CERO 8-K
Cero Therapeutics Holdings, Inc. (CERO)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Chief Development Officer
On September 30, 2024, the Board of Directors (the “Board”) of CERo Therapeutics Holdings, Inc. (the “Company”) appointed Kristen Pierce, Ph.D., as Chief Development Officer of the Company, effective October 1, 2024. Dr. Pierce, 54, has over 20 years of oncology experience, leading nonclinical and early clinical stage projects. Prior to joining the Company in March 2024, Dr. Pierce was Vice President, Translational Medicine at Pionyr Immunotherapeutics from September 2021 to June 2023. Prior to that, she served as Executive Director, Asset Team Leader at Pfizer Inc. (NYSE: PFE) where she led the late nonclinical and early clinical development of several antibody and small molecules in oncology. Dr. Pierce received her Ph.D. from the University of Arizona in Pharmacology and Toxicology and spent four years as a postdoc at Duke University in the laboratory of the Nobel Prize winning scientist, Dr. Robert J. Lefkowitz. Dr. Pierce received her B.A. from Bates College.
In connection with such appointment, on September 30, 2024, the Company entered into a consulting agreement with Dr. Pierce (the “Pierce Consulting Agreement”), effective as of October 1, 2024. The Pierce Consulting Agreement has an initial term of twelve months, commencing October 1, 2024, as may be extended by mutual written agreement. Dr. Pierce will receive a monthly fee of $30,000 for her services during the term of the Pierce Consulting Agreement. In addition, Dr. Pierce received an award of 200,000 options to purchase shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which will vest in equal monthly installments over twenty-four months, subject to Dr. Pierce’s continued service with the Company; provided, that the vesting of 50% such options shall be accelerated upon the U.S. Food and Drug Administration’s (the “FDA”) acceptance of the Company’s initial new drug application (“IND”). Either party may terminate the Pierce Consulting Agreement at any time with at least 30 days’ prior written notice. Dr. Pierce will be an independent contractor of the Company, and as such, Dr. Pierce is not entitled to participate in any Company employee benefit plans.
There are no arrangements or understandings between Dr. Pierce and any other persons pursuant to which Dr. Pierce was appointed the Company’s Chief Development Officer. Dr. Pierce does not have any family relationship with any of the Company’s directors or executive officers or any persons nominated or chosen by the Company to be a director or executive officer. Dr. Pierce has no direct or indirect material interest in any transaction or proposed transaction required to be reported under Section 404(a) of Regulation S-K.
The foregoing description of the terms of the Pierce Consulting Agreement is not complete and is qualified in its entirety by reference to the Pierce Consulting Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Chief Financial Officer Transition
As previously announced, Charles R. Carter resigned from his position as Chief Financial Officer, effective on September 30, 2024. In connection with such resignation, on September 30, 2024, Mr. Carter and the Company entered into a consulting agreement (the “Carter Consulting Agreement”), effective October 1, 2024, pursuant to which Mr. Carter will provide consulting services at a rate of $350 per hour until November 15, 2024 in order to assist with the transition of his duties to his successor and with the preparation of the Company’s filings with the Securities and Exchange Commission that the Company is obligated to complete in accordance with its recently completed private placement of Series C Preferred Stock and related warrants. In connection with his entry into the Carter Consulting Agreement, Mr. Carter forfeited all 495,397 of his outstanding options.
On September 30, 2024, the Board appointed Andrew Albert “Al” Kucharchuk as Chief Financial Officer of the Company, effective October 1, 2024. Mr. Kucharchuk, 43, has served as the Chief Financial Officer of Nukkleus Inc. (NUKK) since June 2024 and as Chief Financial Officer of Chain Bridge I (NASDAQ: CBRGU) since April 2024. Previously, Mr. Kucharchuk was the Chief Financial Officer of Theralink Technologies, Inc. (OTC: THER) from May 2023 to June 2024. Prior to his role at Theralink, Mr. Kucharchuk was the Chief Financial Officer of Adhera Therapeutics, Inc (OTC: ATRX) from September 2022 to August 2023. Prior to that role, Mr. Kucharchuk held various positions at OncBioMune Pharmaceuticals, Inc. including Chief Executive Officer, Chief Operating Officer and Chief Financial Officer from November 2006 to July 2020 and has served as a member of the board of directors since June 2020. Mr. Kucharchuk holds a B.A. in Business and an MBA in Finance from Tulane University.
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In connection with such appointment, on September 30, 2024, the Company entered into a consulting agreement with Mr. Kucharchuk (the “Kucharchuk Consulting Agreement”). The Kucharchuk Consulting Agreement has an initial term of one year, commencing October 1, 2024, as may be extended by mutual written agreement. Mr. Kucharchuk received a retainer of $15,000 upon his entry into the Kucharchuk Consulting Agreement, and will receive a monthly fee of $16,000 for his services during the term of the Kucharchuk Consulting Agreement. In addition, Mr. Kucharchuk received an award of 500,000 options to purchase shares of Common Stock, which will vest in equal monthly installments over twelve months, subject to Mr. Kucharchuk’s continued service with the Company. Either party may terminate the Kucharchuk Consulting Agreement at any time with at least 30 days’ prior written notice. Mr. Kucharchuk will be an independent contractor of the Company, and as such, Mr. Kucharchuk is not entitled to participate in any Company employee benefit plans.
There are no arrangements or understandings between Mr. Kucharchuk and any other persons pursuant to which Mr. Kucharchuk was appointed the Company’s Chief Financial Officer. Mr. Kucharchuk does not have any family relationship with any of the Company’s directors or executive officers or any persons nominated or chosen by the Company to be a director or executive officer. Mr. Kucharchuk has no direct or indirect material interest in any transaction or proposed transaction required to be reported under Section 404(a) of Regulation S-K.
The foregoing descriptions of the terms of the Carter Consulting Agreement and Kucharchuk Consulting Agreement are not complete and are qualified in its entirety by reference to the Carter Consulting Agreement and Kucharchuk Consulting Agreement, copies of which are filed as Exhibit 10.2 and 10.3, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Chief Executive Officer Transition
As previously disclosed, Brian G. Atwood resigned from his position as Chief Executive Officer, effective on September 30, 2024. In connection with such resignation, on September 30, 2024, Mr. Atwood and the Company entered into a consulting agreement (the “Atwood Consulting Agreement”), effective October 1, 2024, pursuant to which Mr. Atwood will provide consulting services for a period of 12 months following his resignation. Mr. Atwood will receive a consulting fee of $25,000 per quarter. In connection with his entry into the Atwood Consulting Agreement, Mr. Atwood forfeited all 1,331,813 of his outstanding options, and received an award of 508,000 options to purchase shares of Common Stock, which will vest (i) 50% upon the FDA’s acceptance of the Company’s IND and (ii) 50% upon the completion of a financing transaction generating at least $1.5 million of gross proceeds, in each case subject to Mr. Atwood’s continued service with the Company.
In addition, as previously disclosed, the Board appointed Chris Ehrlich to serve as Interim Chairman and Chief Executive Officer while the Board searches for a permanent replacement. In connection with such appointment, on September 30, 2024, Mr. Ehrlich and the Company entered into a consulting agreement (the “Ehrlich Consulting Agreement”), effective October 1, 2024. The Ehrlich Consulting Agreement has an initial term of twelve months, commencing October 1, 2024, as may be extended by mutual written agreement. Mr. Ehrlich will receive a consulting fee of $30,000 per month. In connection with his entry into the Ehrlich Consulting Agreement, Mr. Ehrlich forfeited all 572,182 of his outstanding options, and received an award of 2,807,104 options to purchase shares of Common Stock, which will vest (i) 50% upon the FDA’s acceptance of the Company’s IND and (ii) 50% upon the completion of a financing transaction generating at least $1.5 million of gross proceeds, in each case subject to Mr. Atwood’s continued service with the Company.
The foregoing descriptions of the terms of the Atwood Consulting Agreement and Ehrlich Consulting Agreement are not complete and are qualified in its entirety by reference to the Atwood Consulting Agreement and Ehrlich Consulting Agreement, copies of which are filed as Exhibit 10.4 and 10.5, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Director Resignation
On September 26, 2024, Robyn Rapaport notified the Company of her resignation from the Board, effective immediately. Ms. Rapaport’s resignation is not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies or practices. The Company thanks Ms. Rapaport for her dedicated service on the Board and wishes her well in her future pursuits.
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Option Repricing and Director Awards
On September 30, 2024, to retain and motivate employees and other key contributors of the Company, the compensation committee of the board of directors of the Company (the “Compensation Committee”) approved a stock option repricing (the “Option Repricing”), effective October 1, 2024 (the “Effective Date”). The repricing was undertaken in accordance with, and as permitted by, the Company’s 2024 Equity Incentive Plan, as amended, (the “2024 Plan”). Pursuant to the Option Repricing, all options granted pursuant to the 2024 Plan that are held by Company employees, non-employee directors and service providers of the Board expected to continue providing services to the Company were repriced, to the extent such options had an exercise price in excess of $0.10, the closing price per share of the Common Stock as reported on The Nasdaq Stock Market on October 1, 2024. As of the Effective Date, all such options were repriced such that the exercise price per share was reduced to $0.10.
The Board approved the Option Repricing after careful consideration of various alternatives, and based in part on the recommendation of the Compensation Committee. The Option Repricing is not subject to approval of the Company’s stockholders.
In addition, on September 30, 2024, the Board approved the grant of 280,710 options to each of the Company’s non-employee directors, which will vest (i) 50% upon the FDA’s acceptance of the Company’s IND and (ii) 50% upon the completion of a financing transaction generating at least $1.5 million of gross proceeds, in each case subject to such director’s continued service with the Company.
Item 8.01 Other Events.
On October 2, 2024, the Company issued a press release announcing Mr. Kucharchuk and Dr. Pierce’s appointments. A copy of the press release is furnished herewith as Exhibit 99.1 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are being filed herewith:
| Exhibit No. | Description | |
| 10.1 | Consulting Agreement, dated September 30, 2024, by and between the Company and Kristen Pierce. | |
| 10.2 | Consulting Agreement, dated September 30, 2024, by and between the Company and Charles R. Carter. | |
| 10.3 | Consulting Agreement, dated September 30, 2024, by and between the Company and Andrew Kucharchuk. | |
| 10.4 | Consulting Agreement, dated September 30, 2024, by and between the Company and Brian G. Atwood. | |
| 10.5 | Consulting Agreement, dated September 30, 2024, by and between the Company and Chris Ehrlich. | |
| 99.1 | Press release, dated October 2, 2024. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: October 2, 2024 | CERO THERAPEUTICS HOLDINGS, INC. | |
| By: | /s/ Chris Ehrlich | |
| Name: | Chris Ehrlich | |
| Title: | Interim Chief Executive Officer | |
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Exhibit 10.1
CONSULTING AGREEMENT
AGREEMENT, made effective this October 1st 2024 by and between CERo Therapeutics Holdings, Inc., a Delaware corporation having a place of business at 201 Haskins Way, Suite 230, South San Francisco, CA 94080 (“Company”), and Kristen Pierce, an individual having her principal address at [Omitted] (“Consultant”) The Company and the Consultant are referred to herein collectively as the “Parties,” and individually, each as a “Party.” Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and CERo (as defined below).
WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the business affairs of CERo an exempted company incorporated under the laws of the Delaware (“CERo”), which the Company controls, on a non-exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the Company hereby engages the Consultant, and the Consultant hereby accept such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement. The Parties agree as follows:
| 1. | Initial Term: This Agreement shall commence on October 1, 2024 and continue until September 30, 2025, unless earlier terminated in accordance with Section 7 (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties. |
| 2. | Nature of Services: The Consultant shall render to the Company the services set forth on Schedule I attached hereto (the “Services”) during the Term (it being understood and agreed that the Consultant is free to tender the same or similar services to any other entity selected by it). The Company shall not control the manner or means by which the Consultant performs the Services. |
| 3. | Responsibilities of the Company: The Company shall provide the Consultant with access to all of the Company’s materials, information and systems in a timely manner to the extent necessary to perform the Services. In addition, executive officers and directors of the Company shall make themselves available for personal consultations with the Consultant, subject to reasonable prior notice, pursuant to the request of the Consultant. |
| 4. | Representations of the Consultant: The Consultant hereby represents to the Company that he (i) is under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent him from providing consulting services to the Company or that would adversely impact her ability to perform the expected services for the Company; (ii) all Services shall be Consultant’s original work and none of the Services will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) shall perform all Services hereunder in a competent and professional manner and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) agrees to abide by and comply with all requests from the Company with respect to the performance of the Services hereunder; and (v) agrees to comply with all applicable laws, regulations and rules which may be in effect during the term of this Agreement as it concerns the subject matter of this Agreement. |
| 5. | Compensation: As full compensation for the Services, and other services which may be provided to the Company from time to time during the Term upon agreement of the Parties, the Parties mutually agree that the Consultant will be entitled to a monthly fee of $30,000, paid in installments in accordance with the Company’s ordinary payroll practices for its employees. |
| 6. | Expenses: The Company shall also reimburse the Consultant for actual out-of-pocket and reasonably documented expenses including, but not limited to, facsimile, postage, printing, photocopying, meals and entertainment, incurred by the Consultant with the prior consent of the Company and in connection with the performance by the Consultant of her duties hereunder. The Company shall also reimburse the Consultant for the costs of all travel and related expenses incurred by the Consultant in connection with the performance of her services hereunder, provided that all such costs and expenses have been authorized, in advance, by the Company, and the Consultant shall not expend more than $100.00 for expenses without the prior written approval of the Company, which may be in the form of an email. |
| 7. | Termination: Either Party may terminate the agreement at any time upon 30 calendar days’ advance written notice to the other Party. The Company shall pay the Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the effective date of such termination. Upon termination of the Term for any reason, the Consultant shall return immediately to the Company all documents, property, and other records of the Company, and all copies thereof, within the Consultant’s possession, custody or control. If either Party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days’ notice, unless the breach is cured within the notice period. |
| 8. | Indemnification: The Parties shall defend, indemnify, and hold each other and their respective affiliates, and their respective officers, director, employees, agents and controlling persons (the Parties and each such other persons and entities being an “Indemnified Party” for the purposes of this section) harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) incurred by the Indemnified Party as a result of any claim, judgment or proceeding against the Indemnified Party arising out of: (a) the other Party’s breach of any representation, warranty or obligation under this Agreement; and (b) bodily injury, death of any person or damage to real or tangible, personal property resulting from the other Party’s acts or omissions; provided that, the other Party shall not be liable for any of the foregoing to the extent arising from gross negligence or willful misconduct on the part of the Indemnified Party. The Indemnified Party shall promptly notify the Party from which it is seeking indemnification, in writing, of any such loss, claim, damage or liability as it is incurred and provide such Party with the opportunity to defend against or settle such matter with counsel of its choice. Any Party against whom indemnification may be sought shall not be liable to indemnify or provide contribution for any settlement effected without such Party’s prior written consent. The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to the Consultant. |
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| 9. | Relationship of the Parties: The Consultant an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Consultant and the Company for any purpose. The Consultant is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort relating to her compensation hereunder (including, but not limited to, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage and income taxes), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of the Company. The Consultant has no authority (and shall not hold itself out as having authority) to bind the Company and the Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part. |
| 10. | Complete Agreement: This Agreement contains the entire Agreement between the Parties with respect to the contents hereof, and supersedes all prior and contemporaneous agreements and understandings between the Parties with the respect to such matters, whether written or oral, except for the Employee Confidential Information and Inventions Assignment Agreement he signed during the term of her employment with the Company. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party, and any of the terms thereof may be waived, only by a written document signed by each Party or, in the case of waiver, by the Party or Parties waiving compliance. |
| 11. | Counterparts: This Agreement may be executed in two or more counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which shall constitute one Agreement. |
| 12. | Survival: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement which shall survive such termination in accordance with their terms. |
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| 13. | Disclosure; Confidentiality: Any financial advice rendered by the Consultant pursuant to this Agreement may not be disclosed publicly in any manner without the prior written approval of the Consultant, unless required by law or statute or any court, governmental or regulatory agency. The Consultant acknowledges that he will have access to information that is treated as confidential and proprietary by the Company including, without limitation, information pertaining to business strategies, finances, or operations of the Company and its affiliates, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). All Confidential Information made available to the Consultant by the Company will be treated by the Consultant as strictly confidential. The Consultant agrees not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to make use of any Confidential Information other than in connection with its performance of this Agreement, provided however, that any Confidential Information may be disclosed if required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Consultant shall notify the Company immediately in the event he becomes aware of any loss or disclosure of any Confidential Information. “Confidential Information” shall not include any information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Consultant; (ii) was available to the Consultant prior to its disclosure to the Consultant by the Company, provided that such information is not known by the Consultant to be subject to another confidentiality agreement with another party; or (iii) becomes available to the Consultant on a non-confidentiality basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company. Consultant understands that pursuant to the federal Defend Trade Secrets Act of 2016, Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultant further understands that nothing contained in this Agreement limits Consultant’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company. |
| 14. | Notices: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: |
If to Consultant:
Kristen Pierce
[Omitted]
If to Company:
CERo Therapeutic Holdings, INC
201 Haskins Way, Suite 230
South San Francisco, CA 94080
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| 15. | Severability: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 16. | Miscellaneous: |
a) All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and the Consultant shall not have any right or authority to bind the Company to any obligation or commitment.
b) The Parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The Parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award; (iii) the arbitrator may make any other decisions including interim, interlocutory or partial findings, orders and awards to the full extent provided in Rule 45 of the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and authorized to award attorneys’ fees to the prevailing Party in accordance with Rule 45.
c) This Agreement and all related documents including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any provision of law or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Any arbitration or mediation inherited by the Parties as provided herein shall be filed and maintained exclusively with the American Arbitration Association’s offices located in the state of Delaware and the Parties further agree that the provisions of Section 16(c), may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to and award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.
(signature page on next page)
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Agreed and accepted on September 30th, 2024 by and between:
| CERo Therapeutic Holdings LLC | Consultant | |||
| By: | /s/ Brian Atwood | By: | /s/ Kristen Pierce | |
| Name: | Brian Atwood | Kristen Pierce | ||
| Title: | Chair, President and CEO | |||
Schedule I
Services:
| 1. | Serve as the Company’s Chief Development Officer, with primary responsibility for the Company’s clinical operations and supervision thereof; and |
| 2. | Other services to be mutually agreed upon by the Consultant and the Company |
Exhibit 10.2
CONSULTING AGREEMENT
AGREEMENT, made effective this October 1st 2024 by and between CERo Therapeutics Holdings, Inc., a Delaware corporation having a place of business at 201 Haskins Way, Suite 230, South San Francisco, CA 94080 (“Company”), and Charles Ross Carter, an individual having his principal place of business at [Omitted] (“Consultant”) The Company and the Consultant are referred to herein collectively as the “Parties,” and individually, each as a “Party.” Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and CERo (as defined below).
WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the business affairs of CERo an exempted company incorporated under the laws of the Delaware (“CERo”), which the Company controls, on a non-exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the Company hereby engages the Consultant, and the Consultant hereby accept such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement. The Parties agree as follows:
| 1. | Initial Term: This Agreement shall commence on October 1, 2024 and continue until November 15, 2024, unless earlier terminated in accordance with Section 7 (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties. |
| 2. | Nature of Services: The Consultant shall render to the Company the services set forth on Schedule I attached hereto (the “Services”) during the Term (it being understood and agreed that the Consultant is free to tender the same or similar services to any other entity selected by it). The Parties agree that, during the Term, the Services shall not exceed 100 hours, without the prior written approval of the Company, which may be in the form of an email. The Company shall not control the manner or means by which the Consultant performs the Services. |
| 3. | Responsibilities of the Company: The Company shall provide the Consultant with access to all of the Company’s materials, information and systems in a timely manner to the extent necessary to perform the Services. In addition, executive officers and directors of the Company shall make themselves available for personal consultations with the Consultant, subject to reasonable prior notice, pursuant to the request of the Consultant. |
| 4. | Representations of the Consultant: The Consultant hereby represents to the Company that he (i) is under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent him from providing consulting services to the Company or that would adversely impact his ability to perform the expected services for the Company; (ii) all Services shall be Consultant’s original work and none of the Services will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) shall perform all Services hereunder in a competent and professional manner and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) agrees to abide by and comply with all requests from the Company with respect to the performance of the Services hereunder; and (v) agrees to comply with all applicable laws, regulations and rules which may be in effect during the term of this Agreement as it concerns the subject matter of this Agreement. |
| 5. | Compensation: As exclusive compensation for the Services and the rights granted to the Company in this Agreement, during the Term, Company will pay Consultant fees at the rate $350/hour. These fees shall be paid in arrears, within 30 days of Consultant’s submission to Company of an approved invoice. |
| 6. | Expenses: The Company shall also reimburse the Consultant for actual out-of-pocket and reasonably documented expenses including, but not limited to, facsimile, postage, printing, photocopying, meals and entertainment, incurred by the Consultant with the prior consent of the Company and in connection with the performance by the Consultant of his duties hereunder. The Company shall also reimburse the Consultant for the costs of all travel and related expenses incurred by the Consultant in connection with the performance of his services hereunder, provided that all such costs and expenses have been authorized, in advance, by the Company, and the Consultant shall not expend more than $100.00 for expenses without the prior written approval of the Company, which may be in the form of an email. |
| 7. | Termination: Either Party may terminate the agreement at any time upon 30 calendar days’ advance written notice to the other Party. The Company shall pay the Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the effective date of such termination. Upon termination of the Term for any reason, the Consultant shall return immediately to the Company all documents, property, and other records of the Company, and all copies thereof, within the Consultant’s possession, custody or control. If either Party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days’ notice, unless the breach is cured within the notice period. |
| 8. | Indemnification: The Parties shall defend, indemnify, and hold each other and their respective affiliates, and their respective officers, director, employees, agents and controlling persons (the Parties and each such other persons and entities being an “Indemnified Party” for the purposes of this section) harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) incurred by the Indemnified Party as a result of any claim, judgment or proceeding against the Indemnified Party arising out of: (a) the other Party’s breach of any representation, warranty or obligation under this Agreement; and (b) bodily injury, death of any person or damage to real or tangible, personal property resulting from the other Party’s acts or omissions; provided that, the other Party shall not be liable for any of the foregoing to the extent arising from gross negligence or willful misconduct on the part of the Indemnified Party. The Indemnified Party shall promptly notify the Party from which it is seeking indemnification, in writing, of any such loss, claim, damage or liability as it is incurred and provide such Party with the opportunity to defend against or settle such matter with counsel of its choice. Any Party against whom indemnification may be sought shall not be liable to indemnify or provide contribution for any settlement effected without such Party’s prior written consent. The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to the Consultant. |
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| 9. | Relationship of the Parties: The Consultant an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Consultant and the Company for any purpose. The Consultant is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort relating to his compensation hereunder (including, but not limited to, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage and income taxes), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of the Company. The Consultant has no authority (and shall not hold itself out as having authority) to bind the Company and the Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part. |
| 10. | Complete Agreement: This Agreement contains the entire Agreement between the Parties with respect to the contents hereof, and supersedes all prior and contemporaneous agreements and understandings between the Parties with the respect to such matters, whether written or oral, except for the Employee Confidential Information and Inventions Assignment Agreement the Consultant signed during the term of his employment with the Company. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party, and any of the terms thereof may be waived, only by a written document signed by each Party or, in the case of waiver, by the Party or Parties waiving compliance. |
| 11. | Counterparts: This Agreement may be executed in two or more counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which shall constitute one Agreement. |
| 12. | Survival: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement which shall survive such termination in accordance with their terms. |
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| 13. | Disclosure; Confidentiality: Any financial advice rendered by the Consultant pursuant to this Agreement may not be disclosed publicly in any manner without the prior written approval of the Consultant, unless required by law or statute or any court, governmental or regulatory agency. The Consultant acknowledges that he will have access to information that is treated as confidential and proprietary by the Company including, without limitation, information pertaining to business strategies, finances, or operations of the Company and its affiliates, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). All Confidential Information made available to the Consultant by the Company will be treated by the Consultant as strictly confidential. The Consultant agrees not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to make use of any Confidential Information other than in connection with its performance of this Agreement, provided however, that any Confidential Information may be disclosed if required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Consultant shall notify the Company immediately in the event he becomes aware of any loss or disclosure of any Confidential Information. “Confidential Information” shall not include any information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Consultant; (ii) was available to the Consultant prior to its disclosure to the Consultant by the Company, provided that such information is not known by the Consultant to be subject to another confidentiality agreement with another party; or (iii) becomes available to the Consultant on a non-confidentiality basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company. Consultant understands that pursuant to the federal Defend Trade Secrets Act of 2016, Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultant further understands that nothing contained in this Agreement limits Consultant’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company. |
| 14. | Notices: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: |
If to Consultant:
[Omitted]
If to Company:
CERo Therapeutic Holdings, Inc.
201 Haskins Way, Suite 230
South San Francisco, CA 94080
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| 15. | Severability: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 16. | Miscellaneous: |
| a) | All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and the Consultant shall not have any right or authority to bind the Company to any obligation or commitment. |
| b) | The Parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The Parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award; (iii) the arbitrator may make any other decisions including interim, interlocutory or partial findings, orders and awards to the full extent provided in Rule 45 of the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and authorized to award attorneys’ fees to the prevailing Party in accordance with Rule 45. |
| c) | This Agreement and all related documents including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any provision of law or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Any arbitration or mediation inherited by the Parties as provided herein shall be filed and maintained exclusively with the American Arbitration Association’s offices located in the state of Delaware and the Parties further agree that the provisions of Section 16(c), may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to and award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered. |
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Agreed and accepted on September 30th, 2024 by and between:
| CERo Therapeutic Holdings, Inc. | Consultant | |||
| By: | /s/ Brian Atwood | By: | /s/ Charles R. Carter | |
| Name: | Brian Atwood | Charles R. Carter | ||
| Title: | Chair, President and CEO | |||
Exhibit 10.3
CONSULTING AGREEMENT
AGREEMENT, made effective this October 1st 2024 by and between CERo Therapeutics Holdings, Inc., a Delaware corporation having a place of business at 201 Haskins Way, Suite 230, South San Francisco, CA 94080 (“Company”), and Andrew Albert Kucharchuk, an individual having his principal place of business at [Omitted] (“Consultant”) The Company and the Consultant are referred to herein collectively as the “Parties,” and individually, each as a “Party.” Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and CERo (as defined below).
WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the business affairs of CERo an exempted company incorporated under the laws of the Delaware (“CERo”), which the Company controls, on a non-exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the Company hereby engages the Consultant, and the Consultant hereby accept such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement. The Parties agree as follows:
| 1. | Initial Term: This Agreement shall commence on October 1, 2024 and continue until September 30, 2025, unless earlier terminated in accordance with Section 7 (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties. |
| 2. | Nature of Services: The Consultant shall render to the Company the services set forth on Schedule I attached hereto (the “Services”) during the Term (it being understood and agreed that the Consultant is free to tender the same or similar services to any other entity selected by it). The Company shall not control the manner or means by which the Consultant performs the Services. |
| 3. | Responsibilities of the Company: The Company shall provide the Consultant with access to all of the Company’s materials, information and systems in a timely manner to the extent necessary to perform the Services. In addition, executive officers and directors of the Company shall make themselves available for personal consultations with the Consultant, subject to reasonable prior notice, pursuant to the request of the Consultant. |
| 4. | Representations of the Consultant: The Consultant hereby represents to the Company that he (i) is under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent him from providing consulting services to the Company or that would adversely impact his ability to perform the expected services for the Company; (ii) all Services shall be Consultant’s original work and none of the Services will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) shall perform all Services hereunder in a competent and professional manner and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) agrees to abide by and comply with all requests from the Company with respect to the performance of the Services hereunder; and (v) agrees to comply with all applicable laws, regulations and rules which may be in effect during the term of this Agreement as it concerns the subject matter of this Agreement. |
| 5. | Compensation: As full compensation for the Services, and other services which may be provided to the Company from time to time during the Term upon agreement of the Parties, the Parties mutually agree that the Consultant will be entitled to the following compensation: |
| a) | A retainer of $15,000 (the “Retainer”) due upon execution of this Agreement; |
| b) | A fixed fee of $16,000 per month (the “Fees”) due on the first day of each month, commencing on October 1, 2024 and ending on September 1, 2025; and |
| c) | During the Term, the Consultant may be eligible for (but not entitled to) special performance bonuses, in such form and amount negotiated between the company and the consultant. |
| 6. | Expenses: The Company shall also reimburse the Consultant for actual out-of-pocket and reasonably documented expenses including, but not limited to, facsimile, postage, printing, photocopying, meals and entertainment, incurred by the Consultant with the prior consent of the Company and in connection with the performance by the Consultant of his duties hereunder. The Company shall also reimburse the Consultant for the costs of all travel and related expenses incurred by the Consultant in connection with the performance of his services hereunder, provided that all such costs and expenses have been authorized, in advance, by the Company, and the Consultant shall not expend more than $100.00 for expenses without the prior written approval of the Company, which may be in the form of an email. |
| 7. | Termination: Either Party may terminate the agreement at any time upon 30 calendar days’ advance written notice to the other Party. The Company shall pay the Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the effective date of such termination. Upon termination of the Term for any reason, the Consultant shall return immediately to the Company all documents, property, and other records of the Company, and all copies thereof, within the Consultant’s possession, custody or control. If either Party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days’ notice, unless the breach is cured within the notice period. |
| 8. | Indemnification: The Parties shall defend, indemnify, and hold each other and their respective affiliates, and their respective officers, director, employees, agents and controlling persons (the Parties and each such other persons and entities being an “Indemnified Party” for the purposes of this section) harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) incurred by the Indemnified Party as a result of any claim, judgment or proceeding against the Indemnified Party arising out of: (a) the other Party’s breach of any representation, warranty or obligation under this Agreement; and (b) bodily injury, death of any person or damage to real or tangible, personal property resulting from the other Party’s acts or omissions; provided that, the other Party shall not be liable for any of the foregoing to the extent arising from gross negligence or willful misconduct on the part of the Indemnified Party. The Indemnified Party shall promptly notify the Party from which it is seeking indemnification, in writing, of any such loss, claim, damage or liability as it is incurred and provide such Party with the opportunity to defend against or settle such matter with counsel of its choice. Any Party against whom indemnification may be sought shall not be liable to indemnify or provide contribution for any settlement effected without such Party’s prior written consent. The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to the Consultant. |
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| 9. | Relationship of the Parties: The Consultant an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Consultant and the Company for any purpose. The Consultant is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort relating to his compensation hereunder (including, but not limited to, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage and income taxes), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of the Company. The Consultant has no authority (and shall not hold itself out as having authority) to bind the Company and the Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent; provided, however, that the Company expressly authorizes the Consultant to sign, as Chief Financial Officer, reports and filings of and on behalf of the Company with the Securities and Exchange Commission. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of the Company. Any attempt to do so shall be void. The Company may fully assign and transfer this Agreement in whole or part. |
| 10. | Complete Agreement: This Agreement contains the entire Agreement between the Parties with respect to the contents hereof, and supersedes all prior and contemporaneous agreements and understandings between the Parties with the respect to such matters, whether written or oral. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party, and any of the terms thereof may be waived, only by a written document signed by each Party or, in the case of waiver, by the Party or Parties waiving compliance. |
| 11. | Counterparts: This Agreement may be executed in two or more counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which shall constitute one Agreement. |
| 12. | Survival: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement which shall survive such termination in accordance with their terms. |
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| 13. | Disclosure; Confidentiality: Any financial advice rendered by the Consultant pursuant to this Agreement may not be disclosed publicly in any manner without the prior written approval of the Consultant, unless required by law or statute or any court, governmental or regulatory agency. The Consultant acknowledges that he will have access to information that is treated as confidential and proprietary by the Company including, without limitation, information pertaining to business strategies, finances, or operations of the Company and its affiliates, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). All Confidential Information made available to the Consultant by the Company will be treated by the Consultant as strictly confidential. The Consultant agrees not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to make use of any Confidential Information other than in connection with its performance of this Agreement, provided however, that any Confidential Information may be disclosed if required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Consultant shall notify the Company immediately in the event he becomes aware of any loss or disclosure of any Confidential Information. “Confidential Information” shall not include any information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Consultant; (ii) was available to the Consultant prior to its disclosure to the Consultant by the Company, provided that such information is not known by the Consultant to be subject to another confidentiality agreement with another party; or (iii) becomes available to the Consultant on a non-confidentiality basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company. Consultant understands that pursuant to the federal Defend Trade Secrets Act of 2016, Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultant further understands that nothing contained in this Agreement limits Consultant’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company. |
| 14. | Notices: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: |
If to Consultant:
[Omitted]
If to Company:
CERo Therapeutic Holdings, Inc.
201 Haskins Way, Suite 230
South San Francisco, CA 94080
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| 15. | Severability: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 16. | Miscellaneous: |
| a) | All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and the Consultant shall not have any right or authority to bind the Company to any obligation or commitment. |
| b) | The Parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The Parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award; (iii) the arbitrator may make any other decisions including interim, interlocutory or partial findings, orders and awards to the full extent provided in Rule 45 of the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and authorized to award attorneys’ fees to the prevailing Party in accordance with Rule 45. |
| c) | This Agreement and all related documents including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any provision of law or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Any arbitration or mediation inherited by the Parties as provided herein shall be filed and maintained exclusively with the American Arbitration Association’s offices located in the state of Delaware and the Parties further agree that the provisions of Section 16(c), may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to and award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered. |
(signature page on next page)
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Agreed and accepted on September 30th, 2024 by and between:
| CERo Therapeutic Holdings, Inc. | Consultant | |||
| By: | /s/ Brian Atwood | By: | /s/ Andrew Kucharchuk | |
| Name: | Brian Atwood | Andrew Kucharchuk | ||
| Title: | Chair, President and CEO | |||
Exhibit 10.4
CONSULTING AGREEMENT
AGREEMENT, made effective this October 1st 2024 by and between CERo Therapeutics Holdings, Inc., a Delaware corporation having a place of business at 201 Haskins Way, Suite 230, South San Francisco, CA 94080 (“Company”), and Brian G. Atwood, an individual having his principal place of business at [Omitted] (“Consultant”) The Company and the Consultant are referred to herein collectively as the “Parties,” and individually, each as a “Party.” Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and CERo (as defined below).
WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the business affairs of CERo an exempted company incorporated under the laws of the Delaware (“CERo”), which the Company controls, on a non-exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the Company hereby engages the Consultant, and the Consultant hereby accept such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement. The Parties agree as follows:
| 1. | Initial Term: This Agreement shall commence on October 1, 2024 and continue until September 30, 2025, unless earlier terminated in accordance with Section 7 (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties. |
| 2. | Nature of Services: The Consultant shall render to the Company the services set forth on Schedule I attached hereto (the “Services”) during the Term (it being understood and agreed that the Consultant is free to tender the same or similar services to any other entity selected by it). The Company shall not control the manner or means by which the Consultant performs the Services. |
| 3. | Responsibilities of the Company: The Company shall provide the Consultant with access to all of the Company’s materials, information and systems in a timely manner to the extent necessary to perform the Services. In addition, executive officers and directors of the Company shall make themselves available for personal consultations with the Consultant, subject to reasonable prior notice, pursuant to the request of the Consultant. |
| 4. | Representations of the Consultant: The Consultant hereby represents to the Company that he (i) is under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent him from providing consulting services to the Company or that would adversely impact his ability to perform the expected services for the Company; (ii) all Services shall be Consultant’s original work and none of the Services will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) shall perform all Services hereunder in a competent and professional manner and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) agrees to abide by and comply with all requests from the Company with respect to the performance of the Services hereunder; and (v) agrees to comply with all applicable laws, regulations and rules which may be in effect during the term of this Agreement as it concerns the subject matter of this Agreement. |
| 5. | Compensation: As full compensation for the Services, and other services which may be provided to the Company from time to time during the Term upon agreement of the Parties, the Parties mutually agree that the Consultant will be entitled to a quarterly fee of $25,000 paid in arrears. |
| 6. | Expenses: The Company shall also reimburse the Consultant for actual out-of-pocket and reasonably documented expenses including, but not limited to, facsimile, postage, printing, photocopying, meals and entertainment, incurred by the Consultant with the prior consent of the Company and in connection with the performance by the Consultant of his duties hereunder. The Company shall also reimburse the Consultant for the costs of all travel and related expenses incurred by the Consultant in connection with the performance of his services hereunder, provided that all such costs and expenses have been authorized, in advance, by the Company, and the Consultant shall not expend more than $100.00 for expenses without the prior written approval of the Company, which may be in the form of an email. |
| 7. | Termination: Either Party may terminate the agreement at any time upon 30 calendar days’ advance written notice to the other Party. The Company shall pay the Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the effective date of such termination. Upon termination of the Term for any reason, the Consultant shall return immediately to the Company all documents, property, and other records of the Company, and all copies thereof, within the Consultant’s possession, custody or control. If either Party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days’ notice, unless the breach is cured within the notice period. |
| 8. | Indemnification: The Parties shall defend, indemnify, and hold each other and their respective affiliates, and their respective officers, director, employees, agents and controlling persons (the Parties and each such other persons and entities being an “Indemnified Party” for the purposes of this section) harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) incurred by the Indemnified Party as a result of any claim, judgment or proceeding against the Indemnified Party arising out of: (a) the other Party’s breach of any representation, warranty or obligation under this Agreement; and (b) bodily injury, death of any person or damage to real or tangible, personal property resulting from the other Party’s acts or omissions; provided that, the other Party shall not be liable for any of the foregoing to the extent arising from gross negligence or willful misconduct on the part of the Indemnified Party. The Indemnified Party shall promptly notify the Party from which it is seeking indemnification, in writing, of any such loss, claim, damage or liability as it is incurred and provide such Party with the opportunity to defend against or settle such matter with counsel of its choice. Any Party against whom indemnification may be sought shall not be liable to indemnify or provide contribution for any settlement effected without such Party’s prior written consent. The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to the Consultant. |
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| 9. | Relationship of the Parties: The Consultant an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Consultant and the Company for any purpose. The Consultant is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort relating to his compensation hereunder (including, but not limited to, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage and income taxes), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of the Company. The Consultant has no authority (and shall not hold itself out as having authority) to bind the Company and the Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part. |
| 10. | Complete Agreement: This Agreement contains the entire Agreement between the Parties with respect to the contents hereof, and supersedes all prior and contemporaneous agreements and understandings between the Parties with the respect to such matters, whether written or oral, except for the Employee Confidential Information and Inventions Assignment Agreement he signed during the term of his employment with the Company. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party, and any of the terms thereof may be waived, only by a written document signed by each Party or, in the case of waiver, by the Party or Parties waiving compliance. |
| 11. | Counterparts: This Agreement may be executed in two or more counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which shall constitute one Agreement. |
| 12. | Survival: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement which shall survive such termination in accordance with their terms. |
| 13. | Disclosure; Confidentiality: Any financial advice rendered by the Consultant pursuant to this Agreement may not be disclosed publicly in any manner without the prior written approval of the Consultant, unless required by law or statute or any court, governmental or regulatory agency. The Consultant acknowledges that he will have access to information that is treated as confidential and proprietary by the Company including, without limitation, information pertaining to business strategies, finances, or operations of the Company and its affiliates, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). All Confidential Information made available to the Consultant by the Company will be treated by the Consultant as strictly confidential. The Consultant agrees not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to make use of any Confidential Information other than in connection with its performance of this Agreement, provided however, that any Confidential Information may be disclosed if required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Consultant shall notify the Company immediately in the event he becomes aware of any loss or disclosure of any Confidential Information. “Confidential Information” shall not include any information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Consultant; (ii) was available to the Consultant prior to its disclosure to the Consultant by the Company, provided that such information is not known by the Consultant to be subject to another confidentiality agreement with another party; or (iii) becomes available to the Consultant on a non-confidentiality basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company. Consultant understands that pursuant to the federal Defend Trade Secrets Act of 2016, Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultant further understands that nothing contained in this Agreement limits Consultant’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company. |
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| 14. | Notices: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: |
If to Consultant:
[Omitted]
If to Company:
CERo Therapeutic Holdings, INC
201 Haskins Way, Suite 230
South San Francisco, CA 94080
| 15. | Severability: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 16. | Miscellaneous: |
| a) | All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and the Consultant shall not have any right or authority to bind the Company to any obligation or commitment. |
| b) | The Parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The Parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award; (iii) the arbitrator may make any other decisions including interim, interlocutory or partial findings, orders and awards to the full extent provided in Rule 45 of the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and authorized to award attorneys’ fees to the prevailing Party in accordance with Rule 45. |
| c) | This Agreement and all related documents including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any provision of law or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Any arbitration or mediation inherited by the Parties as provided herein shall be filed and maintained exclusively with the American Arbitration Association’s offices located in the state of Delaware and the Parties further agree that the provisions of Section 16(c), may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to and award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered. |
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Agreed and accepted on September 30th, 2024 by and between:
| CERo Therapeutic Holdings, Inc. | Consultant | |||
| By: | /s/ Brian Atwood | By: | /s/ Brian Atwood | |
| Name: | Brian Atwood | Brian Atwood | ||
| Title: | Chair, President and CEO | |||
Exhibit 10.5
CONSULTING AGREEMENT
AGREEMENT, made effective this October 1st 2024 by and between CERo Therapeutics Holdings, Inc., a Delaware corporation having a place of business at 201 Haskins Way, Suite 230, South San Francisco, CA 94080 (“Company”), and Chris Ehrlich, an individual having his principal place of business at [Omitted] (“Consultant”) The Company and the Consultant are referred to herein collectively as the “Parties,” and individually, each as a “Party.” Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and CERo (as defined below).
WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the business affairs of CERo an exempted company incorporated under the laws of the Delaware (“CERo”), which the Company controls, on a non-exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the Company hereby engages the Consultant, and the Consultant hereby accept such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement. The Parties agree as follows:
| 1. | Initial Term: This Agreement shall commence on October 1, 2024 and continue until September 30, 2025, unless earlier terminated in accordance with Section 7 (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties. |
| 2. | Nature of Services: The Consultant shall render to the Company the services set forth on Schedule I attached hereto (the “Services”) during the Term (it being understood and agreed that the Consultant is free to tender the same or similar services to any other entity selected by it). The Company shall not control the manner or means by which the Consultant performs the Services. |
| 3. | Responsibilities of the Company: The Company shall provide the Consultant with access to all of the Company’s materials, information and systems in a timely manner to the extent necessary to perform the Services. In addition, executive officers and directors of the Company shall make themselves available for personal consultations with the Consultant, subject to reasonable prior notice, pursuant to the request of the Consultant. |
| 4. | Representations of the Consultant: The Consultant hereby represents to the Company that he (i) is under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent him from providing consulting services to the Company or that would adversely impact his ability to perform the expected services for the Company; (ii) all Services shall be Consultant’s original work and none of the Services will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) shall perform all Services hereunder in a competent and professional manner and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) agrees to abide by and comply with all requests from the Company with respect to the performance of the Services hereunder; and (v) agrees to comply with all applicable laws, regulations and rules which may be in effect during the term of this Agreement as it concerns the subject matter of this Agreement. |
| 5. | Compensation: As full compensation for the Services, and other services which may be provided to the Company from time to time during the Term upon agreement of the Parties, the Parties mutually agree that the Consultant will be entitled to a monthly fee of $30,000, paid in monthly or more frequent installments in accordance with the Company’s ordinary payroll practices for its employees. |
| 6. | Expenses: The Company shall also reimburse the Consultant for actual out-of-pocket and reasonably documented expenses including, but not limited to, facsimile, postage, printing, photocopying, meals and entertainment, incurred by the Consultant with the prior consent of the Company and in connection with the performance by the Consultant of his duties hereunder. The Company shall also reimburse the Consultant for the costs of all travel and related expenses incurred by the Consultant in connection with the performance of his services hereunder, provided that all such costs and expenses have been authorized, in advance, by the Company, and the Consultant shall not expend more than $100.00 for expenses without the prior written approval of the Company, which may be in the form of an email. |
| 7. | Termination: Either Party may terminate the agreement at any time upon 30 calendar days’ advance written notice to the other Party. The Company shall pay the Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the effective date of such termination. Upon termination of the Term for any reason, the Consultant shall return immediately to the Company all documents, property, and other records of the Company, and all copies thereof, within the Consultant’s possession, custody or control. If either Party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days’ notice, unless the breach is cured within the notice period. |
| 8. | Indemnification: The Parties shall defend, indemnify, and hold each other and their respective affiliates, and their respective officers, director, employees, agents and controlling persons (the Parties and each such other persons and entities being an “Indemnified Party” for the purposes of this section) harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) incurred by the Indemnified Party as a result of any claim, judgment or proceeding against the Indemnified Party arising out of: (a) the other Party’s breach of any representation, warranty or obligation under this Agreement; and (b) bodily injury, death of any person or damage to real or tangible, personal property resulting from the other Party’s acts or omissions; provided that, the other Party shall not be liable for any of the foregoing to the extent arising from gross negligence or willful misconduct on the part of the Indemnified Party. The Indemnified Party shall promptly notify the Party from which it is seeking indemnification, in writing, of any such loss, claim, damage or liability as it is incurred and provide such Party with the opportunity to defend against or settle such matter with counsel of its choice. Any Party against whom indemnification may be sought shall not be liable to indemnify or provide contribution for any settlement effected without such Party’s prior written consent. The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to the Consultant. |
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| 9. | Relationship of the Parties: The Consultant an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Consultant and the Company for any purpose. The Consultant is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort relating to his compensation hereunder (including, but not limited to, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage and income taxes), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of the Company. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part. |
| 10. | Ownership Rights; Proprietary Information; Publicity. |
(a) The Company shall own all right, title and interest (including all intellectual property rights of any sort throughout the world) relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or for or on behalf of Consultant during the term of this Agreement that relate to the subject matter of or arise out of or in connection with the Services or any Proprietary Information (as defined below) (collectively, “Inventions”) and Consultant will promptly disclose and provide all Inventions to the Company. Consultant hereby makes all assignments necessary to accomplish the foregoing ownership. Consultant shall assist the Company, at the Company’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Consultant hereby irrevocably designates and appoints the Company as its agents and attorneys-in-fact, coupled with an interest, to act for and on Consultant’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Consultant and all other creators or owners of the applicable Invention.
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(b) Consultant agrees that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) developed, learned or obtained by or on behalf of Consultant during the period that Consultant is to be providing the Services that relate to the Company or the business or demonstrably anticipated business of the Company or in connection with the Services or that are received by or for the Company in confidence, constitute “Proprietary Information.” Consultant shall hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. However, Consultant shall not be obligated under this paragraph with respect to information Consultant can document is or becomes readily publicly available without restriction through no fault of Consultant. Upon termination or as otherwise requested by the Company, Consultant will promptly provide to the Company all items and copies containing or embodying Proprietary Information, except that Consultant may keep its personal copies of its compensation records and this Agreement. Consultant also recognizes and agrees that Consultant has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Consultant’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
(c) As additional protection for Proprietary Information, to the extent permitted under applicable law, Consultant agrees that during the period over which it is to be providing the Services (i) and for one (1) year thereafter, Consultant will not directly or indirectly encourage or solicit any employee or consultant of the Company to leave the Company for any reason and (ii) Consultant will not engage in any activity that is in any way competitive with the business or demonstrably anticipated business of the Company, and Consultant will not assist any other person or organization in competing or in preparing to compete with any business or demonstrably anticipated business of the Company. Without limiting the foregoing, Consultant may perform services for other persons, provided that such services do not represent a conflict of interest or a breach of Consultant’s obligation under this Agreement or otherwise.
(d) To the extent allowed by law, this section and any license granted the Company hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”). Furthermore, Consultant agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, the Company may and is hereby authorized to (and to allow others to) use Consultant’s name in connection with promotion of its business, products or services. To the extent any of the foregoing is ineffective under applicable law, Consultant hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible and agrees not to assert any Moral Rights with respect thereto. Consultant will confirm any such ratifications and consents from time to time as requested by the Company. If any other person is in any way involved in any Services, Consultant will obtain the foregoing ratifications, consents and authorizations from such person for the Company’s exclusive benefit.
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(e) If any part of the Services or Inventions or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to Consultant (or any person involved in the Services) and not assigned hereunder, Consultant hereby grants the Company and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of the Company’s exercise or exploitation of the Services, Inventions, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).
| 11. | Injunctive Relief: Any breach of Section 10 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. |
| 12. | Defend Trade Secrets Act of 2016; Other Notices: Consultant understands that pursuant to the federal Defend Trade Secrets Act of 2016, Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultant further understands that nothing contained in this Agreement limits Consultant’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company. |
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| 13. | Notices: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: |
If to Consultant:
[Omitted]
If to Company:
CERo Therapeutic Holdings, Inc.
201 Haskins Way, Suite 230
South San Francisco, CA 94080
| 14. | Complete Agreement: This Agreement contains the entire Agreement between the Parties with respect to the contents hereof, and supersedes all prior and contemporaneous agreements and understandings between the Parties with the respect to such matters, whether written or oral. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party, and any of the terms thereof may be waived, only by a written document signed by each Party or, in the case of waiver, by the Party or Parties waiving compliance. |
| 15. | Counterparts: This Agreement may be executed in two or more counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which shall constitute one Agreement. |
| 16. | Survival: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement which shall survive such termination in accordance with their terms. |
| 17. | Severability: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 18. | Miscellaneous: |
a) The Parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The Parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award; (iii) the arbitrator may make any other decisions including interim, interlocutory or partial findings, orders and awards to the full extent provided in Rule 45 of the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and authorized to award attorneys’ fees to the prevailing Party in accordance with Rule 45.
b) This Agreement and all related documents including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any provision of law or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Any arbitration or mediation inherited by the Parties as provided herein shall be filed and maintained exclusively with the American Arbitration Association’s offices located in the state of Delaware and the Parties further agree that the provisions of Section 16(c), may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to and award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.
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Agreed and accepted on September 30th, 2024 by and between:
| CERo Therapeutic Holdings, Inc. | Consultant | |||
| By: | /s/ Brian Atwood | By: | /s/ Chris Ehrlich | |
| Name: | Brian Atwood | Chris Ehrlich | ||
| Title: | Chair, President and CEO | |||
Exhibit 99.1
CERo Therapeutics, Inc. Names Al Kucharchuk Chief Financial Officer and Kristen Pierce Chief Development Officer
SOUTH SAN FRANCISCO, Calif.– October 2, 2024 - (Globe Newswire) – CERo Therapeutics Holdings, Inc. (Nasdaq: CERO) (“CERo”), an innovative immunotherapy company seeking to advance the next generation of engineered T cell therapeutics that employ phagocytic mechanisms, announces key appointments to the Company’s management team to support recently named interim CEO Chris Ehrlich. Andrew Albert “Al” Kucharchuk has been named Chief Financial Officer and Kristen Pierce, Ph.D., has been appointed Chief Development Officer.
“I believe we have the team in place to successfully drive CERo forward into the clinic and to create the Company we have promised our shareholders. These new management team members are seasoned professionals with extensive experience in early drug development and the capital markets. I want to take this opportunity to thank Brian Atwood for his service as CEO, and appreciate his continued service on our Board of Directors. Further, I am very excited to begin to collaborate closely with Al and Kristen to help us achieve our ambitious goals,” said Mr. Ehrlich. “The science behind CER-1236 is very promising and our team is fully dedicated to stewarding both the compound and the Company into 2025 and beyond. We look forward to completing the ongoing in vitro studies and experiments to enable a successful Type A meeting with the FDA.”
Mr. Kucharchuk joins CERo from Nukkelous, Inc. and Chain Bridge I, Inc., both Nasdaq-traded companies where he served as chief financial officer. Previously, he served in C-suite positions and/or as a board member at publicly traded life sciences companies Theralink (CFO, Board member), Adhera Therapeutics (Board member, multiple C-suite positions), and OncBioMune (CEO, CFO, President). He holds a Master of Business Administration from Tulane University and a Bachelor of Science degree in agricultural business/finance from Louisiana State University.
Kristen Pierce, Ph.D. has over 20 years of oncology experience, leading nonclinical and early clinical stage projects. Prior to joining CERo, Kristen was Vice President, Translational Medicine at Pionyr Therapeutics. Prior, she served as Executive Director, Asset Team Leader at Pfizer Therapeutics where she led the late nonclinical and early clinical development of several antibody and small molecules in oncology. Dr. Pierce received her Ph.D. from the University of Arizona in Pharmacology and Toxicology and spent four years as a postdoc at Duke University in the laboratory of the Nobel Prize winning scientist, Dr. Robert J. Lefkowitz.
About CERo Therapeutics, Inc.
CERo is an innovative immunotherapy company advancing the development of next generation engineered T cell therapeutics for the treatment of cancer. Its proprietary approach to T cell engineering, which enables it to integrate certain desirable characteristics of both innate and adaptive immunity into a single therapeutic construct, is designed to engage the body’s full immune repertoire to achieve optimized cancer therapy. This novel cellular immunotherapy platform is expected to redirect patient-derived T cells to eliminate tumors by building in engulfment pathways that employ phagocytic mechanisms to destroy cancer cells, creating what CERo refers to as Chimeric Engulfment Receptor T cells (“CER-T”). CERo believes the differentiated activity of CER-T cells will afford them greater therapeutic application than currently approved chimeric antigen receptor (“CAR-T”) cell therapy, as the use of CER-T may potentially span both hematological malignancies and solid tumors. CERo anticipates initiating clinical trials for its lead product candidate, CER-1236, in 2024 for hematological malignancies.
Forward-Looking Statements
This communication contains statements that are forward-looking and as such are not historical facts. This includes, without limitation, statements regarding the financial position, business strategy and the plans and objectives of management for future operations of CERo. These statements constitute projections, forecasts and forward-looking statements, and are not guarantees of performance. Such statements can be identified by the fact that they do not relate strictly to historical or current facts. When used in this communication, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. When CERo discusses its strategies or plans, it is making projections, forecasts or forward-looking statements. Such statements are based on the beliefs of, as well as assumptions made by and information currently available to, CERo’s management.
Actual results could differ from those implied by the forward-looking statements in this communication. Certain risks that could cause actual results to differ are set forth in CERo’s filings with the Securities and Exchange Commission, including its Annual Report on Form 10-K, filed on April 2, 2024, and the documents incorporated by reference therein. The risks described in CERo’s filings with the Securities and Exchange Commission are not exhaustive. New risk factors emerge from time to time, and it is not possible to predict all such risk factors, nor can CERo assess the impact of all such risk factors on its business, or the extent to which any factor or combination of factors may cause actual results to differ materially from those contained in any forward-looking statements. Forward-looking statements are not guarantees of performance. You should not put undue reliance on these statements, which speak only as of the date hereof. All forward-looking statements made by CERo or persons acting on its behalf are expressly qualified in their entirety by the foregoing cautionary statements. CERo undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Contact:
Brian Atwood
Chief Executive Officer
[email protected]
Investors:
CORE IR