AVTX 8-K
Avalo Therapeutics, Inc. (AVTX)
8-K
2026-06-12
For: 2026-06-11
View Original
Added on
June 12, 2026
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): June 11, 2026
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
| (Commission File Number) | (IRS Employer Identification No.) | |||||||
(Address of principal executive offices) (Zip Code)
Registrant’s Telephone Number, Including Area Code: (410 ) 522-8707
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:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
| Nasdaq Capital Market | ||||||||
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 3.02 Unregistered Sales of Equity Securities.
On June 11, 2026, Avalo Therapeutics, Inc. (the “Company”) entered into an exchange agreement (the “Exchange Agreement”) with an accredited investor to exchange 4,294.675 outstanding shares of the Company’s outstanding Series C non-voting convertible preferred stock, $0.001 par value per share (the “Series C Preferred Stock”) for 4,294.675 shares of the Company’s newly created Series C-1 non-voting convertible preferred stock, $0.001 par value per share (the “Series C-1 Preferred Stock”), such exchange, the “Exchange”. The purpose of the Exchange is to provide the investor with a class of preferred stock identical to the current Series C Preferred Stock other than the removal of the restriction applicable to the investor in the Series C Preferred Stock preventing the investor from increasing its beneficial ownership limit from 4.99% of the Company’s common stock to 9.99% of the Company’s common stock.
Upon the closing of the Exchange, 4,085.379 shares of Series C Preferred Stock will remain outstanding.
The securities described above will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities law of any state, and will be exchanged in reliance on the exemptions from registration under the Securities Act afforded by Section 3(a)(9) and Section 4(a)(2) thereunder.
Item 3.03 Material Modification to rights of Security Holders.
To the extent required by Item 3.03 of this Form 8-K, the information contained in Item 3.02 of this Form 8-K is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 12, 2026 (the “Effective Date”), the Company entered into amendments to employment agreements with Garry A. Neil, M.D., the Company’s Chief Executive Officer, Christopher Sullivan, the Company’s Chief Financial Officer, Mittie Doyle, M.D., FACR, the Company’s Chief Medical Officer and Taylor Boyd, Chief Business Officer (together, the “Employment Agreement Amendments”).
The Employment Agreement Amendments amend the provisions of the employment agreements with each of Dr. Neil, Mr. Sullivan, Dr. Doyle and Mr. Boyd that relate to potential payments and benefits in connection with certain employment terminations and a change in control. These provisions, as amended by the Employment Agreement Amendments, are summarized below:
•In the event of a termination without Cause or for Good Reason: Each of Dr. Neil, Mr. Sullivan, Dr. Doyle and Mr. Boyd will be entitled to (i) twelve (12) months of his or her respective base salary as in effect immediately prior to such termination (or, in the case of Dr. Neil, eighteen (18) months), payable in substantially equal installments over the applicable severance period; (ii) if not yet paid, any unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board of Directors, payable when such annual bonuses are paid to other executive employees of the Company; (iii) the annual bonus earned for the fiscal year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board of Directors, prorated to reflect his or her completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs), and (iv) upon timely COBRA election, the Company-paid portion of his or her health coverage premiums during the applicable severance period.
In addition, consistent with the terms of the employment agreements prior to the Employment Agreement Amendments and solely with respect to options granted prior to the Effective Date, such options will vest in full as of such termination, and all vested options held as of the date of termination will remain exercisable thereafter for a period of twelve (12) months in the case of Dr. Neil and Mr. Sullivan and six (6) months in the case of Dr. Doyle and Mr. Boyd.
•In the event of a termination without Cause or For Good Reason in the period beginning three months prior to a Change in Control and ending on the twelve month anniversary following a Change in Control): In lieu of the benefits provided above, each of Dr. Neil, Mr. Sullivan, Dr. Doyle and Mr. Boyd will be entitled to (i) the sum of (A) 1.0x of his or her respective base salary as in effect immediately prior to such termination (or, in the case of Dr. Neil, 1.5x) and (B) 1.0x of his or her annual target bonus in the year of termination; (ii) if not yet paid, any
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unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board of Directors, payable when such annual bonuses are paid to other executive employees of the Company; (iii) full acceleration of all outstanding and unvested time-based equity awards, which will become fully vested and exercisable or nonforfeitable as of the later of (A) the date of termination or (B) the effective date of a general release in favor of the Company, and any vested options shall remain exercisable for twelve (12) months in the case of Dr. Neil and Mr. Sullivan and six (6) months in the case of Dr. Doyle and Mr. Boyd; (iv) the annual bonus earned for the fiscal year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board of Directors, prorated to reflect his or her completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs); and (v) upon timely COBRA election, the Company-paid portion of his or her health coverage premiums during the applicable severance period. The payments pursuant to clauses (i)-(ii) will be made promptly after the closing of the Change in Control or his or her termination, whichever is later.
Notwithstanding anything to the contrary in the employment agreement, the Company’s Fourth Amended and Restated 2016 Equity Incentive Plan (as amended), or applicable award agreement, in the event of a Change in Control, all outstanding and unvested time-based equity awards held by such executive immediately prior to the Change in Control (including any replacement, substitute or successor awards issued in respect thereof in connection with the Change in Control), to the extent not previously vested in accordance with their terms or clause (iii) above, shall become fully vested and exercisable or nonforfeitable (as applicable) upon the first anniversary of the Change in Control, provided that such executive remains continuously employed by the Company or its successor through such first anniversary.
•280G Limitation: In the event any compensation, payment or distribution by the Company to each of Dr. Neil, Mr. Sullivan, Dr. Doyle and Mr. Boyd, or for their respective benefit, whether paid or payable or distributed or distributable pursuant to the terms of their respective employment agreements, as amended, or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which each of Dr. Neil, Mr. Sullivan, Dr. Doyle and Mr. Boyd become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction will only occur if it would result in the executive receiving a higher After Tax Amount (as defined in the respective Employment Agreement Amendment (i.e., the Aggregate Payments net of all applicable taxes, determined using the highest applicable marginal tax rates)) than what such executive would receive if the Aggregate Payments were not subject to such reduction.
The foregoing description of the Employment Agreement Amendments is qualified in its entirety by reference to the A&R Employment Agreements, copies of which are filed as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3 and Exhibit 10.4 to this current report on Form 8-K and are incorporated by reference herein.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On June 11, 2026, in connection with the Exchange, the Company filed a Certificate of Designation to its Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Designation”), with the Secretary of State of the State of Delaware for the purpose of designating the Series C-1 Preferred Stock.
Each share of Series C-1 Preferred Stock is initially convertible into 1,000 shares of Common Stock, subject to adjustment as described below. No fractional shares will be issued upon conversion; rather any fractional share will be rounded up to the next whole share.
In all cases, conversion of the Series C-1 Preferred Stock will be subject to the Beneficial Ownership Limitation. The “Beneficial Ownership Limitation” prevents the conversion of any portion of a holder’s Series C-1 Preferred Stock if such conversion would cause the holder, together with its affiliates, to beneficially own more than 9.99% of the outstanding shares of Common Stock after giving effect to the conversion.
Except as required by the Delaware General Corporation Law and the Certificates of Designation, the Series C-1 Preferred Stock has no voting rights. The Series C-1 Preferred Stock is entitled to receive dividends (on an as-if-converted-to-Common-Stock basis) equal to and in the same form as dividends (other than dividends in the form of Common Stock)
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actually paid on shares of the Common Stock when, as and if declared by the Board (other than dividends in the form of Common Stock).
The Series C-1 Preferred Stock ranks in parity with the Series C Preferred Stock and Common Stock as to dividends, distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntarily or involuntarily.
The Series C-1 Preferred Stock is subject to broad-based weighted average anti-dilution protection for certain issuances of Common Stock and securities convertible into Common Stock.
The foregoing description of the Series C-1 Preferred Stock is qualified in its entirety by reference to the full text of the Series C-1 Certificate of Designation, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
The following exhibits are being filed herewith:
| Exhibit No. | Description | |||||||
| 3.1 | ||||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 10.3 | ||||||||
| 10.4 | ||||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |||||||
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SIGNATURE
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.
AVALO THERAPEUTICS, INC. | |||||||||||
| Date: June 12, 2026 | By: | /s/ Christopher Sullivan | |||||||||
| Christopher Sullivan | |||||||||||
| Chief Financial Officer | |||||||||||
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Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES C-1 NON-VOTING CONVERTIBLE PREFERRED STOCK
OF
AVALO THERAPEUTICS, INC.
Pursuant to Section 151 of the
Delaware General Corporation Law
Avalo Therapeutics, Inc., a Delaware corporation (the “Corporation”), in accordance with the provisions of Section 103 of the Delaware General Corporation Law (the “DGCL”) does hereby certify that, in accordance with Sections 141(c) and 151 of the DGCL, the following resolution was duly adopted by the Board of Directors of the Corporation (the “Board”) effective on June 8, 2026:
RESOLVED, that pursuant to the authority granted to and vested in the Board in accordance with the provisions of the Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), the Board hereby, establishes a series of the Corporation’s authorized preferred stock, par value $0.001 per share (the “Preferred Stock”), which series is designated as the Series C-1 Non-Voting Convertible Preferred Stock, par value $0.001 per share, of the Corporation, with the designation, number of shares, powers, preferences, rights, qualifications, limitations and restrictions thereof (in addition to any provisions set forth in the Certificate of Incorporation that are applicable to the Preferred Stock of all classes and series) as follows:
SERIES C-1 NON-VOTING CONVERTIBLE PREFERRED STOCK
SECTION 1. DEFINITIONS. For the purposes hereof, the following terms shall have the following meanings:
“Business Day” means any day except Saturday, Sunday, any day which shall be a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Close of Business” means 5:00 p.m., New York City time.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the Corporation’s common stock, par value $0.001 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed.
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series C-1 Preferred Stock in accordance with the terms hereof.
“DGCL” means the Delaware General Corporation Law.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Holder” means any holder of shares of Series C-1 Preferred Stock.
“Initial Stated Value” means $5,796.933422 per share of Series C-1 Preferred Stock.
“Lead Investor” means Commodore Capital Master LP.
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“Person” means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stated Value” means the Initial Stated Value of each share of Series C-1 Preferred Stock as adjusted pursuant to the terms of the Certificate of Designation, as of the applicable date.
“Trading Day” means a day on which the principal Trading Market is open for business.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).
SECTION 2. DESIGNATION, AMOUNT AND PAR VALUE; ASSIGNMENT.
(a) The series of preferred stock designated by this Certificate of Designation shall be designated as the Corporation’s “Series C-1 Non-Voting Convertible Preferred Stock” (the “Series C-1 Preferred Stock”) and the number of shares so designated shall be 4,294.675. Each share of Series C-1 Preferred Stock shall have a par value of $0.001 per share.
(b) The Corporation shall register shares of the Series C-1 Preferred Stock, upon records to be maintained by the Corporation for that purpose (the “Series C-1 Preferred Stock Register”), in the name of the Holders thereof from time to time. The Corporation may deem and treat the registered Holder of shares of Series C-1 Preferred Stock as the absolute owner thereof for the purpose of any conversion thereof and for all other purposes.
SECTION 3. DIVIDENDS. Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of the Series C-1 Preferred Stock (on an as-if-converted-to-Common-Stock basis, without regard to the Beneficial Ownership Limitation) equal to and in the same form, and in the same manner, based on the then-current Conversion Ratio as dividends (other than dividends in the form of Common Stock) actually paid on shares of the Common Stock when, as and if such dividends (other than dividends in the form of Common Stock) are paid on shares of the Common Stock. Other than as set forth in the previous sentence, no other dividends shall be paid on shares of Series C-1 Preferred Stock, and the Corporation shall pay no dividends (other than dividends payable in the form of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.
SECTION 4. VOTING RIGHTS. Except as otherwise provided herein or as otherwise required by the DGCL, the Series C-1 Preferred Stock shall have no voting rights. However, as long as any shares of Series C-1 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation, domestication, transfer, continuance, recapitalization, reclassification, waiver, statutory conversion, or otherwise, effect any of the following acts or transactions (in addition to any other vote required by law or this Certificate of Incorporation), without the affirmative vote of the Holders of a majority of the then outstanding shares of the Series C-1 Preferred Stock and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect: (a) alter or change adversely the powers, preferences or rights given to the Series C-1 Preferred Stock as set forth herein or alter or amend this Certificate of Designation, amend or repeal any provision of, or add any provision to, the Certificate of Incorporation or bylaws of the Corporation, or file any articles of amendment, certificate of designations, preferences, limitations and relative rights of any series of Preferred Stock, if such action would adversely alter or change the preferences, rights, privileges or powers of, or restrictions provided for the benefit of the Series C-1 Preferred Stock, regardless of whether any of the foregoing actions shall be by means of amendment to the Certificate of Incorporation, (b) increase or decrease the number of authorized shares of Series C-1 Preferred Stock, or (c) enter into any agreement with respect to any of the foregoing.
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SECTION 5. RANK. The Series C-1 Preferred Stock shall rank on parity with the Common Stock (on an as-if-converted-to-Common Stock basis based on the current Conversion Ratio) as to dividends, distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily.
SECTION 6. CONVERSION.
(a) Conversion Ratio. The “Conversion Ratio” for each share of Series C-1 Preferred Stock shall be determined by dividing (i) the Initial Stated Value of such share plus any declared but unpaid dividends to which such share of Series C-1 Preferred Stock is then entitled by (ii) the then-effective Conversion Price. The initial “Conversion Price” shall equal $5.796933.
(b) [Reserved.]
(c) Optional Conversion. Subject to Section 6(e), each Holder may, at its option, effect conversions of shares of Series C-1 Preferred Stock then outstanding into a number of shares of Common Stock equal to the Conversion Ratio (each, an “Optional Conversion”) by providing the Corporation with the form of conversion notice attached hereto as ANNEX A (a “Notice of Conversion”), duly completed and executed. Provided the Corporation’s transfer agent is participating in the DTC Fast Automated Securities Transfer program, the Notice of Conversion may specify, at the Holder’s election, whether the applicable Conversion Shares shall be credited to the account of the Holder’s prime broker with DTC through its Deposit Withdrawal Agent Commission system (a “DWAC Delivery”). The “Conversion Date”, or the date on which an Optional Conversion shall be deemed effective, shall be the Trading Day that the Notice of Conversion, completed and executed, is sent via email to, and received during regular business hours by, the Corporation; provided that the original certificate(s) (if any) representing such shares of Series C-1 Preferred Stock being converted, duly endorsed, and the accompanying Notice of Conversion, are received by the Corporation within two Trading Days thereafter. In all other cases, the Conversion Date shall be defined as the Trading Day on which the original certificate(s) (if any) representing such shares of Series C-1 Preferred Stock being converted, duly endorsed, and the accompanying Notice of Conversion, are received by the Corporation. The calculations set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error.
(d) Consequences of Conversion. Immediately following any conversion, the rights of the Holders of converted Series C-1 Preferred Stock shall cease and the persons entitled to receive Common Stock upon the conversion of Series C-1 Preferred Stock shall be treated for all purposes as having become the owners of such Common Stock. Shares of Series C-1 Preferred Stock converted into Common Stock shall be canceled and shall not be reissued.
(e) Beneficial Ownership Limitation
(i) Notwithstanding anything herein to the contrary, the Corporation shall not effect any conversion of any share of Series C-1 Preferred Stock, and a Holder shall not have the right to convert any portion of such securities, to the extent that, after giving effect to such attempted conversion set forth on an applicable Notice of Conversion, such Holder (together with any other Person whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) or Section 16 of the Exchange Act and the applicable rules and regulations of the Commission, including any “group” of which the Holder is a member (the foregoing, “Attribution Parties”)) would beneficially own a number of shares of Common Stock in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Attribution Parties shall include the number of shares of Common Stock issuable upon conversion, of the Series C-1 Preferred Stock, as the case may be, subject to the Notice of Conversion, as applicable, with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted Series C-1 Preferred Stock beneficially owned by such Holder or any of its Attribution Parties, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation (including any warrants) beneficially owned by such
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Holder or any of its Attribution Parties that are subject to and would exceed a limitation on conversion or exercise similar to the limitation contained herein.
(ii) For purposes of this Section 6(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable rules and regulations of the Commission, and the terms “beneficial ownership” and “beneficially own” have the meanings ascribed to such terms therein. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission. For purposes of this Section 6(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Corporation’s most recent periodic or annual filing with the Commission, as the case may be, (B) a more recent public announcement by the Corporation that is filed with the Commission, or (C) a more recent notice by the Corporation or the Corporation’s transfer agent to the Holder setting forth the number of shares of Common Stock then outstanding. Upon the written request of a Holder (which may be by email), the Corporation shall, within three Trading Days thereof, confirm in writing to such Holder (which may be via email) the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to any actual conversion or exercise of securities of the Corporation, including shares of Series C-1 Preferred Stock, by such Holder or its Attribution Parties since the date as of which such number of outstanding shares of Common Stock was last publicly reported or confirmed to the Holder. The “Beneficial Ownership Limitation” shall be set at 9.99% of the number of shares of the Common Stock assuming full conversion or exercise, as applicable, of the Series C-1 Preferred Stock subject to the Notice of Conversion, as applicable. The Corporation shall be entitled to rely on representations made to it by the Holder in any Notice of Conversion regarding its Beneficial Ownership Limitation. Notwithstanding the foregoing, by written notice to the Corporation, any Holder, may reset the Beneficial Ownership Limitation percentage to a higher percentage, not to exceed 9.99%, which increase will not be effective until the sixty-first (61st) day after such written notice is delivered to the Corporation. Notwithstanding the foregoing, at any time following notice of a Fundamental Transaction, the Holder may waive and/or change the Beneficial Ownership Limitation effective immediately upon written notice to the Corporation and may reinstitute a Beneficial Ownership Limitation at any time thereafter effective immediately upon written notice to the Corporation. The provisions of this Section 6(e) shall be construed, corrected and implemented in a manner so as to effectuate the intended Beneficial Ownership Limitation herein contained and the shares of Common Stock underlying the Series C-1 Preferred Stock in excess of the Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act.
(f) Mechanics of Conversion.
(i) Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after each date on which the Series C-1 Preferred Stock are converted (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder the number of Conversion Shares being acquired upon the conversion of the Series C-1 Preferred Stock, which Conversion Shares shall, until such time that such shares are not so restricted under the Securities Act, bear a restrictive legend as required pursuant to the Securities Act indicating that such shares have not been registered and may not be offered, sold, transferred, assigned, pledged or hypothecated unless registered under the Securities Act or unless an exemption from such registration is available (together with any other legend or legends required by applicable state securities law or otherwise, if any). The Corporation shall use its best efforts to deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing corporation performing similar functions by the Share Delivery Date. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the effective date of the Automatic Conversion or any Conversion Date.
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(ii) Obligation Absolute. Subject to Section 6(e) hereof, the Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Series C-1 Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares. Subject to Section 6(e) hereof, in the event a Holder shall elect to convert any or all of its Series C-1 Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining or enjoining conversion of all or part of the Series C-1 Preferred Stock of such Holder shall have been sought and obtained by the Corporation. In the absence of such injunction, the Corporation shall, subject to Section 6(e) hereof, issue Conversion Shares upon a properly noticed conversion.
(iii) Buy-In on Failure to Timely Deliver Conversion Shares. If the Corporation fails to deliver to a Holder the Conversion Shares by the Share Delivery Date pursuant to Section 6(f)(i) (other than a failure caused by incorrect or incomplete information provided by Holder to the Corporation), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount by which (x) such Holder’s total purchase price (including any brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Series C-1 Preferred Stock equal to the number of shares of Series C-1 Preferred Stock submitted for conversion or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(f)(i). For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Series C-1 Preferred Stock an aggregate sale price giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice, indicating the amounts payable to such Holder in respect of such Buy-In together with applicable confirmations and other evidence reasonably requested by the Corporation. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver certificates or book entry positions representing shares of Common Stock upon conversion of the shares of Series C-1 Preferred Stock as required pursuant to the terms hereof.
(iv) Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series C-1 Preferred Stock, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders of the Series C-1 Preferred Stock, not less than 150% of aggregate number of shares of the Common Stock as shall be issuable (after taking into account any adjustments to the Conversion Ratio pursuant to or resulting from the provisions of Section 2 and Section 7) upon the conversion of all outstanding shares of Series C-1 Preferred Stock. The Corporation covenants
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that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
(v) Fractional Shares. No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon the conversion of the Series C-1 Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to receive upon such conversion, the Corporation shall round up to the next whole share.
(vi) Transfer Taxes. The issuance of shares of the Common Stock upon conversion of the Series C-1 Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the registered Holder(s) of such shares of Series C-1 Preferred Stock and the Corporation shall not be required to issue or deliver such shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.
(g) Status as Stockholder. Upon any Conversion Date: (i) the shares of Series C-1 Preferred Stock being converted shall be deemed converted into shares of Common Stock and (ii) the Holder’s rights as a holder of such converted shares of Series C-1 Preferred Stock shall cease and terminate, excepting only the right to receive electronic delivery of such shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms of this Certificate of Designation. In all cases, the holder shall retain all of its rights and remedies for the Corporation’s failure to convert Series C-1 Preferred Stock.
(h) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this Section 6(h), the following definitions shall apply:
(1) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 6(h)(iii) below, deemed to be issued) by the Corporation after the Original Issue Date, other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “Exempted Securities”):
a. as to any series of Preferred Stock, shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on such series of Preferred Stock (including dividends payable in connection with dividends on other classes or series of stock);
b. shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Section 3 or 7;
c. shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries for service pursuant to a plan, agreement or arrangement approved by the Board and adopted in compliance with the rules of the Trading Market;
d. shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security; or
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e. shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board.
(2) “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.
(3) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(4) “Original Issue Date” shall mean the date on which the first share of Series C-1 Preferred Stock was issued.
(ii) No Adjustment of Series C-1 Preferred Stock Conversion Price. No adjustment in the Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the Holders of a majority of the then outstanding shares of the Series C-1 Preferred Stock, which majority shall include the Lead Investors agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(iii) Deemed Issue of Additional Shares of Common Stock.
(1) If the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date,
(2) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Conversion Price pursuant to the terms of Section 6(h)(iv), are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (2) shall have the effect of increasing the Conversion Price to an amount which exceeds the lower of (i) the Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance
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of such Option or Convertible Security) between the original adjustment date and such readjustment date.
(3) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Conversion Price pursuant to the terms of Section 6(h)(iv) (either because the consideration per share (determined pursuant to Section 6(h)(v) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Conversion Price then in effect, or because such Option or Convertible Security was issued before the Original Issue Date), are revised after the Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto determined in the manner provided in Section 6(h)(iii)(1) shall be deemed to have been issued effective upon such increase or decrease becoming effective.
(4) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Section 6(h)(iv), the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.
(5) If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Conversion Price provided for in this Section 6(h)(iii) shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (2) and (3) of this Section 6(h)(iii). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion Price that would result under the terms of this Section (6)(h)(iii) at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Conversion Price that such issuance or amendment took place at the time such calculation can first be made. In the event an Option or Convertible Security contains alternative conversion terms, such as a cap on the valuation of the Corporation at which such conversion will be effected, or circumstances where the Option or Convertible Security may be repaid in lieu of conversion, then the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of such Option or Convertible Security shall be deemed not calculable until such time as the applicable conversion terms are determined.
(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation shall at any time after the Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 6(h)(iii), without consideration or for a consideration per share less than the Conversion Price in effect immediately prior to such issuance or deemed issuance, then the
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Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:
CP2 = CP1* (A + B) ÷ (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(1) CP2” shall mean the Conversion Price in effect immediately after such issuance or deemed issuance of Additional Shares of Common Stock;
(2) CP1” shall mean the Conversion Price in effect immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock;
(3) “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon conversion or exchange of Convertible Securities (including the Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(4) “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued or deemed issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP1); and
(5) “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.
(v) Determination of Consideration. For purposes of this Section 6, the consideration received by the Corporation for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
a. insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest.
b. insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board; and
c. in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (a) and (b) above, as determined in good faith by the Board.
(2) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 6(h)(iii), relating to Options and Convertible Securities, shall be determined by dividing:
a. The total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as
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set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by
b. the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.
(vi) Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price pursuant to the terms of Section 6(h)(iv), and such issuance dates occur within a period of no more than ninety (90) days from the first such issuance to the final such issuance, then, upon the final such issuance, the Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).
SECTION 7. CERTAIN ADJUSTMENTS.
(a) Stock Dividends and Stock Splits. If the Corporation, at any time while the Series C-1 Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of shares of Series C-1 Preferred Stock) with respect to the then outstanding shares of Common Stock; (ii) subdivides outstanding shares of Common Stock into a larger number of shares; or (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event (excluding any treasury shares of the Corporation). Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) Rights Upon Distribution of Assets. If the Corporation shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), a Holder shall be entitled to receive the dividend or distribution of assets that would have been payable to such Holder pursuant to the Distribution had such Holder converted his or her shares of Series C-1 Preferred Stock (or, if he or she had partially converted such shares prior to the Distribution, any unconverted portion thereof) immediately prior to such record date.
(c) Fundamental Transaction. If, at any time while this Series C-1 Preferred Stock is outstanding (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for
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other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby the holders of the Common Stock immediately prior to such transaction or related transactions cease to hold more than 50% of the outstanding shares of Common Stock immediately following the consummation of such transaction or related transactions (each a “Fundamental Transaction”), then each Holder shall automatically receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction, the same consideration receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Series C-1 Preferred Stock is convertible immediately prior to such Fundamental Transaction (“Alternate Consideration”). For purposes of any such subsequent conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall adjust the Conversion Price in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holders shall be given the same choice as to the Alternate Consideration it receives upon any conversion of the Series C-1 Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new certificate of designations with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The terms of any agreement to which the Corporation is a party and pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this Section 7(c) and insuring that the Series C-1 Preferred Stock (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction. The Corporation shall cause to be delivered to each Holder, at its last address as it shall appear upon the stock books of the Corporation, written notice of any Fundamental Transaction at least 20 calendar days prior to the date on which such Fundamental Transaction is expected to become effective or close
(d) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
SECTION 8. TRANSFER. A Holder may transfer such shares of Series C-1 Preferred Stock in whole, or in part, together with the accompanying rights set forth herein, held by such Holder without the consent of the Corporation; provided that such transfer is in compliance with applicable securities laws. The Corporation shall in good faith (i) do and perform, or cause to be done and performed, all such further acts and things, and (ii) execute and deliver all such other agreements, certificates, instruments and documents, in each case, as any Holder may reasonably request in order to carry out the intent and accomplish the purposes of this Section 8.
SECTION 9. SERIES C-1 PREFERRED STOCK REGISTER. The Corporation shall maintain at its principal executive offices (or such other office or agency of the Corporation as it may designate by notice to the Holders), a register for the Series C-1 Preferred Stock, in which the Corporation shall record (i) the name, address, electronic mail address and facsimile number of each holder in whose name the shares of Series C-1 Preferred Stock have been issued and (ii) the name, address, electronic mail address and facsimile number of each transferee of any shares of Series C-1 Preferred Stock. The Corporation may treat the person in whose name any share of Series C-1 Preferred Stock is registered on the register as the owner and holder thereof for all purposes.
SECTION 10. MISCELLANEOUS.
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(a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder shall be in writing and delivered personally, by email, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at 1500 Liberty Ridge Drive, Suite 321, Wayne, Pennsylvania 19087, or such other address or email address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 10(a). Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally or sent by a nationally recognized overnight courier service or email addressed to each Holder at the address of such Holder appearing on the books of the Corporation, or if no such address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via email at the email address specified in or pursuant to this Section 10(a) prior to 5:30 p.m. (New York City time) on any date, (ii) the date immediately following the date of transmission, if such notice or communication is delivered via mail at the email address specified in or pursuant to this Section 10(a) between 5:30 p.m. and 11:59 p.m. (New York City time) on any date, (iii) the second (2nd) Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
(b) [Reserved.]
(c) Lost or Mutilated Series C-1 Preferred Stock Certificate. If a Holder’s Series C-1 Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series C-1 Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership thereof, reasonably satisfactory to the Corporation and, in each case, customary and reasonable indemnity, if requested. Applicants for a new certificate under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Corporation may prescribe.
(d) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation. Any waiver by the Corporation or a Holder must be in writing.
(e) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.
(f) Next Business or Trading Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day or a Trading Day, such payment shall be made on the next succeeding Business Day or Trading Day, as the case may be.
(g) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.
(h) Status of Converted Series C-1 Preferred Stock. If any shares of Series C-1 Preferred Stock shall be converted or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series C-1 Preferred Stock.
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[Signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be signed by its duly authorized officer this 11th day of June, 2026.
| AVALO THERAPEUTICS, INC. | ||||||||
| By: | /s/ Garry A. Neil | |||||||
| Name: | Garry A. Neil | |||||||
| Title: | Chief Executive Officer | |||||||
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ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF
SERIES C-1 NON-VOTING CONVERTIBLE PREFERRED STOCK)
The undersigned Holder hereby irrevocably elects to convert the number of shares of Series C-1 Non Voting Convertible Preferred Stock indicated below, represented in book-entry form, into shares of common stock, par value $0.001 per share (the “Common Stock”), of Avalo Therapeutics, Inc., a Delaware corporation (the “Corporation”), as of the date written below. If securities are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in that certain Certificate of Designation of Series C-1 Non-Voting Convertible Preferred Stock (the “Certificate of Designation”) filed by the Corporation with the Secretary of the State of Delaware on June 11, 2026.
As of the date hereof, the number of shares of Common Stock beneficially owned by the undersigned Holder (together with such Holder’s Attribution Parties), including the number of shares of Common Stock issuable upon conversion of the Series C-1 Non-Voting Preferred Stock subject to this Notice of Conversion, but excluding the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted Series C-1 Non-Voting Preferred Stock beneficially owned by such Holder or any of its Attribution Parties, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation (including any warrants) beneficially owned by such Holder or any of its Attribution Parties that are subject to a limitation on conversion or exercise similar to the limitation contained in Section 6(e) of the Certificate of Designations, is _______________. For purposes hereof, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable regulations of the Commission. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission.
CONVERSION CALCULATIONS:
Date to Effect Conversion: _______
Number of shares of Series C-1 Non-Voting Preferred Stock owned prior to Conversion: _______________________
Number of shares of Series C-1 Non-Voting Preferred Stock to be Converted: _____________________
Number of shares of Common Stock to be Issued: _____________________
For DWAC Delivery, please provide the following:
Broker no: _____________________
Account no: _____________________
| [HOLDER] | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
15
Exhibit 10.1
June 12, 2026
Garry Neil
Re: Changes to your Employment Agreement
Dear Garry Neil,
I am writing to confirm our understanding regarding certain changes to the terms of your employment with Avalo Therapeutics, Inc. (the “Company”). This letter (the “Amendment”) amends the existing employment letter agreement, dated January 30, 2020 , as amended on February 18, 2022 (together, the “Employment Agreement”), by and between you and the Company. This Amendment will be effective as of June 12, 2026 (the “Amendment Effective Date”). All capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Employment Agreement.
1. Amendments to Employment Agreement.
a. Section 7(c) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Without Cause. Your employment may be terminated by the Company without Cause (other than for death or Disability) immediately upon written notice by the Company. Upon a termination without Cause, subject to your compliance with the obligations in Sections 8, 9 and 10 hereof, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) continued payment of your base salary as in effect immediately prior to your termination, payable in substantially equal installments over a period of eighteen (18) consecutive months following such termination; (iv) your annual bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs); (v) solely for options granted prior to the Amendment Effective Date, full vesting of such options awarded by the Company, and you will have twelve (12) months to exercise from the date of such termination any vested options you hold as of the date of termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed
by the Company, until the earliest of (x) the eighteen-month anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, that the first payment pursuant to clause (iii) shall be made on the first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code.”
b. Section 7 of the Employment Agreement is hereby amended by adding a new Section 7(e) at the end thereof as follows:
“(e) Without Cause or For Good Reason in Connection with a Change in Control. In the event of your termination in the period beginning three months prior to a Change in Control and ending on the twelve month anniversary following a Change in Control, such term as defined in the Company’s Fourth Amended and Restated 2016 Equity Incentive Plan, as amended (the “Plan”), (A) by the Company without Cause (other than for death or Disability), or (B) by you for Good Reason, then subject to your compliance with the obligations in Sections 8, 9 and 10 hereof and in lieu of the benefits described in Sections 7(c) and 7(d) above, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) the sum of (x) 1.5x your base salary as in effect immediately prior to your termination and (y) 1.0x your annual target bonus in the year in which the termination occurs; (iv) your annual target bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other employees of the Company; (v) full acceleration of all outstanding and unvested time-based equity awards, which shall become fully vested and exercisable or nonforfeitable as of the later of (x) the date of termination or (y) the effective date of the General Release, and any vested options shall remain exercisable for twelve months following the date of such termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed by the Company, until the earliest of (x) the eighteen-month of your termination; (y) expiration of your continuation
coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code. The payments pursuant to clauses (i)-(iii) shall be made promptly after the closing of the Change in Control or your termination, whichever is later (provided, however, solely to the extent such termination of employment occurs during the three-month period prior to the Change in Control, (A) the amounts payable under this Section 7(e) shall be reduced by the amount of any payments previously paid pursuant to Sections 7(c) or (d) and (B) payment of the amounts under Section (iii)(x) above shall continue to be paid in installments to the extent required under Code Section 409A. Notwithstanding anything to the contrary herein, in the Plan or applicable award agreement, in the event of a Change in Control, all outstanding and unvested time-based equity awards held by you immediately prior to the Change in Control (including any replacement, substitute or successor awards issued in respect thereof in connection with the Change in Control), to the extent not previously vested in accordance with their terms of clause (v) above, shall become fully vested and exercisable or nonforfeitable (as applicable) upon the first anniversary of the Change in Control, provided that you remain continuously employed by the Company or its successor through such first anniversary.”
c. The following section shall be added to the end of the Employment Agreement:
“ 20. Additional Limitations.
(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to you, or for your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which you become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in you receiving a higher After Tax Amount (as defined below) than what you would receive if the Aggregate Payments were not subject to such reduction. In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A;
(3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).
For purposes of this Section, the “After Tax Amount” means the amount of the Aggregate Payments less all federal, state and local income, excise, employment and social security taxes imposed on you as a result of your receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes and social security taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes (if any) that could be obtained from deduction of such state and local taxes.
(b) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this section shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) prior to the closing of the Change in Control, which shall provide detailed supporting calculations both to you and the Company within fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by you or the Company. Any determination by the Accounting Firm shall be binding upon you and the Company.”
2. No Termination for Good Reason. You acknowledge and agree that accepting the amendments herein shall not constitute grounds for a termination by you for Good Reason for purposes of the Employment Agreement.
3. No Other Changes. Except as amended herein, the Employment Agreement is in all other respects hereby in full force and effect and is hereby confirmed.
4. Entire Agreement. This Amendment, together with the Employment Agreement, constitutes the entire understanding and agreement of the parties with respect to the transactions contemplated herein and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such transactions.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the law of the State of Delaware without regard to conflicts of law principles thereof.
6. Counterparts. This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the Effective Date.
AVALO THERAPEUTICS, INC.:
By: /s/ Christopher Sullivan
Name: Christopher Sullivan
Title: Chief Financial Officer
Date: June 12, 2026
EXECUTIVE:
/s/ Garry Neil
Executive: Garry Neil
Date: June 12, 2026
Exhibit 10.2
June 12, 2026
Christopher Sullivan
Re: Changes to your Employment Agreement
Dear Christopher,
I am writing to confirm our understanding regarding certain changes to the terms of your employment with Avalo Therapeutics, Inc. (the “Company”). This letter (the “Amendment”) amends the existing employment letter agreement, dated September 26, 2019 , as amended on April 23, 2020 and further amended on February 18, 2022 (collectively, the “Employment Agreement”), by and between you and the Company. This Amendment will be effective as of June 12, 2026 (the “Amendment Effective Date”). All capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Employment Agreement.
1. Amendments to Employment Agreement.
a. Section 7(c) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Without Cause. Your employment may be terminated by the Company without Cause (other than for death or Disability) immediately upon written notice by the Company. Upon a termination without Cause, subject to your compliance with the obligations in Sections 8, 9 and 10 hereof, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) continued payment of your base salary as in effect immediately prior to your termination, payable in substantially equal installments over a period of twelve (12) consecutive months following such termination; (iv) your annual bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs); (v) solely for options granted prior to the Amendment Effective Date, full vesting of such options awarded by the Company, and you will have twelve (12) months to exercise from the date of such termination any vested options you hold as of the date of termination (including the accelerated options discussed herein); and (vi) if you timely elect and remain eligible for
continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed by the Company, until the earliest of (x) the first anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, that the first payment pursuant to clause (iii) shall be made on the first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code.”
b. Section 7 of the Employment Agreement is hereby amended by adding a new Section 7(e) at the end thereof as follows:
“(e) Without Cause or For Good Reason in Connection with a Change in Control. In the event of your termination in the period beginning three months prior to a Change in Control and ending on the twelve month anniversary following a Change in Control, such term as defined in the Company’s Fourth Amended and Restated 2016 Equity Incentive Plan, as amended (the “Plan”), (A) by the Company without Cause (other than for death or Disability), or (B) by you for Good Reason, then subject to your compliance with the obligations in Sections 8, 9 and 10 hereof and in lieu of the benefits described in Sections 7(c) and 7(d) above, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) the sum of (x) 1.0x your base salary as in effect immediately prior to your termination and (y) 1.0x your annual target bonus in the year in which the termination occurs; (iv) your annual target bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other employees of the Company; (v) full acceleration of all outstanding and unvested time-based equity awards, which shall become fully vested and exercisable or nonforfeitable as of the later of (x) the date of termination or (y) the effective date of the General Release, and any vested
options shall remain exercisable for twelve months following the date of such termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed by the Company, until the earliest of (x) the first anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code. The payments pursuant to clauses (i)-(iii) shall be made promptly after the closing of the Change in Control or your termination, whichever is later (provided, however, solely to the extent such termination of employment occurs during the three-month period prior to the Change in Control, (A) the amounts payable under this Section 7(e) shall be reduced by the amount of any payments previously paid pursuant to Sections 7(c) or (d) and (B) payment of the amounts under Section (iii)(x) above shall continue to be paid in installments to the extent required under Code Section 409A. Notwithstanding anything to the contrary herein, in the Plan or applicable award agreement, in the event of a Change in Control, all outstanding and unvested time-based equity awards held by you immediately prior to the Change in Control (including any replacement, substitute or successor awards issued in respect thereof in connection with the Change in Control), to the extent not previously vested in accordance with their terms of clause (v) above, shall become fully vested and exercisable or nonforfeitable (as applicable) upon the first anniversary of the Change in Control, provided that you remain continuously employed by the Company or its successor through such first anniversary.”
c. The following section shall be added to the end of the Employment Agreement:
“19 . Additional Limitations.
(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to you, or for your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so
that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which you become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in you receiving a higher After Tax Amount (as defined below) than what you would receive if the Aggregate Payments were not subject to such reduction. In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).
For purposes of this Section, the “After Tax Amount” means the amount of the Aggregate Payments less all federal, state and local income, excise, employment and social security taxes imposed on you as a result of your receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes and social security taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes (if any) that could be obtained from deduction of such state and local taxes.
(b) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this section shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) prior to the closing of the Change in Control, which shall provide detailed supporting calculations both to you and the Company within fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by you or the Company. Any determination by the Accounting Firm shall be binding upon you and the Company.”
2. No Termination for Good Reason. You acknowledge and agree that accepting the amendments herein shall not constitute grounds for a termination by you for Good Reason for purposes of the Employment Agreement.
3. No Other Changes. Except as amended herein, the Employment Agreement is in all other respects hereby in full force and effect and is hereby confirmed.
4. Entire Agreement. This Amendment, together with the Employment Agreement, constitutes the entire understanding and agreement of the parties with respect to the transactions contemplated herein and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such transactions.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the law of the State of Delaware without regard to conflicts of law principles thereof.
6. Counterparts. This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the Effective Date.
AVALO THERAPEUTICS, INC.:
By: /s/ Garry Neil
Name: Garry Neil
Title: Chief Executive Officer
Date: June 12, 2026
EXECUTIVE:
/s/ Christopher Sullivan
Executive: Christopher Sullivan
Date: June 12, 2026
Exhibit 10.3
June 12, 2026
Mittie Doyle
Re: Changes to your Employment Agreement
Dear Mittie,
I am writing to confirm our understanding regarding certain changes to the terms of your employment with Avalo Therapeutics, Inc. (the “Company”). This letter (the “Amendment”) amends the existing employment letter agreement, dated June 1, 2024 (the “Employment Agreement”), by and between you and the Company. This Amendment will be effective as of June 12, 2026 (the “Amendment Effective Date”). All capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Employment Agreement.
1. Amendments to Employment Agreement.
a. Section 7(c) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Without Cause. Your employment may be terminated by the Company without Cause (other than for death or Disability) immediately upon written notice by the Company. Upon a termination without Cause, subject to your compliance with the obligations in Sections 8, 9 and 10 hereof, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) continued payment of your base salary as in effect immediately prior to your termination, payable in substantially equal installments over a period of twelve (12) consecutive months following such termination; (iv) your annual bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs); (v) solely for options granted prior to the Amendment Effective Date, full vesting of such options awarded by the Company, and you will have six (6) months to exercise from the date of such termination any vested options you hold as of the date of termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed by the Company, until the earliest of (x) the first anniversary of your
termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, that the first payment pursuant to clause (iii) shall be made on the first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code.”
b. Section 7(e) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(e) Without Cause or For Good Reason in Connection with a Change in Control. In the event of your termination in the period beginning three months prior to a Change in Control and ending on the twelve month anniversary following a Change in Control, such term as defined in the Company’s Fourth Amended and Restated 2016 Equity Incentive Plan, as amended (the “Plan”), (A) by the Company without Cause (other than for death or Disability), (B) by you for Good Reason, or (C) by you, as an additional event of “Good Reason,” due to a permanent relocation of your primary place of employment of more than 25 miles from the initially-agreed place of employment, then subject to your compliance with the obligations in Sections 8, 9 and 10 hereof and in lieu of the benefits described in Sections 7(c) and 7(d) above, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) the sum of (x) 1.0x your base salary as in effect immediately prior to your termination and (y) 1.0x your annual target bonus in the year in which the termination occurs; (iv) your annual target bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other employees of the Company; (v) full acceleration of all outstanding and unvested time-based equity awards, which shall become fully vested and exercisable or nonforfeitable as of the later of (x) the date of termination or (y) the effective date of the General Release, and any vested options shall remain exercisable for six months following the date of such termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed by the Company, until the earliest
of (x) the first anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code. The payments pursuant to clauses (i)-(iii) shall be made promptly after the closing of the Change in Control or your termination, whichever is later (provided, however, solely to the extent such termination of employment occurs during the three-month period prior to the Change in Control, (A) the amounts payable under this Section 7(e) shall be reduced by the amount of any payments previously paid pursuant to Sections 7(c) or (d) and (B) payment of the amounts under Section (iii)(x) above shall continue to be paid in installments to the extent required under Code Section 409A. Notwithstanding anything to the contrary herein, in the Plan or applicable award agreement, in the event of a Change in Control, all outstanding and unvested time-based equity awards held by you immediately prior to the Change in Control (including any replacement, substitute or successor awards issued in respect thereof in connection with the Change in Control), to the extent not previously vested in accordance with their terms of clause (v) above, shall become fully vested and exercisable or nonforfeitable (as applicable) upon the first anniversary of the Change in Control, provided that you remain continuously employed by the Company or its successor through such first anniversary.”
c. The following section shall be added to the end of the Employment Agreement:
“ 20. Additional Limitations.
(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to you, or for your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which you become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in you receiving a higher After Tax Amount (as defined below) than what you would receive if the Aggregate Payments were not subject to such reduction. In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not
subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).
For purposes of this Section, the “After Tax Amount” means the amount of the Aggregate Payments less all federal, state and local income, excise, employment and social security taxes imposed on you as a result of your receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes and social security taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes (if any) that could be obtained from deduction of such state and local taxes.
(b) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this section shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) prior to the closing of the Change in Control, which shall provide detailed supporting calculations both to you and the Company within fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by you or the Company. Any determination by the Accounting Firm shall be binding upon you and the Company.”
2. No Termination for Good Reason. You acknowledge and agree that accepting the amendments herein shall not constitute grounds for a termination by you for Good Reason for purposes of the Employment Agreement.
3. No Other Changes. Except as amended herein, the Employment Agreement is in all other respects hereby in full force and effect and is hereby confirmed.
4. Entire Agreement. This Amendment, together with the Employment Agreement, constitutes the entire understanding and agreement of the parties with respect to the transactions contemplated herein and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such transactions.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the law of the State of Delaware without regard to conflicts of law principles thereof.
6. Counterparts. This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the Effective Date.
AVALO THERAPEUTICS, INC.:
By: /s/ Garry Neil
Name: Garry Neil
Title: Chief Executive Officer
Date: June 12, 2026
EXECUTIVE:
/s/ Mittie Doyle
Executive: Mittie Doyle
Date: June 12, 2026
Exhibit 10.4
June 12, 2026
Taylor Boyd
Re: Changes to your Employment Agreement
Dear Taylor,
I am writing to confirm our understanding regarding certain changes to the terms of your employment with Avalo Therapeutics, Inc. (the “Company”). This letter (the “Amendment”) amends the existing employment letter agreement, dated September 29, 2025 (the “Employment Agreement”), by and between you and the Company. This Amendment will be effective as of June 12, 2026 (the “Amendment Effective Date”). All capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Employment Agreement.
1. Amendments to Employment Agreement.
a. Section 7(c) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Without Cause. Your employment may be terminated by the Company without Cause (other than for death or Disability) immediately upon written notice by the Company. Upon a termination without Cause, subject to your compliance with the obligations in Sections 8, 9 and 10 hereof, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) continued payment of your base salary as in effect immediately prior to your termination, payable in substantially equal installments over a period of twelve (12) consecutive months following such termination; (iv) your annual bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other executive employees of the Company (but in no event later than March 15 of the calendar year following the year in which the termination occurs); (v) solely for options granted prior to the Amendment Effective Date, full vesting of such options awarded by the Company, and you will have six (6) months to exercise from the date of such termination any vested options you hold as of the date of termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to the amount the Company would have paid to you had you remained employed
by the Company, until the earliest of (x) the first anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, that the first payment pursuant to clause (iii) shall be made on the first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code.”
b. Section 7(e) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
“(e) Without Cause or For Good Reason in Connection with a Change in Control. In the event of your termination in the period beginning three months prior to a Change in Control and ending on the twelve month anniversary following a Change in Control, such term as defined in the Company’s Fourth Amended and Restated 2016 Equity Incentive Plan, as amended (the “Plan”), (A) by the Company without Cause (other than for death or Disability), (B) by you for Good Reason, or (C) by you, as an additional event of “Good Reason,” due to a permanent relocation of your primary place of employment of more than 50 miles from the initially-agreed place of employment, then subject to your compliance with the obligations in Sections 8, 9 and 10 hereof and in lieu of the benefits described in Sections 7(c) and 7(d) above, the Company shall pay to you the following payments and benefits: (i) the Accrued Benefits; (ii) if not yet paid, your earned but unpaid bonus for the fiscal year preceding the year in which such termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, payable when such annual bonuses are paid to other executive employees of the Company; (iii) the sum of (x) 1.0x your base salary as in effect immediately prior to your termination and (y) 1.0x your annual target bonus in the year in which the termination occurs; (iv) your annual target bonus earned in the year in which the termination occurs, based upon the achievement of Company goals as determined by the Compensation Committee of the Company’s Board, prorated to reflect your completed days of employment during such year, payable when such annual bonuses are paid to other employees of the Company; (v) full acceleration of all outstanding and unvested time-based equity awards, which shall become fully vested and exercisable or nonforfeitable as of the later of (x) the date of termination or (y) the effective date of the General Release, and any vested options shall remain exercisable for six months following the date of such termination; and (vi) if you timely elect and remain eligible for continued health insurance coverage under federal COBRA law or, if applicable, state insurance laws, the Company will pay to the group health plan provider or the COBRA provider a monthly payment equal to
the amount the Company would have paid to you had you remained employed by the Company, until the earliest of (x) the first anniversary of your termination; (y) expiration of your continuation coverage under COBRA; or (z) the date when you are eligible for substantially equivalent health insurance; provided, however, the Company has the right to terminate its payment pursuant to clause (vi) and instead pay you a lump sum amount equal to the applicable COBRA premium multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code. The payments pursuant to clauses (i)-(iii) shall be made promptly after the closing of the Change in Control or your termination, whichever is later (provided, however, solely to the extent such termination of employment occurs during the three-month period prior to the Change in Control, (A) the amounts payable under this Section 7(e) shall be reduced by the amount of any payments previously paid pursuant to Sections 7(c) or (d) and (B) payment of the amounts under Section (iii)(x) above shall continue to be paid in installments to the extent required under Code Section 409A. Notwithstanding anything to the contrary herein, in the Plan or applicable award agreement, in the event of a Change in Control, all outstanding and unvested time-based equity awards held by you immediately prior to the Change in Control (including any replacement, substitute or successor awards issued in respect thereof in connection with the Change in Control), to the extent not previously vested in accordance with their terms of clause (v) above, shall become fully vested and exercisable or nonforfeitable (as applicable) upon the first anniversary of the Change in Control, provided that you remain continuously employed by the Company or its successor through such first anniversary.”
c. The following section shall be added to the end of the Employment Agreement:
“20. Additional Limitations.
(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to you, or for your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which you become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in you receiving a higher After Tax Amount (as defined below) than what you would receive if the Aggregate Payments were not subject to such reduction. In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate
Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).
For purposes of this Section, the “After Tax Amount” means the amount of the Aggregate Payments less all federal, state and local income, excise, employment and social security taxes imposed on you as a result of your receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes and social security taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes (if any) that could be obtained from deduction of such state and local taxes.
(b) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this section shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) prior to the closing of the Change in Control, which shall provide detailed supporting calculations both to you and the Company within fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by you or the Company. Any determination by the Accounting Firm shall be binding upon you and the Company.”
2. No Termination for Good Reason. You acknowledge and agree that accepting the amendments herein shall not constitute grounds for a termination by you for Good Reason for purposes of the Employment Agreement.
3. No Other Changes. Except as amended herein, the Employment Agreement is in all other respects hereby in full force and effect and is hereby confirmed.
4. Entire Agreement. This Amendment, together with the Employment Agreement, constitutes the entire understanding and agreement of the parties with respect to the transactions contemplated herein and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such transactions.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the law of the State of Delaware without regard to conflicts of law principles thereof.
6. Counterparts. This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the Effective Date.
AVALO THERAPEUTICS, INC.:
By: /s/ Garry Neil
Name: Garry Neil
Title: Chief Executive Officer
Date: June 12, 2026
EXECUTIVE:
/s/ Taylor Boyd
Executive: Taylor Boyd
Date: June 12, 2026