 

28


21.2

If you want to raise a grievance, you may apply in writing to the Chief Executive Officer (or his nominee) in accordance with the Employer’s grievance procedure.

 

21.3

If you wish to appeal against a disciplinary decision you may apply in writing to the Chief Executive Officer (or his nominee) in accordance with the Employer’s disciplinary procedure.

 

21.4

We may at any time suspend you from any or all of your duties during any period in which we are carrying out any disciplinary investigation involving you, or while any disciplinary procedure against you is outstanding.

 

21.5

During any period of suspension in accordance with clause 21.4:

 

  21.5.1

your entitlement to receive your normal salary and other contractual benefits shall continue, subject always to the relevant scheme or policy relating to such benefits;

 

  21.5.2

you shall remain an employee of the Employer and shall be bound by the terms of the Employment;

 

  21.5.3

you shall ensure that the Employer knows where you will be and how you can be contacted during each working day (except during any periods taken as holiday in the usual way);

 

  21.5.4

we shall be entitled to exclude you from our premises and to instruct you not to contact (or attempt to contact) the employees, agents, clients or customers of the Employer or of any Group Company; and

 

  21.5.5

we may require you to lodge with us all or any of the items referred to in clause 17.4.3.

 

21.6

The provisions of this clause shall not apply to any action taken by the Employer under clause 17.3.

 

22

Deductions and Clawback

 

22.1

For the purposes of the ERA you authorise us at any time during the Employment, and in any event on termination howsoever arising, to deduct from your remuneration under this Agreement (which for this purpose includes salary, commission, bonus, holiday pay, sick pay and pay in lieu of notice) any monies due from you to us including, but not limited to, any outstanding loans, advances, the cost of repairing any damage or loss of our property caused by you (and of recovering it), excess holiday, and any other monies owed by you to us.

 

29


23

Anti-corruption provisions

 

23.1

We take a zero tolerance approach to bribery and corruption. You must comply with the Bribery Act 2010 and related procedures at all times.

 

23.2

In particular you shall not during the term of this Agreement without the consent of the Board seek or accept from any actual or prospective customer, contractor or supplier of the Employer or any Group Company any gift, gratuity or benefit of more than a trivial value or any hospitality otherwise than properly in the performance of your duties to the Employer or any Group Company of a kind and value.

 

24

Staff Handbook

 

24.1

Your attention is drawn to the policies and procedures set out in the Employer’s Staff Handbook a copy of which has been supplied to you. You agree to abide by those policies and procedures.

 

24.2

The Staff Handbook also includes details of any paid leave to which you are entitled, in addition to your entitlement to sick pay and holiday pay set out above.

 

24.3

Save as set out in this Agreement or referred to in clause 24.2 you are not entitled to any other benefits provided by the Employer.

 

25

Data protection

 

25.1

You agree to act in accordance with Data Protection Legislation at all times both during the Employment and following its termination (for any reason) and to comply at all times with any policy introduced by us in order to comply with Data Protection Legislation, including any policy on the transfer of data outside the European Economic Area.

 

25.2

You acknowledge that we will process personal data about you in accordance with and to the extent permitted by Data Protection Legislation in order for us to perform our obligations under this Agreement, for example paying your salary, or to pursue our legitimate interests. Personal data relating to you may be kept electronically or in hard copy format.

 

25.3

You acknowledge that we will process special category personal data relating to you in accordance with and to the extent permitted by Data Protection Legislation in order for us to perform or exercise obligations or rights imposed or conferred by law on us in connection with employment, social security or social protection.

 

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25.4

We agree to abide by our commitments under any policy introduced by us in order to comply with Data Protection Legislation and to process personal data (including special category personal data) in relation to you in accordance with any privacy/fair processing notices notified to you.

 

25.5

In this clause the expressions “personal data” and “special category personal data” have the same meanings as those expressions bear in the General Data Protection Regulation (EU) 2016/679.

 

26

Notices

 

26.1

Any notice or other document to be given under this Agreement shall be in writing and may be given personally to you or to the Secretary of the Employer or may be sent by first class post or other fast postal service or by facsimile transmission to, in the case of the Employer, its registered office for the time being and in your case either to your address shown on the face of this Agreement or to your last known place of residence.

 

26.2

Any such notice shall (unless the contrary is proved) be deemed served when in the ordinary course of the means of transmission it would be first received by the addressee in normal business hours. In proving such service it shall be sufficient to prove, where appropriate, that the notice was addressed properly and posted, or that the facsimile transmission was despatched.

 

26.3

A notice required to be given under this Agreement shall not be validly given if sent by e-mail.

 

26.4

The provisions of this clause do not apply to the service of legal proceedings.

 

27

Former contracts of employment or other arrangements

 

27.1

This Agreement, and any agreements referred to in it, contains the entire understanding between the parties and supersedes any previous agreements and arrangements (if any), relating to your employment, which shall be deemed to have been terminated by mutual consent as from the date of this Agreement and you acknowledge that you have no outstanding claims of any kind against the Employer or any Group Company in respect of any such agreement or arrangement.

 

31


28

Variations and amendments

 

28.1

No modification, variation or amendment to this Agreement shall be effective unless it is in writing and signed by or on behalf of each party.

 

29

Choice of law and submission to jurisdiction

 

29.1

The validity, construction and performance of this Agreement, and any claim, dispute or matter arising under or in connection with it or its enforceability, shall be governed by and construed in accordance with English law.

 

29.2

The parties submit to the exclusive jurisdiction of the English Courts over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability or the legal relationships established by this Agreement.

 

30

Miscellaneous

 

30.1

No provisions of this Agreement may be enforced by a person who is not a party to this Agreement in their own right, and the whole or any part of this Agreement may be rescinded or varied without the consent of any such third party.

 

30.2

You confirm that prior to entering into this Agreement you took independent legal advice on the nature, extent and enforceability of your obligations under this Agreement and confirm that you were advised that each of the separate covenants set out in clause 19 are enforceable against you. You confirm you understand that your remuneration under this Agreement has been agreed on the basis that such covenants are binding on you and enforceable against you.

 

30.3

You agree that if you apply for or are offered employment or any other engagement with any other person or organisation during the Employment, or while any or the post-termination restrictions in clause 19 remain in force, you will supply any such third party with a copy of this Agreement before entering into any such arrangement to ensure that that party is fully aware of your obligations to us.

 

30.4

There are no collective agreements applicable to the Employment.

 

30.5

The expiration or termination of this Agreement shall not prejudice any claim which either party may have against the other in respect of any pre-existing breach of this Agreement nor shall it prejudice the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to or has the effect of coming into or continuing in force on or after such expiration or termination.

 

32


30.6

This Agreement constitutes your written statement of the terms of your employment provided in compliance with Part I of the ERA.

This document has been executed as a DEED and is delivered and takes effect on the date stated at the beginning of it.

 

Executed as a DEED by F-STAR

BIOTECHNOLOGY LIMITED acting by a

director and the secretary:

    

)

)

)

 

 

 

  

/s/ Eliot Forster

  
     )      Director’s signature   
     

Eliot Forster

  
  

Director’s name

  

Witness’ signature:

      /s/ Laura Hare   

Witness’ name (BLOCK CAPITALS):

      LAURA HARE   

Witness’ address:

      [ADDRESS]   

Witness’ occupation:

      [OCCUPATION]   

Signed by NEIL BREWIS as a DEED in the

presence of:

    

)

)

 

 

   /s/ Neil Brewis   
Witness’ signature:       /s/ Ana Fernandes   
Witness’ name (BLOCK CAPITALS):       ANA FERNANDES   
Witness’ address:       [ADDRESS]   
Witness’ occupation:       [OCCUPATION]   

 

33

EX-10.4

Exhibit 10.4

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into effective as of July 24, 2020 (the “Effective Date”) by and between F-Star Therapeutics LLC (the “Company”), and Louis Kayitalire (the “Executive”).

RECITALS

WHEREAS, the Executive is currently employed by the Company pursuant to the terms of an Offer Letter dated May 24, 2019 (the “Offer Letter”); and

WHEREAS, the Company’s parent, F-Star Therapeutics Ltd., has entered into or anticipates entering into a Share Exchange Agreement with Spring Bank Pharmaceuticals, Inc., and certain other parties (the “Exchange Agreement”).

NOW THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions and conditions set forth in this Agreement, the parties hereby agree:

1. Employment. The Executive’s employment with the Company pursuant to the terms of this Agreement will commence on the Effective Date.

2. Term. This Agreement will continue in effect until terminated in accordance with Section 5. The term of Executive’s employment is hereafter referred to as the “Term.” The effective date of Executive’s termination of employment with the Company is hereafter referred to as the “Termination Date.”

3. Duties and Performance.

(a) During the Term, the Executive shall serve the Company as its Chief Medical Officer. In addition, and without further compensation, the Executive shall serve as a director and/or officer of the Company and/or one or more of the Company’s Affiliates to the extent so elected or appointed from time to time. For purposes of this Agreement, “Affiliate” means any person or entity directly or indirectly controlling, controlled by or under common control with the Company, where control may be by either management authority or equity interest.

(b) During the Term, the Executive shall be employed by the Company on a full-time basis and shall perform the duties and responsibilities of his position and such other duties and responsibilities on behalf of the Company and its Affiliates as reasonably may be designated from time to time by the Company’s Chief Executive Officer (the “CEO”). The Executive’s principal work location shall be in New York, New York, subject to such business travel as is customary for Executive’s position.

(c) During the Term, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge exclusively to the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the term of this Agreement, except as may be expressly approved in advance by the CEO in writing; provided, however, that the Executive may without advance consent participate in charitable activities and passive personal investment activities, provided that such activities do not, individually or in the aggregate: (i) interfere with the performance of the Executive’s duties under this Agreement; (ii) conflict with the business interests of the Company or any of its Affiliates; or (iii) violate Sections 7, 8 and 9 of this Agreement.


(d) During the Term, the Executive shall comply with all Company policies, practices, and procedures and all codes of ethics or business conduct applicable to the Executive’s position, as in effect from time to time.

4. Compensation and Benefits.

(a) Base Salary. During the Term, the Company shall pay the Executive a base salary at a rate of $450,000 per year (the “Base Salary”), payable in accordance with the normal payroll practices of the Company as in effect from time to time. The Company may review and adjust the Base Salary from time to time.

(b) Annual Bonus Compensation. For each full fiscal year completed during the Term, the Executive shall be eligible to participate in an annual bonus plan maintained by the Company. The Executive’s annual target bonus opportunity shall be equal to forty-percent (40%) of the Base Salary (the “Target Bonus”) with the actual amount of the bonus, if any, to be determined by the Board of Directors (the “Board”) or the Compensation Committee of the Board, in accordance with applicable performance criteria reasonably established by the Board or the CEO. In order to earn an annual bonus under this Section 4(b) for any fiscal year, the Executive must be employed by the Company on the date of payment.

(c) Employee Benefit Plans. During the Term, the Executive shall be eligible to participate in such employee benefit plans from time to time in effect for similarly-situated employees of the Company. Such participation shall be subject to (i) the terms of the applicable plan documents and (ii) generally applicable Company policies. The Executive shall have no recourse against the Company in the event that the Company should alter, modify, add to or eliminate any or all of its employee benefit plans.

(d) Business Expenses. The Company shall pay or reimburse the Executive for reasonable, customary, and necessary business expenses incurred or paid by the Executive in the performance of his duties and responsibilities hereunder, subject to such reasonable substantiation and documentation and to travel and other policies as may be required by the Company from time to time.

(e) Clawback Policy. Any amounts paid pursuant to this Agreement shall be subject to recoupment in accordance with any clawback policy that the Company has adopted or is required to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law.

5. Termination of Employment; Severance Benefits. The Executive’s employment shall terminate under the following circumstances:

(a) Death. In the event of the Executive’s death during the Term, the date of death shall be the Termination Date and the Company shall pay or provide to the Executive’s designated beneficiary or, if no beneficiary has been designated by the Executive in a notice received by the Company, to his estate: (i) any Base Salary earned but not paid through the Termination Date; and (ii) any business expenses incurred by the Executive but unreimbursed on the Termination Date, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the Termination Date, that such expenses are reimbursable under Company policy, and that any such expenses subject to Section 5(h)(iv) shall be paid not later than the deadline specified therein (all of the foregoing, payable subject to the timing limitations described herein, the “Final Compensation”). Other than the Final Compensation, the Company shall have no further obligation or liability to the Executive. Other than business expenses described in Section 5(a)(ii), the Final Compensation shall be paid to the Executive’s designated beneficiary or estate at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date.

 

2


(b) Disability.

(i) The Company may terminate the Executive’s employment, upon notice to the Executive, in the event that the Executive becomes disabled during his employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to perform substantially all of his duties and responsibilities hereunder (notwithstanding the provision of any reasonable accommodation) for one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, whether or not consecutive. In the event of such termination, the Company shall have no further obligation or liability to the Executive, other than for payment of the Final Compensation due the Executive. Other than business expenses described in Section 5(a)(ii), the Final Compensation shall be paid to the Executive at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date.

(ii) The Board may designate another employee to act in the Executive’s place during any period of the Executive’s disability. Notwithstanding any such designation, the Executive shall continue to receive the Base Salary in accordance with Section 4(a) and to participate in employee benefit plans in accordance with Section 4(c), to the extent permitted by the then-current terms of the applicable employee benefit plans, until the Executive becomes eligible for disability income benefits under the Company’s disability income plan, if any, or until the termination of his employment, whichever shall first occur. While receiving disability income payments under any Company’s disability income plan, the Executive shall not be entitled to receive any Base Salary under Section 4(a), but shall continue to participate in the employee benefit plans in accordance with Section 4(c) and to the extent permitted by and subject to the then-current terms of such plans, until the termination of his employment hereunder.

(iii) If any question shall arise as to whether the Executive is disabled through any illness, injury, accident or condition of either a physical or psychological nature so as to be unable to perform substantially all of his duties and responsibilities hereunder, the Executive may, and at the request of the Company shall, submit to a medical examination by a physician selected by the Company to whom the Executive or his duly appointed guardian, if any, has no reasonable objection, to determine whether the Executive is disabled, and such determination shall for the purposes of this Agreement be conclusive. If such question shall arise and the Executive shall fail to submit to such medical examination, the Company’s determination of the issue shall be binding on the Executive.

(c) By the Company for Cause. The Company may terminate the Executive’s employment for Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause. The following, as determined by the Board in its reasonable judgment, shall constitute “Cause” for termination:

(i) The Executive’s willful failure to perform, or gross negligence in the performance of, the Executive’s material duties and responsibilities to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such failure or negligence by the Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances;

(ii) Conduct by the Executive that constitutes fraud, embezzlement or other material dishonesty with respect to the Company or any of its Affiliates;

 

3


(iii) The Executive’s commission of, or plea of nolo contendere to, a felony or crime involving moral turpitude;

(iv) The Executive’s violation of any law applicable to the Company;

(v) The Executive’s engagement in any conduct or omission which could reasonably be expected to, or which does cause, the Company or any of its Affiliates public disgrace, disrepute or economic harm; or

(vi) The Executive’s material breach of this Agreement, any material written policies of the Company, or any other agreement between the Executive and the Company or any of its Affiliates or of any fiduciary duty that the Executive has to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such breach by the Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances.

Upon the giving of notice of termination of the Executive’s employment hereunder for Cause, the Company shall have no further obligation or liability to the Executive, other than for the Final Compensation due to the Executive. Other than business expenses described in Section 5(a)(ii), the Final Compensation shall be paid to the Executive at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date.

(d) By the Company without Cause. The Company may terminate the Executive’s employment hereunder without Cause at any time upon notice to the Executive. In the event of such termination is at a time other than during the twelve (12) month period following a Change of Control (as defined below), in addition to the Final Compensation due to the Executive, the Company will pay or provide the Executive the following (the “Severance Benefits”):

(i) the Company will continue to pay the Executive the monthly pro-rata portion of his annual Base Salary at the rate in effect as of the Termination Date for the nine (9) month period following the Termination Date (the “Severance Period”);

(ii) the Company will pay the Executive an amount equal to his then current Target Bonus, pro-rated for the number of days Executive was employed during the applicable fiscal year, payable in substantially equal monthly installments during the Severance Period; and

(iii) during the Severance Period, provided the Executive elects and remains eligible for COBRA (or mini-COBRA), the Company will pay the Executive a monthly taxable amount equal to the portion of the Executive’s health insurance premiums that the Company paid immediately prior to the Termination Date.

Other than business expenses described in Section 5(a)(ii), the Final Compensation shall be paid to the Executive at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date. Any obligation of the Company to provide the Severance Benefits is conditioned, however, on the Executive signing and returning to the Company (without revoking) a timely and effective general release of claims in the form provided by the Company by the deadline specified therein, all of which (including the lapse of the period for revoking the release of claims as specified in the release of claims) shall have occurred no later than the sixtieth (60th) calendar day following the date of termination (any such separation agreement submitted by such deadline, the “Release of Claims”) and on the Executive’s continued compliance in material respects with the obligations of the Executive to the Company and its Affiliates that survive termination of his employment, including without limitation under Sections 7, 8 and 9 of this Agreement. Subject to Section 5(h) below, all Severance Benefits to which the Executive is entitled hereunder shall be payable in accordance with the normal payroll practices of the Company, with the first payment, which shall be retroactive to the day immediately following the Termination Date, being due and payable on the Company’s next regular payday for executives that follows the effective date of the Release of Claims. Notwithstanding the foregoing, if the time period to consider, return and revoke the Release of Claims covers two of the Executive’s taxable years, any portion of the Severance Benefits that constitutes deferred compensation subject to Section 409A (as defined below) shall in all events be paid in the later taxable year. The Release of Claims required for Severance Benefits in accordance with this Section 5(d) creates legally binding obligations on the part of the Executive and the Company therefore advises the Executive to seek the advice of an attorney before signing the Release of Claims.

 

4


(e) By the Executive for Good Reason. The Executive may terminate his employment for Good Reason by (A) providing notice to the Company specifying in reasonable detail the condition giving rise to the Good Reason no later than the thirtieth (30th) day following the occurrence of that condition; (B) providing the Company a period of thirty (30) days to remedy the condition and so specifying in the notice; and (C) terminating his employment for Good Reason within thirty (30) days following the expiration of the period to remedy if the Company fails to remedy the condition. The following, if occurring without the Executive’s consent, shall constitute “Good Reason” for termination by the Executive:

(i) a material diminution in the nature or scope of the Executive’s title, duties, or responsibilities; or

(ii) a material reduction in Base Salary, which for purposes of this Agreement shall mean a reduction of more than fifteen percent (15%) in the aggregate, other than any reduction applying in a similar fashion to similarly situated executives of the Company.

In the event of a termination of employment in accordance with this Section 5(e) at a time other than during the twelve (12) month period following a Change of Control, the Executive will be entitled to receive the Severance Benefits he would have been entitled to receive had he been terminated by the Company without Cause pursuant to Section 5(d) above, provided that the Executive signs and returns (without revoking) a timely and effective Release of Claims as set forth in Section 5(d).

(f) By the Executive without Good Reason. The Executive may terminate his employment hereunder at any time upon thirty (30) days’ prior written notice to the Company. In the event of termination of the Executive’s employment in accordance with this Section 5(f), the Board may elect to waive the period of notice, or any portion thereof, and, if the Board so elects, the Company will pay the Executive the Base Salary for the period so waived. The Company shall also pay the Executive the Final Compensation due to him (other than business expenses described in Section 5(a)(ii)) at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date.

(g) Termination Following a Change of Control. In the event of a termination of the Executive’s employment within twelve (12) months following a Change of Control either by the Company without Cause (in accordance with Section 5(d)) or by the Executive for Good Reason (in accordance with Section 5(e)) and provided that the Executive signs and returns (without revoking) a timely and effective Release of Claims as set forth in Section 5(d), then: (A) the Executive will be entitled to receive the Severance Benefits he would have been entitled to receive had he been terminated by the Company without Cause pursuant to Section 5(d) above, except that the Severance Period shall equal the twelve (12) month period following the Termination Date; and (B) any options or RSUs granted to Executive under an equity incentive plan adopted or to-be-adopted by the Company (a “Plan”) shall, to the extent not assumed by an acquirer, vest in full. The Company shall also pay the Executive the Final Compensation due to him (other than business expenses described in Section 5(a)(ii)) at the time prescribed by applicable law and in all events within thirty (30) days following the Termination Date. For purposes of this Agreement, a “Change of Control” shall mean the occurrence of any of the following events: (i) a sale, lease or other disposition of all or substantially all of the assets of the Company; (ii) a consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (and its parent) following the consolidation, merger or reorganization; or (iii) any transaction (or series of related transactions involving a person or entity, or a group of affiliated persons or entities) in which in excess of fifty percent (50%) of the Company’s outstanding voting power is transferred. For the avoidance of doubt, the transactions contemplated by the Exchange Agreement shall not be considered a Change of Control for purposes of this Agreement.

 

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(h) Timing of Payments and Section 409A.

(i) This Agreement and any payments or benefits provided hereunder shall be interpreted, operated and administered in a manner intended to avoid the imposition of additional taxes under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Further, the Company and Executive hereto acknowledge and agree that the form and timing of the payments and benefits to be provided pursuant to this Agreement are intended to be exempt from, or to comply with, one or more exceptions to the requirements of Section 409A of the Code (“Section 409A”). Notwithstanding anything to the contrary in this Agreement, if at the time of the Executive’s termination of employment, the Executive is a “specified employee,” as defined below, any and all amounts payable under this Section 5 on account of such separation from service that constitute deferred compensation and would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon the Executive’s death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits that qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A.

(ii) For purposes of this Agreement, all references to “termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i).

(iii) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

(iv) Any payment of or reimbursement for expenses that would constitute nonqualified deferred compensation subject to Section 409A shall be subject to the following additional rules: (i) no reimbursement or payment of any such expense shall affect the Executive’s right to reimbursement or payment of any such expense in any other calendar year; (ii) reimbursement or payment of the expense shall be made, if at all, promptly, but not later than the end of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement or payment shall not be subject to liquidation or exchange for any other benefit.

 

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(v) In no event shall the Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the requirements of Section 409A.

(vi) Exclusive Right to Severance. The Executive agrees that the Severance Benefits to be provided to him in accordance with the terms and conditions set forth in this Agreement are intended to be exclusive with respect to severance or termination pay and post-employment employee benefits. The Executive hereby knowingly and voluntarily waives any right he might otherwise have to participate in or receive benefits under any other plan, program or policy of the Company providing for severance or termination pay or benefits.

6. Effect of Termination. The provisions of this Section 6 shall apply to any termination of the Executive’s employment under this Agreement, whether pursuant to Section 5 or otherwise.

(a) Provision by the Company of Final Compensation and Severance Benefits, if any, that are due the Executive in each case under the applicable termination provision of Section 5 shall constitute the entire obligation of the Company to the Executive with respect to severance or termination pay and post-employment employee benefits.

(b) Except for any right of the Executive to continue group health plan participation in accordance with applicable law, the Executive’s participation in all employee benefit plans shall terminate pursuant to the terms of the applicable plan documents based on the date of termination of the Executive’s employment without regard to any Base Salary for notice waived pursuant to Section 5(f) hereof or to any Severance Benefits or other payment made to or on behalf of the Executive following such date of termination.

(c) Provisions of this Agreement shall survive any termination of the Executive’s employment if so provided herein or if necessary or desirable fully to accomplish the purposes of other surviving provisions, including without limitation the obligations of the Executive under Sections 7, 8 and 9. The obligation of the Company to provide Severance Benefits hereunder, and Executive’s right to retain such payments, is expressly conditioned on the Executive’s continued compliance in all material respects with Sections 7, 8 and 9. The Executive recognizes that, except as expressly provided in Sections 5(d), 5(e), and 5(g) or with respect to Base Salary paid for notice waived pursuant to Section 5(f), no cash compensation or benefits will be earned after termination of employment.

7. Confidential Information.

(a) Nondisclosure. At all times during the Term and thereafter, Executive will hold in strictest confidence and will not disclose, use, or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication may be required in connection with Executive’s work for the Company or as allowed by Section 7(b) below. Executive shall obtain the Company’s written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to Executive’s work at the Company and/or incorporates any Proprietary Information. Executive hereby assigns to the Company any rights Executive may have or acquire in such Proprietary Information and recognize that all Proprietary Information shall be the sole property of the Company and its assigns. Executive hereby undertakes not to divulge in any manner whatsoever and use Executive’s best efforts to keep confidential any access codes, passwords, or any information which may assist or facilitate access to Company’s Proprietary Information.

 

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(b) Notice. In the event that Executive is required by law or requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Proprietary Information, or any information relating to Executive’s opinion, judgment or recommendations concerning the Proprietary Information, Executive will provide the Company with prompt written notice of such request(s), to the extent practicable in such circumstances, so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the relevant provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder, Executive may furnish that portion (and only that portion) of the Proprietary Information which, upon the advice of Executive’s counsel, Executive is legally compelled to disclose. In any event, Executive will not oppose any action by the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Proprietary Information.

(c) Proprietary Information. For purposes of this Agreement, “Proprietary Information” means any and all confidential and/or proprietary knowledge, data or information of the Company, whether developed by, received by, or was or is otherwise accessible to Executive before or after the Effective Date. By way of illustration but not limitation, “Proprietary Information” includes (i) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (excluding inventions not assignable under Section 8(c), hereinafter collectively referred to as “Inventions”); (ii) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (iii) information regarding the skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is understood that “Proprietary Information” shall not include information that: (A) is or becomes generally known to the public through no breach by Executive of this Agreement; (B) can be demonstrated by written records to have been known by Executive prior to Executive’s employment and/or work with the Company; (C) is hereafter rightfully obtained by Executive from a third party who does not breach any obligation he or she may have to the Company; or (D) is approved for release by written authorization of the Board of Directors of the Company. Furthermore, Executive understands that Executive is free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, to whatever extent and in whichever way Executive wishes.

(d) Third Party Information. Executive understands, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the Employment Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company and subject to Section 7(b) above) or use, except in connection with Executive’s work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing.

(e) Defend Trade Secrets Act. Under the Defend Trade Secrets Act of 2016, the Company hereby provides notice and Executive hereby acknowledges that Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (B) is solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

 

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8. Assignment of Rights to Intellectual Property.

(a) Proprietary Rights. The term “Proprietary Rights” shall mean: (i) patents, whether in the form of utility patents or design patents and all pending applications for such patents; (ii) trademarks, trade names, service marks, designs, logos, trade dress, and trade styles, whether or not registered, and all pending applications for registration of the same; (iii) copyrights or copyrightable material, including but not limited to books, articles and publications, whether or not registered, and all pending applications for registration of the same; (iv) inventions, research records, trade secrets, confidential information, product designs, engineering specifications and drawings, technical information, formulae, customer lists, supplier lists and market analyses; (v) computer programs, including, without limitation, computer programs embodied in semiconductor chips or otherwise embodied, and related flow-charts, programmer notes, updates and data, whether in object or source code form; and (vi) all other intellectual property rights throughout the world.

(b) Assignment of Inventions. Subject to Section 8(c), Executive hereby assigns and agrees to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all of Executive’s right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by Executive, either alone or jointly with others, in connection with Executive’s employment and/or work for the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 8, are hereinafter referred to as “Company Inventions.”

(c) Nonassignable Inventions. This Agreement will not be deemed to require assignment of any invention which was developed entirely on Executive’s own time without using the Company’s equipment, supplies, facilities, or Proprietary Information and neither related to the Company’s actual or anticipated business, research or development, nor resulted from work performed by Executive for the Company.

(d) Government or Third Party. Executive agrees to assign all of Executive’s right, title and interest in and to any particular Company Invention to any third party, including without limitation government agency, as directed by the Company.

(e) Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment and which are protectable by copyright are the property of the Company pursuant to applicable copyright law.

(f) Enforcement of Proprietary Rights. Executive will assist the Company in every proper way to obtain, and from time to time enforce, any Proprietary Rights relating to Company Inventions in any and all countries. To that end Executive will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, Executive will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. Executive’s obligation to assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond the termination of Executive’s employment, but the Company shall compensate Executive at a reasonable rate after Executive’s termination for the time actually spent by Executive at the Company’s request on such assistance.

 

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(g) Attorney in Fact. In the event the Company is unable for any reason, after reasonable effort, to secure Executive’s signature on any document needed in connection with the actions specified in the preceding paragraph, Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Executive’s agent and attorney in fact, which appointment is coupled with an interest, to act for and in Executive’s behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Executive. Executive hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, which Executive now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.

(h) Records. Executive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all Proprietary Information developed by Executive and all Inventions made by Executive during the period of Executive’s employment at the Company, which records shall be available to and remain the sole property of the Company at all times.

9. Restrictive Covenants.

(a) Non-Competition. During the Term and for the twelve (12) month period after the termination of Executive’s employment relationship with the Company for any reason, Executive will not, directly or indirectly, whether paid or not: (i) serve as a partner, principal, licensor, licensee, employee, consultant, officer, director, manager, agent, affiliate, representative, advisor, promoter, associate, investor, or otherwise for, (ii) own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, control, invest in, work or consult for or otherwise join, participate in or affiliate with, any business whose business, products or operations are in any respect involved in a Restricted Business (defined below) anywhere in the Restricted Territory (defined below). Should Executive obtain other employment during the Term or within the twelve (12) month period immediately following the Termination Date, Executive agrees to provide written notification to the Company as to the name and address of Executive’s new employer, the position that Executive expects to hold, and a general description of Executive’s duties and responsibilities, at least three business days prior to starting such employment.

(b) Non-Solicitation. During the Term and for the twelve (12) month period after the termination of Executive’s employment relationship with the Company for any reason, including, without limitation, as a result of a voluntary termination by Executive or involuntary termination by Company, Executive will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of Company:

(i) Solicit, induce, encourage, or participate in soliciting, inducing or encouraging any person known (or should have been known) to Executive to be an employee, consultant, or independent contractor of Company (or was an employee, consultant, or independent contractor of the Company in the twelve (12) moths prior to the Termination Date) to terminate his or her relationship with Company, even if Executive did not initiate the discussion or seek out the contact;

(ii) Solicit, induce, encourage, or participate in soliciting, inducing, or encouraging any person known to Executive (or should have been known to Executive) to be an employee, consultant, or independent contractor of Company to terminate his or her relationship with Company to render services to Executive or any other person or entity that researches, develops, markets, sells, performs or provides or is preparing to develop, market, sell, perform or provide Conflicting Services (as defined below);

(iii) Hire, employ, or engage in a business venture with as partners or owners or other joint capacity, or attempt to hire, employ, or engage in a business venture as partners or owners or other joint capacity, with any person then employed by Company or who has left the employment of Company within the preceding twelve (12) months to research, develop, market, sell, perform or provide Conflicting Services;

 

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(iv) Solicit, induce or attempt to induce any Customer or Potential Customer (as defined below), to terminate, diminish, or materially alter in a manner harmful to Company its relationship with Company;

(v) Solicit or assist in the solicitation of any Customer or Potential Customer to induce or attempt to induce such Customer or Potential Customer to purchase or contract for any Conflicting Services; or

(vi) Perform, provide or attempt to perform or provide any Conflicting Services for a Customer or Potential Customer.

(c) Non-Disparagement. Executive shall not make, directly or indirectly, through any other person or entity, any negative, derogatory or disparaging statements or communications, whether written or oral, about the Company, or any of their respective Affiliates, businesses, services, activities, business relationships, shareholders, members, partners, directors, officers, managers or employees. The foregoing shall not be violated by truthful statements in response to legal process, required governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings) with competent jurisdiction to order such person or entity to disclose or make accessible such information, nor will the foregoing be violated by truthful statements to any government agency.

(d) Cooperation. Except as described in Section 9(e), Executive agrees to reasonably cooperate with the Company in connection with any action, suit, or proceeding, whether or not by or in the right of the Company and whether civil, criminal, administrative, investigative or otherwise. The Company’s request for “reasonable cooperation” shall take into consideration Executive’s personal and business commitments and the amount of notice provided to Executive by the Company. The Company will reimburse Executive for reasonable out-of-pocket expenses that Executive incurs in providing any requested cooperation, so long as Executive provides advance written notice to the Company of Executive’s request for reimbursement and provides satisfactory documentation of the expenses.

(e) Whistleblower. Nothing in Sections 7, 8, or 9 shall prohibit Executive from reporting possible violations of federal law or regulation to any governmental agency or entity including but not limited to the Department of Justice, the Securities and Exchange Commission, the Equal Employment Opportunity Commission, and any Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive is not required to notify the Company that Executive has made such reports or disclosures. Executive understands that by signing this Agreement, Executive waives the right to any monetary recovery in connection with a local, state or federal governmental agency proceeding and Executive waives the right to file a claim seeking monetary damages in any court, administrative agency or arbitral tribunal. Notwithstanding the foregoing, nothing in this Agreement prohibits Executive from seeking or obtaining a whistleblower award from the Securities and Exchange Commission (and not the Company) pursuant to Section 21F of the Securities Exchange Act of 1934, as amended.

(f) Definitions. Capitalized words or phrases shall have the following meanings for purposes of this Agreement:

(i) “Conflicting Services” means any business in which the Company is engaged, or in which the Company has plans to be engaged, or any service that the Company provides or has plans to provide.

 

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(ii) “Customer or Potential Customer” is any person or entity who or which, at any time during the one (1) year period prior to Executive’s contact with such person or entity as described in Sections 9(b)(iv), (v) and (vi) if such contact occurs during the Term or, if such contact occurs following the Term, during the one (1) year period prior to the Termination Date: (i) contracted for, was billed for, or received from the Company any product, service or process with which Executive worked directly or indirectly during my employment by Company or about which Executive acquired Proprietary Information; or (ii) was in contact with Executive or in contact with any other employee, owner, or agent of Company, of which contact Executive was or should have been aware, concerning the sale or purchase of, or contract for, any product, service or process with which Executive worked directly or indirectly during the Term or about which Executive acquired Proprietary Information; or (iii) was solicited by Company in an effort in which Executive was involved or of which Executive was aware.

(iii) “Restricted Business” means (A) the business of the Company related to the design, manufacture, production, research or sale of tri-/tetra-valent bispecific antibodies (mAb2) containing antigen-binding sites engineered into non-CDR loops or antibody fragments containing antigen-binding sites engineered into non-CDR loops or (B) any other business in which the Company is engaged or contemplates engaging in at the time of, or during the twelve (12) month period prior to, the Termination Date.

(iv) “Restricted Territory” means anywhere in the world.

10. Enforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 7, 8 and 9, and has had the opportunity to consult with legal counsel of Executive’s choosing regarding such terms and conditions. The Executive agrees without reservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Proprietary Information and other legitimate interests of the Company and its Affiliates; that each and every one of these restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him from obtaining other suitable employment during the period in which the Executive is bound by them. The Executive further agrees that he will never assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further acknowledges that, were he to breach any of the covenants contained in Sections 7, 8 or 9, the damage to the Company and its Affiliates would be irreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond, and will additionally be entitled to an award of attorney’s fees incurred in connection with securing any relief hereunder. The parties further agree that, in the event that any provision of Section 7, 8 or 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. The Executive agrees that the restricted periods herein shall be tolled, and shall not run, during any period of time in which he is in violation of the terms thereof, in order that the Company and its Affiliates shall have all of the agreed-upon temporal protection recited herein. No breach of any provision of this Agreement by the Company, or any other claimed breach of contract or violation of law, or change in the nature or scope of the Executive’s employment relationship with the Company, shall operate to extinguish the Executive’s obligation to comply with Sections 7, 8 and 9. Each of the Company’s Affiliates shall have the right to enforce all of the Executive’s obligations to that Affiliate under this Agreement, including without limitation pursuant to Section 7, 8 or 9.

 

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11. No Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound and that the Executive is not now subject to any covenants against competition or similar covenants or any other obligations to any person or to any court order, judgment or decree that would affect the performance of his obligations hereunder. The Executive will not disclose to or use on behalf of the Company any proprietary information of a third party without such party’s consent.

12. Withholding. All payments made by the Company under this Agreement shall be reduced by any tax or other amounts required to be withheld by the Company under applicable law.

13. Section 280G.

(a) In the event that the Company undergoes a “change in ownership or control” (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder (“Section 280G”)) and all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G (the “Limited Amount”), or (ii) if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, with all such reductions done on a pro rata basis.

(b) All determinations made pursuant this Section 13 will be made at the Company’s or its Affiliates’ expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the “Independent Advisors”). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 13, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 13, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive.

 

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14. Assignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that (a) the Company may assign its rights and obligations under this Agreement without the consent of the Executive to one of its Affiliates, or in the event that the Company shall hereafter effect a reorganization with, consolidate with, or merge into, an Affiliate or any person or transfer or have transferred all or substantially all of its properties, outstanding stock, or assets to an Affiliate or any person and (b) in the event that all of the Company’s rights and obligations under this Agreement are assigned pursuant to this Section 14, each reference to Company herein shall be deemed from and after such assignment instead to be a reference to the assignee. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, and their respective successors, executors, administrators, heirs and permitted assigns.

15. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

16. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

17. Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage prepaid, registered or certified, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal place of business, attention of the CEO, or to such other address as either party may specify by notice to the other actually received.

18. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and terminates all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of the Executive’s employment relationship with the Company; provided, however, that the Executive shall remain entitled to receive the success bonus pursuant to paragraph 3(c) of the Offer Letter and the retention bonus pursuant to paragraph 3(e) of the Offer Letter, each of which will paid as soon as practicable following the Closing (as defined in the Exchange Agreement).

19. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by an expressly authorized representative of the Company.

20. Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.

21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.

22. Governing Law. This is a New York contract and shall be construed and enforced under and be governed in all respects by the laws of New York, without regard to any conflict of laws principles that would result in the application of the laws of any other jurisdiction.

[The remainder of this page has been left blank intentionally.]

 

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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Company, by its duly authorized representative, and by the Executive, as of the date first above written.

 

F-STAR THERAPEUTICS LLC

/s/ Eliot Forster

Name: Eliot Forster
Title: Chief Executive Officer

 

EXECUTIVE
/s/ Louis Kayitalire
Louis Kayitalire

[Signature Page to Employment Agreement]

EX-10.5

Exhibit 10.5

INDEMNIFICATION AGREEMENT

THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into this                 day of                , 20                , by and between F-star Therapeutics, Inc., a Delaware corporation (the “Company”), and                (“Indemnitee”).

RECITALS

WHEREAS, qualified persons are reluctant to serve corporations as directors or otherwise unless they are provided with broad indemnification and insurance against claims arising out of their service to and activities on behalf of the corporations; and

WHEREAS, the Company has determined that attracting and retaining such persons is in the best interests of the Company’s stockholders and that it is reasonable, prudent and necessary for the Company to indemnify such persons to the fullest extent permitted by applicable law and to provide reasonable assurance regarding insurance;

NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:

1. Defined Terms; Construction.

(a) Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

Board” means the board of directors of the Company.

Change in Control” means, and shall be deemed to have occurred if, on or after the date of this Agreement,

(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries acting in such capacity, or (B) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities,

(ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof,


(iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 75% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation,

(iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of its assets; or

(v) the Company files or have filed against it, and such filing shall not be dismissed, any bankruptcy, insolvency or dissolution proceedings, or a trustee, administrator or creditors committee shall be appointed to manage or supervise the affairs of the Company.

Corporate Status” means the status of a person who is or was a director (or a member of any committee of the Board), officer, employee or agent (including without limitation a manager of a limited liability company) of the Company or any of its subsidiaries, or of any predecessor thereof, or is or was serving at the request of the Company as a director (or a member of any committee of a board of directors), officer, employee or agent (including without limitation a manager of a limited liability company) of another entity, or of any predecessor thereof, including service with respect to an employee benefit plan.

Determination” means a determination that either (x) there is a reasonable basis for the conclusion that indemnification of Indemnitee is proper in the circumstances because Indemnitee met a particular standard of conduct (a “Favorable Determination”), or (y) there is no reasonable basis for the conclusion that indemnification of Indemnitee is proper in the circumstances because Indemnitee met a particular standard of conduct (an “Adverse Determination”). An Adverse Determination shall include the decision that a Determination was required in connection with indemnification and the decision as to whether Indemnitee met the applicable standard of conduct.

DGCL” means the General Corporation Law of the State of Delaware, as amended from time to time.

Expenses” means all (i) attorneys’ fees and expenses, retainers, court, arbitration and mediation costs, transcript costs, fees and expenses of experts, witness and public relations consultants bonds and fees, costs of collecting and producing documents, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, appealing or otherwise participating in a Proceeding or responding to, or objecting to, a request to provide discovery in any Proceeding, (ii) damages, judgments, penalties, fines

 

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and amounts paid in settlement and any other amounts that Indemnitee becomes legally obligated to pay (including any federal, state or local taxes imposed on Indemnitee as a result of receipt of reimbursements or advances of expenses under this Agreement) and (iii) the premium, security for, and other costs relating to any costs bond, supersedes bond or other appeal bond or its equivalent, whether civil, criminal, arbitrational, administrative or investigative with respect to any Proceeding actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, because of any claim or claims made against or by Indemnitee in connection with any Proceeding, whether formal or informal (including an action by or in the right of the Company), to which Indemnitee is, was or at any time becomes a party or a witness, or is threatened to be made a party to, participant in or a witness with respect to, or by reason of Indemnitee’ Corporate Status.

Independent Legal Counsel” means an attorney or firm of attorneys competent to render an opinion under the applicable law, selected in accordance with the provisions of Section 5(e) hereof, who has not performed any services (other than services similar to those contemplated to be performed by Independent Legal Counsel under this Agreement) for the Company or any of its subsidiaries or for Indemnitee within the last three years.

Proceeding” means a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation a claim, counterclaim, demand, discovery request, formal or informal investigation, inquiry, administrative hearing, arbitration or other form of alternative dispute resolution, including an appeal from any of the foregoing.

Voting Securities” means any securities of the Company that vote generally in the election of directors.

(b) Construction. For purposes of this Agreement,

(i) References to the Company and any of its “subsidiaries” shall include any corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise that before or after the date of this Agreement is party to a merger or consolidation with the Company or any such subsidiary or that is a successor to the Company as contemplated by Section 8(e) hereof (whether or not such successor has executed and delivered the written agreement contemplated by Section 8(e) hereof).

(ii) References to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan.

(iii) References to a “witness” in connection with a Proceeding shall include any interviewee or person called upon to produce documents in connection with such Proceeding.

 

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2. Agreement to Serve.

Indemnitee agrees to serve as a director of the Company or one or more of its subsidiaries and in such other capacities as Indemnitee may serve at the request of the Company from time to time, and by its execution of this Agreement the Company confirms its request that Indemnitee serve as a director and in such other capacities. Indemnitee shall be entitled to resign or otherwise terminate such service with immediate effect at any time, and neither such resignation or termination nor the length of such service shall affect Indemnitee’s rights under this Agreement. This Agreement shall not constitute an employment agreement, supersede any employment agreement to which Indemnitee is a party or create any right of Indemnitee to continued employment or appointment.

3. Indemnification.

(a) General Indemnification. The Company agrees to indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law in effect on the date hereof or as amended to increase the scope of permitted indemnification, against all Expenses, losses, and liabilities (including all interest, taxes, assessments and other charges in connection therewith) incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding or part thereof in any way connected with, resulting from or relating to Indemnitee’s Corporate Status.

(b) Additional Indemnification Rights Regarding Enforcement Expenses. Without limiting the foregoing, in the event any Proceeding is initiated by Indemnitee, the Company, or any other person to enforce or interpret this Agreement or any rights of Indemnitee to indemnification or advancement of Expenses (or related obligations of Indemnitee) under the Company’s or any such subsidiary’s certificate of incorporation, bylaws, or other organizational agreement or instrument, any other agreement to which Indemnitee and the Company or any of its subsidiaries are party, any vote of stockholders or directors of the Company or any of its subsidiaries, the DGCL, any other applicable law, or any liability insurance policy, the Company shall indemnify Indemnitee against all Expenses incurred by Indemnitee or on Indemnitee’s behalf regardless of the success ultimately achieved by Indemnitee in such Proceeding and the efforts required to obtain such success, if any, provided that such indemnification is limited to Proceedings arising out of claims that were not frivolous or brought in bad faith.

(c) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of any Expenses, losses and liabilities incurred by Indemnitee, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for such portion.

(d) Nonexclusivity. The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may be entitled under the certificate of incorporation, bylaws or other organizational agreement or instrument of the Company or any of its subsidiaries, any other agreement, any vote of stockholders or directors, the DGCL, any other applicable law or any liability insurance policy.

(e) Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated under this Agreement to indemnify Indemnitee:

(i) For Expenses incurred in connection with Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, counterclaim or crossclaim, except (x) as contemplated by Section 3(b), (y) in specific cases if the Board has approved the initiation or bringing of such Proceeding, and (z) as may be required by law.

 

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(ii) For an accounting or disgorgement of profits arising from the purchase and sale by Indemnitee of securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar provisions of any federal, state or local law if the final, non-appealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under such Section 16(b).

(iii) For any compensation disgorged by a director or officer pursuant to an enforcement action under Section 304 of the Sarbanes-Oxley Act or for violations of Regulation BTR.

(iv) On account of Indemnitee’s conduct that is established by a final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent, deliberately dishonest or constituting willful misconduct.

(v) For which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment actually received by Indemnitee under such insurance, clause, bylaw or agreement.

(vi) If and to the extent indemnification is prohibited by applicable law.

(f) Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute such documents and do such acts as the Company may reasonably request to secure such rights and to enable the Company effectively to bring suit to enforce such rights.

4. Advancement of Expenses.

The Company shall pay all Expenses incurred by Indemnitee in connection with any Proceeding in any way connected with, resulting from or relating to Indemnitee’s Corporate Status, other than a Proceeding initiated by Indemnitee for which the Company would not be obligated to indemnify Indemnitee pursuant to Section 3(e)(i), in advance of the final disposition (in accordance with Section 5(c) hereof) of such Proceeding and without regard to whether Indemnitee will ultimately be entitled to be indemnified for such Expenses and without regard to whether an Adverse Determination has been made, except as contemplated by the last sentence of Section 5(f) hereof. The right to advances under this Section 4 shall in all events continue until final disposition of any Proceeding, including any appeal therein. Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement, and Indemnitee shall repay such amounts advanced only if and to the extent that it shall ultimately be determined in a decision by a court of competent jurisdiction from which no appeal can be taken that Indemnitee is not entitled to be indemnified by the Company for such Expenses. The right to advancement described in this Section 4 is vested. Such repayment obligation shall be unsecured and shall not bear interest. The Company shall not impose on Indemnitee additional conditions to advancement or require from Indemnitee additional undertakings regarding repayment.

 

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5. Indemnification Procedure.

(a) Notice of Proceeding; Cooperation. Indemnitee shall give the Company notice in writing as soon as practicable, and in any event, no later than 30 days after Indemnitee becomes aware, of any Proceeding for which indemnification will or could be sought under this Agreement, provided that any failure or delay in giving such notice shall not relieve the Company of its obligations under this Agreement unless and to the extent that (i) none of the Company and its subsidiaries are party to or aware of such Proceedings and (ii) the Company is materially prejudiced by such failure.

(b) Settlement. The Company shall not, without the prior written consent of Indemnitee, which consent may be withheld in Indemnitee’s sole discretion, effect any settlement of any Proceeding against Indemnitee or which could have been brought against Indemnitee unless such settlement solely involves the payment of money by persons other than Indemnitee and includes an unconditional release of Indemnitee from all liability on any matters that are the subject of such Proceeding and an acknowledgment that Indemnitee denies all wrongdoing in connection with such matters. The Company shall not be obligated to indemnify Indemnitee against amounts paid in settlement of a Proceeding against Indemnitee if such settlement is effected by Indemnitee without the Company’s prior written consent, which consent shall not be unreasonably withheld.

(c) Request for Payment; Timing of Payment. To obtain indemnification payments or advances under this Agreement, Indemnitee shall submit to the Company a written request therefor, together with such invoices or other supporting information as may be reasonably requested by the Company and reasonably available to Indemnitee. The Company shall make any indemnification payments to Indemnitee required hereunder no later than 30 days, and any advances to Indemnitee no later than 20 days, after receipt of the written request of Indemnitee.

(d) Determination. The Company intends that Indemnitee shall be indemnified to the fullest extent permitted by law as provided in Section 3 hereof and that no Determination shall be required in connection with such indemnification. In no event shall a Determination be required either in connection with advancement of Expenses pursuant to Section 4 hereof or in connection with indemnification for Expenses incurred as a witness or incurred in connection with any Proceeding or portion thereof with respect to which Indemnitee has been successful on the merits or otherwise. Any decision that a Determination is required by law in connection with any other claim for indemnification by Indemnitee, and any such Determination, shall be made within 30 days after receipt of Indemnitee’s written request for indemnification, as follows:

 

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(i) If no Change in Control has occurred, (w) by a majority vote of the directors of the Company who are not parties to such Proceeding, even though less than a quorum, with the advice of Independent Legal Counsel, or (x) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, with the advice of Independent Legal Counsel, or (y) if there are no such directors, or if such directors so direct, by Independent Legal Counsel in a written opinion to the Company and Indemnitee, or (z) by the stockholders of the Company.

(ii) If a Change in Control has occurred, by Independent Legal Counsel in a written opinion to the Company and Indemnitee.

The Company shall pay all Expenses incurred by Indemnitee in connection with a Determination.

(e) Independent Legal Counsel. If no Change in Control has occurred, Independent Legal Counsel shall be selected by the Board and approved by Indemnitee, which approval shall not be unreasonably withheld or delayed. If a Change in Control has occurred, Independent Legal Counsel shall be selected by Indemnitee and approved by the Company, which approval shall not be unreasonably withheld or delayed. The Company shall pay the fees and expenses of Independent Legal Counsel and indemnify Independent Legal Counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement pursuant to this Agreement.

(f) Consequences of Determination; Remedies of Indemnitee. The Company shall be bound by and shall have no right to challenge a Favorable Determination. If an Adverse Determination is made, or if for any other reason the Company does not make timely indemnification payments or advances of Expenses, Indemnitee shall have the right to commence a Proceeding before a court of competent jurisdiction to challenge such Adverse Determination and/or to require the Company to make such payments or advances. Indemnitee shall be entitled to be indemnified for all Expenses incurred in connection with such a Proceeding in accordance with Section 3(b) hereof and to have such Expenses advanced by the Company in accordance with Section 4 hereof. If Indemnitee fails to timely challenge an Adverse Determination, or if Indemnitee challenges an Adverse Determination and such Adverse Determination has been upheld by a final judgment of a court of competent jurisdiction from which no appeal can be taken, then, to the extent and only to the extent required by such Adverse Determination or final judgment, the Company shall not be obligated to indemnify or advance Expenses to Indemnitee under this Agreement.

(g) Presumptions; Burden and Standard of Proof. In connection with any Determination, or any review of any Determination, by any person, including a court:

(i) It shall be a presumption that a Determination is not required.

(ii) It shall be a presumption that Indemnitee has met the applicable standard of conduct and that indemnification of Indemnitee is proper in the circumstances.

(iii) The burden of proof shall be on the Company to overcome the presumptions set forth in the preceding clauses (i) and (ii), and each such presumption shall only be overcome if the Company establishes that there is no reasonable basis to support it.

 

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(iv) The termination of any Proceeding by judgment, order, finding, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that indemnification is not proper or that Indemnitee did not meet the applicable standard of conduct, that the Proceeding was not successful on the merits or otherwise or that a court has determined that indemnification is not permitted by this Agreement or otherwise.

(v) Neither the failure of any person or persons to have made a Determination nor an Adverse Determination by any person or persons shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee did not meet the applicable standard of conduct, and any Proceeding commenced by Indemnitee pursuant to Section 5(f) shall be de novo with respect to all determinations of fact and law.

6. Directors and Officers Liability Insurance.

(a) Maintenance of Insurance. So long as the Company or any of its subsidiaries maintains liability insurance for any directors, officers, employees or agents of any such person, the Company shall ensure that Indemnitee is covered by such insurance in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s and its subsidiaries’ then current directors and officers. If at any date (i) such insurance ceases to cover acts and omissions occurring during all or any part of the period of Indemnitee’s Corporate Status or (ii) neither the Company nor any of its subsidiaries maintains any such insurance, the Company shall ensure that Indemnitee is covered, with respect to acts and omissions prior to such date, for at least six years (or such shorter period as is available on commercially reasonable terms) from such date, by other directors and officers liability insurance, in amounts and on terms (including the portion of the period of Indemnitee’s Corporate Status covered) no less favorable to Indemnitee than the amounts and terms of the liability insurance maintained by the Company on the date hereof.

(b) Notice to Insurers. Upon receipt of notice of a Proceeding pursuant to Section 5(a) hereof, the Company shall give or cause to be given prompt notice of such Proceeding to all insurers providing liability insurance in accordance with the procedures set forth in all applicable or potentially applicable policies. The Company shall thereafter take all necessary action to cause such insurers to pay all amounts payable in accordance with the terms of such policies.

7. Exculpation, etc.

(a) Limitation of Liability. Indemnitee shall not be personally liable to the Company or any of its subsidiaries or to the stockholders of the Company or any such subsidiary for monetary damages for breach of fiduciary duty as a director of the Company or any such subsidiary; provided, however, that the foregoing shall not eliminate or limit the liability of Indemnitee (i) for any breach of Indemnitee’s duty of loyalty to the Company or such subsidiary or the stockholders thereof; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) under Section 174 of the DGCL or any similar provision of other applicable corporations law; or (iv) for any transaction from which Indemnitee derived an improper personal benefit. If the DGCL or such other applicable law shall be amended to permit further elimination or limitation of the personal liability of directors, then the liability of Indemnitee shall, automatically, without any further action, be eliminated or limited to the fullest extent permitted by the DGCL or such other applicable law as so amended.

 

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(b) Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company or any of its subsidiaries against Indemnitee or Indemnitee’s estate, spouses, heirs, executors, personal or legal representatives, administrators or assigns after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period, provided that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.

8. Miscellaneous.

(a) Non-Circumvention. The Company shall not seek or agree to any order of any court or other governmental authority that would prohibit or otherwise interfere, and shall not take or fail to take any other action if such action or failure would reasonably be expected to have the effect of prohibiting or otherwise interfering, with the performance of the Company’s indemnification, advancement or other obligations under this Agreement.

(b) Severability. If any section or part of this Agreement shall be adjudged invalid by a court of competent jurisdiction, the remainder of the Agreement shall not be affected thereby and shall remain in full force and effect.

(c) Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, or by electronic mail or facsimile, upon confirmation of receipt, (ii) on the first business day following the date of dispatch if delivered by a recognized next-day courier service or (iii) on the third business day following the date of mailing if delivered by domestic registered or certified mail, properly addressed, or on the fifth business day following the date of mailing if sent by airmail from a country outside of the United States of America, to Indemnitee at the address shown on the signature page of this Agreement, to the Company at the address shown on the signature page of this Agreement, or in either case as subsequently modified by written notice. All communications under this Agreement shall also include a copy sent by electronic mail, even if it is also delivered separately by mail.

(d) Amendment and Termination; Waivers. No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by all the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.

 

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(e) Successors and Assigns. This Agreement shall be binding upon the Company and its respective successors and assigns, including without limitation any acquiror of all or substantially all of the Company’s assets or business, any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) that acquires beneficial ownership of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities and any survivor of any merger or consolidation to which the Company is party, and shall inure to the benefit of and be enforceable by Indemnitee and Indemnitee’s estate, spouses, heirs, executors, personal or legal representatives, administrators and assigns. The Company shall require and cause any such successor, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement as if it were named as the Company herein, and the Company shall not permit any such purchase of assets or business, acquisition of securities or merger or consolidation to occur until such written agreement has been executed and delivered. No such assumption and agreement shall relieve the Company of any of its obligations hereunder, and this Agreement shall not otherwise be assignable by the Company. This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign or delegate this Agreement or any rights or obligations. Without limiting the generality or effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge, creation of a security interest or otherwise, other than by a transfer by Indemnitee’s will or by estate law, and, in the event of any attempted assignment or transfer contrary to this Section 8(e), the Company shall have no liability to pay any amount so attempted to be assigned or transferred.

(f) Choice of Law; Consent to Jurisdiction. This Agreement shall be governed by and its provisions construed in accordance with the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely within Delaware, without regard to the conflict of law principles thereof. The Company and Indemnitee each hereby irrevocably consents to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any Proceeding which arises out of or relates to this Agreement and agrees that any action instituted under this Agreement shall be brought only in the state courts of the State of Delaware.

(g) Integration and Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto, provided that the provisions hereof shall not supersede the provisions of the Company’s certificate of incorporation, bylaws or other organizational agreement or instrument, any other agreement, any vote of stockholders or directors, the DGCL or other applicable law, to the extent any such provisions shall be more favorable to Indemnitee than the provisions hereof.

(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.

[Remainder of this page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

COMPANY
F-STAR THERAPEUTICS, INC.
By:  

                     

Name:
Title:
Address:   Eddeva B920
  Babraham Research Campus
  Cambridge, CB22 3AT
  United Kingdom
INDEMNITEE
By:  

             

Name:
Title:
Address:  

 

 

 

 

 

 

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EX-10.6

Exhibit 10.6

Execution Version

CONTINGENT VALUE RIGHTS AGREEMENT

THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of November 20, 2020 (this “Agreement”), is entered into by and among Spring Bank Pharmaceuticals, Inc., a Delaware corporation (the “Company”), F-Star Therapeutics Limited., a company registered in England and Wales with company number 11532458 (“F-Star”), Computershare Inc., a Delaware corporation (“Computershare”), and its wholly-owned subsidiary Computershare Trust Company, N.A., a federally chartered trust company (collectively with Computershare, the “Rights Agent”), and Martin Driscoll, acting solely in his capacity as representative of the Holders (as defined herein) (the “Holder Representative”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Share Exchange Agreement (as defined below).

A. The Company, F-Star, and certain other Persons (the “Sellers”) have entered into a Share Exchange Agreement (the “Share Exchange Agreement”), pursuant to which the Sellers will sell to the Company, and the Company will purchase from the Sellers, all of the F-Star Shares (the “Acquisition”).

B. Pursuant to Section 1.7 of the Share Exchange Agreement, prior to the consummation of the Acquisition, the Company wishes to create and issue contractual contingent value rights relating to the CVR Assets (as defined herein) to the record holders of the Common Stock (as defined herein) as of the Record Date (as defined herein) prior to the consummation of the Acquisition.

C. The Board of Directors of the Company, or an appropriately constituted and authorized committee of the Board of Directors of the Company, has authorized and declared a dividend of one CVR (as defined herein) for each share of Common Stock outstanding at 5:01 p.m. Eastern Time on the Record Date. The payment of such dividend will be conditioned upon, and such dividend will only become payable upon, the satisfaction or waiver of all conditions to the Acquisition and the occurrence of the time that is immediately prior to the consummation of the Acquisition. The Company will pay the dividend immediately prior to the consummation of the Acquisition.

Accordingly, and in consideration of the premises and the consummation of the transactions referred to above, it is mutually agreed, for the benefit of the Holders, as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions.

(a) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(i) all accounting terms used herein and not expressly defined herein have the meanings assigned to such terms in accordance with United States generally accepted accounting principles, as in effect on the date hereof;


(ii) unless the context otherwise requires, words describing the singular number include the plural and vice versa, words denoting any gender include all genders and words denoting natural Persons include corporations, partnerships and other Persons and vice versa;

(iii) the words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”;

(iv) the terms “hereof”, “hereunder”, “herein” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or provision of this Agreement; and

(v) the Article and Section headings contained in this Agreement are for reference purposes only and do not limit or otherwise affect any of the substance of this Agreement.

(b) The following terms have the meanings ascribed to them as follows:

Affiliates” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such first Person.

Board of Directors” means the board of directors of the Company.

Board Resolution” means a copy of a resolution certified by the secretary or an assistant secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Rights Agent and the Holder Representative.

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks located in Boston, Massachusetts or London, England are authorized or required by applicable Legal Requirements to close; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by applicable Legal Requirements to close due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Body so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in such location generally are open for use by customers on such day.

Change of Control” means any of the following transactions occurring after the Closing: (a) (i) any consolidation or merger of the Company with or into any other corporation or entity or Person or (ii) any other corporate reorganization, in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, own less than 50% of the voting power of the surviving entity immediately after such consolidation, merger or reorganization, except in the case of a bona fide capital raising transaction, or (b) any sale of all or substantially all of the assets of the Company.

Close of Business” on any given date means 5:00 p.m., Eastern Time, on such date; providedhowever, that if such date is not a Business Day it will mean 5:00 p.m., Eastern Time, on the next succeeding Business Day.

 

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Combination CVR Asset Transaction” means a transaction consummated at any time prior to the CVR Expiration Date consisting of the grant, sale, license or other transfer of both (a) any CVR Asset and/or Company Product, on the one hand, and (b) (x) any conjugate of such compound referenced in the foregoing clause (a) with one or more antibodies in the form of an antibody-drug conjugate or (y) any asset owned by any F-Star Company as of immediately prior to the Closing, on the other hand.

Commercially Reasonable Efforts” means, with respect to the efforts and resources to be expended by the Company with respect to continuing the STING Trial and pursuing and seeking to consummate a CVR Transaction, such reasonable, good faith efforts and resources as a biotechnology company of a similar size and with similar financial and other resources would normally use to pursue its clinical development programs and pursue and seek to consummate such a transaction under similar circumstance for a similar product or product candidate owned by it, or to which it has similar rights, which product or product candidate is at a similar stage in its development and is of similar market potential taking into account all relevant factors; provided that, it is expressly understood and agreed that despite the use of such above described efforts, a CVR Transaction may not occur and the obligation to make a CVR Payment may not arise.

Common Stock” means the common stock, $0.0001 par value, of the Company.

Company Product” means any product that incorporates the proprietary STimulator of INterferon Genes (“STING”) agonist compound of the Company designated as SB 11285. For clarity, Company Product shall not include any conjugate of such compound with one or more antibodies in the form of an antibody-drug conjugate, including any antibodies owned or controlled by F-Star.

CVR” means a contingent value right issued by the Company pursuant to this Agreement.

CVR Asset Transaction” means a transaction consummated at any time prior to the CVR Expiration Date pursuant to which the Company or any of its Affiliates grants, sells, licenses or otherwise transfers to a Third Party some or all of the rights to the CVR Assets, including any rights to research, develop or commercialize the CVR Assets, including a license, option, or sale of assets with respect to the CVR Assets; provided, that any such transaction involving any asset other than a CVR Asset shall not constitute a CVR Asset Transaction.

CVR Assets” means any Intellectual Property and other assets that are used or held for use for the development of a Company Product, including all (a) regulatory filings made with respect to a Company Product; (b) regulatory approvals received with respect to a Company Product; and (c) clinical and non-clinical safety, and efficacy and pharmacokinetic data generated with respect to a Company Product.

CVR Expiration Date” means the later to occur of: (i) the date that is eighteen (18) months following the date of the Closing, or (ii) the one (1) year anniversary of the date of the final database lock of the STING Trial.

CVR Payment” means an Initial CVR Payment Amount and a CVR Payment Adjustment Amount, if any.

 

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CVR Payment Adjustment Amount” means, as of any time following the payment hereunder of the Initial CVR Payment Amount (if at all), if twenty-five percent (25%) of aggregate Net Proceeds is greater than the Target Payment Amount, then an amount equal to (a) twenty-five percent (25%) of the aggregate Net Proceeds, minus (b) the aggregate amount of all CVR Payments received by the Holders pursuant to this Agreement prior to such time.

CVR Payment Date” means the date (if any and if ever) that a CVR Payment is payable by the Company to the Holders, which date will be established pursuant to Section 2.4.

CVR Register” has the meaning set forth in Section 2.3(b).

CVR Registrar” has the meaning set forth in Section 2.3(b).

CVR Transaction” means a CVR Asset Transaction or a Combination CVR Asset Transaction. For clarity, (a) the grant of a license to any Third Party (including any contract research organization) for the purposes of conducting research on behalf of the Company with respect to the CVR Assets shall not be deemed a CVR Transaction and (b) the sale of all or substantially all of the Company’s or any of its Affiliate’s stock or assets (to the extent such asset sale includes assets unrelated to the CVR Assets), or a merger, acquisition or similar transaction shall not be deemed a CVR Transaction. For the avoidance of doubt, more than one CVR Transaction may occur under this Agreement.

Holder” means a Person in whose name a CVR is registered in the CVR Register.

Holder Representative” means the Holder Representative named in the first paragraph of this Agreement, until a successor Holder Representative has become such pursuant to the applicable provisions of this Agreement, and thereafter “Holder Representative” will mean such successor Holder Representative.

“Intellectual Property” means all intellectual property, including the following items of intangible property, and all rights associated therewith in any jurisdiction and tangible embodiments thereof: (a) all Patents; (b) all works of authorship, copyrights, whether or not registered, and all registrations and pending applications for registration of the same and renewals thereof and database rights; (c) all technology, technical information, know-how and data, including, without limitation, inventions (whether or not patentable of reduced to practice), improvements, discoveries, trade secrets, specifications, instructions, ideas, processes, methods, formulations, formulae, protocols, materials, assays, screens, algorithms, models, databases, expertise and other technology applicable to formulations, compositions or products or to their manufacture, development, registration, use or marketing or to methods of assaying or testing them or processes for their manufacture, formulations containing them or compositions incorporating or comprising them, and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, nonclinical, pre-clinical and clinical data, regulatory data and filings, instructions, processes, formulae, expertise and information, relevant to the research, development, manufacture, use, importation, offering for sale or sale of, and/or which may be useful in studying, testing, developing, producing or formulating, a Company Product, or intermediates for the synthesis thereof and chemistry, manufacturing and control information and data, lab notebooks, Patent data and records, stability, technology, test and other data and results; and (d) computer programs, including, without limitation, computer programs embodied in semiconductor chips or otherwise embodied, and related flow-charts, programmer notes, updates and data, whether in object or source code form.

 

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Initial CVR Payment Amount” means an amount equal to the greater of: (i) twenty-five percent (25%) of the Net Proceeds actually received by the Company at the closing of the first CVR Transaction to occur following the date hereof or (ii) the Target Payment Amount; provided, however, that the Company shall not be required to pay the Initial CVR Payment Amount unless and until the aggregate Net Proceeds from CVR Transactions equals or exceeds the Target Payment Amount.

Net Proceeds” means an aggregate amount equal to the sum of: (a) all cash consideration actually received by the Company or its Affiliates from a Third Party in connection with the consummation of a CVR Transaction during the twelve (12) month period immediately following the consummation of a CVR Transaction, plus (b) with respect to any non-cash consideration actually received by the Company or its Affiliates from a Third Party in connection with the consummation of a CVR Transaction during the twelve (12) month period immediately following the consummation of a CVR Transaction, the fair market value of such non-cash consideration, as determined by the Board of Directors in good faith, less (c) all out-of-pocket transaction costs and expenses incurred by the Company or its Affiliates after the date of this Agreement to Third Parties for the negotiation, entry into and consummation of a CVR Transaction, including any broker fees, finder’s fees, advisory fees, accountant or attorney’s fees, and reasonable costs of recovery of any amounts payable to the Company in connection with a CVR Transaction, less (d) patent prosecution and maintenance costs and drug storage costs incurred by the Company with respect to the CVR Assets after the Closing Date, less (e) any applicable sales, income and other taxes incurred by the Company or its Affiliates in respect of a CVR Transaction, and less (f) all fees and costs (including any amounts paid for indemnification) payable by the Company to the Rights Agent pursuant to this Agreement in connection with a CVR Transaction; provided, that in the event a CVR Transaction is a Combination CVR Asset Transaction, (i) the expenses in clauses (c) through (f) shall be reduced by 50% and (ii) the Net Proceeds (calculated after giving effect to this proviso) in respect of such Combination CVR Asset Transaction shall be reduced by fifty percent (50%). For the avoidance of doubt, amounts placed in escrow or earnout, contingent or other post-closing payments, including royalty payments, in connection with a CVR Transaction will not be considered Net Proceeds unless (and only to the extent that) such amounts are actually received by the Company during the twelve (12)-month period immediately following the closing of such CVR Transaction. For the further avoidance of doubt, if a CVR Transaction occurs prior to the CVR Expiration Date, any such escrow, earnout, contingent or other post-closing payment released or paid after the CVR Expiration Date will be included in the calculation of Net Proceeds, so long as such amount is actually received by the Company or its Affiliates within the twelve (12)-month period immediately following the consummation of such CVR Transaction.

Non-Achievement Certificate” has the meaning set forth in Section 2.4(c).

Objection Notice” has the meaning set forth in Section 2.4(d).

Objection Period” has the meaning set forth in Section 2.4(d).

 

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Officer’s Certificate” means a certificate signed by the chief executive officer, president, chief financial officer or secretary of the Company, in his or her capacity as such an officer, and delivered to the Rights Agent and the Holder Representative.

Patents” means all patents and patent applications (including provisional applications) and patent disclosures, and including all divisionals, continuations, substitutions, continuations-in-part, re-examinations, re-issues, additions, renewals, extensions, confirmations, registrations, any confirmation patent or registration patent or patent of addition based on any such patent, patent term extensions, and supplemental protection certificates or requests for continued examinations and foreign counterparts, of any of the foregoing.

Permitted Transfer” means: (i) the transfer of any or all of the CVRs (upon the death of the Holder) by will or intestacy; (ii) transfer by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; (iii) transfers made pursuant to a court order of a court of competent jurisdiction (such as in connection with divorce, bankruptcy or liquidation); (iv) if the Holder is a partnership or limited liability company, a pro-rata distribution by the transferring partnership or limited liability company to its partners or members, as applicable; (v) a transfer made by operation of law (including a consolidation or merger) or in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; (vi) a transfer from a participant’s account in a tax-qualified employee benefit plan to the participant or to such participant’s account in a different tax-qualified employee benefit plan or to a tax-qualified individual retirement account for the benefit of such participant; (vii) a transfer from a participant in a tax-qualified employee benefit plan, who received the CVRs from such participant’s account in such tax-qualified employee benefit plan, to such participant’s account in a different tax-qualified employee benefit plan or to a tax-qualified individual retirement account for the benefit of such participant; or (viii) in the case of CVRs held in book-entry form or other similar nominee form, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case as allowable by DTC.

Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

Record Date” means November 19, 2020. For the avoidance of doubt, the Record Date shall occur prior to the effectiveness of the Company Reverse Stock Split.

Reporting Certificate” has the meaning set forth in Section 2.4(a).

Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent has become such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” will mean such successor Rights Agent.

Rights Agent Fee” means the agreed-upon fee of the Rights Agent to act in such capacity pursuant to the terms of this Agreement.

 

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STING Trial” means the Company’s ongoing Phase 1a/1b, multicenter, open-label, non-randomized, dose-escalation study examining SB 11285 administered as an IV infusion in patients with advanced solid tumors.

Surviving Person” has the meaning set forth in Section 6.1(a)(i).

Target Payment Amount” means an aggregate amount equal to the product obtained by multiplying (i) $1.00 (subject to adjustment for the Company Reverse Stock Split) by (ii) the total number of shares of Common Stock outstanding as of 5:01 p.m. Eastern Time on the Record Date; provided, that in no event will the Target Payment Amount exceed $18,000,000.

Technical Failure” means (a) the good faith determination by the Board of Directors, based upon any information that becomes available or any analysis of such information at any time, that any Company Product, or any component thereof, (i) presents a material safety risk (in light of the intended patient population and the phase of dose escalation) that makes further testing of such Company Product unsafe, unwarranted or unethical, or (ii) has failed to sufficiently demonstrate the engagement of the intended or relevant biomarkers for the STING target at a given stage of dose escalation and patient tolerability (in light of the intended patient population) and further dose escalation is unlikely to result in engagement of such biomarkers at a dose level which is reasonably tolerable given the intended patent population, or (b) the receipt by the Company of any adverse decision or determination by, or correspondence from, a Governmental Body regarding any Company Product that the Board of Directors determines in good faith could reasonably be expected to render marketing approval or clearance from the FDA or the European Medicines Agency unlikely, or (c) if any of the Patents included as part of the CVR Assets that are material to the successful commercialization of the Product in the United States and the European Economic Area are held to be unenforceable, invalid or unpatentable or revoked or cancelled, in any case, by a final, nonappealable order of any court or administrative agency of competent jurisdiction.

Third Party” means any Person other than the Company or the Rights Agent or their respective Affiliates.

ARTICLE II

CONTINGENT VALUE RIGHTS

2.1 Authority; Issuance of CVRs; Appointment of Rights Agent.

(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any violation of any provision of the Certificate of Incorporation or By-laws of the Company, or (ii) result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Company or its properties or assets which violation, in the case of clause (ii), individually or in the aggregate, would reasonably be expected to be material to the Company. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby.

 

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(b) One CVR will be issued immediately after the effectiveness of the Company Reverse Stock Split and prior to the consummation of the Acquisition, with respect to each share of Common Stock that is outstanding as of 5:01 p.m. Eastern Time on the Record Date.

(c) The Company hereby appoints the Rights Agent to act as rights agent for the Company in accordance with the express terms and conditions set forth in this Agreement, and the Rights Agent hereby accepts such appointment.

2.2 Nontransferable. The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer. Any purported transfer of a CVR other than in a Permitted Transfer shall be null and void ab initio.

2.3 No Certificate; Registration; Registration of Transfer; Change of Address.

(a) The CVRs will be issued in book-entry form only and will not be evidenced by a certificate or other instrument.

(b) The Rights Agent will keep a register (the “CVR Register”) for the registration of the CVRs. The Rights Agent is hereby initially appointed “CVR Registrar” for the purpose of registering the CVRs and Permitted Transfers of the CVRs as herein provided. Upon any change in the identity of the Rights Agent, the successor Rights Agent will automatically also become the successor CVR Registrar.

(c) Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument or instruments of transfer and any other requested documentation in a form reasonably satisfactory to the Company and the CVR Registrar, duly executed by the registered Holder or Holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, including the evidence of authority of the party presenting the CVR for transfer which authority may include if applicable a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association. A request for a transfer of a CVR must be accompanied by such documentation establishing that the transfer is a Permitted Transfer as may be reasonably requested by the Company and/or the CVR Registrar, if appropriate. Upon receipt of such written notice, the CVR Registrar shall, subject to its reasonable determination that the transfer instrument is in proper form notify the Company that it has received such written notice. Upon receipt of such notice from the CVR Registrar, the Company shall determine whether the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), and if the Company determines that it does so comply, the Company shall instruct the CVR Registrar in writing to register the transfer of the CVRs in the CVR Register and notify the Company of the same. All duly transferred CVRs registered in the CVR Register will be the valid obligations of the Company, evidencing the same right and will entitle the transferee to the same benefits and rights under this Agreement as those previously held by the transferor. No transfer of a CVR will be valid until registered in the CVR Register, and any transfer not duly registered in the CVR Register will be void and invalid. All costs and expenses related to any transfer or assignment of the CVRs (including the cost of any transfer tax) will be the responsibility of the transferor. The CVR Registrar shall have no duty or obligation to take any action under any section of this Agreement that requires the payment by a Holder of a CVR of applicable taxes or charges unless and until the CVR Registrar is reasonably satisfied that all such taxes or charges have been paid.

 

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(d) A Holder (or an authorized representative thereof) may make a request to the CVR Registrar to change such Holder’s address of record in the CVR Register. Upon receipt of such request, the CVR Registrar will promptly record the change of address in the CVR Register.

2.4 Payment Procedures.

(a) As soon as practicable following the occurrence of a CVR Transaction, but in no event later than thirty (30) days after the closing of such CVR Transaction, and within thirty (30) days after the end of any calendar quarter in which the Company has received Net Proceeds from any CVR Transaction, the Company will deliver to the Holder Representative and the Rights Agent a certificate (each, a “Reporting Certificate”), certifying that the Holders are entitled to receive a CVR Payment and setting forth the Company’s calculation of the CVR Payment Amount, which may be either the Initial CVR Payment Amount or a CVR Payment Adjustment Amount. Until such Reporting Certificate is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that no event has occurred that would require a CVR Payment.

(b) [reserved]

(c) If no CVR Transaction has been effected prior to the CVR Expiration Date, then, as soon as reasonably practicable after the CVR Expiration Date, but in no event later than thirty (30) days after the CVR Expiration Date, the Company will deliver to the Holder Representative and the Rights Agent a certificate (the “Non-Achievement Certificate” and, together with the Reporting Certificate(s), the “Certificates”), stating that no CVR Transaction has been consummated prior to the CVR Expiration Date.

 

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(d) If the Holder Representative does not object to any determination or calculation set forth in a Certificate by delivery of a written notice thereof to the Company (with a copy to the Rights Agent) setting forth in reasonable detail such objection, together with reasonable supporting documentation (an “Objection Notice”), within thirty (30) days following receipt of the applicable Certificate (the “Objection Period”), the Company’s determination of the non-existence of a CVR Transaction calculation of the Initial CVR Payment Amount or calculation of any CVR Payment Adjustment Amount, as applicable, shall be final and binding on all parties. If the Holder Representative timely delivers to the Company an Objection Notice, the Company and the Holder Representative shall attempt in good faith to resolve such matters within thirty (30) days after receipt of the same by the Company, and if unable to do so, the Company and the Holder Representative shall resolve any unresolved disputed in accordance with Section 8.11, which decision will be final and binding on the parties, absent manifest error. The Company shall, within ten (10) Business Days following the final determination of the Initial CVR Payment Amount or any CVR Payment Adjustment Amount, as applicable, pay such Initial CVR Payment Amount or CVR Payment Adjustment Amount to the Rights Agent (for the account of the Holders) by wire transfer of immediately available funds to such account as may be designated by the Rights Agent, and deliver a letter of instruction and other relevant information reasonably required by the Rights Agent. The Rights Agent will distribute the Initial CVR Payment Amount or CVR Payment Adjustment Amount, as applicable, to the Holders in accordance with the letter of instruction from the Company by check mailed to the address of each such respective Holder as reflected in the CVR Register as of the close of business on the last Business Day before such CVR Payment Date. Each Holder shall be entitled to receive its pro rata share of such Initial CVR Payment Amount or CVR Payment Adjustment Amount, as applicable, based on the number of CVRs held by such Holder as reflected on the CVR Register on the date of the Reporting Certificate or the date of final determination pursuant to this Agreement, as applicable) provided, that the Company shall be responsible for providing any related calculation to the Rights Agent , and the Rights Agent shall be fully protected and indemnified if it relies upon the calculations and payment instructions from the Company.

(e) If an Objection Notice has not been timely delivered to the Company in response to a Non-Achievement Certificate within the Objection Period, then the Holders will have no right to receive a CVR Payment, and the Company and the Rights Agent will have no further obligations with respect to any CVR Payment.

(f) The Company will be entitled to deduct and withhold, or cause to be deducted or withheld, from any Initial CVR Payment Amount, CVR Payment Adjustment Amount or other amount payable pursuant to this Agreement, such amounts as the Company is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code, or any provision of state or local tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant governmental entity, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the Holder in respect of which such deduction and withholding was made. The Company will provide written withholding and payment instructions to the Rights Agent from time to time as applicable, and upon request of the Rights Agent, and the Rights Agent shall be fully protected and shall incur no liability in relying on such instructions. The Rights Agent shall have the right to withhold payment to a Holder if such Holder has not provided an IRS Form W-9 or other applicable Tax form to avoid or reduce such withholding amounts.

(g) Subject to prior execution and delivery by the Holder Representative of a reasonable and customary confidentiality and market stand-off agreement, the Company shall provide the Holder Representative with reasonable access during normal business hours and upon reasonable advance request to the books and records of the Company to the extent necessary to verify whether a CVR Transaction occurred prior to the CVR Expiration Date or the Company’s calculation of the Initial CVR Payment Amount or any CVR Payment Adjustment Amount, as applicable; it being understood that the Holder Representative’s rights under this Section 2.4(g) shall terminate upon the later of (i) the CVR Expiration Date or (ii) thirty (30) days after the delivery to the Holder Representative of a Reporting Certificate.

 

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(h) The Company will promptly furnish to the Rights Agent all information and documentation in connection with this Agreement and the CVRs that the Rights Agent may reasonably request in order to perform under this Agreement.

(i) All funds received by the Rights Agent under this Agreement that are to be distributed or applied by Rights Agent in the performance of the services to be provided hereunder (the “Funds”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to the terms of this Agreement, Computershare will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, any holder or any other party.

2.5 No Voting, Dividends or Interest; No Equity or Ownership Interest in the Company.

(a) The CVRs will not have any voting or dividend rights, and interest will not accrue on any amounts payable on the CVRs to any Holder.

(b) The CVRs will not represent any equity or ownership interest in the Company. The rights of the Holders and the obligations of the Company are contract rights limited to those expressly set forth in this Agreement, and such Holders’ sole right to receive property hereunder is the right to receive cash from the Company, if any, through the Rights Agent in accordance with the terms hereof.

2.6 Holder’s Right to Abandon CVR. A Holder may at any time, at such Holder’s option, abandon all of such Holder’s remaining rights in a CVR by transferring such CVR to the Company or any of its Affiliates without consideration. Nothing in this Agreement shall prohibit the Company or its Affiliates from offering to acquire or acquiring CVRs, in private transactions or otherwise, in its sole discretion. Any CVRs acquired by the Company or any of its Affiliates shall be automatically deemed extinguished and no longer outstanding hereunder for any purpose. The Company shall provide prompt written notice to the Rights Agent of any transfer or abandonment of a CVR under this Section 2.6.

 

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ARTICLE III

THE RIGHTS AGENT

3.1 Certain Duties and Responsibilities.

(a) The Rights Agent shall not have any liability for any actions taken suffered or omitted to be taken in connection with this Agreement, except to the extent of its willful misconduct, bad faith or gross negligence (each as determined by a final non-appealable judgment of a court of competent jurisdiction). No provision of this Agreement will require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers. Notwithstanding anything contained herein to the contrary, (i) the Rights Agent’s aggregate liability under this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Rights Agent as fees and charges during the t twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought, but not including reimbursable expenses, and (ii) the Rights Agent shall in no event be liable for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

(b) The Holder Representative may in its discretion proceed to and shall be entitled and empowered to protect and enforce its rights and the rights of the Holders herein by such appropriate arbitration proceedings as the Holder Representative shall deem most effectual to protect and enforce any such rights; provided, however the Rights Agent may not act on behalf of the Holders or the Holder Representative in any dispute relating to or arising under Section 4.3 or relating to whether a CVR Transaction has occurred or the amount of any CVR Payment. The Rights Agent shall have the right, but not the obligation, to enforce any right of action under this Agreement and any action, suit or proceeding instituted by the Rights Agent on behalf of the Holders will be brought in its name as Rights Agent, and any recovery of judgment will be for the ratable benefit of all the Holders, as their respective rights or interests may appear (after deducting any costs or expenses of the Rights Agent).

3.2 Certain Rights of Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations will be read into this Agreement against the Rights Agent. In addition:

(a) the Rights Agent may rely and will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may, rely upon an Officer’s Certificate, and the Rights Agent shall, in the absence of fraud, gross negligence, bad faith or willful or intentional misconduct on its part (each as determined by a final non-appealable judgment of a court of competent jurisdiction), incur no liability and be held harmless by the Company for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such certificate;

(c) the Rights Agent may engage and consult with counsel of its selection (who may be counsel for Company or an employee or counsel of the Rights Agent) and the written advice of such counsel or any opinion of counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

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(d) in the event of any litigation or arbitration, the Rights Agent may engage and consult with tax experts, valuation firms and other experts and third parties that it, in its sole and absolute discretion, deems appropriate or necessary to enable it to discharge its duties hereunder;

(e) the permissive rights of the Rights Agent to do things enumerated in this Agreement will not be construed as a duty;

(f) the Rights Agent will not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the premises;

(g) the Rights Agent shall not be liable for or by reason of, and shall be held harmless by the Company with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only;

(h) the Rights Agent shall have no liability and shall be held harmless by the Company the Company respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by the Company); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement;

(i) the Company agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demands, suits or expense (in each case pertaining to the Rights Agent’s own account only) arising out of or in connection with the Rights Agent’s duties under this Agreement, including the costs and expenses of defending the Rights Agent against any claims, charges, demands, suits or loss, unless such loss has been determined by a court of competent jurisdiction to be a result of the Rights Agent’s willful misconduct, bad faith or gross negligence;

(j) the Company agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement, as set forth on Schedule 1 hereto, and (ii) to reimburse the Rights Agent for all taxes and governmental charges, reasonable expenses and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than taxes imposed on or measured by the Rights Agent’s net income and franchise or similar taxes imposed on it). The Rights Agent will also be entitled to reimbursement from the Company for all reasonable out-of-pocket expenses (including reasonable fees and expenses of the Rights Agent’s counsel and agent) paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder. An invoice for any reasonable out-of-pocket expenses and per item fees realized will be rendered and payable within thirty (30) days after receipt by the Company. The Company agrees to pay to Rights Agent any amounts, including fees and expenses, payable in favor of the Rights Agent in connection with any dispute, resolution or arbitration arising under or in connection with the Agreement; and any fees and expenses, payable by the Company in favor of the Rights Agent or payable in favor of the Company related to such dispute, resolution or arbitration will be offset against any CVR Payments, if any, or any other payment to be made thereafter under this Agreement;

 

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(k) the Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder but did not, and the Rights Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith, unless and until it has received such notice in writing;

(l) unless otherwise specifically prohibited by the terms of this Agreement, the Rights Agent and any shareholder, affiliate, director, officer, agent or employee of the Rights Agent may buy, sell or deal in any securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for any other Person;

(m) the Rights Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of the Share Exchange Agreement or any other agreements or instruments related to the Acquisition, nor shall the Rights Agent be required to determine if any person or entity has complied with the Share Exchange Agreement or any other agreements or instruments related to the Acquisition, nor shall any additional obligations of the Rights Agent be inferred from the terms of such agreements or instruments even though reference thereto may be made in this Agreement; and

(n) the provisions of this Section 3.2 shall survive the termination of this Agreement and the CVRs and the resignation, replacement or removal of the Rights Agent.

3.3 Resignation and Removal; Appointment of Successor.

(a) The Rights Agent may resign at any time by giving written notice thereof to the Company, specifying a date when such resignation will take effect, which notice will be sent at least thirty (30) days before the date so specified.

(b) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the stock transfer or other stockholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of the transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 3.3(b). If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, the Company, shall, as soon as is reasonably practicable, appoint a qualified successor Rights Agent who, shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank. Notwithstanding the foregoing, if the Company shall fail to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent, then the incumbent Rights Agent may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

 

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(c) The Company will give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail, postage prepaid, to the Holders as their names and addresses appear in the CVR Register and by delivering notice to the Holder Representative. Each notice will include the name and address of the successor Rights Agent. If the Company fails to send such notice within five (5) Business Days after acceptance of appointment by a successor Rights Agent, upon the Company’s request the successor Rights Agent will cause such notice to be mailed at the expense of the Company.

3.4 Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder will execute, acknowledge and deliver to the Company and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the retiring Rights Agent; providedhowever, that upon the request of the Company or the successor Rights Agent, such retiring Rights Agent will cooperate in the transfer of all relevant data, including the CVR Register, to the successor Rights Agent.

ARTICLE IV

COVENANTS

4.1 List of Holders. The Company will furnish or cause to be furnished to the Holder Representative and the Rights Agent the names, addresses and shareholdings of registered holders of Common Stock as of 5:01 p.m. Eastern Time on the Record Date. The Company will promptly furnish an electronic copy of the CVR Register to the Holder Representative upon written request from the Holder Representative. Until such list of Holders are furnished to the Rights Agent, the Rights Agent shall have no duties, responsibilities or obligations with respect to such Holders.

4.2 [RESERVED]

4.3 Diligence.

(a) From and after the Closing, until the CVR Expiration Date, the Company shall use Commercially Reasonable Efforts to (i) complete the STING Trial and (ii) pursue CVR Transactions. Subject to the preceding sentence, the Company has no obligation to develop or expend any funds in connection with the development of any Company Product (except to the extent provided in the immediately following sentence) and has no obligation to license, sell or otherwise monetize any Company Product. The Company’s obligations pursuant to the first sentence of this Section 4.3(a) will expire (x) with respect to clause (i) thereof, upon the earlier to occur of: (A) a Technical Failure, or (B) the date on which the Company and its Affiliates have incurred at least $1,812,000 in aggregate out-of-pocket costs and expenses in connection with the conduct of the STING Trial; and (y) with respect to clause (ii) thereof, in respect of a Company Product, upon the occurrence of a Technical Failure with respect to such Company Product.

 

15


(b) Notwithstanding the foregoing, the obligation of the Company to use Commercially Reasonable Efforts pursuant to Section 4.3(a) shall not be deemed a guarantee that any CVR Payment will be earned. Neither the Company nor any of its directors, officers or their respective Affiliates owes any fiduciary duty to the Holders with respect to the CVR Payments. Further, the parties acknowledge that the Company’s sole obligations with respect to any potential CVR Payments are expressly set forth in this Agreement.

4.4 Further Assurances. The Company and the Holder Representative agree that they will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the parties hereto for the carrying out or performing by such parties of the provisions of this Agreement.

ARTICLE V

AMENDMENTS

5.1 Amendments Without Consent of Holder Representative.

(a) Without the consent of the Holder Representative or the Rights Agent, the Company, when authorized by a Board Resolution, at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:

(i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein in a transaction contemplated by Section 6.1 hereof; or

(ii) to evidence the termination of the CVR Registrar and the succession of another Person as a successor CVR Registrar and the assumption by any successor of the obligations of the CVR Registrar herein.

(b) Without the consent of the Holder Representative, the Company, when authorized by a Board Resolution, together with the Rights Agent, in the Rights Agent’s sole and absolute discretion, may at any time and from time to time, enter into one or more amendments hereto:

(i) to evidence the succession of another Person as a successor Rights Agent and the assumption by any successor of the covenants and obligations of the Rights Agent herein;

(ii) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Board of Directors and the Rights Agent will consider to be for the protection of the Holders;

(iii) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein; providedhowever, that in each case, such provisions will not materially adversely affect the interests of the Holders;

 

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(iv) as may be necessary to ensure that the CVRs are not subject to registration under the Securities Act of 1933, as amended, or the Exchange Act of 1934, as amended; or

(v) to add, eliminate or change any provision of this Agreement unless such addition, elimination or change is adverse to the interests of the Holders.

(c) Promptly after the execution by the Company and the Rights Agent of any amendment pursuant to the provisions of this Section 5.1, the Company will deliver a notice thereof to the Holder Representative, setting forth in general terms the substance of such amendment.

5.2 Amendments with Consent of Holder Representative. Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holder Representative), the Company, when authorized by a Board Resolution, and the Rights Agent and the Holder Representative may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any or all provisions of this Agreement.

5.3 Execution of Amendments. In executing any amendment permitted by this Article V, the Rights Agent will be entitled to receive, and will be fully protected in relying upon, an opinion of counsel of the Company, at Company’s sole expense, stating that the execution of such amendment is authorized or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, obligations, powers, trusts, immunities, or duties under this Agreement or otherwise, and the Rights Agent shall not be bound by amendments not executed by it. No amendment to this Agreement will be effective unless duly executed by the Rights Agent.

5.4 Effect of Amendments. Upon the execution of any amendment under this Article V, this Agreement will be modified in accordance therewith, such amendment will form a part of this Agreement for all purposes and every Holder will be bound thereby.

ARTICLE VI

CONSOLIDATION, MERGER, SALE OR CONVEYANCE

6.1 Effect of Merger or Consolidation.

(a) Except as contemplated by the Acquisition, the Company will not consolidate with or merge into any other Person or sell, transfer or otherwise convey all or substantially all of its assets, in one or a series of related transactions, to any Person, unless:

(i) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by sale, transfer or other conveyance, all or substantially all of the assets of the Company (the “Surviving Person”) expressly assumes payment (if and to the extent required hereunder) of amounts on all the CVRs and the performance of every duty and covenant of this Agreement on the part of the Company to be performed or observed; and

(ii) the Company has delivered to the Holder Representative and the Rights Agent an Officer’s Certificate, stating that such consolidation, merger, conveyance, transfer or lease complies with this Article VI and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

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(b) In connection with a Change of Control, the Company will have the right, but not the obligation, in its sole discretion, to redeem all, but not less than all of the outstanding CVRs, at any time from and after the public announcement of such Change of Control and ending on the thirtieth (30th) day following the consummation of the Change of Control for an aggregate redemption amount equal to the Target Payment Amount. In the event that the Company wishes to exercise its right pursuant to this Section 6.1(b), the Company shall provide a written notice of redemption (a “Redemption Notice”) to the Rights Agent and the Holder Representative, which Redemption Notice shall specify the date fixed for the redemption of the outstanding CVRs which date shall be not less than ten (10) Business Days nor more than twenty (20) Business Days following the delivery of the Redemption Notice to the Rights Agent and the Holder Representative (such date, the “Redemption Date”). Promptly following its receipt of the Redemption Notice, the Rights Agent shall deliver a copy thereof to the Holders. On the Redemption Date, the Company shall pay the Target Payment Amount to the Rights Agent (for the account of the Holders) by wire transfer of immediately available funds to such account as may be designated by the Rights Agent. Upon the indefeasible payment in full by the Company of the Target Payment Amount to the Rights Agent, the CVRs shall be cancelled and of no further force and effect and shall thereafter represent only the right to receive such Holder’s pro rata share of the Target Payment Amount. The Rights Agent shall pay to each Holder, such Holder’s pro rata share of the Target Payment Amount pursuant to the payment procedures specified in Section 2.4(d) and subject to Section 2.4(f), Section 2.4(h), and Section 2.4(i).

6.2 Successor Substituted. Upon any consolidation of or merger by the Company with or into any other Person, or any conveyance, transfer or lease of the properties and assets substantially as an entirety to any Person in accordance with Section 6.1, the Surviving Person will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if the Surviving Person had been named as the Company herein, and thereafter the predecessor Person will be relieved of all obligations and covenants under this Agreement and the CVRs.

ARTICLE VII

THE HOLDER REPRESENTATIVE

7.1 Appointment. Effective upon the issuance of the CVRs under this terms of this Agreement, and without any further act of any of Holders, the Holder Representative is appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each Holder for purposes of this Agreement and will take such actions to be taken by the Holder Representative under this Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby, including (i) executing and delivering this Agreement and any other ancillary documents and negotiating and executing any amendments, modifications, waivers or changes thereto as to which the Holder Representative, in its sole discretion, has consented (provided that any waiver or amendment that adversely and disproportionately affects the rights or obligations of one or more Holders as compared to other Holders will require the prior written consent of a majority in interest of the disproportionately affected Holders), (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Holders, and (iii) taking all other actions that are either necessary or appropriate in the judgment of the Holder Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Holder Representative hereby accepts such appointment and agrees to serve as such without compensation. The appointment of the Holder Representative as each Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Holder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Holder Representative is the sole and exclusive representative of each of the Holders for any purpose provided for by this Agreement.

 

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7.2 Actions of Holder Representative.

(a) A decision, act, consent or instruction of the Holder Representative hereunder will constitute a decision, act, consent or instruction of all Holders and will be final, binding and conclusive upon each such Holder, and the Company and the Rights Agent may rely upon any such decision, act, consent or instruction of the Holder Representative as being the decision, act, consent or instruction of each and every such Holder. The Company and the Rights Agent will be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holder Representative.

(b) The Holder Representative will incur no liability with respect to any action taken or suffered by any Holder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holder Representative to be genuine and to have been signed by such Holder (and will have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of the Holder Representative. In all questions arising under this Agreement, the Holder Representative may rely on the advice of outside counsel, and the Holder Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by Holder Representative based on such advice.

(c) The Holders will severally (on a pro rata basis, based on the number of CVRs held by each Holder), but not jointly, indemnify the Holder Representative and hold the Holder Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Holder Representative and arising out of or in connection with the acceptance or administration of the Holder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Holder Representative, to the extent not reimbursed by the Company pursuant to Section 7.2(d).

(d) In connection with providing services under this Agreement, the Holder Representative will be reimbursed by the Company for all reasonable fees and expenses incurred in providing such services. Any such fees and expenses will be paid by the Company within thirty (30) days of the receipt of an invoice from the Holder Representative and will be offset against the CVR Payment Amount, if any.

 

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7.3 Removal; Appointment of Successor.

(a) At any time Holders representing at least a majority of the outstanding CVRs may, by written consent, appoint another Person as Holder Representative. Notice, together with a copy of the written consent appointing such Person and bearing the signatures of Holders of at least a majority of the outstanding CVRs, must be delivered to the Company and the Rights Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by the Company and the Rights Agent.

(b) If the Holder Representative becomes unable or unwilling to continue in his or its capacity as the Holder Representative, or if the Holder Representative resigns as a Holder Representative, the Holder Representative may appoint a new representative as the Holder Representative. If the Holder Representative is unable or unwilling to appoint a successor Holder Representative, then the board of directors of the Company shall appoint another Person as Holder Representative. Notice and a copy of the written consent appointing such Person must be delivered to the Company and the Rights Agent not less than ten (10) days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by the Company and the Rights Agent.

7.4 Grant of Authority. The grant of authority provided for in this Article VII is coupled with an interest and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Holder. The provisions of this Article VII will be binding upon the executors, heirs, legal representatives, successors and assigns of each Holder, and any references in this Agreement to any Holder or the Holders will mean and include the successors to such Holder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.

ARTICLE VIII

OTHER PROVISIONS OF GENERAL APPLICATION

8.1 Notices to Rights Agent, Company and Holder Representative. Subject to Section 8.2, all notices, requests, demands, claims and other communications that are required to be or may be given under this Agreement must be in writing and will be deemed to have been effectively given: (a) upon personal delivery to the recipient; (b) when sent by e-mail transmission, if sent during normal business hours of the recipient; if not, then on the next Business Day (if an email address is provided under this Section 8.1); (c) one Business Day after deposit with a nationally recognized overnight courier, specifying next-day delivery, with written verification of receipt; or (d) three (3) Business Days after being sent by first class mail, postage prepaid, in each case to the intended recipient at the following addresses:

 

  (a)

if to the Company, to

Spring Bank Pharmaceuticals, Inc.

c/o Martin Driscoll

6160 Stapleford Circle Dallas, TX 75252

mdriscoll2011@gmail.com;

 

20


with a copy (which shall not constitute notice) to:

Lowenstein Sandler LLP

1251 Avenue of the Americas, 17th Floor

New York, NY 10020

Attention: Jack Hogoboom

jhogoboom@lowenstein.com;

 

  (b)

if to the Rights Agent, to

Computershare Trust Company, N.A.

150 Royall Street

Canton, MA 02021

Attention: Client Services; and

 

  (c)

if to the Holder Representative, to

Martin Driscoll

6160 Stapleford Circle Dallas, TX 75252

mdriscoll2011@gmail.com.

or to such other address as any party has furnished to the other parties by notice given in accordance with this Section 8.1.

8.2 Notice to Holders. Where this Agreement provides for notice to Holders, such notice will be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his, her or its address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder will affect the sufficiency of such notice with respect to other Holders.

8.3 Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the CVRs and this Agreement supersedes any and all other oral or written agreements made with respect to the CVRs. No party has relied on any other express or implied representation or warranty, either written or oral in connection with its entry into this Agreement, including any representation or warranty arising under statute or otherwise under law.

8.4 Legal Holidays. If a CVR Payment Date is not a Business Day, then, notwithstanding any provision of this Agreement to the contrary, any payment required to be made in respect of the CVRs on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the CVR Payment Date.

8.5 Assignment. The Company may not assign this Agreement without the prior written consent of the Holder Representative; provided that the Company may assign, in its sole discretion and without the consent of any other party, any or all of its rights, interests and obligations hereunder to one or more direct or indirect wholly-owned subsidiaries of the Company (each, an “Assignee”), provided that the Assignee agrees to assume and be bound by all of the terms of this Agreement; provided, however, that in connection with any assignment to an Assignee, the Company shall, and shall agree to, remain liable for the performance by such Assignee of all obligations of the Company hereunder.

 

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8.6 Third Party Beneficiaries. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, will give to any Person (other than the parties hereto, the Holders and their permitted successors and assigns hereunder) any benefit or any legal or equitable right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto, the Holders and their permitted successors and assigns.

8.7 Termination. Except as otherwise provided in this Agreement, this Agreement will terminate and be of no further force or effect, and the parties hereto will have no liability hereunder, upon the earliest to occur of: (a) the payment of the last possible CVR Payment due hereunder, (b) if an Objection Notice to a Non-Achievement Certificate is not delivered within the Objection Period, the expiration of the Objection Period, (c) in the event of the delivery of an Objection Notice, either (i) the final determination in accordance with this Agreement that no CVR Transaction has been achieved or (ii) the fulfillment of any payment obligation required pursuant to a final determination made in accordance with this Agreement.

8.8 Survival. Notwithstanding anything in this Agreement to the contrary, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality shall survive the termination or expiration of this Agreement.

8.9 Governing Law. This Agreement and the CVRs will be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

8.10 Remedies. The Holders will not have any rights or remedies with respect to the CVRs except as expressly set forth herein.

8.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.11.

 

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8.12 Confidentiality.

(a) Confidential Information” shall mean any and all technical, scientific or business information relating to a party, including, without limitation, financial, marketing and product development information, stockholder information (including any non-public information of such stockholder), and proprietary information that is disclosed or otherwise becomes known to the other party or its Affiliates, agents or representatives before or during the term of this Agreement. Confidential Information constitutes trade secrets and is of great value to the owner (or its Affiliates). Confidential Information shall not include any information that is: (a) already known to the other party or its Affiliates at the time of the disclosure, provided that such prior knowledge can be substantiated by the written records of such party; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the other party; (c) subsequently disclosed to the other party or its Affiliates on a non-confidential basis by a third party not having a confidential relationship with the owner and which rightfully acquired such information; or (d) independently developed by one party without access to the Confidential Information of the other, provided that such independent development can be substantiated by the written records of such party. This Agreement, including all of its terms and conditions, will not be deemed to be Confidential Information and may be publicly disclosed by the Company; provided, that the fee schedule shall be considered Confidential Information.

(b) All Confidential Information of a party will be held in confidence by the other party with at least the same degree of care as such party protects its own confidential or proprietary information of like kind and import, but not less than a reasonable degree of care. Neither party will disclose in any manner Confidential Information of the other party in any form to any person or entity without the other party’s prior consent. However, each party may disclose relevant aspects of the other party’s Confidential Information to its officers, Affiliates, agents, subcontractors and employees to the extent reasonably necessary to perform its duties and obligations under this Agreement. Without limiting the foregoing, each party will implement such physical and other security measures and controls designed to protect (a) the security and confidentiality of Confidential Information; (b) against any threats or hazards to the security and integrity of Confidential Information; and (c) against any unauthorized access to or use of Confidential Information. To the extent that a party delegates any duties and responsibilities under this Agreement to an agent or other subcontractor, the party ensures that such agent and subcontractor are contractually bound to confidentiality terms consistent with the terms of this Section 8.12.

(c) In the event that any requests or demands are made for the disclosure of Confidential Information, other than requests to Rights Agent for stockholder records pursuant to standard subpoenas from state or federal government authorities (e.g., divorce and criminal actions), the party receiving such request will promptly notify the other party to secure instructions from an authorized officer of such party as to such request and to enable the other party the opportunity to obtain a protective order or other confidential treatment, unless such notification is otherwise prohibited by law or court order. Each party expressly reserves the right, however, to disclose Confidential Information to any person whenever it is advised by counsel that it may be held liable for the failure to disclose such Confidential Information or if required by law or court order

 

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8.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of a signed Agreement by reliable electronic means, including facsimile, email, or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (including DocuSign) shall be an effective method of delivering the executed Agreement. This Agreement may be stored by electronic means and either an original or an electronically stored copy of this Agreement can be used for all purposes, including in any proceeding to enforce the rights and/or obligations of the parties to this Agreement.

8.14 Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, epidemics, pandemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunctions of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war or civil unrest.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

COMPANY:
SPRING BANK PHARMACEUTICALS, INC.
By:  

/s/ Lori Firmani

Name:   Lori Firmani
Title:   Vice President, Finance

[Signature Page to STING Agonist CVR Agreement]


IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

F-STAR:
F-STAR THERAPEUTICS LIMITED
By:  

/s/ Eliot Forster, Ph.D.

Name:   Eliot Forster, Ph.D.
Title:   President and Chief Executive Officer

[Signature Page to STING Agonist CVR Agreement]


IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

RIGHTS AGENT:

COMPUTERSHARE INC. and

COMPUTERSHARE TRUST COMPANY, N.A.

On Behalf of Both Entities

By:  

/s/ Collin Ekeogu

Name:   Collin Ekeogu
Title:   Manager, Corporate Actions

[Signature Page to STING Agonist CVR Agreement]


IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

HOLDER REPRESENTATIVE:
MARTIN DRISCOLL

/s/ Martin Driscoll

[Signature Page to STING Agonist CVR Agreement]


Schedule 1

Rights Agent Fees

Computershare - Schedule of Fees & Services

Spring Bank Pharmaceuticals – STING Agonist

CVR Rights Agent

 

Service

   Fee  

One-Time Account Set-Up Fee

   $ 5,000.00  

Monthly Administration Fee

   $ 500.00  

›   Dedicated relationship management

  

›   Share recordkeeping including direct registration for up to 500 accounts in one CVR issue

  

›   Shareholder account maintenance

  

›   Shareholder communications

  

›   Online issuer and investor access

  

›   Management reports

  

Set-Up of Distribution Event

   $ 2,500.00  

Per check issued

   $ 5.50  

Per 1099 or applicable tax form issued

   $ 3.50  

Legal Review

     By appraisal, additional  

Call Center Service Fee, including:

     Included  

›   Toll Free 800 Number Service Set-Up

  

›   Handling Inquiries

  

Out of Pocket Expenses:

     Additional  

These include but are not limited to the following:

  

›   Outside counsel legal review fees

  

›   Telephone charges

  

›   Stationery, design, programming, printing, insertion and postage

  

›   Regulatory reports

  

›   Wire Transfer Fee

  

 

Spring Bank Pharmaceuticals
Name:  

/s/ Martin Driscoll

Title:  

CEO

EX-10.7

Exhibit 10.7

Execution Version

ExSTING ANTAGONIST CONTINGENT VALUE RIGHTS AGREEMENT

THIS STING ANTAGONIST CONTINGENT VALUE RIGHTS AGREEMENT, dated as of November 20, 2020 (this “Agreement”), is entered into by and among Spring Bank Pharmaceuticals, Inc., a Delaware corporation (the “Company”), F-Star Therapeutics Limited, a company registered in England and Wales with company number 11532458 (“F-Star”), Computershare Inc., a Delaware corporation (“Computershare”), and its wholly-owned subsidiary Computershare Trust Company, N.A., a federally chartered trust company (collectively with Computershare, the “Rights Agent”), and Martin Driscoll, acting solely in his capacity as representative of the Holders (as defined herein) (the “Holder Representative”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Share Exchange Agreement (as defined below).

A. The Company, F-Star, and certain other Persons (the “Sellers”) have entered into a Share Exchange Agreement (the “Share Exchange Agreement”), pursuant to which the Sellers will sell to the Company, and the Company will purchase from the Sellers, all of the F-Star Shares (the “Acquisition”).

B. Pursuant to Section 1.7 of the Share Exchange Agreement, prior to the consummation of the Acquisition, the Company wishes to create and issue contractual contingent value rights relating to the CVR Assets (as defined herein) to the record holders of the Common Stock (as defined herein) as of the Record Date (as defined herein) prior to the consummation of the Acquisition.

C. The Board of Directors of the Company, or an appropriately constituted and authorized committee of the Board of Directors of the Company, has authorized and declared a dividend of one CVR (as defined herein) for each share of Common Stock outstanding at 5:01 p.m. Eastern Time on the Record Date. The payment of such dividend will be conditioned upon, and such dividend will only become payable upon, the satisfaction or waiver of all conditions to the Acquisition and the occurrence of the time that is immediately prior to the consummation of the Acquisition. The Company will pay the dividend immediately prior to the consummation of the Acquisition.

Accordingly, and in consideration of the premises and the consummation of the transactions referred to above, it is mutually agreed, for the benefit of the Holders, as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions.

(a) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(i) all accounting terms used herein and not expressly defined herein have the meanings assigned to such terms in accordance with United States generally accepted accounting principles, as in effect on the date hereof;


(ii) unless the context otherwise requires, words describing the singular number include the plural and vice versa, words denoting any gender include all genders and words denoting natural Persons include corporations, partnerships and other Persons and vice versa;

(iii) the words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”;

(iv) the terms “hereof”, “hereunder”, “herein” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or provision of this Agreement; and

(v) the Article and Section headings contained in this Agreement are for reference purposes only and do not limit or otherwise affect any of the substance of this Agreement.

(b) The following terms have the meanings ascribed to them as follows:

Affiliates” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such first Person.

Approved Development Agreement” means a definitive agreement entered into by Company for the Approved Development Transaction.

Approved Development Transaction” means the proposed transaction relating to Company’s STING (STimulator of INterferon Genes) antagonist program contemplated by the Term Sheet.

Board of Directors” means the board of directors of the Company.

Board Resolution” means a copy of a resolution certified by the secretary or an assistant secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Rights Agent and the Holder Representative.

Budgeted Amount” means the aggregate amount of expenditures by the Company set forth in the Work Plan(s) (as defined in the Approved Development Agreement), which amount shall be the amount specified in the Term Sheet.

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks located in Boston, Massachusetts or London, England are authorized or required by applicable Legal Requirements to close; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by applicable Legal Requirements to close due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Body so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in such location generally are open for use by customers on such day.

 

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Close of Business” on any given date means 5:00 p.m., Eastern Time, on such date; providedhowever, that if such date is not a Business Day it will mean 5:00 p.m., Eastern Time, on the next succeeding Business Day.

Commercially Reasonable Efforts” means, with respect to the efforts and resources to be expended by the Company with respect to (i) negotiation and execution of the Approved Development Agreement (to the extent not executed and delivered prior to Closing), (ii) performing the Approved Development Transaction in accordance with the terms of the Approved Development Agreement, and (iii) pursuing and seeking to consummate CVR Transactions, such reasonable, good faith efforts and resources as a biotechnology company of a similar size and with similar financial and other resources would normally use to pursue its clinical development programs and pursue and seek to consummate such a transaction under similar circumstance for a similar product or product candidate owned by it, or to which it has similar rights, which product or product candidate is at a similar stage in its development and is of similar market potential taking into account all relevant factors; provided that, it is expressly understood and agreed that despite the use of such above described efforts, neither the Approved Development Transaction nor any CVR Transaction may occur and the obligation to make a CVR Payment may not arise.

Common Stock” means the common stock, $0.0001 par value, of the Company.

Company Product” means any product that incorporates any proprietary STimulator of INterferon Genes (“STING”) antagonist compound of the Company.

CVR” means a contingent value right issued by the Company pursuant to this Agreement.

CVR Asset Transaction” means a transaction consummated at any time prior to the CVR Expiration Date pursuant to which the Company or any of its Affiliates grants, sells, licenses or otherwise transfers to a Third Party some or all of the rights to the CVR Assets, including any rights to research, develop or commercialize the CVR Assets, including a license, option, or sale of assets with respect to the CVR Assets; provided, that any such transaction involving any asset other than a CVR Asset shall not constitute a CVR Asset Transaction.

CVR Assets” means any Intellectual Property and other assets that are used or held for use for the development of a Company Product, including all (a) regulatory filings made with respect to a Company Product; (b) regulatory approvals received with respect to a Company Product; and (c) clinical and non-clinical safety, and efficacy and pharmacokinetic data generated with respect to a Company Product.

CVR Expiration Date” means the seventh (7th) anniversary of the Closing.

CVR Payment” means the payment of any CVR Payment Amount hereunder.

CVR Payment Amount” means an amount equal to 80% of all Net Proceeds received by Company after the Closing pursuant to (i) the Approved Development Agreement, if any, and (ii) all CVR Transactions entered into prior to the CVR Expiration Date.

CVR Payment Date” means the date (if any and if ever) that a CVR Payment is payable by the Company to the Holders, which date will be established pursuant to Section 2.4.

 

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CVR Register” has the meaning set forth in Section 2.3(b).

CVR Registrar” has the meaning set forth in Section 2.3(b).

CVR Transaction” means a CVR Asset Transaction. For clarity, (a) the grant of a license to any Third Party (including any contract research organization) for the purposes of conducting research on behalf of the Company with respect to the CVR Assets shall not be deemed a CVR Transaction and (b) the sale of all or substantially all of the Company’s or any of its Affiliate’s stock or assets (to the extent such asset sale includes assets unrelated to the CVR Assets), or a merger, acquisition or similar transaction shall not be deemed a CVR Transaction. For the avoidance of doubt, (i) more than one CVR Transaction may occur under this Agreement and (ii) the execution and delivery of the Approved Development Agreement shall not constitute a CVR Transaction.

CVR Transaction Non-Achievement Certificate” has the meaning set forth in Section 2.4(c).

Development Transaction Non-Achievement Certificate” has the meaning set forth in Section 2.4(c).

Holder” means a Person in whose name a CVR is registered in the CVR Register.

Holder Representative” means the Holder Representative named in the first paragraph of this Agreement, until a successor Holder Representative has become such pursuant to the applicable provisions of this Agreement, and thereafter “Holder Representative” will mean such successor Holder Representative.

“Intellectual Property” means all intellectual property, including the following items of intangible property, and all rights associated therewith in any jurisdiction and tangible embodiments thereof: (a) all Patents; (b) all works of authorship, copyrights, whether or not registered, and all registrations and pending applications for registration of the same and renewals thereof and database rights; (c) all technology, technical information, know-how and data, including, without limitation, inventions (whether or not patentable of reduced to practice), improvements, discoveries, trade secrets, specifications, instructions, ideas, processes, methods, formulations, formulae, protocols, materials, assays, screens, algorithms, models, databases, expertise and other technology applicable to formulations, compositions or products or to their manufacture, development, registration, use or marketing or to methods of assaying or testing them or processes for their manufacture, formulations containing them or compositions incorporating or comprising them, and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, nonclinical, pre-clinical and clinical data, regulatory data and filings, instructions, processes, formulae, expertise and information, relevant to the research, development, manufacture, use, importation, offering for sale or sale of, and/or which may be useful in studying, testing, developing, producing or formulating, a Company Product, or intermediates for the synthesis thereof and chemistry, manufacturing and control information and data, lab notebooks, Patent data and records, stability, technology, test and other data and results; and (d) computer programs, including, without limitation, computer programs embodied in semiconductor chips or otherwise embodied, and related flow-charts, programmer notes, updates and data, whether in object or source code form.

 

 

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Net Proceeds” means an aggregate amount (without duplication) equal to the sum of: (a) all cash consideration actually received by the Company or its Affiliates from a Third Party (x) pursuant to the Approved Development Agreement after the Closing, if any, and (y) in connection with the consummation of a CVR Transaction, plus (b) with respect to any non-cash consideration actually received by the Company or its Affiliates from a Third Party prior to the CVR Expiration Date in connection with the consummation of a CVR Transaction, the fair market value of such non-cash consideration, as determined by the Board of Directors in good faith, less (c) all out-of-pocket transaction costs and expenses incurred by the Company or its Affiliates after the date of this Agreement to Third Parties for the negotiation, entry into and consummation of the Approved Development Agreement and a CVR Transaction, including any broker fees, finder’s fees, advisory fees, accountant or attorney’s fees, and reasonable costs of recovery of any amounts payable to the Company in connection with the Approved Development Agreement or a CVR Transaction, less (d) all unreimbursed out-of-pocket costs and expenses incurred by the Company in performing its obligations under (x) the Approved Development Agreement in excess of 10% of the Budgeted Amount and (y) a CVR Transaction (collectively, “Specified Costs”), less (e) patent prosecution and maintenance costs and drug storage costs incurred by the Company with respect to the CVR Assets after the Closing Date, less (f) any applicable sales, income and other taxes incurred by the Company or its Affiliates in respect of the performance of the Company’s obligations under the Approved Development Agreement or a CVR Transaction, and less (g) all out-of-pocket fees and costs (including any amounts paid for indemnification) payable by the Company to the Rights Agent pursuant to this Agreement in connection with the Approved Development Agreement or a CVR Transaction. For the avoidance of doubt, (A) “Net Proceeds” shall not include any payment or reimbursement to Company by a Third Party of Company’s development expenses; (B) amounts placed in escrow or earnout, contingent or other post-closing payments, including milestone or royalty payments, in connection with the Approved Development Agreement or a CVR Transaction will not be considered Net Proceeds unless (and only to the extent that) such amounts are actually received by the Company prior to the CVR Expiration Period; and (C) if the Approved Development Transaction or a CVR Transaction occurs prior to the CVR Expiration Date, any such escrow, earnout, contingent or other post-closing payment released or paid after the CVR Expiration Date will be included in the calculation of Net Proceeds, so long as such amount is actually received by the Company or its Affiliates within the twelve (12)-month period immediately following the consummation of the Approved Development Transaction or such CVR Transaction. For the avoidance of doubt, any amount payable to the Company pursuant to the Approved Development Agreement or a CVR Transaction that is included in Net Cash or included in the Permitted Dividend (each, as defined in the Share Exchange Agreement) shall not constitute Net Proceeds.

Non-Achievement Certificate” has the meaning set forth in Section 2.4(c).

Objection Notice” has the meaning set forth in Section 2.4(d).

Objection Period” has the meaning set forth in Section 2.4(d).

 

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Officer’s Certificate” means a certificate signed by the chief executive officer, president, chief financial officer or secretary of the Company, in his or her capacity as such an officer, and delivered to the Rights Agent and the Holder Representative.

Patents” means all patents and patent applications (including provisional applications) and patent disclosures, and including all divisionals, continuations, substitutions, continuations-in-part, re-examinations, re-issues, additions, renewals, extensions, confirmations, registrations, any confirmation patent or registration patent or patent of addition based on any such patent, patent term extensions, and supplemental protection certificates or requests for continued examinations and foreign counterparts, of any of the foregoing.

Permitted Transfer” means: (i) the transfer of any or all of the CVRs (upon the death of the Holder) by will or intestacy; (ii) transfer by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; (iii) transfers made pursuant to a court order of a court of competent jurisdiction (such as in connection with divorce, bankruptcy or liquidation); (iv) if the Holder is a partnership or limited liability company, a pro-rata distribution by the transferring partnership or limited liability company to its partners or members, as applicable; (v) a transfer made by operation of law (including a consolidation or merger) or in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; (vi) a transfer from a participant’s account in a tax-qualified employee benefit plan to the participant or to such participant’s account in a different tax-qualified employee benefit plan or to a tax-qualified individual retirement account for the benefit of such participant; (vii) a transfer from a participant in a tax-qualified employee benefit plan, who received the CVRs from such participant’s account in such tax-qualified employee benefit plan, to such participant’s account in a different tax-qualified employee benefit plan or to a tax-qualified individual retirement account for the benefit of such participant; or (viii) in the case of CVRs held in book-entry form or other similar nominee form, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case as allowable by DTC.

Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

Record Date” means November 19, 2020. For the avoidance of doubt, the Record Date shall occur prior to the effectiveness of the Company Reverse Stock Split.

Reporting Certificate” has the meaning set forth in Section 2.4(a).

Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent has become such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” will mean such successor Rights Agent.

Rights Agent Fee” means the agreed-upon fee of the Rights Agent to act in such capacity pursuant to the terms of this Agreement.

Surviving Person” has the meaning set forth in Section 6.1(a)(i).

 

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Target Execution Date” means the date that is six (6) months after the Closing.

Term Sheet” means the term sheet for the Approved Development Transaction disclosed to F-Star in Company’s data room prior to the date of the Share Exchange Agreement.

Third Party” means any Person other than the Company or the Rights Agent or their respective Affiliates.

ARTICLE II

CONTINGENT VALUE RIGHTS

2.1 Authority; Issuance of CVRs; Appointment of Rights Agent.

(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any violation of any provision of the Certificate of Incorporation or By-laws of the Company, or (ii) result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Company or its properties or assets which violation, in the case of clause (ii), individually or in the aggregate, would reasonably be expected to be material to the Company. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby.

(b) One CVR will be issued immediately after the effectiveness of the Company Reverse Stock Split and prior to the consummation of the Acquisition, with respect to each share of Common Stock that is outstanding as of 5:01 p.m. Eastern Time on the Record Date.

(c) The Company hereby appoints the Rights Agent to act as rights agent for the Company in accordance with the express terms and conditions set forth in this Agreement, and the Rights Agent hereby accepts such appointment.

2.2 Nontransferable. The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer. Any purported transfer of a CVR other than in a Permitted Transfer shall be null and void ab initio.

2.3 No Certificate; Registration; Registration of Transfer; Change of Address.

(a) The CVRs will be issued in book-entry form only and will not be evidenced by a certificate or other instrument.

 

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(b) The Rights Agent will keep a register (the “CVR Register”) for the registration of the CVRs. The Rights Agent is hereby initially appointed “CVR Registrar” for the purpose of registering the CVRs and Permitted Transfers of the CVRs as herein provided. Upon any change in the identity of the Rights Agent, the successor Rights Agent will automatically also become the successor CVR Registrar.

(c) Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument or instruments of transfer and any other requested documentation in a form reasonably satisfactory to the Company and the CVR Registrar, duly executed by the registered Holder or Holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, including the evidence of authority of the party presenting the CVR for transfer which authority may include if applicable a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association. A request for a transfer of a CVR must be accompanied by such documentation establishing that the transfer is a Permitted Transfer as may be reasonably requested by the Company and/or the CVR Registrar, if appropriate. Upon receipt of such written notice, the CVR Registrar shall, subject to its reasonable determination that the transfer instrument is in proper form notify the Company that it has received such written notice. Upon receipt of such notice from the CVR Registrar, the Company shall determine whether the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), and if the Company determines that it does so comply, the Company shall instruct the CVR Registrar in writing to register the transfer of the CVRs in the CVR Register and notify the Company of the same. All duly transferred CVRs registered in the CVR Register will be the valid obligations of the Company, evidencing the same right and will entitle the transferee to the same benefits and rights under this Agreement as those previously held by the transferor. No transfer of a CVR will be valid until registered in the CVR Register, and any transfer not duly registered in the CVR Register will be void and invalid. All costs and expenses related to any transfer or assignment of the CVRs (including the cost of any transfer tax) will be the responsibility of the transferor. The CVR Registrar shall have no duty or obligation to take any action under any section of this Agreement that requires the payment by a Holder of a CVR of applicable taxes or charges unless and until the CVR Registrar is reasonably satisfied that all such taxes or charges have been paid.

(d) A Holder (or an authorized representative thereof) may make a request to the CVR Registrar to change such Holder’s address of record in the CVR Register. Upon receipt of such request, the CVR Registrar will promptly record the change of address in the CVR Register.

2.4 Payment Procedures.

(a) As soon as practicable following the receipt by the Company of Net Proceeds from (i) the Approved Development Agreement, if any, after the Closing, but in no event later than thirty (30) days after the receipt of such payments, or (ii) a CVR Transaction, but in no event later than thirty (30) days after the closing of such CVR Transaction, and within thirty (30) days after the end of any calendar quarter in which the Company has received Net Proceeds from any CVR Transaction, the Company will deliver to the Holder Representative and the Rights Agent a certificate (each, a “Reporting Certificate”), certifying that the Holders are entitled to receive a CVR Payment and setting forth the Company’s calculation of the CVR Payment Amount. Until such Reporting Certificate is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that no event has occurred that would require a CVR Payment.

 

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(b) [reserved]

(c) If the Approved Development Agreement has not been executed and delivered prior to the Target Execution Date, then, as soon as reasonably practicable after the Target Execution Date, but in no event later than thirty (30) days after the Target Execution Date, the Company will deliver to the Holder Representative and the Rights Agent a certificate (the “Development Agreement Non-Achievement Certificate”), stating that the Approved Development Agreement has not been executed and delivered prior to the Target Execution Date. If no CVR Transaction has been effected prior to the CVR Expiration Date, then, as soon as reasonably practicable after the CVR Expiration Date, but in no event later than thirty (30) days after the CVR Expiration Date, the Company will deliver to the Holder Representative and the Rights Agent a certificate (the “CVR Transaction Non-Achievement Certificate” and, together with the Development Agreement Non-Achievement Certificate, each a “Non-Achievement Certificate,” and the Non-Achievement Certificates, together with the Reporting Certificate(s), the “Certificates”), stating that no CVR Transaction has been consummated prior to the CVR Expiration Date.

(d) If the Holder Representative does not object to any determination or calculation set forth in a Certificate by delivery of a written notice thereof to the Company (with a copy to the Rights Agent) setting forth in reasonable detail such objection, together with reasonable supporting documentation (an “Objection Notice”), within thirty (30) days following receipt of the applicable Certificate (the “Objection Period”), the Company’s determination of the non-existence of the Approved Development Agreement or a CVR Transaction, or the calculation of the CVR Payment Amount, as applicable, shall be final and binding on all parties. If the Holder Representative timely delivers to the Company an Objection Notice, the Company and the Holder Representative shall attempt in good faith to resolve such matters within thirty (30) days after receipt of the same by the Company, and if unable to do so, the Company and the Holder Representative shall resolve any unresolved disputed in accordance with Section 8.11, which decision will be final and binding on the parties, absent manifest error. The Company shall, within ten (10) Business Days following the final determination of the CVR Payment Amount pay such CVR Payment Amount to the Rights Agent (for the account of the Holders) by wire transfer of immediately available funds to such account as may be designated by the Rights Agent, and deliver a letter of instruction and other relevant information reasonably required by the Rights Agent. The Rights Agent will distribute the CVR Payment Amount to the Holders in accordance with the letter of instruction from the Company by check mailed to the address of each such respective Holder as reflected in the CVR Register as of the close of business on the last Business Day before such CVR Payment Date. Each Holder shall be entitled to receive its pro rata share of such CVR Payment Amount, as applicable, based on the number of CVRs held by such Holder as reflected on the CVR Register on the date of the Reporting Certificate or the date of final determination pursuant to this Agreement, as applicable) provided, that the Company shall be responsible for providing any related calculation to the Rights Agent, and the Rights Agent shall be fully protected and indemnified if it relies upon the calculations and payment instructions from the Company.

 

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(e) If an Objection Notice has not been timely delivered to the Company in response to a Non-Achievement Certificate within the Objection Period, then the Holders will have no right to receive a CVR Payment, and the Company and the Rights Agent will have no further obligations with respect to any CVR Payment.

(f) If the amount of Net Proceeds used to calculate any CVR Payment Amount is reduced by any Specified Costs and, following payment of such CVR Payment Amount, the Company receives reimbursement for such Specified Costs pursuant to the Approved Development Agreement or CVR Transaction, as applicable, then an amount equal to 80% of such reimbursed Specified Costs shall be added to the next CVR Payment Amount to become payable hereunder to the Holders, and if no additional CVR Payment Amount becomes payable, the Company shall pay such portion of the reimbursed Specified Costs to the Holders through a special distribution to be paid within thirty (30) days after receipt of such reimbursement.

(g) The Company will be entitled to deduct and withhold, or cause to be deducted or withheld, from any CVR Payment Amount or other amount payable pursuant to this Agreement, such amounts as the Company is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code, or any provision of state or local tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant governmental entity, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the Holder in respect of which such deduction and withholding was made. The Company will provide written withholding and payment instructions to the Rights Agent from time to time as applicable, and upon request of the Rights Agent, and the Rights Agent shall be fully protected and shall incur no liability in relying on such instructions. The Rights Agent shall have the right to withhold payment to a Holder if such Holder has not provided an IRS Form W-9 or other applicable Tax form to avoid or reduce such withholding amounts.

(h) Subject to prior execution and delivery by the Holder Representative of a reasonable and customary confidentiality and market stand-off agreement, the Company shall provide the Holder Representative with reasonable access during normal business hours and upon reasonable advance request to the books and records of the Company to the extent necessary to verify (i) whether the Approved Development Agreement was executed and delivered prior to the Target Execution Date, (ii) whether a CVR Transaction occurred prior to the CVR Expiration Date or (iii) the Company’s calculation of the CVR Payment Amount, as applicable; it being understood that the Holder Representative’s rights under this Section 2.4(g) shall terminate upon the later of (i) the CVR Expiration Date or (ii) thirty (30) days after the delivery to the Holder Representative of a Reporting Certificate.

(i) The Company will promptly furnish to the Rights Agent all information and documentation in connection with this Agreement and the CVRs that the Rights Agent may reasonably request in order to perform under this Agreement.

 

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(j) All funds received by the Rights Agent under this Agreement that are to be distributed or applied by Rights Agent in the performance of the services to be provided hereunder (the “Funds”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to the terms of this Agreement, Computershare will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, any holder or any other party.

2.5 No Voting, Dividends or Interest; No Equity or Ownership Interest in the Company.

(a) The CVRs will not have any voting or dividend rights, and interest will not accrue on any amounts payable on the CVRs to any Holder.

(b) The CVRs will not represent any equity or ownership interest in the Company. The rights of the Holders and the obligations of the Company are contract rights limited to those expressly set forth in this Agreement, and such Holders’ sole right to receive property hereunder is the right to receive cash from the Company, if any, through the Rights Agent in accordance with the terms hereof.

2.6 Holder’s Right to Abandon CVR. A Holder may at any time, at such Holder’s option, abandon all of such Holder’s remaining rights in a CVR by transferring such CVR to the Company or any of its Affiliates without consideration. Nothing in this Agreement shall prohibit the Company or its Affiliates from offering to acquire or acquiring CVRs, in private transactions or otherwise, in its sole discretion. Any CVRs acquired by the Company or any of its Affiliates shall be automatically deemed extinguished and no longer outstanding hereunder for any purpose. The Company shall provide prompt written notice to the Rights Agent of any transfer or abandonment of a CVR under this Section 2.6.

ARTICLE III

THE RIGHTS AGENT

3.1 Certain Duties and Responsibilities.

(a) The Rights Agent shall not have any liability for any actions taken suffered or omitted to be taken in connection with this Agreement, except to the extent of its willful misconduct, bad faith or gross negligence (each as determined by a final non-appealable judgment of a court of competent jurisdiction). No provision of this Agreement will require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers. Notwithstanding anything contained herein to the contrary, (i) the Rights Agent’s aggregate liability under this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Rights Agent as fees and charges during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought, but not including reimbursable expenses, and (ii) the Rights Agent shall in no event be liable for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(b) The Holder Representative may in its discretion proceed to and shall be entitled and empowered to protect and enforce its rights and the rights of the Holders herein by such appropriate arbitration proceedings as the Holder Representative shall deem most effectual to protect and enforce any such rights; provided, however the Rights Agent may not act on behalf of the Holders or the Holder Representative in any dispute relating to or arising under Section 4.3 or relating to whether the Approved Development Agreement has been executed and delivered or a CVR Transaction has occurred or the amount of any CVR Payment. The Rights Agent shall have the right, but not the obligation to enforce any right of action under this Agreement and any action, suit or proceeding instituted by the Rights Agent on behalf of the Holders will be brought in its name as Rights Agent, and any recovery of judgment will be for the ratable benefit of all the Holders, as their respective rights or interests may appear (after deducting any costs or expenses of the Rights Agent).

3.2 Certain Rights of Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations will be read into this Agreement against the Rights Agent. In addition:

(a) the Rights Agent may rely and will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may, rely upon an Officer’s Certificate, and the Rights Agent shall, in the absence of fraud, gross negligence, bad faith or willful or intentional misconduct on its part (each as determined by a final non-appealable judgment of a court of competent jurisdiction), incur no liability and be held harmless by the Company for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such certificate;

(c) the Rights Agent may engage and consult with counsel of its selection (who may be counsel for Company or an employee or counsel of the Rights Agent) and the written advice of such counsel or any opinion of counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(d) in the event of any litigation or arbitration, the Rights Agent may engage and consult with tax experts, valuation firms and other experts and third parties that it, in its sole and absolute discretion, deems appropriate or necessary to enable it to discharge its duties hereunder;

 

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(e) the permissive rights of the Rights Agent to do things enumerated in this Agreement will not be construed as a duty;

(f) the Rights Agent will not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the premises;

(g) the Rights Agent shall not be liable for or by reason of, and shall be held harmless by the Company with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only;

(h) the Rights Agent shall have no liability and shall be held harmless by the Company the Company respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by the Company); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement;

(i) the Company agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demands, suits or expense (in each case pertaining to the Rights Agent’s own account only) arising out of or in connection with the Rights Agent’s duties under this Agreement, including the costs and expenses of defending the Rights Agent against any claims, charges, demands, suits or loss, unless such loss has been determined by a court of competent jurisdiction to be a result of the Rights Agent’s willful misconduct, bad faith or gross negligence;

(j) the Company agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement, as set forth on Schedule 1 hereto, and (ii) to reimburse the Rights Agent for all taxes and governmental charges, reasonable expenses and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than taxes imposed on or measured by the Rights Agent’s net income and franchise or similar taxes imposed on it). The Rights Agent will also be entitled to reimbursement from the Company for all reasonable out-of-pocket expenses (including reasonable fees and expenses of the Rights Agent’s counsel and agent) paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder. An invoice for any reasonable out-of-pocket expenses and per item fees realized will be rendered and payable within thirty (30) days after receipt by the Company. The Company agrees to pay to Rights Agent any amounts, including fees and expenses, payable in favor of the Rights Agent in connection with any dispute, resolution or arbitration arising under or in connection with the Agreement; and any fees and expenses, payable by the Company in favor of the Rights Agent or payable in favor of the Company related to such dispute, resolution or arbitration will be offset against any CVR Payments, if any, or any other payment to be made thereafter under this Agreement

(k) the Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder but did not, and the Rights Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith, unless and until it has received such notice in writing;

 

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(l) unless otherwise specifically prohibited by the terms of this Agreement, the Rights Agent and any shareholder, affiliate, director, officer, agent or employee of the Rights Agent may buy, sell or deal in any securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for any other Person;

(m) the Rights Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of the Share Exchange Agreement or any other agreements or instruments related to the Acquisition, nor shall the Rights Agent be required to determine if any person or entity has complied with the Share Exchange Agreement or any other agreements or instruments related to the Acquisition, nor shall any additional obligations of the Rights Agent be inferred from the terms of such agreements or instruments even though reference thereto may be made in this Agreement; and

(n) the provisions of this Section 3.2 shall survive the termination of this Agreement and the CVRs and the resignation, replacement or removal of the Rights Agent.

3.3 Resignation and Removal; Appointment of Successor.

(a) The Rights Agent may resign at any time by giving written notice thereof to the Company, specifying a date when such resignation will take effect, which notice will be sent at least thirty (30) days before the date so specified.

(b) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the stock transfer or other stockholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of the transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 3.3(b). If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, the Company, shall, as soon as is reasonably practicable, appoint a qualified successor Rights Agent who, shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank. Notwithstanding the foregoing, if the Company shall fail to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent, then the incumbent Rights Agent may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

 

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(c) The Company will give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail, postage prepaid, to the Holders as their names and addresses appear in the CVR Register and by delivering notice to the Holder Representative. Each notice will include the name and address of the successor Rights Agent. If the Company fails to send such notice within five (5) Business Days after acceptance of appointment by a successor Rights Agent, upon the Company’s request the successor Rights Agent will cause such notice to be mailed at the expense of the Company.

3.4 Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder will execute, acknowledge and deliver to the Company and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the retiring Rights Agent; providedhowever, that upon the request of the Company or the successor Rights Agent, such retiring Rights Agent will cooperate in the transfer of all relevant data, including the CVR Register, to the successor Rights Agent.

ARTICLE IV

COVENANTS

4.1 List of Holders. The Company will furnish or cause to be furnished to the Holder Representative and the Rights Agent the names, addresses and shareholdings of registered holders of Common Stock as of 5:01 p.m. Eastern Time on the Record Date. The Company will promptly furnish an electronic copy of the CVR Register to the Holder Representative upon written request from the Holder Representative. Until such list of Holders are furnished to the Rights Agent, the Rights Agent shall have no duties, responsibilities or obligations with respect to such Holders.

4.2 [RESERVED]

4.3 Diligence.

(a) The Company shall (i) from and after the Closing until the Target Execution Date, use Commercially Reasonable Efforts to negotiate and execute the Approved Development Agreement (to the extent not executed and delivered prior to Closing), (ii) from and after the execution date of the Approved Development Agreement (if at all) until the expiration or earlier termination of the Approved Development Agreement (other than as a result of a material breach thereof by the Company), use Commercially Reasonable Efforts to perform the Approved Development Transaction in accordance with the terms of the Approved Development Agreement, and (iii) from and after the execution date of the Approved Development Agreement (if at all), use Commercially Reasonable Efforts to pursue and seek to consummate CVR Transactions (subject to the terms of the Approved Development Agreement). Subject to the preceding sentence, the Company has no obligation to develop or expend any funds in connection with the development of any Company Product and has no obligation to license, sell or otherwise monetize any Company Product except as provided in the Approved Development Agreement (to the extent the Approved Development Agreement becomes a binding obligation of the Company prior to the Target Execution Date). Notwithstanding anything in this Agreement to the contrary, in no event shall the Company be required to (x) enter into an Approved Development Agreement on terms that deviate in any material and adverse respect from those set forth in the Term Sheet or (y) enter into any CVR Transaction on terms that are not customary for transactions of such type or that would impose material financial or performance obligations on the Company (other than customary indemnification provisions or ministerial requirements such as the collection and accounting for royalties), or would impose any non-competition covenant on the Company with respect to any product or program of the Company unrelated to a Company Product.

 

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(b) Notwithstanding the foregoing, the obligation of the Company to use Commercially Reasonable Efforts pursuant to Section 4.3(a) shall not be deemed a guarantee that (i) an Approved Transaction Agreement will be executed and delivered by the Company, (ii) a CVR Transaction will occur, or (iii) any CVR Payment will be earned. Neither the Company nor any of its directors, officers or their respective Affiliates owes any fiduciary duty to the Holders with respect to the CVR Payments. Further, the parties acknowledge that the Company’s sole obligations with respect to any potential CVR Payments are expressly set forth in this Agreement.

4.4 Further Assurances. Each of the Company and the Holder Representative agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the parties hereto for the carrying out or performing by such parties of the provisions of this Agreement.

ARTICLE V

AMENDMENTS

5.1 Amendments Without Consent of Holder Representative.

(a) Without the consent of the Holder Representative, the Company, when authorized by a Board Resolution, at any time and from time to time, may, and the Rights Agent shall, if the Company so directs, enter into one or more amendments hereto, for any of the following purposes:

(i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein in a transaction contemplated by Section 6.1 hereof; or

(ii) to evidence the termination of the CVR Registrar and the succession of another Person as a successor CVR Registrar and the assumption by any successor of the obligations of the CVR Registrar herein.

(b) Without the consent of the Holder Representative, the Company, when authorized by a Board Resolution, together with the Rights Agent, in the Rights Agent’s sole and absolute discretion, may at any time and from time to time, enter into one or more amendments hereto:

(i) to evidence the succession of another Person as a successor Rights Agent and the assumption by any successor of the covenants and obligations of the Rights Agent herein;

 

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(ii) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Board of Directors and the Rights Agent will consider to be for the protection of the Holders;

(iii) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein; providedhowever, that in each case, such provisions will not materially adversely affect the interests of the Holders;

(iv) as may be necessary to ensure that the CVRs are not subject to registration under the Securities Act of 1933, as amended, or the Exchange Act of 1934, as amended; or

(v) to add, eliminate or change any provision of this Agreement unless such addition, elimination or change is adverse to the interests of the Holders.

(c) Promptly after the execution by the Company and the Rights Agent of any amendment pursuant to the provisions of this Section 5.1, the Company will deliver a notice thereof to the Holder Representative, setting forth in general terms the substance of such amendment.

5.2 Amendments with Consent of Holder Representative. Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holder Representative), the Company, when authorized by a Board Resolution, and the Rights Agent and the Holder Representative may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any or all provisions of this Agreement.

5.3 Execution of Amendments. In executing any amendment permitted by this Article V, the Rights Agent will be entitled to receive, and will be fully protected in relying upon, an opinion of counsel of the Company, at Company’s sole expense, stating that the execution of such amendment is authorized or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, obligations, powers, trusts, immunities, or duties under this Agreement or otherwise, and the Rights Agent shall not be bound by amendments not executed by it. No amendment to this Agreement will be effective unless duly executed by the Rights Agent.

5.4 Effect of Amendments. Upon the execution of any amendment under this Article V, this Agreement will be modified in accordance therewith, such amendment will form a part of this Agreement for all purposes and every Holder will be bound thereby.

ARTICLE VI

CONSOLIDATION, MERGER, SALE OR CONVEYANCE

6.1 Effect of Merger or Consolidation.

(a) Except as contemplated by the Acquisition, the Company will not consolidate with or merge into any other Person or sell, transfer or otherwise convey all or substantially all of its assets, in one or a series of related transactions, to any Person, unless:

 

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(i) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by sale, transfer or other conveyance, all or substantially all of the assets of the Company (the “Surviving Person”) expressly assumes payment (if and to the extent required hereunder) of amounts on all the CVRs and the performance of every duty and covenant of this Agreement on the part of the Company to be performed or observed; and

(ii) the Company has delivered to the Holder Representative and the Rights Agent an Officer’s Certificate, stating that such consolidation, merger, conveyance, transfer or lease complies with this Article VI and that all conditions precedent herein provided for relating to such transaction have been complied with.

6.2 Successor Substituted. Upon any consolidation of or merger by the Company with or into any other Person, or any conveyance, transfer or lease of the properties and assets substantially as an entirety to any Person in accordance with Section 6.1, the Surviving Person will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if the Surviving Person had been named as the Company herein, and thereafter the predecessor Person will be relieved of all obligations and covenants under this Agreement and the CVRs.

ARTICLE VII

THE HOLDER REPRESENTATIVE

7.1 Appointment. Effective upon the issuance of the CVRs under this terms of this Agreement, and without any further act of any of Holders, the Holder Representative is appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each Holder for purposes of this Agreement and will take such actions to be taken by the Holder Representative under this Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby, including (i) executing and delivering this Agreement and any other ancillary documents and negotiating and executing any amendments, modifications, waivers or changes thereto as to which the Holder Representative, in its sole discretion, has consented (provided that any waiver or amendment that adversely and disproportionately affects the rights or obligations of one or more Holders as compared to other Holders will require the prior written consent of a majority in interest of the disproportionately affected Holders), (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Holders, and (iii) taking all other actions that are either necessary or appropriate in the judgment of the Holder Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Holder Representative hereby accepts such appointment and agrees to serve as such without compensation. The appointment of the Holder Representative as each Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Holder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Holder Representative is the sole and exclusive representative of each of the Holders for any purpose provided for by this Agreement.

 

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7.2 Actions of Holder Representative.

(a) A decision, act, consent or instruction of the Holder Representative hereunder will constitute a decision, act, consent or instruction of all Holders and will be final, binding and conclusive upon each such Holder, and the Company and the Rights Agent may rely upon any such decision, act, consent or instruction of the Holder Representative as being the decision, act, consent or instruction of each and every such Holder. The Company and the Rights Agent will be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holder Representative.

(b) The Holder Representative will incur no liability with respect to any action taken or suffered by any Holder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holder Representative to be genuine and to have been signed by such Holder (and will have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of the Holder Representative. In all questions arising under this Agreement, the Holder Representative may rely on the advice of outside counsel, and the Holder Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by Holder Representative based on such advice.

(c) The Holders will severally (on a pro rata basis, based on the number of CVRs held by each Holder), but not jointly, indemnify the Holder Representative and hold the Holder Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Holder Representative and arising out of or in connection with the acceptance or administration of the Holder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Holder Representative, to the extent not reimbursed by the Company pursuant to Section 7.2(d).

(d) In connection with providing services under this Agreement, the Holder Representative will be reimbursed by the Company for all reasonable fees and expenses incurred in providing such services. Any such fees and expenses will be paid by the Company within thirty (30) days of the receipt of an invoice from the Holder Representative and will be offset against the CVR Payment Amount, if any.

7.3 Removal; Appointment of Successor.

(a) At any time Holders representing at least a majority of the outstanding CVRs may, by written consent, appoint another Person as Holder Representative. Notice, together with a copy of the written consent appointing such Person and bearing the signatures of Holders of at least a majority of the outstanding CVRs, must be delivered to the Company and the Rights Agent. Such appointment will be effective upon the later of the date indicated in the