CRMD 8-K
CorMedix Inc. (CRMD)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
On August 29, 2025 (the “Closing Date”), CorMedix Inc., a Delaware corporation (the “Company,” “CorMedix,” “we,” “our” and “us”) completed its previously announced merger with Melinta Therapeutics, LLC, a Delaware limited liability company (“Melinta”). Pursuant to that certain Agreement and Plan of Merger, dated August 7, 2025 (the “Merger Agreement”), by and between the Company, Melinta, Coriander BidCo LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company (“Merger Sub”), and Deerfield Private Design Fund IV, L.P., a Delaware limited partnership, solely in its capacity as representative, agent and attorney-in-fact of the Melinta equityholders (the “Members’ Representative”), Merger Sub merged with and into Melinta, with Melinta surviving the merger as a wholly owned subsidiary of the Company (the “Merger”).
Item 1.01. Entry into a Material Definitive Agreement.
Contingent Payment Agreement
On the Closing Date, the Company, Melinta, Deerfield Private Design Fund III, L.P. and Deerfield Private Design Fund IV, L.P. (the “Consenting Melinta Members”) and the Members’ Representative entered into a contingent payment agreement (the “Contingent Payment Agreement”), pursuant to which, in connection with the Merger Agreement and as part of the Merger Consideration payable to the Consenting Melinta Members, the Company will make certain payments to the Contingent Payment Holders (as defined in the Contingent Payment Agreement) as described below.
The Contingent Payment Agreement provides for milestone and net sales based payments. Upon the issuance of the U.S. Food and Drug Administration (“FDA”) marketing approval of (a) the product known as REZZAYOTM (rezafungin) as of the date hereof or as may be modified thereafter, or (b) any product that contains the active ingredient rezafungin, for the prevention or prophylaxis of invasive fungal infections in adult patients undergoing allogeneic stem cell blood and marrow transplant or the regulatory equivalent on or prior to June 30, 2029, the Company shall pay, in cash or common shares, par value $0.001 per share, of the Company (“Common Stock”) at the Company’s election, to the Contingent Payment Holders the following payments:
| (i) | if the FDA-approved labeling includes candida, $20 million; |
| (ii) | if the FDA-approved labeling includes aspergillus, $2.5 million; and |
| (iii) | if the FDA-approved labeling includes pneumocystis, $2.5 million. |
Further, the Contingent Payment Agreement provides that the Company will pay to the Contingent Payment Holders tiered royalties on REZZAYOTM (rezafungin) U.S. net sales and low-single-digit royalties on MINOCIN® (minocycline) U.S. net sales.
The foregoing description of the Contingent Payment Agreement and the transactions contemplated thereby is not intended to be complete and is qualified in its entirety by reference to the full text of the Contingent Payment Agreement, which is attached as Exhibit 10.1 and is incorporated herein by reference.
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Registration Rights Agreement
On the Closing Date, the Company and the Consenting Melinta Members entered into a registration rights agreement (the “Registration Rights Agreement”), pursuant to which, among other things, the Company agreed to register for resale, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), the Merger Shares. One third of the Merger Shares are subject to a 60-day lock-up, and one third of Merger Shares are subject to a 120-day lock-up.
The foregoing description of the Registration Rights Agreement and the transactions contemplated thereby is not intended to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is attached as Exhibit 10.2 and is incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The information contained above under the Introductory Note and Item 1.01, to the extent required by Item 2.01 of Form 8-K, is hereby incorporated by reference herein.
Under the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the “Effective Time”), the Company (i) paid to the Melinta equityholders (including the Consenting Melinta Members) an aggregate of $260 million in cash (subject to adjustment for the Aggregate Exercise Price, Estimated Company Cash, Estimated Company Debt, Estimated Working Capital as compared to the Working Capital Target, and Estimated Transaction Expenses (each as defined in the Merger Agreement)), and (ii) to the Consenting Melinta Members an aggregate of $40 million worth of common shares, par value $0.001 per share, of the Company (the “Merger Shares”). Additionally, the Consenting Melinta Members are eligible to receive certain contingent payments pursuant to the terms of the Merger Agreement, the Contingent Payment Agreement (as defined and described above). The cash consideration was funded by a combination of the Company’s existing cash on hand and a $150 million convertible notes offering.
The foregoing description of the Merger Agreement and the transactions contemplated thereby is not intended to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached as Exhibit 2.1 and is incorporated herein by reference.
Item 3.02. Unregistered Sale of Securities.
The information contained above under Introductory Note, Item 1.01 and 2.01, to the extent required by Item 3.02 of Form 8-K, is hereby incorporated by reference herein. The offer and sale of the securities issued to the Consenting Melinta Members pursuant to the Merger, any securities issuable pursuant to the Contingent Payment Agreement (including any shares of Common Stock) are being made in reliance on the exemption afforded by Section 4(a)(2) of the Securities Act and corresponding provisions of state securities or “blue sky” laws. The securities issued in the Merger and issuable pursuant to the Contingent Payment Agreement, (including any shares of Common Stock) have not been registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration with the Securities and Exchange Commission (the “SEC”) or an applicable exemption from the registration requirements. The issuance and sale of the securities issued in the Merger did not involve a public offering and was made without general solicitation or general advertising.
Neither this Current Report on Form 8-K nor any exhibit attached hereto is an offer to sell or the solicitation of an offer to buy shares of Common Stock or other securities of the Company.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The Company announced today that Susan Blum, Elizabeth Hurlburt and Matthew David (each, an “Executive”)have been appointed to serve as the Company’s Chief Financial Officer, Chief Operating Officer and Chief Business Officer, respectively, each effective as of the Closing Date. In their previous roles, Ms. Blum served as the Chief Financial Officer of Melinta, Ms. Hurlburt as EVP, Chief Clinical Strategy and Operations Officer of the Company, and Dr. David as Chief Financial Officer of the Company. Effective as of the Closing Date, Dr. David ceased to serve, and Ms. Blum commenced serving, as the Company’s principal financial officer.
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Ms. Blum was previously the Chief Financial Officer of Melinta. Ms. Blum joined Melinta in 2016 as the company’s Controller and then served as Vice President of Finance & Chief Accounting Officer prior to being appointed to the Chief Financial Officer position in 2021. Prior to joining Melinta, Ms. Blum served as Corporate Controller at Textura Corporation from 2013 to 2016, supporting the company’s IPO and transformation into a publicly-traded organization. Ms. Blum also served in leadership roles at Orbitz Worldwide, Inc. (NYSE: OWW) from 2011 to 2013 and at Facet Biotech Corporation and PDL BioPharma, Inc. (Nasdaq: PDLI) from 2004 to 2010, where she was responsible for such functions as external reporting and related compliance, technical accounting and internal controls over financial reporting. Ms. Blum has served as a director of BiomX Inc. since April 2024. Ms. Blum began her career in public accounting at Ernst & Young, where she spent nearly seven years working with a diverse client base ranging from large, public international engagements to development-stage enterprises. Ms. Blum is a Certified Public Accountant, currently serves as a member of the BioNJ Cybersecurity Committee and holds a B.S. in Business Commerce from Santa Clara University.
There are no arrangements or understandings between Mses. Blum or Hurlburt or Dr. David and any other person pursuant to which Mses. Blum or Hurlburt or Dr. David were selected as officers, and there are no family relationships between Mses. Blum or Hurlburt or Dr. David and any of the Company’s directors or executive officers. None of Mses. Blum or Hurlburt or Dr. David have any direct or indirect material interest in any transaction or proposed transaction required to be reported under Item 404(a) of Regulation S-K.
The Company entered into employment agreements with each of Mses. Blum (entered into on August 28, 2025) and Hurlburt (entered into on August 29, 2025) and Dr. David (entered into on August 31, 2025) that will govern the terms of their employment (collectively, the “Executive Employment Agreements”) from and after the Closing Date. Pursuant to the terms of the Executive Employment Agreements, Mses. Blum and Hurlburt and Dr. David are entitled to receive an annual base salary of $488,000, $500,000, and $423,833, respectively, and each will be eligible for a target annual bonus equal to 45% of their base salary, based upon the achievement of corporate objectives for the Company as a whole for such fiscal year (except with respect to Ms. Blum’s bonus in respect of the 2025 fiscal year, which will be equal to 45% of her base salary with two-thirds deemed achieved at target level performance and the remaining one-third based on the achievement of corporate objectives). Further, the Company will grant Ms. Blum restricted stock units covering a number of shares of Common Stock with a value of $1,000,000 (determined based on the closing price of the Company’s Common Stock on the trading day immediately preceding the Closing Date), which will vest in equal annual installments over four years, subject to continued employment. Mses. Blum and Hurlburt and Dr. David will be eligible for additional equity awards commencing in 2026.
Pursuant to the Executive Employment Agreements, upon a termination by the Company other than for Cause (as defined in the Executive Employment Agreements) (other than as a result of death or disability), or by the Executive for Good Reason (as defined in the Executive Employment Agreements), the Executive will, subject to execution of a general release of claims, be entitled to (i) continuation of base salary for a period of nine months, (ii) payment of a prorated annual bonus for the year of termination based on the actual achievement of the specified bonus objectives (except with respect to Ms. Blum, in the event her employment is terminated prior to January 1, 2026, she will receive payment of her full annual bonus in respect of fiscal year 2025, in lieu of such prorated bonus), (iii) subsidized COBRA premiums for up to nine months, (iv) one year of additional time vesting of any then-outstanding equity awards (or, if such termination occurs within twenty-four months following a Corporate Transaction (as defined in the Company’s 2019 Omnibus Stock Incentive Plan), full vesting of all then-outstanding equity awards), and (v) any then-unpaid bonus in respect of service during the year preceding the year of termination.
The Executive Employment Agreements also contain customary confidentiality and non-disparagement covenants and non-competition and non-solicitation of employees and customers covenants that apply during employment and for a period of twelve months following any termination of employment.
The foregoing description of the Executive Employment Agreements is qualified in its entirety by reference to the full text of each of the Executive Employment Agreements, which are attached as Exhibits 10.3, 10.4 and 10.5, respectively, hereto and incorporated by reference herein.
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Item 7.01. Regulation FD Disclosure.
On September 2, 2025, the Company issued a press release announcing the completion of the Merger and announcing the appointment of Susan Blum, Elizabeth Hurlburt and Matthew David as the Company’s Chief Financial Officer, Chief Operating Officer and Chief Business Officer, respectively. Pursuant to Regulation FD, a copy of the press release is furnished with this Current Report on Form 8-K as Exhibit 99.2 and incorporated by reference herein.
The information in this Item 7.01 not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| * | Portions of this exhibit have been omitted pursuant to Item 601(b)(2)(ii) of Regulation S-K. |
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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 thereunto duly authorized.
| CorMedix Inc. | ||
| Date: September 2, 2025 | By: | /s/ Joseph Todisco |
| Joseph Todisco | ||
| Chief Executive Officer | ||
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Exhibit 10.1
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) PRIVATE OR CONFIDENTIAL. SUCH EXCLUDED INFORMATION IS IDENTIFIED HEREIN WITH “[***].” SCHEDULES AND EXHIBITS HAVE BEEN OMITTED PURSUANT TO ITEM 601(A)(5) OF REGULATION S-K.
Execution Version
CONTINGENT PAYMENT AGREEMENT
This CONTINGENT PAYMENT AGREEMENT (this “Agreement”), dated as of August 29, 2025, is made by and among Deerfield Private Design Fund IV, L.P., a Delaware limited partnership (“DPDF IV”), Deerfield Private Design Fund III, L.P., a Delaware limited partnership (“DPDF III” and, together with DPDF IV, the “Initial Contingent Payment Holders” and, together with any transferees or assignees thereof, the “Contingent Payment Holders” and each, a “Contingent Payment Holder”), CorMedix Inc., a Delaware corporation (“Parent”), Melinta Therapeutics, LLC, a Delaware limited liability company (the “Company”), and Deerfield Private Design Fund IV, L.P., a Delaware limited partnership, solely in its capacity as representative (“Members’ Representative” and, collectively with the Contingent Payment Holders, the Company and Parent, the “Parties” and each, a “Party”).
Background Statement
WHEREAS, pursuant to that certain Agreement and Plan of Merger, by and among Parent, Coriander BidCo, LLC, a Delaware limited liability company and a wholly owned Subsidiary (as defined below) of Parent (“Merger Sub”), the Company and the Members’ Representative, dated as of August 7, 2025 (together with all exhibits and schedules thereto and as may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Merger Agreement”), substantially contemporaneously with the execution and delivery of this Agreement, the Company is being merged with Merger Sub, with the Company surviving such merger as a wholly owned Subsidiary of Parent, and each Company Share (as defined below) is being converted into a right to receive Merger Consideration.
WHEREAS, each of the Initial Contingent Payment Holders is a Company Member (as defined below), and in connection with the Merger Agreement and as part of the Merger Consideration payable for the Company Shares thereunder, Parent has agreed to make (or cause one or more of its Affiliates (as defined below) to make) certain payments to the Contingent Payment Holders as set forth herein.
NOW, THEREFORE, in consideration of the covenants and obligations expressed herein, and intending to be legally bound, the Parties agree as follows:
Statement of Agreement
1. Definitions. The following terms used herein shall have the meanings set forth below:
“Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.
“Agreement” has the meaning set forth in the Preamble.
“Applicable Percentage” means, (a) in respect of any Net Sales of the Rezzayo Product in the U.S. in any calendar year of under [***], [***], (b) in respect of Net Sales of the Rezzayo Product in the U.S. in any calendar year in an aggregate amount equal to or greater than [***] but less than [***], [***], and (c) in respect of Net Sales of the Rezzayo Product in the U.S. in any calendar year in an aggregate amount greater than [***], [***].
“Assignee” has the meaning set forth in Section 4.
“Average Sale Price” means, with respect to a particular period, the weighted average sale price of any Product, Combination Product, Bundled Product or other product or service included in a Combination Product or Bundled Product, as applicable, the price determined by dividing (a) the total gross sales, as invoiced, on commercial sales of such Product, Combination Product, Bundled Product or other product or service included in a Combination Product or Bundled Product, as applicable, in arms-length transactions during the applicable period, by (b) the units of such Product, Combination Product, Bundled Product or other product or service included in a Combination Product or Bundled Product commercially sold in arms-length transactions during such period.
“Bundled Product” shall mean the Products together with any other product(s) and/or service(s) that are sold at a single unit price, whether packaged together or separately, other than any Combination Product.
“Business Day” means a day (a) other than Saturday or Sunday and (b) on which commercial banks are open for business in New York, New York.
“Code” means the Internal Revenue Code of 1986, as amended.
“Combination Product” means any Product that is co-packaged in combination with one or more additional pharmaceutical products or active pharmaceutical ingredients. For the avoidance of doubt, pharmaceutical dosage form vehicles, adjuvants, and excipients shall not be deemed to be “additional pharmaceutical products” or “active pharmaceutical ingredients,” and their presence shall not be deemed to create a Combination Product.
“Commercially Reasonable Efforts” means that level of efforts of a Person, in good faith, to achieve a Milestone and Net Sales in a diligent and sustained manner without undue pause, interruption or delay, that are at least commensurate with the level of efforts, including expenditure of resources, that a pharmaceutical company comparable to Parent and its Affiliates, taken as a whole would devote to the development, seeking of regulatory approval, commercialization, marketing and selling of a pharmaceutical product having similar market potential as any Product at a similar stage of its development or product life, and involving comparable development and marketing costs, taking into account issues of market exclusivity, safety and efficacy, the competitiveness of alternate products in the marketplace and the expected likelihood of regulatory approval of such a pharmaceutical product, but excluding, in each case, a Milestone Payment or any Net Sales Payment, as applicable, due under this Agreement.
“Company” has the meaning set forth in the Preamble.
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“Company Member” means the holders of record of Company Shares outstanding as of immediately prior to the Effective Time.
“Company Share” means each Common Share of the Company and each Series A Preferred Share of the Company.
“Contingent Payment Accounting Firm” has the meaning set forth in Section 3(c).
“Contingent Payment Holder” has the meaning set forth in the Preamble.
“Disclosure Covenants” has the meaning set forth in Section 5.
“DPDF III” has the meaning set forth in the Preamble.
“DPDF IV” has the meaning set forth in the Preamble.
“Effective Time” means the time at which the Merger shall become effective.
“Exclusive Licensing Transaction” means (a) any exclusive licensing transaction pursuant to which all or substantially all of any Product, a substantial portion of the Product Intellectual Property, or any of the Product Intellectual Property listed in the Orange Book, is exclusively licensed (directly or indirectly) to a Person other than Parent or any of its Subsidiaries, where (b) such Product or Product Intellectual Property, as applicable, is not licensed back to Parent or any of its Subsidiaries in a manner in which Parent or any of its Subsidiaries possess all development and commercialization rights with respect to such Product in the U.S. and, in the case of Product Intellectual Property, exclusive use for purposes of development and commercialization of such Product in the U.S. For the avoidance of doubt, a Parent Change of Control shall not constitute an Exclusive Licensing Transaction.
“Extended Net Sales Payment Period” means, with respect to each Product, a period beginning on the later of (a) the date of expiration of the last-to-expire Valid Claim listed in the Orange Book for such Product and (b) expiration of Regulatory Exclusivity for any Product and ending on the introduction into the market of a Generic Product for such Product in the U.S.
“Fair Market Value” means the fair market value as mutually determined by Parent and the Members’ Representative.
“Field Sales Employee” means any employee (and not an independent contractor) whose primary responsibility is calling upon (including spending a material amount of time engaging in face-to-face meetings in various geographies with) healthcare providers and medical facilities for purposes of marketing products for the treatment or prevention of human disease on behalf of such employee’s employer.
“FDA” means the U.S. Food and Drug Administration.
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“Freely Tradeable Shares” means Parent Shares that, at the time of issuance thereof, (a) are duly authorized, validly issued, fully paid and non-assessable, (b) are listed on the Nasdaq Global Market, (c) are the subject of an effective registration statement under the Securities Act that is available for the resale thereof by each of the Contingent Payment Holders, as provided for in the Registration Rights Agreement, and/or may be sold by each of the Contingent Payment Holders without any further holding period, limitation or condition (including any current public information requirement) pursuant to Rule 144 under the Securities Act, and (d) do not bear, and are not subject to, any restrictive legend, stop transfer or similar restriction.
“GAAP” means U.S. generally accepted accounting principles, consistently applied.
“Generic Product” means any pharmaceutical product that (a) is sold by a third party that is not an Affiliate or licensee of Parent (or a successor) under a marketing authorization granted by the FDA to such third party and (b) contains the same active pharmaceutical ingredient as the applicable Product and (c) is approved in reliance on the prior approval of the applicable Product as determined by the FDA.
“Governmental Entity” means any supranational, federal, national, state, municipal or local government, any court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality, in each case whether domestic or foreign, any stock exchange or similar self-regulatory organization or any quasi-governmental or private body exercising any regulatory, Taxing or other governmental authority (including, as applicable, any governmental or political division, department, agency, commission, instrumentality, official, organization, unit, body or entity and any court, arbitrator or other similar tribunal).
“Initial Contingent Payment Holders” has the meaning set forth in the Preamble.
“Intellectual Property” means all intellectual property rights, whether protected, created or arising under the Laws of the U.S. or any other jurisdiction, including: (a) all patents, industrial designs, patent applications, provisional patent applications and similar instruments (including any and all substitutions, divisions, continuations, continuations-in-part, divisions, reissues, renewals, and extensions and any foreign equivalents of the foregoing (including certificates of invention, supplementary protection certificates and any applications therefor)) (collectively, “Patent”), (b) all domestic and foreign copyrights, copyright registrations, copyright applications and all moral rights related thereto, (c) all trademarks, service marks, trade names, business marks, service names, brand names, trade dress rights, logos, slogans, corporate names, and other indications of origin, together with all translations, adaptations, derivations and combinations thereof (including, all applications, registrations, renewals and extensions of the foregoing), (d) all Internet domain names, (e) trade secrets, proprietary know-how, inventions (whether or not patentable), improvements, methodologies, customer and supplier lists, database rights, discoveries, ideas, models, algorithms, blueprints, formulae, systems, processes, data compilations, tools, specifications, and technology, in each of the foregoing cases which are not available in the public domain and have actual or potential commercial value that is derived, in whole or in part, from such secrecy and (f) all other intellectual property rights throughout the world equivalent or similar to any of the foregoing.
“Law” means any statute, law (including controlling common law), ordinance, rule, or regulation of any Governmental Entity.
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“M&A Transaction” means (a) any transaction (including a sale of assets, merger, or sale of stock or other equity interests, including merger or sale of the equity interests of a Subsidiary of Parent) pursuant to which the Surviving Company or ownership of all or substantially all of any Product, a substantial portion of the Product Intellectual Property, or any of the Product Intellectual Property listed in the Orange Book, is sold or assigned (directly or indirectly) to or acquired by, directly or indirectly, a Person other than Parent or any of its Subsidiaries, where (b) such Product or Product Intellectual Property, as applicable, is not licensed back to Parent or any of its Subsidiaries in a manner in which Parent or any of its Subsidiaries possess all development and commercialization rights with respect to such Product in the U.S. and, in the case of Product Intellectual Property, exclusive use for purposes of development and commercialization of such Product in the U.S. For the avoidance of doubt, a Parent Change of Control shall not constitute an M&A Transaction.
“Members’ Representative” has the meaning set forth in the Preamble.
“Members’ Representative Group” has the meaning set forth in Section 7(d).
“Merger” the merger of Merger Sub with and into the Company in accordance with the Merger Agreement.
“Merger Agreement” has the meaning set forth in the Background Statement.
“Merger Sub” has the meaning set forth in the Background Statement.
“Milestone” has the meaning set forth in Section 2(a).
“Milestone Notice” has the meaning set forth in Section 2(a).
“Milestone Payment” has the meaning set forth in Section 2(a).
“Milestone Period” means a period beginning on the date of this Agreement and ending on June 30, 2029.
“Minocin Product” means the product known as Minocin (minocycline) for injection as of the date hereof or as it may be modified thereafter, including all formulations, dosages and forms of administration and any product that otherwise contains the active ingredient minocycline in an injectable or intravenous form.
“MNPI” has the meaning set forth in Section 2(b)(i).
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“Net Sales” means the aggregate gross amount invoiced by or on behalf of any Selling Entity for any Product that such Persons sold or otherwise disposed of to third parties, which third parties shall include distributors and end-users, less the following deductions (such deductions in clauses (a) through (f), the “Permitted Deductions”), to the extent included in the gross invoiced amount for such Product, or otherwise directly paid or incurred by a Selling Entity with respect to the sale of such Product, in each case, as determined in accordance with GAAP: (a) customary trade and quantity discounts, including trade quantity, early settlement and prompt payment discounts, actually allowed and taken with respect to sales of such Product; (b) credits, allowances and chargebacks given or made for recall, return or wastage replacement of such Product (including for spoiled, damaged, out-dated or returned Product) or for rebates or retroactive price reductions with respect to such Product; (c) discounts or rebates provided pursuant to patient financial assistance or discount programs, and coupon discounts; (d) chargebacks or rebates (or the equivalent thereof) paid on sale of such Product, including such payments mandated by programs of Governmental Entities or paid to medical healthcare organizations, to group purchasing organizations or trade customers; (e) sales, excise, value-added, use or other direct taxes paid, absorbed, incurred or otherwise allowed (except for taxes based on any Selling Entity’s income); and (f) uncollected or uncollectable amounts invoiced to third parties and written off as bad debt in accordance with the Selling Entity’s ordinary course of business write-off practices. If a single item falls into more than one of the categories set forth above, such item may not be deducted more than once. Notwithstanding the foregoing, in the case of (i) the sale of any Product between or among Selling Entities for subsequent resale to a third party on an arm’s length basis, Net Sales will be calculated as above using only the gross amount invoiced by or on behalf of the applicable Selling Entity to such third party for such arm’s length sale (and not the sale between or among such Selling Entities), and (ii) any sale or other disposal of any Product for non-cash consideration (other than with respect to such Product supplied expressly for sampling purposes, which shall not be included in Net Sales, and other than with respect to a sale or disposal of such Product between or among the Selling Entities for subsequent resale which shall be governed by clause (A)), then the gross amount to be included in the calculation of Net Sales shall be the Fair Market Value of any non-cash consideration received.
“Net Sales Payment Amount” means (a) in respect of each calendar quarter during the Net Sales Payment Period (i) in respect of the Net Sales of the Rezzayo Product in the U.S. during such quarter an aggregate amount equal to the sum of the Applicable Percentages of such Net Sales, plus (ii) [***]% of Net Sales of the Minocin Product in the U.S during such calendar quarter or (b) in respect of each calendar quarter during the Extended Net Sales Payment Period (i) in respect of the Net Sales of the Rezzayo Product in the U.S. during such quarter an aggregate amount equal to [***]% the sum of the Applicable Percentages of such Sales, and (ii) [***]% of Net Sales of the Minocin Product in the U.S during such calendar quarter.
“Net Sales Payment Period” means, with respect to each Product, a period beginning on the date of this Agreement and ending on the earlier of (a) the approval by the FDA and sale of a Generic Product for such Product in the U.S. (provided that, if a third party launches a Generic Product “at risk” in the U.S. and that Generic Product is subsequently withdrawn from the market, then the Net Sales Payment Period shall be reinstated) and (b) the later of (i) the date of expiration of the last-to-expire Valid Claim listed in the Orange Book for such Product and (ii) expiration of Regulatory Exclusivity for such Product.
“Net Sales Report” has the meaning set forth in Section 3(c).
“Orange Book” means FDA’s publication entitled Approved Drug Products with Therapeutic Equivalence Evaluations.
“Parent” has the meaning set forth in the Preamble.
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“Parent Change of Control” means either (a) the sale, lease, transfer, conveyance or other disposition, in one transaction or a series of related transactions to a Person for value, of all or substantially all of the assets of Parent and its subsidiaries on a consolidated basis (including, for the avoidance of doubt, all of the Products and Product Intellectual Property), or (b) the sale, issuance or transfer of stock, equity securities or other securities of the Parent to any Person.
“Parent Material Adverse Effect” means any change, event, condition, state of facts, development, circumstance, effect or occurrence that (a) has had, or would reasonably be expected to have, a material adverse effect on the business, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, or (b) prevents Parent from consummating the transactions contemplated by this Agreement or the Merger Agreement; provided, that, for purposes of clause (a), none of the following, and no change, event, condition, state of facts, development, circumstance, effect or occurrence that results from or arises in connection with the following, either alone or in combination, shall be deemed to constitute a Parent Material Adverse Effect and none of the following shall be taken into account in determining whether there has been a Parent Material Adverse Effect: any change, event, condition, state of facts, development, circumstance, effect or occurrence to the extent resulting from or arising in connection with (i) general conditions (or changes therein) in the industry in which Parent operates, (ii) general economic or regulatory, legislative or political conditions (or changes therein), including any actual or potential stoppage, shutdown, disputed election, default on obligations of any Governmental Entity or similar event or occurrence affecting a Governmental Entity, or securities, credit, banking, financial or other capital markets conditions (including changes generally in prevailing interest rates, currency exchange rates, credit markets or equity price levels, trading volumes or the imposition of new or increased tariffs), in each case in the U.S. or elsewhere in the world, (iii) any change or prospective change in applicable Law or GAAP (or the authoritative interpretation or enforcement thereof), (iv) geopolitical conditions, the outbreak or escalation of hostilities, any acts or threats of war (whether or not declared), sabotage, cyber-intrusion, political unrest or conditions, terrorism or any pandemics or epidemics or any applicable Law, mandate or recommendations of a Governmental Entity in response such hostilities, war, sabotage, cyber-intrusion, political unrest or conditions, terrorism, pandemics or epidemics, or any escalation or worsening of any such acts or threat of war (whether or not declared), sabotage, terrorism or any pandemics or epidemics, (v) any hurricane, tornado, flood, fire, volcano, earthquake or other natural or man-made disaster or any other national or international calamity, crisis or disaster, (vi) the failure, in and of itself, of Parent to meet any internal or external projections, forecasts, estimates or predictions in respect of any financial or operating metrics before, on or after the date hereof (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into account in determining whether there has been a Parent Material Adverse Effect if such facts are not otherwise excluded under this definition), (vii) the announcement, pendency or performance of any of the transactions contemplated by this Agreement or the Merger Agreement, including the identity of, or any facts or circumstances relating to, the Company or its Affiliates and any proceedings by Parent or its subsidiaries in respect of this Agreement or the Merger Agreement or any of the transactions contemplated by this Agreement or the Merger Agreement and any loss of or change in relationship, contractual or otherwise, with any customer, Governmental Entity, supplier, vendor, service provider, collaboration partner, licensor, licensees, payors, contractors or any other party having business dealings with (including the exercise, or prospective exercise, by any party of any rights that arise upon a change of control), or departure of any employees or officers, of Parent or its Subsidiaries (provided that this clause (vii) shall not apply with respect to any representation or warranty in this Agreement or the Merger Agreement the purpose of which is to address the consequences of the execution, delivery or performance of this Agreement or the Merger Agreement or the consummation of the transactions contemplated hereby or thereby), (viii) any action taken by Parent or its Affiliates at the Company’s written (including email) request or with the Company’s written (including email) consent, except in the case of clauses (i), (ii), (iii), (iv) and (v), to the extent that Parent and its subsidiaries are materially disproportionately affected thereby as compared with other participants in the industry in which Parent operates (in which case only the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Parent Material Adverse Effect).
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“Parent Share Warrants” means warrants to acquire Parent Shares, each in the form of Exhibit A.
“Parent Shares” means common shares, par value $0.001 per share, of CorMedix Inc.
“Party” has the meaning set forth in the Preamble.
“Patent” means all patents, industrial designs, patent applications, provisional patent applications and similar instruments (including any and all substitutions, divisionals, continuations, continuations-in-part, reissues, renewals, and extensions and any foreign equivalents of the foregoing (including certificates of invention, supplementary protection certificates and any applications therefor)).
“Person” means any individual, firm, corporation, partnership, company, limited liability company, estate, trust, joint venture, association, organization, Governmental Entity or other entity of any kind or nature.
“Pro Rata Share” means, with respect to each Contingent Payment Holder, the percentage set forth opposite such Contingent Payment Holder’s name on Schedule 1 hereto.
“Product” means either the Rezzayo Product or the Minocin Product.
“Product Intellectual Property” means all Intellectual Property owned, licensed or controlled by Parent or any of its Affiliates, whenever acquired, in each case, that is necessary to develop, manufacture, have manufactured, use, promote, distribute, import, export, sell or offer for sale any of the Products.
“Qualified Assignee” means with respect to an M&A Transaction or an Exclusive Licensing Transaction with respect to any Product, an Assignee that is in the business of developing or commercializing drugs for the treatment or prevention of human disease and (a) if the Assignee with respect to such M&A Transaction or Exclusive Licensing Transaction, as applicable, is not a company, and is not the direct or indirect Subsidiary of a company, that has publicly listed shares, such party has (i) at least [***] Field Sales Employees at the time of execution of the binding definitive acquisition agreement pursuant to which such M&A Transaction or Exclusive Licensing Transaction is consummated (as applicable, the “Acquisition Agreement”), and (ii) annual net sales among all products and services of at least [***] as of the end of such Assignee’s most recently completed fiscal quarter ending prior to the execution of the Acquisition Agreement, or (b) if the Assignee with respect to such M&A Transaction or Exclusive Licensing Transaction, as applicable, is a company, or is the direct or indirect Subsidiary of a company, that has publicly listed shares, such party has (i) a market capitalization of at least [***] and (ii) either (A) at least [***] Field Sales Employees at the time of the Acquisition Agreement, or (B) annual net sales among all products and services of at least [***] as of the end of such Assignee’s most recently publicly reported fiscal quarter prior to the execution of the Acquisition Agreement.
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“Registration Rights Agreement” means that certain registration rights agreement, dated of even date herewith, by and among Parent and the Initial Contingent Payment Holders (as such may be amended, restated or otherwise modified).
“Regulatory Exclusivity” means any exclusive marketing rights or data exclusivity rights conferred by any U.S. federal Governmental Entity with respect to a pharmaceutical product other than a Patent, including orphan drug exclusivity, new chemical entity exclusivity, Generating Antibiotic Incentives Now (GAIN) exclusivity, data exclusivity, or pediatric exclusivity.
“Reporting Company” means a company that is required to file reports pursuant to Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended, or otherwise files such reports with the SEC.
“Rezzayo Product” means (a) the product known as Rezzayo (rezafungin) as of the date hereof or as it may be modified thereafter, including all formulations, dosages, strengths, delivery modes and forms of administration and (b) any product that contains the active ingredient rezafungin.
“SEC” means the U.S. Securities and Exchange Commission (or successor thereto).
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Selling Entity” means (a) Parent, the Surviving Company, and their respective Affiliates (provided that such Affiliate is participating in invoicing and selling of any Product), (b) any Person to which any commercial rights in or to any Product are (directly or indirectly) licensed, sublicensed, assigned or transferred by Parent, the Company, or their respective Affiliates (but for clarity, not distributors acting in the capacity of a distributor) and (c) any successor or assign of any Person described in clauses (a) or (b).
“Stock Event” means any stock split or other subdivision of outstanding Parent Shares, combination of outstanding Parent Shares (including by reverse stock split), reclassification, payment of a stock dividend in Parent Shares, recapitalization, or other similar transaction of such character that Parents Shares shall be changed into or become exchangeable for a larger or smaller number of Parent Shares.
“Subsidiary” means, with respect to any Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, fifty percent (50%) or more of the equity interests of which) is owned directly or indirectly by such first Person.
“Surviving Company” means, following the Merger, the Company as the surviving limited liability company and a wholly owned Subsidiary of Parent.
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“Taxes” means any and all domestic or foreign, federal, state, or local taxes, charges, fees, levies, imposts, duties and governmental fees or other like assessments or charges that are in the nature of a tax, including income taxes (whether imposed on or measured by net income, gross income, income as specially defined, earnings, profits, or selected items of income, earnings, profits, or financial accounting profits), capital taxes, gross receipts taxes, sales taxes, use taxes, value added taxes, goods and services taxes, transfer taxes, franchise taxes, license taxes, withholding taxes, payroll taxes, employment taxes, excise taxes, severance taxes, social security premiums, workers’ compensation premiums, employment insurance or compensation premiums, stamp taxes, occupation taxes, premium taxes, ad valorem taxes, property taxes, unclaimed property, escheat, windfall profits taxes, alternative or add-on minimum taxes, and customs duties, in each case whether disputed or not, and such term shall include any interest whether paid or received, fines, penalties or additional amounts attributable to, or imposed upon, or with respect to, any such taxes, charges, fees, levies or other assessments, or because of any failure to file any tax return in a timely, complete or correct manner.
“Trading Day” means each such day on which the Nasdaq Global Market is open for trading.
“Transfer” means any sale (or any transaction having the effect of a sale), assignment, conveyance of rights, deed of trust, lien, license, sublicense, seizure or other transfer of any sort and to any degree, voluntary or involuntary, including by operation of Law.
“U.S.” means the United States of America, including its territories and possessions.
“Valid Claim” means a claim contained in any (a) unexpired and issued Patent included within the Product Intellectual Property that has not been held unpatentable, invalid or unenforceable in a final decision of a court or other government agency of competent jurisdiction from which no appeal may be or has been taken, and which has not been admitted to be invalid or unenforceable through reissue, re-examination, disclaimer or otherwise or (b) a pending application for Patent included within the Product Intellectual Property, that has not been finally cancelled, finally rejected, withdrawn, expired, or abandoned, and which claim has been pending less than five (5) years from the original filing date of such claim in a given country, and unless or until such claim thereafter issues as a claim of an issued Patent (from and after which time the same shall be deemed a Valid Claim subject to subsection (a) above).
“Weighted Average Parent Share Price” means, in respect of any Milestone, an amount equal to arithmetic average of the volume weighted average closing price of Parent Shares per share on the Nasdaq Global Market (as reported by Bloomberg Finance L.P. or another reputable source mutually agreeable to Parent and the Company) on each of the Trading Days during the five (5) consecutive Trading Day period ending on, and including, the Trading Day immediately prior to the occurrence of such Milestone. In the event that a Stock Event occurs during any period for which the arithmetic average of the volume weighted average prices is to be determined, the volume weighted average price for all Trading Days during such period prior to the effectiveness of the Stock Event shall be appropriately adjusted to reflect such Stock Event, and in the event a Stock Event occurs following the last Trading Day of such period but prior to the issuance of the Freely Tradeable Shares in respect of the applicable Milestone the Weighted Average Parent Share Price (and accordingly, the number of Freely Tradeable Shares to be issued to each Contingent Payment Holder) shall be appropriately adjusted to reflect such Stock Event.
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2. Milestone Consideration.
(a) Milestone Payment. During the Milestone Period, upon the issuance of FDA marketing approval of the Rezzayo Product for the prevention or prophylaxis of invasive fungal infections in adult patients undergoing allogeneic stem cell blood and marrow transplant or the regulatory equivalent and that includes (i) candida, (ii) aspergillus or (iii) pneumocystis in the FDA-approved labeling, on or prior to June 30, 2029 (each, a “Milestone”), Parent shall pay or cause to be paid to each Contingent Payment Holder, such Contingent Payment Holder’s Pro Rata Share of the aggregate milestone payment set forth in the table below, in cash or Freely Tradeable Shares as set forth below (each such payment, a “Milestone Payment”). Any Milestone Payment shall be payable upon the first achievement of such Milestone by Parent or any of its Affiliates (including the Surviving Company), including, for the avoidance of doubt, if the Milestone triggering such Milestone Payment is achieved at the same time any other Milestone occurs.
| Milestone | Milestone Payment | |||
| FDA approval includes Candida | $ | 20,000,000 | ||
| FDA approval includes Aspergillus | $ | 2,500,000 | ||
| FDA approval includes Pneumocystis | $ | 2,500,000 | ||
(b) Milestone Payment Procedures.
(i) Within three (3) Business Days of the occurrence of a Milestone, Parent shall provide written notice of such Milestone (a “Milestone Notice”) to the Members’ Representative and, if Parent is then a Reporting Company and any material non-public information (“MNPI”) is included in the Milestone Notice or otherwise provided by or on behalf of Parent to the Members’ Representative in connection with the Milestone Notice, contemporaneously file with the SEC a Current Report on Form 8-K disclosing such MNPI. In any Milestone Notice, Parent may make an irrevocable election to pay some or all of the applicable Milestone Payment in Freely Tradeable Shares; provided that, if only a portion of the Milestone Payment will be made in Freely Tradeable Shares (and/or Parent Share Warrants), the Freely Tradeable Shares (and/or Parent Share Warrants) shall be allocated to the Contingent Payment Holders on a pro rata basis, based upon their respective Pro Rata Shares of the Milestone Payment; provided, further, that, in no event shall Parent be entitled to issue Freely Tradeable Shares (and/or Parent Share Warrants) in respect of any Milestone Payment in connection with any Milestone (or contemporaneously occurring Milestones), (i) if Parent is not then a Reporting Company or is delinquent in any of its filing obligations as a Reporting Company, or if the issuance of Freely Tradeable Shares and/or Parent Share Warrants (or Freely Tradeable Shares issuable upon exercise of such Parent Share Warrants) would, assuming the maximum number of shares of Common Stock issuable in the Convertible Note Offering (as defined in the Merger Agreement) and the Merger Agreement have been issued, and when aggregated with any shares of Common Stock issued hereunder together with any transactions aggregated with the foregoing, require the vote or approval of shareholder of Parent in accordance with Nasdaq listing rules or otherwise, (ii) if the Parent Shares are not listed then listed on the Global Select Market and Parent has not received any notice of any failure to meet any listing standard of the Nasdaq Stock Market LLC that has not been cured and publicly announced as such, or is otherwise not in compliance with the requirements for continued listing of the Parent Shares on the Nasdaq Global Market, (iii) if Parent, the Surviving Company or any of their Affiliates are, upon issuance of such Parent Shares will be, in material breach of any of their obligations under this Agreement, the Merger Agreement or the Registration Rights Agreement (including, for the avoidance of doubt, any provisions hereof or thereof in respect of MNPI), or (iv) to the extent such Freely Tradable Shares would represent more than ten percent (10%) of the Parent Shares that are issued and outstanding immediately prior to the date such Milestone(s) occurred. For the avoidance of doubt, if Parent does not make any such election, it will be obligated to make the Milestone Payment entirely in cash. To the extent that Parent makes an election to pay any of a Milestone Payment in Freely Tradeable Shares (and is permitted to do so hereunder), Parent shall, not earlier than the third (3rd), and not later than the seventh (7th), Business Day following the occurrence of the Milestone, issue (or cause to be issued) to each Contingent Payment Holder (or its designee), pursuant to the Deposit/Withdrawal at Custodian (DWAC) system of The Depository Trust Company, a number of Freely Tradeable Shares equal to (x) the dollar amount to be paid in Parent Shares divided by (y) the Weighted Average Price in respect of such Milestone; provided, however, that, at any time on or prior to the second (2nd) Business Day of the delivery of a Milestone Notice, a Contingent Payment Holder may elect, by written notice to Parent (which notice may contain an election in respect of any one or more future Milestones, subject to subsequent withdrawal by such Contingent Payment Holder’s written notice thereof), to receive, in lieu of any of the Freely Tradeable Shares it is so entitled to receive in connection with Milestone, a Parent Share Warrant exercisable for such number of Freely Tradeable Shares. Within thirty (30) calendar days of the occurrence of any Milestone, Parent shall pay (or cause to be paid) to each Contingent Payment Holder such Contingent Payment Holder’s Pro Rata Share of the Milestone Payment in cash, except to the extent all or any portion of such Milestone Payment has been satisfied in Freely Tradeable Shares (and/or Parent Share Warrants) as provided above.
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(ii) If any Milestone Payment is not paid or issued by Parent as and when due and payable or issuable hereunder, the dollar amount of such Milestone Payment shall bear interest at the prime rate as published by Citibank, N.A. in effect on the latest date such payment was required to be made plus three and one half percent (3.5%) per annum; provided, however, in the event of a bona fide dispute about whether the Milestone Payment is payable, interest shall not accrue during such period in which the matter is being contested in good faith, and will instead accrue commencing upon resolution of the dispute until payment.
(c) Diligence. Following the Closing, during the Milestone Period, each of Parent and the Surviving Company shall use Commercially Reasonable Efforts to achieve each Milestone as promptly as reasonably practicable and, in each case, prior to the expiration of the Milestone Period.
(d) Milestone Reports. Upon the written request of the Members’ Representative, which may be provided no more frequently than twice per calendar year, Parent shall provide an update to the Members’ Representative setting forth in reasonable detail the status of the achievement of each Milestone, including promptly (and in any event no later than ten (10) Business Days after receipt of request) facilitating any reasonably requested discussions between appropriate Representatives of Parent and the Members’ Representative. The Parties hereby acknowledge, for the avoidance of doubt, if any MNPI regarding Parent or its securities is to be included in any such report, the disclosure thereof shall be made in accordance with the provisions of Section 5 hereof, including, as applicable, the Agreed Disclosure Process.
3. Net Sales Payments.
(a) Net Sales Payments. In respect of each calendar quarter following the date of this Agreement and during the Net Sales Payment Period or Extended Net Sales Payment Period, as applicable, with respect to each Product, commencing with the partial calendar quarter that includes the date of this Agreement, on the date each Net Sales Report is required to be delivered by Parent, Parent shall pay or cause to be paid to each Contingent Payment Holder, such Contingent Payment Holder’s Pro Rata Share of the Net Sales Payment in respect of such calendar quarter. If a Net Sales Payment is not paid by Parent as and when due and payable hereunder, such Net Sales Payment shall bear interest at the prime rate as published by Citibank, N.A. in effect on the latest date such payment was required to be made plus three and one half percent (3.5%) per annum; provided, however, in the event of a bona fide dispute about whether the Net Sales Payment Period has expired or whether the Extended Net Sales Payment Period has commenced or has expired, interest shall not accrue during such period in which the matter is being contested in good faith, and will instead accrue commencing upon resolution of the dispute until payment.
(b) Diligence. Following the date of this Agreement, Parent shall use Commercially Reasonable Efforts to develop, seek regulatory approval of, develop, commercialize, promote and sell each Product.
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(c) Net Sales Reports. During the period during which Net Sales Payments are payable hereunder, within: (i) for so long as Parent is a Reporting Company, with respect to each calendar quarter (other than the fourth (4th) calendar quarter) or calendar year, one (1) Business Day following the filing with the SEC by Parent of its Quarterly Report on Form 10-Q or Annual Report on Form 10-K (but in no event later than the forty-fifth (45th) calendar day following the end of such calendar quarter or ninetieth (90th) day following the end of such calendar year, as applicable) or (ii) if Parent is not then a Reporting Company, sixty (60) calendar days following the end of each calendar quarter, Parent will provide the Members’ Representative and each Contingent Payment Holder with a report (a “Net Sales Report”) containing the following information with respect to any Net Sales of each Product during such calendar quarter and, in the case of a Net Sales Report required to be delivered following the end of Parent’s calendar year, during such calendar year and the fourth (4th) quarter of such calendar year: (1) the number of units of each of the Products sold, (2) aggregate gross sales of each of the Products sold, (3) the deductions therefrom, (4) the exchange rate(s) used for purposes of calculating Net Sales (or any component thereof, including any deduction from gross sales), (5) the resulting calculation of Net Sales, and (6) the resulting calculation of the Net Sales Payments owed to each Contingent Payment Holder. Each Quarterly Report on Form 10-Q or Form 10-K filed in respect of a period or year (or portion thereof) for which a Net Sales Report is required to be delivered hereunder shall disclose any MNPI that is or will be included or reflected in the Net Sales Report in respect of such period or year. For so long as Parent is a Reporting Company, if Parent fails, for any reason, to file a Quarterly Report on Form 10-Q or Form 10-K containing the information required by the immediately preceding sentence at or prior to the time the Net Sales Report is delivered to a Contingent Payment Holder, then, prior to 7:00 a.m. Eastern Time on the first (1st) Business Day following the date such Net Sales Report shall have been delivered to such Contingent Payment Holder, Parent shall file a Current Report on Form 8-K with the SEC disclosing any MNPI contained or reflected in such Net Sales Report. Parent shall maintain (and shall cause its Affiliates, including the Surviving Company to maintain) for at least two (2) years following the expiration of the period during which Net Sales Payments may be payable hereunder complete and accurate data and records pertaining to Net Sales of each Product. Parent hereby covenants and agrees that, at all times, Parent’s fiscal year shall terminate on the last Business Day of the applicable calendar year.
(d) Calculation of Net Sales.
(i) Net Sales shall be calculated on an accrual basis and in a manner consistent with the definition of Net Sales. To the extent any accrued amounts used in the calculation of Net Sales are estimates, such estimates shall be trued-up in accordance with the Selling Entity’s accounting policies for external reporting purposes, as consistently applied by the Selling Entity, and Net Sales and related payments under this Agreement shall be reconciled as appropriate.
(ii) With respect to any sale of any Product, Combination Product or Bundled Product for any substantive consideration other than monetary consideration on arm’s length terms (which has the effect of reducing the invoiced amount below what it would have been in the absence of such non-monetary consideration), for purposes of calculating the Net Sales under this Agreement, such Product, Combination Product or Bundled Product shall be deemed to be sold exclusively for cash at the Average Sale Price thereof.
(iii) In the event that any Product is sold as part of a Combination Product or Bundled Product, the Net Sales for such Combination Product or Bundled Product shall be calculated as follows:
(a) multiply the Net Sales of such Combination Product or Bundled Product by the fraction A/(A+B) where “A” is the Average Sale Price of such Product included in such Combination Product or Bundled Product, as applicable, when sold separately and “B” is the total of the Average Sale Prices of each of the other products or, solely with respect to Bundled Products, services included in such Combination Product or Bundled Product, as applicable, when sold separately;
(b) if the Average Sale Price of such Product included in such Combination Product or Bundled Product can be determined but the Average Sale Price of the other products or, solely with respect to Bundled Products, services included in such Combination Product or Bundled Product, as applicable, cannot be determined, then multiply the Net Sales of such Combination Product or Bundled Product, as applicable, by the fraction A/C where “A” is the Average Sale Price of such Product included in such Combination Product or Bundled Product, as applicable, when sold separately and “C” is the Average Sale Price of such Bundled Product; or
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(c) if (1) the Average Sale Price of such Product included in such Combination Product or Bundled Product, as applicable, is not available for such period or (2) such Product included in such Combination Product or Bundled Product, as applicable, is not sold separately in material numbers, then multiply the Net Sales of such Combination Product or Bundled Product, as applicable, by a percentage reasonably determined by mutual agreement of Parent and the Members’ Representative that represents the proportionate economic value of such Product included in such Combination Product or Bundled Product, as applicable, relative to the economic value contributed by the other products or, solely with respect to Bundled Products, services included in such Combination Product or Bundled Product, as applicable.
(iv) In the event that any discounts, rebates or charge-backs (whether as part of customer loyalty, bundling or “loss leader” program, or otherwise) are utilized by or on behalf of Parent for any Product, Combination Product or Bundled Product to promote or sell other products, the Net Sales for such Product, Combination Product or Bundled Product shall be no less than the Average Sale Price of such Product, Combination Product or Bundled Product, as applicable, on a stand-alone basis (excluding any such discounts, rebates or charge-backs).
(v) With respect to sales invoiced in a currency other than U.S. dollars, gross sales and Net Sales (including all adjustments and deductions permitted to be made hereunder in calculating the same) shall be converted into, and expressed in, their U.S. dollar equivalent using the conversion rate existing in the U.S. (as reported in The Wall Street Journal, New York edition) for the applicable currency on the last Business Day of the applicable calendar quarter. If The Wall Street Journal ceases to publish such exchange rate, then the rate of exchange to be used shall be that reported in such other business publication of national circulation in the U.S. on which Parent and the Members’ Representative reasonably agree.
(e) Records Retention and Inspection Rights.
(i) Parent shall maintain (and shall cause its Affiliates, including the Surviving Company to maintain) complete and accurate data and records pertaining to Net Sales of each Product for at least three (3) years following the end of the calendar quarter to which they pertain.
(ii) Upon no less than thirty (30) days’ written notice by the Member’s Representative to Parent, Parent shall permit, and shall require its Affiliates (including the Surviving Company) to permit, an independent certified public accountant (subject to reasonable obligations of confidentiality to Parent and its Affiliates), appointed by the Member’s Representative and reasonably acceptable to Parent to inspect the books and records of Parent and its Affiliates (including the Surviving Company) described in Section 3(e)(i) above for the sole purpose of verifying the accuracy of the Net Sales Payments required to be made hereunder; provided that such inspection shall occur during Parent or its Affiliates, as applicable, normal business hours and not more often than twice per calendar year, and no Net Sales Payment shall be subject to inspection more than once. The independent certified public accountant shall report to the Member’s Representative only whether there has been an underpayment or overpayment of the Net Sales Payments and, if so, the amount thereof and information related to the determination of such amount, and such accountant’s determinations shall be final and binding upon the Parties, absent manifest error. Any inspection conducted under this Section 3(e)(ii) shall be at the expense of (A) Parent, if such inspection establishes any underpayment of the Net Sales Payments required to be made hereunder of five percent (5%) or more for any applicable period, (B) the Member’s Representative, if such inspection establishes no underpayment of the Net Sales Payments required to be made hereunder for any applicable period, and (C) shall be split as between Parent and the Member’s Representative based on linear interpolation in the event of an underpayment of Net Sales Payments of between one one-hundredth of one percent (.01%) and five percent (5%) for any applicable period (by way of example, if an inspection is initiated in accordance with this Section 3(e)(ii) that determines an underpayment of three percent (3.0%) of the total Net Sales Payments for the applicable period, Parent shall be responsible for sixty percent (60%) of the applicable expense). Any underpayment shall be paid by Parent to each Contingent Payment Holder, based on such Contingent Payment Holder’s Pro Rata Share thereof, within fifteen (15) Business Days, with interest on the underpayment at the rate specified in Section 3(a) above from the date such payment was originally due. Any overpayment shall be paid by the Member’s Representative to Parent within fifteen (15) Business Days or credited against future Net Sales Payments due, at Parent’s sole discretion.
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4. M&A Transaction or Exclusive Licensing Transaction. In the event that Parent desires to consummate an M&A Transaction or an Exclusive Licensing Transaction with respect to any Product after the Effective Time and prior to the later of (x) the expiration of the Milestone Period and (y) the expiration of the Extended Net Sales Payment Period, Parent shall, subject to the provisions of Section 5 hereof, including, as applicable, the Agreed Disclosure Process, (i) give written notice of such decision to the Members’ Representative as promptly as practicable (and in any event no later than thirty (30) calendar days prior to the effective date of such transaction), which such notice shall include (A) a reasonably detailed description of such transaction, (B) the name of, and detailed financial and other information in respect of, the counterparty to such proposed transaction (the “Assignee”), including, as applicable, information necessary to determine if the Assignee is a Qualified Assignee, and (C) the counterparty’s plans for commercialization of such Product, and (ii) cause such Assignee to (x) expressly agree in writing to assume and succeed to all of the obligations, duties and covenants of Parent and its Affiliates under this Agreement, (y) abide by and be subject to the terms and conditions of this Agreement to the same extent as Parent as though such Assignee were directly party to this Agreement, including, in all cases, the obligations of Parent with respect to each Milestone Payment and the Net Sales Payments and the diligence obligations set forth in Sections 2(a)(ii) and 3(b) and (z) deliver to the Members’ Representative an instrument of assumption, for the benefit of the Contingent Payment Holders, effecting the assumption and succession of all of the obligations, duties and covenants of Parent and its Affiliates under this Agreement. Notwithstanding the foregoing, Parent shall not, and shall cause its Affiliates to not, effect any M&A Transaction or Exclusive Licensing Transaction without the prior written consent of the Members’ Representative unless the Assignee is a Qualified Assignee and the requirements set forth above in this Section 4 have been satisfied in full. Parent shall not, and shall cause its Affiliates to not, effect any Parent Change of Control within the meaning of clause (a) of the definition thereof unless the requirements set forth in clause (ii) of the first sentence of this Section 4 have been satisfied in full, with the Person acquiring all or substantially all of the assets of Parent being deemed the Assignee for purposes thereof.
5. MNPI. Notwithstanding anything to the contrary contained in this Agreement, other than as set forth in any Net Sales Report (but subject to compliance with Section 4(c)) Parent shall not, and shall cause each of its Affiliates, representatives and agents, to not, provide the Members’ Representative, the Contingent Payment Holders or any of their respective Affiliates, representatives or agents, with any MNPI regarding Parent or any of its Affiliates without the express prior written consent of the Members’ Representative and any such other Person. Parent hereby acknowledges and agrees that neither the Members’ Representative nor any Contingent Payment Holder (nor any of their respective Affiliates) shall have any duty of trust or confidence with respect to, or duty not to trade on the basis of, any MNPI regarding Parent or its securities (i) provided by, or on behalf of, Parent, any of its Subsidiaries, any of their respective Affiliates or any of their respective officers, directors, employees, attorneys, representatives or agents in violation of any of the covenants set forth in this Section 5 or (ii) otherwise possessed by any such Person as a result of any violation of any of the covenants set forth in this Agreement or the Merger Agreement requiring Parent to publicly disclose information in a press release, filing with the SEC or otherwise (collectively, including the covenants set forth in this Section 5, the “Disclosure Covenants”). Notwithstanding anything to the contrary herein, in the event that Parent believes that a notice or communication to the Members’ Representative or any Contingent Payment Holder (other than a Net Sales Report but subject to compliance with Section 4(c)) contains MNPI relating to Parent, any of its Subsidiaries or Affiliates or any of their respective property or equity, Parent shall (i) provide such notice or communication to counsel to the Members’ Representative (which shall be Katten Muchin Rosenman LLP (Attn: Mark D. Wood) or such other counsel as shall have been designated in writing by the Members’ Representative, and (ii) notify the Members’ Representative or such Contingent Payment Holder, as applicable that such a notice or communication has been provided to such counsel (without disclosing any details thereof that might constitute MNPI). Upon receipt or delivery by Parent or any of its Subsidiaries of any notice in accordance with the terms of this Agreement or the Merger Agreement, unless Parent has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to Parent or any of its Subsidiaries or its Affiliates or their respective property or equity, Parent shall within one (1) Business Day after any such receipt or delivery publicly disclose such material, nonpublic information in a widely disseminated press release and/or filing with the SEC. Notwithstanding the foregoing, to the extent Parent determines in good faith that it is necessary to disclose MNPI to the Members’ Representative for any purpose relating to this Agreement (a “Necessary Disclosure”), Parent shall inform counsel to the Members’ Representative (which shall be Katten Muchin Rosenman LLP (Attn: Mark D. Wood) or such other counsel as shall have been designated in writing by the Members’ Representative) of such determination without disclosing the applicable MNPI, and Parent and such counsel on behalf of the Members’ Representative shall endeavor to agree upon a process for making such Necessary Disclosure to the Members’ Representative or its representatives that is mutually acceptable to the Members’ Representative and Parent (an “Agreed Disclosure Process”). Thereafter, Parent shall be permitted to make such Necessary Disclosure only in accordance with the Agreed Disclosure Process. Parent acknowledges and agrees that the Contingent Payment Holders and their Affiliates will rely upon the foregoing representations, warranties and agreements and the other disclosure obligations of Parent hereunder in effecting transactions in Parent Shares and other securities of Parent and other Persons.
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6. Representations and Warranties of Parent. Parent and the Company jointly and severally represent and warrant to the Members’ Representative and the Contingent Payment Holders that:
(a) Organization. Each of Parent and the Company is conducting its business in compliance with, and is not in violation of, its organizational documents. Parent’s organizational documents are in full force and effect. Parent is validly existing as a Delaware corporation and is in good standing under the Laws of the jurisdiction of its organization. Each of Parent and the Company (i) has full power and authority (and all governmental licenses, authorizations, permits, consents and approvals) to (x) own its properties, conduct its business, (y) enter into, and perform its obligations under, this Agreement and, in the case of Parent, any Parent Share Warrants, and (z) consummate the transactions contemplated hereby, and (ii) is duly qualified as a foreign entity, and licensed and in good standing, under the Laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification or license, in each case of this clause (ii), where the failure to be so qualified, licensed or in good standing could reasonably be expected, individually or in the aggregate, to result in a Parent Material Adverse Effect.
(b) Authority; Execution; Enforceability. This Agreement has been duly authorized, executed and delivered by each of Parent and the Company, and any Parent Share Warrants will be duly authorized, executed and delivered by Parent, and no further consent or authorization is or will be required by Parent, the Company, Parent’s or the Company’s board of directors (or other equivalent governing body) or the holders of any of Parent’s or the Company’s equity. This Agreement constitutes a valid, legal and binding obligation of each of Parent and the Company, and any Parent Share Warrant will constitute a valid, legal and binding obligation of Parent, in each case enforceable in accordance with its terms, except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally. No consent, approval, authorization or order of, or registration or filing with any Governmental Entity is required for (i) the execution, delivery and performance by Parent or the Company of this Agreement or the execution, delivery and performance by Parent of any Parent Share Warrants, or (ii) the consummation by Parent or the Company of the transactions contemplated hereby or thereby, in each case except as expressly contemplated thereby.
(c) Current Effect. Other than pursuant to the express terms of the Merger Agreement, as of the date on which the Effective Time occurs, neither Parent nor the Company has granted any license or sublicense with respect to or entered into any other agreement to Transfer or otherwise encumber, any of the Products.
(d) No Violation. The execution, delivery and performance of this Agreement by each of Parent and the Company, Parent’s and the Company’s compliance with the terms and conditions thereof and, in the case of Parent, any Parent Share Warrants, and Parent’s and the Company’s consummation of the transactions contemplated hereby and thereby, are not prohibited or limited by, and do not and will not conflict with or result in the breach of or a default under, any provision of the certificate of organization, operating agreement or other formation documents of Parent or the Company, any contract, agreement or instrument binding on or affecting Parent or the Company or any Laws. The offer, issuance and delivery of any Parent Shares pursuant to this Agreement and/or upon exercise of any Parent Share Warrants are (and will be) exempt from the registration and qualification requirements of the Securities Act and any state securities (Blue Sky) Laws.
(e) Authorization of Parent Shares. All Parent Shares issuable pursuant to this Agreement or upon exercise of any Parent Share Warrants have been duly authorized and, when issued when issued and delivered as contemplated hereby or thereby, will be validly issued, fully paid and non-assessable and not subject to any preemptive rights. The issuance and delivery of any Parent Shares and/or Parent Share Warrants pursuant to this Agreement, or any Parent Shares upon exercise of any Parent Share Warrants, will not, (a) obligate Parent to offer to issue, or issue, Parent Shares or other securities to any Person (other than the Contingent Payment Holders) pursuant to any preemptive rights, rights of first refusal, rights of participation or similar rights, or (b) result in any adjustment (automatic, at the election of any Person or otherwise) of the exercise, conversion, exchange or reset price under, or any other anti-dilution adjustment pursuant to, any outstanding securities of Parent.
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7. General Provisions.
(a) Tax Treatment. For income tax purposes, any payment (whether made in cash, in Parent Share Warrants or in Parent Shares) made under this Agreement to an Initial Contingent Payment Holder shall be treated as additional consideration paid for the Company Shares to the maximum extent permitted by Law, and none of the Parties hereto nor their respective Affiliates shall take any contrary position except as otherwise required by a “determination” within the meaning of Section 1313(a) of the Code (or any analogous provision of applicable state or local Law).
(b) Withholding. Each Initial Contingent Payment Holder shall deliver to Parent a completed and executed Internal Revenue Service Form W-9. No amount shall be deducted or withheld from any payments made hereunder to any Contingent Payment Holder that has provided a Form W-9.
(c) Notices. All notices, requests, claims, demands and other communications desired or required to be given under this Agreement shall be in writing and shall be given or made (a) by delivery in person, with receipt confirmed, (b) by a nationally recognized overnight courier service specifying next Business Day delivery (costs prepaid), or (c) by electronic mail, to the respective Parties at the following addresses:
If to the Members’ Representative or any Contingent Payment Holder, to:
The respective address set forth on the signature page hereto.
with a copy (which shall not constitute notice) to:
Katten Muchin Rosenman LLP
525 W. Monroe Street
Chicago, IL 60661
Attention: Mark D. Wood; Joshua A. Feiger
Email: [email protected]; [email protected]
If to Parent or the Company, to:
CorMedix Inc.
300 Connell Drive, Suite 4200
Berkeley Heights, NJ 07922
Attention: [***]
Email: [***]
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with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 7th Avenue
New York, New York 10019
Attention: Jared Fertman and Andrew Marmer
Email: [email protected]; [email protected]
(d) Members’ Representative. Neither the Members’ Representative nor its members, managers, directors, officers, contractors, agents or employees, including the Initial Contingent Payment Holders (collectively, the “Members’ Representative Group”) shall be liable in connection with this Agreement, except and only to the extent of the Members’ Representative Group’s bad faith or fraud. Parent and its Affiliates and Representatives may rely entirely and conclusively, without further inquiry, on its dealings with, and notices to and from, the Members’ Representative to satisfy any obligations it may have under this Agreement. The Person then serving as Members’ Representative may at any time provide written notice to Parent that it is designating a different Person as successor Member’s Representative, whereupon such different Person shall be the Members’ Representative for all purposes under this Agreement.
(e) Payment. All payments hereunder (whether in cash, in Parent Share Warrants or in Parent Shares) shall be made without setoff or counterclaim and, except to the extent payable in Parent Share Warrants or Parent Shares in Parent Shares as provided herein, shall be made in U.S. dollars in immediately available funds, using, in the case of the Initial Contingent Payment Holders, such wire information or address for such applicable Initial Contingent Payment Holder as is set forth on Schedule 2 hereto, or at such bank or place as the applicable Contingent Payment Holder shall from time to time designate in writing prior to the date such payment is due. Parent shall pay all and any fees, costs and expenses (administrative or otherwise) imposed by banks, clearing houses or any other financial institutions in connection with making any payments under this Agreement, and each Contingent Payment Holder shall pay all and any fees, costs and expenses (administrative or otherwise) imposed on such Contingent Payment Holder by banks, clearing houses or any other financial institutions engaged by such Contingent Payment Holder in connection with receiving such Contingent Payment Holder’s payments under this Agreement.
(f) Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except as provided in Section 4 of this Agreement (and subject to the terms, conditions and restrictions contained in this Agreement), neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by Parent without the prior written consent of the Contingent Payment Holders; provided that no such consent shall be required in connection with an assignment of this Agreement to a wholly owned Subsidiary of Parent; provided that no such assignment shall release Parent from, and Parent shall remain responsible for all of, its obligations under this Agreement. Each Contingent Payment Holder shall have the right to assign this Agreement or its right to receive Net Sales Payments, in each case, in whole or in part, upon written notice to, but without the consent of, Parent, the Members’ Representative or any other Person.
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(g) Severability. If any term or provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule or Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated by this Agreement are fulfilled to the extent possible.
(h) Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be deemed an original and all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic image scan transmission, each of which shall be deemed an original, shall be effective as delivery of a manually executed counterpart of this Agreement.
(i) Entire Agreement. This Agreement (including all Exhibits or Schedules hereto and thereto) constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the Parties and their Affiliates, or any of them, with respect to the subject matter of this Agreement.
(j) Independent Nature of Contingent Payment Holders. The obligations of each Contingent Payment Holder under this Agreement are several and not joint with the obligations of any other Contingent Payment Holder, and no Contingent Payment Holder shall be responsible in any way for the performance of the obligations of any other Contingent Payment Holder under this Agreement. The obligations of each Contingent Payment Holder under this Agreement and any other agreement entered into in connection therewith are several and not joint with the obligations of any other Contingent Payment Holder, and no Contingent Payment Holder shall be responsible in any way for the performance of the obligations of any other Contingent Payment Holder under this Agreement or any other agreement entered into in connection therewith. Each Contingent Payment Holder shall be responsible only for its own representations, warranties, agreements and covenants under this Agreement and any other agreement entered into in connection therewith. The decision of each Contingent Payment Holder to acquire rights under this Agreement and any other agreement entered into in connection therewith (including rights to received Milestone Payments and Net Sales Payments) has been made by such Contingent Payment Holder independently of any other Contingent Payment Holder and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of Parent or any of its Subsidiaries that may have been made or given by any other Contingent Payment Holder or by any agent, attorney, advisor, representative or employee of any other Contingent Payment Holder, and no Contingent Payment Holder nor any of its agents, attorneys, advisors, representatives or employees shall have any liability to any other Contingent Payment Holder (or any other Person) relating to or arising from any such information, materials, statements or opinions. Nothing contained in this Agreement or any other agreement entered into in connection therewith, and no action taken by any Contingent Payment Holder pursuant hereto or thereto (including a Contingent Payment Holder’s acquisition of rights hereunder or thereunder), shall be deemed to constitute the Contingent Payment Holders as, and each of the Contingent Payment Holders acknowledges and agrees that the Contingent Payment Holders do not thereby constitute, a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Contingent Payment Holders are in any way acting in concert or as a group, and neither Parent nor its Affiliates shall assert any contrary position.
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(k) Amendment; Extension; Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of each of Parent and the Members’ Representative. Any agreement on the part of a party to any extension or waiver with respect to this Agreement shall be valid only if set forth in an instrument in writing signed on behalf of such party (which, in the case of an extension or waiver of any obligation of Parent following the Closing, shall be the Members’ Representative). The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such right. In the event of any proposed amendment or modification of this Agreement, Parent shall provide the Administrator (as defined in the Melinta Therapeutics, LLC Equity Value Recognition Plan dated as of August 29, 2025) with notice of all terms of such amendment or modification.
(l) Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any Exhibit or any certificate or other document made or delivered pursuant hereto but not otherwise defined therein shall have the meaning as defined in this Agreement. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The word “will” shall be construed to have the same meaning as the word “shall”. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. Whenever the word “or” is used in this Agreement, it shall not be deemed exclusive. All references to “dollars” or “$” shall refer to the lawful currency of the U.S. Unless the context requires otherwise (a) any definition of or reference to any contract, instrument or other document or any Law herein shall be construed as referring to such contract, instrument or other document or Law as from time to time amended, supplemented or otherwise modified, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “hereby”, “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (d) all references herein to Sections and Exhibits shall be construed to refer to Sections of, and Exhibits to, this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
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(m) Cooperation. The Parties agree to provide reasonable cooperation with each other and to execute and deliver such further documents, certificates, agreements and instruments and to take such actions as may be reasonably requested by the other parties to evidence or effect the transactions contemplated by, and to carry out the intent and purposes of, this Agreement.
(n) Governing Law. This Agreement shall be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws of any jurisdiction.
(o) Cumulative Remedies. Upon the breach by Parent of any representation, warranty, covenant or term of this Agreement, the Contingent Payment Holders shall have all of the rights and remedies under this Agreement, under Law or in equity to which they are entitled, including as provided in Section 7(p)(i). Without limiting the foregoing, in the event the Members’ Representative or any Contingent Payment Holder reasonably disputes the occurrence of any Milestone, any amount of Net Sales or Parent’s use of Commercially Reasonable Efforts with respect to any Product, such may pursue available remedies in accordance herewith.
(p) Specific Enforcement; Jurisdiction.
(i) The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement in any court referred to in clause (ii) of this Section 7, without proof of damages or otherwise (and each party hereby waives any requirement for the securing or posting of any bond or other security in connection with such remedy), this being in addition to any other remedy to which they are entitled at Law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy. Each of the Parties acknowledges and agrees that the right of specific enforcement is an integral part of this Agreement and without such right, none of the Parties would have entered into this Agreement.
(ii) Each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Delaware and to the jurisdiction of the U.S. District Court for the State of Delaware, for the purpose of any proceeding arising out of or relating to this Agreement or the actions of Parent or any Contingent Payment Holder in the negotiation, administration, performance and enforcement thereof, and each of the Parties hereby irrevocably agrees that all claims with respect to such proceeding may be heard and determined exclusively in the Delaware Court of Chancery or, solely if the Delaware Court of Chancery does not have subject matter jurisdiction thereof, any other court of the State of Delaware or any federal court sitting in the State of Delaware. Each of the Parties (i) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery, any other court of the State of Delaware and any federal court sitting in the State of Delaware in the event any proceeding arises out of this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) irrevocably consents to the service of process in any proceeding arising out of or relating to this Agreement, on behalf of itself or its property, by U.S. registered mail to such party’s respective address set forth in Section 7(c) (provided that nothing in this Section 7(p)(ii) shall affect the right of any party to serve legal process in any other manner permitted by Law) and (iv) agrees that it will not bring any proceeding relating to this Agreement in any court other than the Delaware Court of Chancery (or, solely if the Delaware Court of Chancery shall be unavailable, any other court of the State of Delaware or any federal court sitting in the State of Delaware). The Parties agree that a final trial court judgment in any such proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law; provided that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, such final trial court judgment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Contingent Payment Agreement to be executed by their duly authorized representatives as of the date first set forth above.
| INITIAL CONTINGENT PAYMENT HOLDERS: | ||
| DEERFIELD PRIVATE DESIGN FUND IV, L.P. | ||
| By: | Deerfield Mgmt IV, L.P., its General Partner | |
| By: | J.E. Flynn Capital IV, LLC, its General Partner | |
| By: | /s/ Lawrence Atinsky | |
| Name: | Lawrence Atinsky | |
| Title: | Authorized Signatory | |
| Address: 345 Park Avenue South, New York, NY 10010 | ||
| DEERFIELD PRIVATE DESIGN FUND III, L.P. | ||
| By: | Deerfield Mgmt III, L.P., its General Partner | |
| By: | J.E. Flynn Capital III, LLC, its General Partner | |
| By: | /s/ Lawrence Atinsky | |
| Name: | Lawrence Atinsky | |
| Title: | Authorized Signatory | |
| Address: 345 Park Avenue South, New York, NY 10010 | ||
[Signature Page to Contingent Payment Agreement]
IN WITNESS WHEREOF, the Parties have caused this Contingent Payment Agreement to be executed by their duly authorized representatives as of the date first set forth above.
| MEMBERS’ REPRESENTATIVE: | ||
| DEERFIELD PRIVATE DESIGN FUND IV, L.P. | ||
| By: | Deerfield Mgmt IV, L.P., its General Partner | |
| By: | J.E. Flynn Capital IV, LLC, its General Partner | |
| By: | /s/ Lawrence Atinsky | |
| Name: | Lawrence Atinsky | |
| Title: | Authorized Signatory | |
| Address: 345 Park Avenue South, New York, NY 10010 | ||
[Signature Page to Contingent Payment Agreement]
IN WITNESS WHEREOF, the Parties have caused this Contingent Payment Agreement to be executed by their duly authorized representatives as of the date first set forth above.
| PARENT: | ||
| CORMEDIX INC. | ||
| By: | /s/ Joseph Todisco | |
| Name: | Joseph Todisco | |
| Title: | Chief Executive Officer | |
[Signature Page to Contingent Payment Agreement]
IN WITNESS WHEREOF, the Parties have caused this Contingent Payment Agreement to be executed by their duly authorized representatives as of the date first set forth above.
| COMPANY: | ||
| MELINTA THERAPEUTICS, LLC | ||
| By: | /s/ Christine Ann Miller | |
| Name: | Christine Ann Miller | |
| Title: | Chief Executive Officer | |
[Signature Page to Contingent Payment Agreement]
SCHEDULE 1
Pro Rata Share
| Contingent Payment Holder | Pro Rata Share |
| Deerfield Private Design Fund IV, L.P. 780 Third Avenue, 37th Floor New York, New York 10017 Attention: David J. Clark |
65.76443% |
| Deerfield Private Design Fund III, L.P. 780 Third Avenue, 37th Floor New York, New York 10017 Attention: David J. Clark |
19.92212% |
| Total: | 85.68656% |
SCHEDULE 2
Wire Information
| Contingent Payment Holder | Wire Information |
| Deerfield Private Design Fund IV, L.P. 780 Third Avenue, 37th Floor New York, New York 10017 Attention: David J. Clark |
[***] |
| Deerfield Private Design Fund III, L.P. 780 Third Avenue, 37th Floor New York, New York 10017 Attention: David J. Clark |
[***] |
Exhibit A
Form of Parent Share Warrant
(See attached.)
Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of August 29, 2025, by and among CorMedix Inc., a Delaware corporation (the “Company”), Deerfield Private Design Fund IV, L.P. (“DPDF IV”), Deerfield Private Design Fund III, L.P. (“DPDF III” and, together with DPDF IV, the “Initial Holders”) and each other Holder (as defined below) from time to time signatory hereto.
WHEREAS:
A. In accordance with the Agreement and Plan of Merger, dated as of August 6, 2025 (as the same may be amended, restated, amended and restated or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Coriander BidCo LLC, a Delaware limited liability company (“Merger Sub”), Melinta Therapeutics, LLC, a Delaware limited liability company, and Deerfield Private Design Fund IV, L.P., solely in its capacity as representative, agent and attorney-in-fact of the Equityholders (as defined in the Merger Agreement), the Company issued (or upon delivery of s letter of transmittal will issue) to the Initial Holders an aggregate of 3,323,833 shares (the “Merger Shares”), of the common stock, par value $0.001 per share (“Common Stock”), of the Company.
B. In connection with the consummation of the transactions contemplated by the Merger Agreement, the Company, the Initial Holders and the Members’ Representative, solely in its capacity as representative of the Initial Holders, entered into that certain Contingent Payment Agreement, dated as of the date hereof (as the same may be amended, restated, amended and restated or otherwise modified from time to time, the “CPA”), pursuant to which the Company agreed to make (or cause one or more of its affiliates to make) certain payments to the Initial Holders. The CPA provides that the Company’s obligations to make (or cause to be made) some or all of the Milestone Payments (as defined in the CPA) may be satisfied through the issuance and delivery of shares of Common Stock (“Contingent Payment Shares”), or Parent Share Warrants (as defined in the CPA) exercisable for shares of Common Stock (the “Contingent Warrant Shares”), upon the terms, and subject to the conditions, set forth in the CPA.
C. In order to induce the Initial Holders to approve the adoption of the Merger Agreement and the transactions contemplated thereby, and to consummate the transactions contemplated thereby and by the CPA, and as a condition to such consummation, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Initial Holders hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall have the following meanings (all capitalized terms used and not otherwise defined herein having the respective meanings set forth in the Merger Agreement):
(i) (i) “Additional Filing Deadline” means, with respect to any Registration Statements that may be required pursuant to Section 2(a)(ii), (A) the thirtieth (30th) day following the first date on which such Registrable Securities may then be included in a Registration Statement if such Registration Statement is required to be filed because the SEC shall have notified the Company in writing that certain Registrable Securities were not eligible for inclusion in a previously filed Registration Statement, or (B) if such additional Registration Statement is required for a reason other than as described in (A) above, the thirtieth (30th) day following the date on which the Company first knows that such additional Registration Statement is required.
(i) “Additional Registration Deadline” means, with respect to any additional Registration Statement(s) required to be filed pursuant to Section 2(a)(ii), the forty-fifth (45th) day following the applicable Additional Filing Deadline.
(ii) “Applicable Securities Laws” means all applicable securities laws in all jurisdictions relevant to the Company, the Company’s securities or the issuance of securities of the Purchaser pursuant to the terms of this Agreement, including but not limited to, the Securities Act of 1933, the Exchange Act, and the rules, regulations and policies of the SEC and Nasdaq Global Market;
(iii) “Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized or obligated by law or executive order to close; provided, however, for clarification, bank institutions shall not be deemed to be authorized or obligated by law or executive order to remain closed due to “stay at home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in the City of New York generally are open for use by customers on such day.
(iv) “Closing Date” means August 29, 2025.
(v) “Exchange Act” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder, and any successor statute.
(vi) “FINRA” means the Financial Industry Regulatory Authority Inc. (or successor thereto).
(vii) “Filing Deadline” for the Registration Statement required pursuant to Section 2(a)(i), shall mean September 15, 2025 (the “Initial Filing Deadline”), and for each Registration Statement required pursuant to Section 2(a)(ii) means the Additional Filing Deadline.
(viii) “Holder” means any Initial Holder and any transferee or assignee who agrees in writing to become bound by the provisions of this Agreement in accordance with Section 10 hereof.
(ix) “Person” means and includes any natural person, partnership, joint venture, corporation, trust, limited liability company, limited company, joint stock company, unincorporated organization, government entity or any political subdivision or agency thereof, or any other entity.
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(x) “Prospectus” means (i) any prospectus (preliminary or final) included in any Registration Statement, as may be amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the Securities Act relating to any offering of Registrable Securities pursuant to a Registration Statement.
(xi) “Register,” “Registered,” and “Registration” refer to a registration effected by preparing and filing a Registration Statement or Statements in compliance with the Securities Act and pursuant to Rule 415, and such Registration Statement becoming effective under the Securities Act (to the extent required, by declaration or ordering of effectiveness, of such Registration Statement by the United States Securities and Exchange Commission (the “SEC”)).
(xii) “Registrable Securities” means (a) the Merger Shares, (b) any Contingent Payment Shares issued or issuable pursuant to the CPA, (c) any Contingent Warrant Shares issued or issuable upon exercise in full of any Parent Share Warrants, assuming the exercise thereof for cash and without giving effect to any limitations on exercise thereof, and (d) any securities issued or issuable upon any stock split, dividend, distribution, recapitalization, reorganization, reclassification or similar event with respect to any of the foregoing; provided that any securities that would otherwise qualify as Registrable Securities but (i) have been sold pursuant to a Registration Statement or pursuant to Rule 144 or (ii) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof) and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act, assuming (as applicable) the exercise of all Parent Share Warrants on a cashless basis, shall cease to be a “Registrable Security”.
(xiii) “Registration Deadline” shall mean, (a) for purposes of any Registration Statement required pursuant to Section 2(a)(i), the date that is (x) seventy-five (75) days after the applicable Filing Deadline or (y) if earlier than the date described in clause (a)(x) of this definition, five (5) Trading Days after the Company is first notified by the SEC that such Registration Statement will not be reviewed or is no longer subject to further review and comment, and (b) with respect to any Registration Statement required pursuant to Section 2(a)(ii), the Additional Registration Deadline. Any Registration Deadline (or any extension thereof) shall be automatically extended if the Company has, and continues to use, its reasonable best efforts to respond to and resolve any comments to the Registration Statement received from the SEC.
(xiv) “Registration Effective Date” shall mean the date that the first Registration Statement covering the Registrable Securities that the Company is required to file pursuant to this Agreement has been declared effective by the SEC or otherwise become effective under the Securities Act.
(xv) “Registration Statement(s)” means any registration statement(s) of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, all amendments and supplements to such Registration Statement, including post-effective amendments, and all exhibits to, and all material incorporated by reference in, such Registration Statement.
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(xvi) “Required Holders” means holders of a majority in interest of then-outstanding Registrable Securities.
(xvii) “Restricted Shares” means an aggregate of 1,700,694 of the Merger Shares initially issued to DPDF IV and an aggregate of 515,194 of the Merger Shares initially issued to DPDF III; provided, that such shares shall cease to be Restricted Shares upon the expiration of the Lock-Up Period or on such earlier date as is provided in Section 11(a). For the avoidance of doubt, neither the Company’s 4.00% Convertible Senior Notes due 2030, any shares of Common Stock issuable upon the conversion thereof nor any other securities of the Company acquired by any Holder other than pursuant to the Merger Agreement will be deemed Restricted Shares or subject to the Lock-Up (as defined below).
(xviii) “Rule 415” means Rule 415 under the Securities Act or any successor rule providing for the offering of securities on a continuous basis.
(xix) “Trading Day” shall mean any day on which the Common Stock is traded for any period on the Nasdaq Global Market or, if not the Nasdaq Global Market, the principal securities exchange or other securities market on which the Common Stock is then being traded.
(xx) “Tranche 1 Merger Shares” means 850,347 of the Restricted Shares initially issued to DPDF IV and 257,597 of the Restricted Shares originally issued to DPDF III.
(xxi) “Tranche 2 Merger Shares” means the remainder of the Restricted Shares initially issued to each of DPDF IV and DPDF III that are not Tranche 1 Merger Shares.
2. REGISTRATION.
a. MANDATORY REGISTRATION.
(i) Following the date of this Agreement, the Company shall prepare, and, on or prior to the applicable Filing Deadline, file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of all of the Registrable Securities, subject to the consent of the Holders, which consent shall not be unreasonably withheld), covering the resale of all of the Registrable Securities. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 5,091,867, subject to adjustment for any Stock Event occurring prior to the effective date of such Registration Statement; provided that such number shall include the total number of the Merger Shares and, with respect to the Contingent Payment Shares and Contingent Warrant Shares, collectively, shall include the Company’s good faith estimate of the number of Contingent Payment Shares and/or Contingent Warrant Shares that may become issuable under the CPA (directly or indirectly), based upon the then current trading price per share of Common Stock, assuming the maximum amount of Milestone Payments become payable thereunder and the Company elects to satisfy all of its obligations to make such payments through the issuance and delivery of Contingent Payment Shares and Parent Share Warrants (assuming any Parent Share Warrants are exercised for cash, and without regard to any limitations on the exercise thereof).
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(ii) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities requested or required to be included in any Registration Statement filed pursuant to Section 2(a)(i) (and subject to Section 3(q) below), the SEC does not permit all such Registrable Securities to be included in such Registration Statement, or for any other reason any such Registrable Securities are not then included in a Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities, subject to the consent of the Holders, which consent shall not be unreasonably withheld) covering the resale of all Registrable Securities requested or required to be included in such Registration Statement filed pursuant to Section 2(a)(i) and not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415.
(iii) Subject to any SEC comments, any Registration Statement pursuant to this Section 2(a) shall include a “plan of distribution” approved by the holders of a majority-in-interest of the Registrable Securities to be included in such Registration Statement. No Holder shall be named as an “underwriter” in the Registration Statement without the Holder’s prior written consent. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to, and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of the Holders and Legal Counsel (as defined below) prior to its filing or other submission; provided, that, notwithstanding any other provision in this Agreement, if despite the Company’s compliance with Section 3(p), the SEC or the Securities Act requires such Holder(s) to be named as an “underwriter” in the Registration Statement and such Holder(s) withhold written consent to be so named, the Company’s failure to fulfill its obligations under this Section 2(a) shall solely as a result thereof shall not constitute a violation of this Agreement.
3. OBLIGATIONS OF THE COMPANY. In connection with any Registration of the Registrable Securities hereunder, the Company shall have the following obligations:
a. The Company shall prepare promptly, and file with the SEC as soon as practicable after such registration obligation arises hereunder (but in no event later than the applicable Filing Deadline), such Registration Statements with respect to the Registrable Securities as provided in Section 2(a), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective as soon as possible after such filing, but in any event shall use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective no later than the applicable Registration Deadline, and shall use its reasonable best efforts to keep such Registration Statement current and effective pursuant to Rule 415 at all times after its effective date until the date on which all of the securities included in such Registration Statement no longer constitute Registrable Securities (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein or related thereto), except for information provided in writing by a Holder pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading. In the event that Form S-3 is not available for the registration of the resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in any way affecting the Company’s obligation to Register the resale of the Registrable Securities on such other form as is available, as provided in Section 2(a)), (i) the Company shall undertake to file, within twenty (20) days of such time as such form is available for such Registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible. If the Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act) at the time the Company is requested or required hereunder to file a Registration Statement or amendment to a Registration Statement hereunder (including pursuant to Section 3(b)), the Company shall use its best efforts to file the Registration Statement or amendment as an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act).
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b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to each Registration Statement and the Prospectus used in connection with each Registration Statement as may be necessary to keep each Registration Statement (or, as applicable, another Registration Statement covering the Registrable Securities) current and effective at all times during the Registration Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the event that on any Trading Day (as defined below) (the “Registration Trigger Date”) the number of shares available under the Registration Statements filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities, including all of the Contingent Warrant Shares issuable upon exercise of Parent Share Warrants (in each case, assuming the exercise thereof for cash, and without giving effect to any limitations on the exercise thereof), the Company shall amend the Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of Registrable Securities so issued or issuable (assuming the exercise of the Parent Share Warrants for cash, and without giving effect to any limitations on the exercise thereof) as of the Registration Trigger Date as soon as practicable, but in any event within twenty (20) days after the Registration Trigger Date. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, but in any event the Company shall cause such amendment and/or new Registration Statement to become effective within sixty (60) days of the Registration Trigger Date (or, if earlier, five (5) Trading Days after the Company is first notified by the SEC that such Registration Statement will not be reviewed or is no longer subject to further review and comment) or as promptly as practicable in the event the Company is required to increase its authorized shares.
c. The Company shall furnish to each Holder and Legal Counsel (i) promptly after the same is prepared and publicly distributed, publicly filed with the SEC or received by the Company, one copy of each Registration Statement and any amendment thereto (other than the Company’s filings under the Exchange Act and other than any amendment or supplement to a Registration Statement that is substantially similar to the Company’s filings under the Exchange Act), each preliminary Prospectus and Prospectus and each amendment or supplement thereto, and, each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion thereof which contains information for which the Company has sought or intends to seek confidential treatment or which contains or reflects any material non-public information with respect to the Company or its securities), and (ii) such number of copies of a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as a Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder; provided that the Company may provide any such copies in electronic form only. The Company will promptly notify each of the Holders by electronic mail of the effectiveness of each Registration Statement or any post-effective amendment thereto. The Company shall use reasonable best efforts to promptly respond to any and all comments received from the SEC with respect to any Registration Statement filed pursuant to this Agreement, with a view towards causing each Registration Statement or any amendment thereto to become effective (to the extent required, by declaration or ordering of effectiveness, of such Registration Statement or amendment by the SEC) as soon as practicable, and, as soon as practicable, but in no event later than five (5) Business Days, following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review, shall file a request for acceleration of effectiveness of such Registration Statement (to the extent required for such Registration Statement or amendment to become effective, by declaration or ordering of effectiveness, of such Registration Statement or amendment by the SEC) to a time and date not later than two (2) Business Days after the submission of such request. No later than one (1) Business Days after the Registration Statement becomes effective, the Company shall file with the SEC the final Prospectus included in the Registration Statement pursuant to Rule 424 (or successor thereto) under the Securities Act.
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d. The Company shall use its reasonable best efforts to (i) register and qualify, in any jurisdiction where registration and/or qualification is required, the Registrable Securities covered by the Registration Statements under such other securities or “blue sky” laws of such jurisdictions in the United States as the Holders shall reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction, except where the Company is then already required to be so qualified, already subject to taxation or required to consent to general service of process, as applicable.
e. Subject to Section 11, as promptly as practicable after becoming aware of such event, the Company shall (i) notify each Holder that holds Registrable Securities of the happening of any event, of which the Company has knowledge, as a result of which the Prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to Section 3(r), (ii) shall use its reasonable best efforts to promptly prepare a supplement or amendment to any Registration Statement to correct such untrue statement or omission, and (iii) deliver such number of copies of such supplement or amendment to each Holder as such Holder may reasonably request.
f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement and, if such an order is issued, to obtain the withdrawal of such order as promptly as reasonably practicable and to notify each Holder that holds Registrable Securities (and, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof, in each case as promptly as reasonably practicable.
g. The Company shall permit one outside legal counsel designated by the Holders (which shall be Katten Muchin Rosenman LLP (Attn: Mark D. Wood) or such other counsel as shall have been designated by the Required Holders) (“Legal Counsel”) to review such Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof but excluding the Company’s filings under the Exchange Act and excluding any amendment or supplement to a Registration Statement that is substantially similar to the Company’s filings under the Exchange Act), a reasonable period of time prior to their filing with the SEC (not less than three (3) Business Days prior to such filing) and not file any documents in a form to which Legal Counsel reasonably objects; provided that, notwithstanding the foregoing, in no event shall the Company be (i) required to file any document with the SEC which in the view of the Company or its counsel contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading or (ii) prohibited from filing any document with the SEC which the Company or its counsel reasonably believes to be required by law to be so filed.
h. The Company shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws or otherwise required in the context of any Registration Statement or offering of securities in which any Holder participates, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning any Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder prior to making such disclosure, and allow such Holder, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
i. The Company shall use its reasonable best efforts to cause all the Registrable Securities covered by each Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, and to arrange for at least two market makers to register with FINRA as such with respect to such Registrable Securities.
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j. The Company shall provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities not later than the effective date of the initial Registration Statement.
k. The Company shall cooperate with each Holder that holds Registrable Securities being offered to facilitate the timely (i) preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to such Registration Statement, and enable such certificates to be registered in such names and in such denominations or amounts, as the case may be, or (ii) crediting of the Registrable Securities to be offered pursuant to a Registration Statement to the applicable account (or accounts) with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian (DWAC) system, in any such case as such Holder may reasonably request.
l. At the reasonable request of a Holder, the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and any Prospectus used in connection with the Registration Statement as may be necessary in order to change the plan of distribution set forth in such Registration Statement, in each case as promptly as is reasonably practicable.
m. The Company shall not, and shall not agree to, allow the holders of any Common Stock or other securities of the Company to include any of their securities (other than Registrable Securities) in any Registration Statement filed pursuant to Section 2(a) or any amendment or supplement thereto under Section 3(b) hereof without the consent of the Required Holders. In addition, the Company shall not include any securities for its own account or the account of others in any Registration Statement filed pursuant to Section 2(a) or any amendment or supplement thereto filed pursuant to Section 3(b) hereof without the consent of the Required Holders.
n. The Company shall comply in all material respects with all applicable laws related to a Registration Statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in connection therewith (including the Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC).
o. If required by the FINRA Corporate Financing Department, the Company shall promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the public offering contemplated by resales of securities under the Registration Statement (an “Issuer Filing”), and pay the filing fee required by such Issuer Filing. The Company shall use its reasonable best efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement.
p. If at any time the SEC advises the Company in writing that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act, the Company shall use its reasonable best efforts to persuade the SEC that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter.” The Holders shall have the right to participate or have one legal counsel on behalf of all Holders participate in any meetings or discussions with the SEC regarding the SEC’s position and to comment or have their respective counsel comment on any written submission made to the SEC with respect thereto. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 3(p), the SEC refuses to alter its position, the Company shall remove from the Registration Statement such portion of the Registrable Securities as the SEC requires in writing be removed therefrom. Any such cut-back imposed by the SEC as contemplated by this Section 3(p) shall be imposed on such Registrable Securities as the Required Holders may elect, on a pro rata basis (based upon the applicable type of Registrable Securities held by each of the Holders), except to the extent otherwise required by the SEC.
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q. Subject to the limitations contained herein, the Company shall use its reasonable best efforts to take all other reasonable actions arising out of its obligations under this Agreement and necessary to facilitate the disposition by the Holders of the Registrable Securities pursuant to a Registration Statement.
r. Notwithstanding anything to the contrary in Section 3(e), the Company may postpone effecting a Registration with respect to any Registration Statements that may be required pursuant to Section 2(a)(ii) or Section 3(b) or, at any time after the effective date of the applicable Registration Statement, the Company may suspend the use of any prospectus forming a part of such Registration Statement if the Company determines, based on the advice of counsel, that it would otherwise be required to disclose material non-public information concerning the Company, the disclosure of which (i) is not otherwise required (based on the advice of counsel) and which the Company has a bona fide business purpose for preserving in confidence and (ii) at the time is not, in the good faith opinion of the Company and its counsel, in the best interests of the Company (the period of such suspension, a “Grace Period”); provided, that the Company shall (i) promptly notify the Holders in writing of the existence of material non-public information giving rise to a Grace Period (provided that in each notice the Company shall not disclose the content of such material non-public information to any Holder unless otherwise requested in writing by such Holder) and the date on which the Grace Period will begin, and (ii) as soon as such date may be determined, promptly notify the Holders in writing of the date on which the Grace Period ends; and, provided, further, that (A) no Grace Period shall exceed forty-five (45) consecutive days, (B) during any three hundred sixty-five (365) day period, such Grace Periods shall not exceed an aggregate of ninety (90) days, and (C) the first day of any Grace Period must be at least forty-five (45) days after the last day of any prior Grace Period (each Grace Period that satisfies all of the requirements of this Section 3(r) being referred to as an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holders receive the notice referred to in clause (i) and shall end on and include the later of the date the Holders receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(e) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(e) with respect to the information giving rise thereto unless such material non-public information is no longer applicable.
s. The Company shall not grant any Person any registration rights with respect to shares of Common Stock or any other securities of the Company other than registration rights that will not adversely affect the rights of the Holders hereunder (including by limiting in any way the number of Registrable Securities that could be included in any Registration Statement pursuant to Rule 415) and shall not otherwise enter into any agreement that is inconsistent with the rights granted to the Holders hereunder; provided that the grant of registration rights to other current or future securityholders shall not in and of itself be deemed to adversely affect the rights of the Holders.
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t. At all times during the Registration Period, (a) the Common Stock shall be eligible for clearing through DTC, through its Deposit/Withdrawal At Custodian (DWAC) system; (b) the Company shall be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the Common Stock; (c) the transfer agent for the Common Stock shall be a participant in, and the Common Stock shall be eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or successor thereto); and (d) the Company shall use its reasonable best efforts to cause the Common Stock to not at any time be subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of shares of Common Stock through DTC, and, in the event the Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, the Company shall use its reasonable best efforts to cause any such “chill,” “freeze” or similar restriction to be removed at the earliest possible time.
4. OBLIGATIONS OF THE HOLDERS.
a. It shall be a condition precedent to the obligations of the Company to complete the Registration pursuant to this Agreement with respect to the Registrable Securities of a Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the Registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) Business Days prior to the first anticipated filing date of a Registration Statement, the Company shall notify each Holder of the information the Company requires from such Holder. Any such information shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading.
b. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e) or Section 3(f), such Holder will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e) or Section 3(f); provided, however, that the foregoing shall not prohibit or require the Holder to discontinue the settlement of any sale of Registrable Securities with respect to which an Holder has entered into a contract for sale prior to the Holder’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(e) or 3(f).
5. RESERVED.
6. EXPENSES OF REGISTRATION. All reasonable expenses, other than underwriting discounts and commissions or other charges of any broker-dealer acting on behalf of the Investors, incurred in connection with Registrations, filings or qualifications pursuant to Section 2, including all registration, listing and qualification fees, printers and accounting fees, and the fees and disbursements of counsel for the Company shall be borne by the Company. The Company shall also reimburse the Holders for the reasonable fees and disbursements of Legal Counsel in the aggregate amount up to $35,000 per Registration in connection with Registrations pursuant to Section 2 or 3 of this Agreement.
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7. INDEMNIFICATION. In the event any Registrable Securities are included in a Registration Statement under this Agreement:
a. The Company will indemnify, hold harmless and defend (i) each Holder and (ii) the directors, officers, partners, managers, members, employees and agents of each Holder, and each Person who controls any Holder within the meaning of the Securities Act or the Exchange Act, if any, (each, an “Indemnified Person”), against any joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, “Claims”) to which any of them may become subject insofar as such Claims arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in any Registration Statement, or any amendment or supplement thereto, or any filing made under state securities laws as required hereby, or the omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, or any amendment or supplement thereto, or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were made, not misleading; or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities (the matters in the foregoing clauses (i) through (iii) being, collectively, “Violations”). The Company shall reimburse the Indemnified Person, promptly as such expenses are incurred and are due and payable, for any reasonable and documented legal fees and other reasonable and documented expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 7(a) shall not apply to a Claim by any Indemnified Person arising out of or based upon a Violation to the extent that such Violation occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Indemnified Person expressly for use in connection with the preparation of such Registration Statement or related Prospectus or any such amendment thereof or supplement thereto, or to any amounts paid in settlement of any Claim effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by any of the Holders pursuant to Section 10.
b. Promptly after receipt by an Indemnified Person under this Section 7 of notice of the commencement of any action (including any governmental action), such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section 7, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and the Indemnified Person, as the case may be;
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provided, however, that an Indemnified Person shall have the right to retain its own counsel with the reasonable and documented fees and expenses to be paid by the Company, if, in the opinion of counsel for such Indemnified Person, the representation by such counsel of the Indemnified Person and the Company would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Company shall pay for only one separate legal counsel (plus one local counsel in each applicable jurisdiction, if necessary) for the Indemnified Persons, and such legal counsel shall be selected by the Holders. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnified Person under this Section 7, except to the extent that the Company is actually prejudiced by such failure in its ability to defend such action, and shall not relieve the Company of any liability to the Indemnified Person otherwise than pursuant to this Section 7. The Company shall not, without the prior written consent of the Indemnified Persons, consent to entry of any judgment or enter into any settlement or other compromise with respect to any Claim in respect of which indemnification or contribution may be or has been sought hereunder (whether or not any such Indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Persons of a full release from all liability with respect to such Claim or which includes any admission as to fault, culpability or failure to act on the part of any Indemnified Person. The indemnification required by this Section 7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as any expense, loss, damage or liability is incurred.
c. Each Holder will indemnify, hold harmless and defend (i) the Company, and (ii) the directors, officers, partners, managers, members, employees and agents of the Company, if any (each, a “Company Indemnified Person”), against any Claims to which any of them may become subject insofar as such Claims arise out of or are based upon any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities, which occurs due to the inclusion by the Company in a Registration Statement or Prospectus, or any amendment or supplement thereto, of false or misleading information about such Holder, where such information was furnished in writing to the Company by or on behalf of such Holder expressly for the purpose of inclusion in such Registration Statement or Prospectus. Notwithstanding anything herein to the contrary, the indemnity agreement contained in this Section 7(c) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Holders, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, however, that a Holder shall be liable under this Section 7(c) for only that amount of a Claim as does not exceed the net amount of proceeds received by such Holder as a result of the sale of Registrable Securities pursuant to such Registration Statement.
d. Promptly after receipt by a Company Indemnified Person under this Section 7 of notice of the commencement of any action (including any governmental action), such Company Indemnified Person shall, if a Claim in respect thereof is to be made against any Holder under this Section 7, deliver to such Holder a written notice of the commencement thereof, and such Holder shall have the right to participate in, and, to the extent such Holder so desires, to assume control of the defense thereof with counsel mutually satisfactory to such Holder and such Company Indemnified Person. No Holder shall, without the prior written consent of the Company, consent to entry of any judgment or enter into any settlement or other compromise with respect to any Claim in respect of which indemnification or contribution may be or has been sought by any Company Indemnified Person hereunder (whether or not any such Company Indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Company Indemnified Persons of a full release from all liability with respect to such Claim or which includes any admission as to fault, culpability or failure to act on the part of any Company Indemnified Person.
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8. CONTRIBUTION. If for any reason the indemnification provided for in Section 7(a) or 7(c) (as applicable) is unavailable to an Indemnified Person or Company Indemnified Person (as applicable) or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the Indemnified Person or Company Indemnified Person (as applicable) as a result of the Claim in such proportion as is appropriate to reflect the relative fault of the Indemnified Person or Company Indemnified Person (as applicable) and the indemnifying party (provided that the relative fault of any Company Indemnified Person shall be deemed to include the fault of all other Company Indemnified Persons), as well as any other relevant equitable considerations. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a Holder be greater in amount than the net amount of proceeds received by such Holder as a result of the sale of Registrable Securities giving rise to such contribution obligation pursuant to the applicable Registration Statement (net of the aggregate amount of any damages or other amounts such Holder has otherwise been required to pay (pursuant to Section 7(c) or otherwise) by reason of such Holder’s untrue or alleged untrue statement or omission or alleged omission).
9. REPORTS UNDER THE 1934 ACT. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Holders to sell securities of the Company to the public without registration, the Company agrees to, during the period when there are Registrable Securities outstanding (or deemed hereunder to be outstanding):
a. make and keep public information available, as those terms are understood and defined in Rule 144;
b. file with the SEC in a timely manner (without giving effect to any extensions pursuant to Rule 12b-25 under the Exchange Act) all reports and other documents required of the Company under the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
c. remain continuously subject to the reporting requirements under the Exchange Act for a period of at least one year following the date of this Agreement;
d. so long as any of the Holders owns Registrable Securities, promptly upon request, furnish to such Holder (i) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act as required for applicable provisions of Rule 144 and (ii) such other information as may be reasonably requested to permit such Holder to sell such Registrable Securities pursuant to Rule 144 without registration.
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10. LEGEND REMOVAL.
a. The Registrable Securities held by any Holder (and any certificates or electronic book entries evidencing the Registrable Securities) shall not contain or be subject to (and such Holder shall be entitled to removal of) any legend (or stop transfer or similar instruction) restricting the transfer thereof (including any legend pertaining to restrictions on transfer under Applicable Securities Laws) if : (i) (A) a Registration Statement covering the sale or resale of such securities is effective under the Securities Act, or (B) such Holder provides customary paperwork to the effect that it has sold, or is selling substantially contemporaneously with the delivery of such paperwork, such securities pursuant to such a Registration Statement or Rule 144 under the Securities Act, or (C) such securities are eligible for sale under Rule 144(b)(1) under the Securities Act as set forth in customary, non-affiliate certifications provided by such Holder, or (D) at any time on or after the date hereof such Holder certifies that it is an “affiliate” (within the meaning of such term under Rule 144 under the Securities Act) of the Company (a “Rule 144 Affiliate”), and has not been a Rule 144 Affiliate for the preceding three (3) months, and that such Holder’s holding period for purposes of Rule 144 (including, for the avoidance of doubt, subsection (d)(3)(ii) thereof) is at least six (6) months, and if such holding period is less than one (1) year, the current public information requirement of Rule 144(b)(1) is then met, or (E) legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC) as determined in good faith by counsel to the Company and (ii) in each case, such Registrable Securities are not subject to the Lock-Up, to the extent applicable (collectively, the “Unrestricted Conditions”). The Company shall cause its counsel to issue a legal opinion to the transfer agent for the Common Stock (the “Transfer Agent”) (with a copy to each Holder), promptly (and in any event within three (3) Business Days) after such time as any of the Unrestricted Conditions has been satisfied with respect to any Registrable Securities (which in the case of Registrable Securities that are not subject to the Lock-Up, shall be the Registration Effective Date), if the Transfer Agent requires such an opinion to effect the issuance of such Registrable Securities, as applicable, without a restrictive legend or removal of the legend hereunder.
b. The Company agrees that at such time as any of the Unrestricted Conditions is met or such legend is otherwise no longer required under this Section 10 in respect of any Registrable Securities, which in the case of Registrable Securities that are not subject to the Lock-Up shall include any time following the Registration Effective Date,, it will, no later than the earlier of (x) (1) Trading Day and (y) the number of Trading Days comprising the Standard Settlement Period following the delivery by a Holder to the Company or the Transfer Agent of the Registrable Securities issued with a restrictive legend, deliver or cause to be delivered to such Holder or its designee the Registrable Securities free from all restrictive and other legends (or similar notations) by crediting the account of such Holder’s prime broker with DTC, through its DWAC system.
11. LOCK-UP.
a. Each Holder agrees that during the period commencing on the date hereof and ending at 11:59 p.m. (New York City time) on the one hundred twentieth (120th) day following the date hereof (the “Lock-Up Period”), without the prior written approval of the Company, such Holder shall not lend, offer, pledge, sell, contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly (“Transfer”), any Restricted Shares; provided, that:
(i) on the date that is sixty (60) days following the Closing (the “First Lock-Up Release Date”), the Tranche 1 Merger Shares shall be released from the Lock-Up, shall cease to be “Restricted Shares” and shall become freely tradeable (subject only to restrictions on transfer under Federal securities laws described in Section 10), and
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(ii) on the date that is one hundred and twenty (120) days following the Closing, the Tranche 2 Merger Shares shall be released from the Lock-Up and shall become freely tradeable (subject only to restrictions on transfer under Federal securities laws described in Section 10), and the Lock-Up shall terminate and be of no further force or effect (and none of the Registrable Securities shall be deemed Restricted Shares).
b. Notwithstanding the foregoing, a Holder shall at all times be permitted to Transfer the Restricted Shares (or any portion thereof): (i) to its affiliates, (ii) to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with such Significant Company Shareholder or its Affiliates, (iii) to any direct or indirect equityholders or limited partners of a Significant Company Shareholder, (iv) to any family member or any Affiliate of any family member of a Holder, (v) to a charitable organization through a charitable distribution, and (vi) pursuant to a bona fide take-over bid, tender offer or similar transaction made to all holders of Common Stock, including without limitation, a merger, arrangement or amalgamation, involving a change of control of the Company and provided that in the event the take-over, tender offer or acquisition transaction is not completed, such Restricted Shares shall remain subject to the Lock-Up (unless released from the Lock-Up to the extent provided in Section 11(a)); provided that in the case of each of (i) through (v), such Transfer is without consideration and the applicable transferee remains subject to the Lock-Up.
c. The Restricted Shares shall be subject to a restrictive legend (the “Lock-Up Legend”) in substantially the following form; provided that such legend shall be removed as and when provided in Section 10:
THE OFFER AND SALE OF THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THE SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, INCLUDING PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER SECTION 4(a)(7) OF THE SECURITIES ACT OR APPLICABLE FORMAL OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4[a](1) AND A HALF SALE.” NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE, INCLUDING A LOCK-UP PERIOD, AS SET FORTH IN A REGISTRATION RIGHTS AGREEMENT AMONG THE COMPANY AND THE ORIGINAL HOLDERS OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY.
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12. ASSIGNMENT OF REGISTRATION RIGHTS. The rights under this Agreement shall be automatically assignable by each Holder to any transferee of all or any portion of the Registrable Securities or all or any portion of such Holder’s rights under the CPA if: (i) such Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned, and (iii) at or before the time the Company receives the written notice contemplated in clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein as applicable to a Holder. In the event that the Company receives written notice from a Holder that it has transferred all or any portion of its Registrable Securities pursuant to this Section 12, the Company, within ten (10) days, shall file any amendments or supplements necessary to keep a Registration Statement current, effective and available for the resale of all of the Registrable Securities pursuant to Rule 415. The Company shall not assign this Agreement or any rights or obligations hereunder, except after obtaining the prior written consent of the Required Holders.
13. MATERIAL NON-PUBLIC INFORMATION.
a. From and after the date hereof, the Company shall not, and shall cause each of its Affiliates, representatives and agents to not, provide any Holder or any Holder’s Affiliates, representatives or agents, with any material nonpublic information regarding the Company, any of its Affiliates or any other Person (“MNPI”) without the express prior written consent of such Holder. The Company hereby acknowledges and agrees that neither any Holder nor any of their respective Affiliates shall have any duty of trust or confidence with respect to, or duty not to trade on the basis of, any MNPI (i) provided by, or on behalf of, the Company, any of its Affiliates or any of their respective officers, directors, employees, attorneys, agents or representatives or (ii) otherwise possessed (or continued to be possessed) by any Holder (or any Affiliate, agent or representative thereof) as a result of any breach or violation of any of the covenants set forth in this Agreement or the Merger Agreement requiring the Company to publicly disclose information in a press release, filing with the SEC or otherwise (collectively, the “Disclosure Covenants”).
b. Notwithstanding anything to the contrary herein, in the event that the Company believes that a notice or communication to any Holder or any Holder’s Affiliates, attorneys, agents or representatives contains MNPI, the Company shall, prior to the delivery of such notice or communication, (i) so indicate to such Holder, and such indication shall provide such Holder the means to refuse to receive such notice or communication, and in the absence of any such indication, such Holder, the other holders of the Registrable Securities and their respective Affiliates, agents and representatives shall be allowed to presume that all matters relating to such notice or communication do not constitute MNPI and (ii) provide such notice or communication to counsel to such Holder (which shall be Katten Muchin Rosenman LLP (Attn: Mark D. Wood) or such other counsel as shall have been designated in writing by such Holder). In the event that the Company either (A) fails to indicate that a notice or communication to a Holder contains MNPI or otherwise provides any Holder with MNPI without such Holder’s prior written consent or (B) provides such notice or communication to any Holder notwithstanding any such Holder’s refusal in writing to receive such notice or communication, such Holder shall have the right to make a public disclosure in the form of a press release, public advertisement or otherwise of the applicable MNPI without the prior approval by the Company or any of its Affiliates, or any of its or their respective officers, directors (or equivalent persons), employees, attorneys, representatives or agents, and no Holder (nor any of its Affiliates, agents or representatives) shall have any liability to the Company or any of its Affiliates or any of its or their respective officers, directors (or equivalent persons), employees, stockholders, attorneys, representatives or agents for any such disclosure.
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c. Notwithstanding the foregoing, to the extent the Company reasonably and in good faith determines that it is necessary to disclose MNPI to any Holder for purposes relating to this Agreement or the Merger Agreement(a “Necessary Disclosure”), the Company shall inform counsel to such Holder (which shall be Katten Muchin Rosenman LLP (Attn: Mark D. Wood) or such other counsel as shall have been designated in writing by such Holder) of such determination without disclosing the applicable MNPI, and the Company and such counsel on behalf of such Holder shall endeavor to agree upon a process for making such Necessary Disclosure to the applicable Holder or its representatives that is mutually acceptable to such Holder and the Company (an “Agreed Disclosure Process”). Thereafter, the Company shall be permitted to make such Necessary Disclosure (only) in accordance with the Agreed Disclosure Process. The Company acknowledges and agrees that the Holders and their Affiliates will rely upon the foregoing representations, warranties and agreements and the other disclosure obligations of the Company hereunder in effecting transactions in Common Stock and other securities of the Company and other Persons.
14. MISCELLANEOUS.
a. A Person is deemed to hold, and be a holder of, shares of Common Stock or other Registrable Securities whenever such Person owns of record or beneficially through a “street name” holder such shares of Common Stock or other Registrable Securities (or Parent Share Warrants upon exercise of which such Registrable Securities are directly or indirectly issuable, without giving effect to any limitation on exercise thereof) or may become entitled to under the CPA, and solely for purposes hereof, Registrable Securities shall be deemed outstanding to the extent they are or may become directly or indirectly issuable under the CPA or upon exercise of any Parent Share Warrants (without giving effect to any limitation on exercise thereof), assuming the maximum amount of Milestone Payments become payable thereunder and the Company elects to satisfy all of its obligations to make such payments through the issuance and delivery of Contingent Payment Shares or Parent Warrant Shares. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of such Registrable Securities (or Parent Share Warrants).
b. Any notices required or permitted to be given under the terms hereof shall be delivered personally or by courier (including a recognized overnight delivery service) or by electronic mail and shall be effective upon receipt, in each case addressed to a party. The addresses for such communications shall be:
If to the Company:
CorMedix Inc.
300 Connell Drive, Suite 4200
Berkeley Heights, NJ 07922
Attention: [***]
Email: [***]
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 7th Avenue
New York, New York 10019
Attention: Jared Fertman and Andrew Marmer
Email: [email protected]; [email protected]
If to a Holder, to the address set forth in such Holder’s signature page to this Agreement.
The Company shall provide notice to each Holder, and each Holder shall provide notice to the Company, of any change in such party’s address.
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c. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
d. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with, and all disputes arising out of or in connection with this Agreement shall be resolved under, the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof that would result in the application of the substantive laws of any other jurisdiction. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the Delaware Court of Chancery or, solely if the Delaware Court of Chancery does not have subject matter jurisdiction thereof, any other court of the State of Delaware or any federal court sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the state of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. The parties hereby waive all rights to a trial by jury. If any party commences an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the adverse parties to such action for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
e. This Agreement, the Merger Agreement, the CPA, the Parent Share Warrants and the instruments referenced herein and therein (collectively, the “Transaction Documents”), constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. This Agreement and the other Transaction Documents (including all schedules and exhibits hereto and thereto) supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.
f. Subject to the requirements of Section 11 hereof, this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto, and the provisions of Sections 7 and 8 hereof shall inure to the benefit of, and be enforceable by, each Indemnified Person and Company Indemnified Person (as applicable).
g. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with written consent of the Company and the Required Holders. Any amendment or waiver effected in accordance with this Section 11 shall be binding upon each of the Holders and the Company.
h. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
i. This Agreement and any amendments hereto may be executed and delivered in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when counterparts have been signed by each party hereto and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission, by e-mail delivery of a “.pdf” format data file or by other electronic means, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf” or other electronic signature page were an original thereof. No party hereto shall raise the use of a facsimile machine, e-mail delivery of a “.pdf” format data file or other electronic means to deliver a signature to this Agreement or any amendment hereto or the fact that such signature was transmitted or communicated through the use of a facsimile machine, e-mail delivery of a “.pdf” format data file or other electronic means as a defense to the formation or enforceability of a contract, and each party hereto forever waives any such defense.
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j. Each of the parties hereto acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the non-breaching part(y)(ies) hereto by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the parties acknowledge that the remedy at law for breach of its obligations hereunder will be inadequate and agrees, in the event of a breach or threatened breach by any party hereto of any of the provisions hereunder, that the non-breaching party shall be entitled, in addition to all other available remedies in law or in equity, to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.
k. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
l. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
m. In the event a Holder shall sell or otherwise transfer any of such holder’s Registrable Securities, each transferee shall be allocated a pro rata portion of the number of Registrable Securities included in a Registration Statement for such transferor.
n. There shall be no oral modifications or amendments to this Agreement. This Agreement may be modified or amended only in writing signed by the Company and the Required Holders, and any amendment or modification so adopted shall be binding upon all of the Holders.
o. The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder, and no provision of this Agreement (or any other Transaction Document) is intended to confer any obligations on any Holder vis-à-vis any other Holder. Nothing contained herein (or in any Transaction Document), and no action taken by any Holder pursuant hereto (or thereto), shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated herein (or therein).
p. Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Agreement, (ii) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iii) the use of the word “include,” “includes” and “including” in this Agreement shall be by way of example rather than limitation, and (iv) the word “or” is not exclusive (i.e., “or” shall mean “and/or”).
q. The provisions of this Agreement that refer to a number of shares of Common Stock or a number of Registrable Securities shall be appropriately adjusted for any stock split or other subdivision of outstanding Common Stock, combination of outstanding Common Stock (including by reverse stock split), payment of a stock dividend in shares of Common Stock, , or other similar transaction of such character that outstanding shares of Common Stock shall be changed into or become exchangeable for a larger or smaller number of shares of Common Stock.
[Remainder of page left intentionally blank]
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned Holders and the Company have caused this Registration Rights Agreement to be duly executed as of the date first written above.
| COMPANY: | ||
| CORMEDIX INC. | ||
| By: | /s/ Joseph Todisco | |
| Name: | Joseph Todisco | |
| Title: | Chief Executive Officer | |
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned Holders and the Company have caused this Registration Rights Agreement to be duly executed as of the date first written above.
| HOLDERS: | ||
| DEERFIELD PRIVATE DESIGN FUND III, L.P. | ||
| By: | Deerfield Mgmt III, L.P., Its General Partner | |
| By: | J.E. Flynn Capital III, LLC, Its General Partner | |
| By: | /s/ Lawrence Atinsky | |
| Name: | Lawrence Atinsky | |
| Title: | Authorized Signatory | |
| DEERFIELD PRIVATE DESIGN FUND IV, L.P. | ||
| By: | Deerfield Mgmt IV, L.P., Its General Partner | |
| By: | J.E. Flynn Capital IV, LLC, Its General Partner | |
| By: | /s/ Lawrence Atinsky | |
| Name: | Lawrence Atinsky | |
| Title: | Authorized Signatory | |
c/o Deerfield Management Company, L.P.
345 Park Avenue South, 12 Floor
New York, NY 10010
Attn: [***]
E-mail: [***]
with a copy (which shall not constitute notice) to:
Katten Muchin Rosenman LLP
525 West Monroe Street
Chicago, IL 60661
Attn: Mark D. Wood and Jonathan D. Weiner
Email: [email protected] and [email protected]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Exhibit 10.3
Execution Version
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made as of August 28, 2025 by and between CorMedix Inc., a Delaware corporation (the “Company”), and Susan Blum (“Executive”). Each of the Company and Executive is referred to herein as a “Party” and together they are referred to as the “Parties.”
TERMS
In consideration of the foregoing premises and the mutual covenants and agreements herein contained, the Parties, intending to be legally bound, agree as follows:
| 1. | Employment. |
(a) Services. Effective upon the Closing Date (as defined in that certain Agreement and Plan of Merger, by and among the Company, Melinta Therapeutics, LLC, and the other parties thereto, dated as of August 7, 2025) (the “Merger Agreement” and such Closing Date, the “Effective Date” hereunder), Executive will serve as the Company’s Executive Vice President and Chief Financial Officer. This Agreement shall be conditioned upon the closing of the transactions contemplated by the Merger Agreement. In the event that the Merger Agreement terminates prior to the closing of the transactions contemplated thereby, this Agreement shall be void ab initio. Executive will report directly to, and be subject to the supervision of, the Company’s Chief Executive Officer (the “CEO”). Executive will perform such services for the Company and have such powers, responsibilities and authority as are customarily associated with the position of Executive Vice President and Chief Financial Officer and shall perform customary and appropriate duties consistent with the position of Executive Vice President and Chief Financial Officer as may otherwise be reasonably assigned to Executive from time to time by the CEO. Executive acknowledges and agrees that the Company may cause Executive’s employer to be a directly or indirectly wholly-owned subsidiary of the Company (including, without limitation, Melinta Subsidiary Corp. (“Melinta”)), in which case, the Company may cause all compensation and benefits provided hereunder to be provided by such subsidiary, provided, however that the Company shall continue to be liable for all of the Company’s obligations under this Agreement.
(b) Acceptance. Executive hereby accepts such employment subject to the terms of this Agreement.
| 2. | Term. |
The duration of employment under this Agreement shall commence on the Effective Date and shall continue for a term of three (3) years thereafter, unless sooner terminated pursuant to Section 8 (such three (3)-year period referred to herein as the “Initial Term”); provided, however, that on the expiration of the Term (as defined below), the Term shall be extended automatically for additional, successive one (1)-year periods (such extended periods referred to herein as the “Extended Term”), unless one Party shall notify the other in writing at least ninety (90) days before the initial expiration of the Initial Term or the expiration of any successive one (1)-year period during the Extended Term that this Agreement shall not be so extended after such expiry (a “Notice of Nonrenewal”). The Initial Term and the Extended Term collectively shall be referred to herein as the “Term.” Notwithstanding anything to the contrary contained herein, the provisions of this Agreement specified in Sections 5, 6, 9, 10, 11, 12, and 13 shall survive the expiration or termination hereof.
| 3. | Duties; Place of Performance. |
(a) Duties. Except as otherwise set forth in this Section 3(a) or as set forth on Exhibit A, Executive (i) shall devote substantially all of Executive’s business time, attention and energies to the business and affairs of the Company, shall use Executive’s best efforts to advance the interests of the Company, and shall perform Executive’s duties diligently and to the best of Executive’s ability, in compliance with the Company’s policies and procedures and the laws and regulations that apply to the Company’s business; and (ii) shall not be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that will interfere with the performance by Executive of Executive’s duties hereunder or Executive’s availability to perform such duties or that Executive knows, or should reasonably know, will adversely affect, or negatively reflect upon, the Company. With the advance written consent of the Company’s Board of Directors (the “Board”), Executive may serve as a director of, or on the advisory committee of, other pharmaceutical and life science companies, provided, however, that Executive may continue to serve as a director and chair of the audit committee of BiomX Inc. without obtaining the Company’s consent. Approval for any such business activity shall not be unreasonably withheld by the Board, so long as the activity is not competitive with the business of the Company and does not interfere with the performance of Executive’s duties hereunder. Notwithstanding the foregoing, nothing herein shall preclude Executive from (i) engaging in charitable activities and community affairs, and (ii) managing Executive’s personal and family investments and affairs; provided, however, that the activities set out in clauses (i) and (ii) shall be limited by Executive so as not to interfere, individually or in the aggregate, with the performance of Executive’s duties and responsibilities hereunder.
(b) Place of Performance. The duties to be performed by Executive hereunder in a hybrid capacity both at Melinta’s offices in Illinois and the Executive’s primary residence, subject to reasonable business travel commensurate with Executive’s duties and responsibilities as the Executive Vice President and Chief Financial Officer of the Company. The Company agrees that, if the Company ceases to maintain an office within twenty-five (25) miles of the existing Melinta office in Illinois, Executive’s primary place of performance shall be Executive’s primary residence or other remote location; provided, that Executive otherwise continues to maintain the same level of business-related travel as prior to such discontinuance.
| 4. | Compensation. |
As full compensation for Executive’s performance of services as an employee of the Company, the Company shall pay Executive as follows:
(a) Base Salary. During the Initial Term, the Company shall pay Executive an annual base salary of $488,431 (as it may be increased from time to time as provided hereunder, the “Base Salary”), less applicable withholdings and deductions. Payment shall be made in accordance with the Company’s normal payroll practices. At the same time as base salaries are reviewed for other senior executives of the Company, the Board, or its compensation committee, shall review the Base Salary to determine whether an increase in the amount thereof is warranted in its sole discretion. The Base Salary will not be decreased unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary; and (ii) Executive’s Base Salary reduction is no greater than ten percent (10%).
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(b) Annual Bonus. Subject to the following provisions of this Section 4(b), for each fiscal year of the Company during the Term (commencing with the Company’s 2025 fiscal year), Executive shall be eligible for an annual bonus (the “Annual Bonus”), less applicable withholdings and deductions, based upon a target amount of forty-five percent (45%) of the Base Salary then in effect (the “Target Bonus”), as determined by the Board (or its compensation committee) in good faith based upon the achievement, during the year in question, of corporate objectives for the Company as a whole established by the Board (or its compensation committee) and such other factors as the Board (or its compensation committee) deems appropriate. Notwithstanding the foregoing, the Annual Bonus for fiscal year 2025 shall be determined as follows (x) two-thirds of the Target Bonus (i.e., $146,529.30) will be deemed achieved assuming target level performance, and (y) the remaining one-third shall be determined by the Board (or its compensation committee) in good faith based on upon actual achievement, during the 2025 fiscal year, of the same corporate objectives for the Company as a whole and such other factors as are applied to the annual bonus determinations generally for the other senior executives of the Company. The Board (or its compensation committee) will endeavor to determine the executive team’s corporate and individual objectives for a given year within the first sixty (60) days of each fiscal year and to communicate such objectives to Executive promptly thereafter. Executive must be employed by the Company through December 31 of a given year in order to be eligible to earn the annual bonus for such year (except as explicitly set forth herein). The annual bonus for a given year will be paid no later than March 15 of the year following the year to which it relates.
(c) Equity Grants.
(i) Initial Equity Award. Promptly (and in all events within sixty (60) days following the Effective Date) and subject to the approval of the Board (or its compensation committee), the Company shall grant to Executive an award of restricted stock units (the “Initial Equity Award”) with a grant date value equal to $1,000,000 (which will be determined based on the closing price of the Company’s common stock on the trading day immediately preceding the Effective Date). The Initial Equity Award shall be subject to the terms and conditions of the Company’s 2019 Omnibus Stock Incentive Plan (the “Stock Incentive Plan”) and shall be further subject to the terms of the applicable award agreement, which is attached to this Agreement as Exhibit C. The Initial Equity Award shall vest over four (4) years in four (4) equal annual installments on the first four (4) anniversaries of the Effective Date, provided, in all cases, that Executive remains an employee of, or a consultant to, the Company through the applicable vesting date (except as otherwise set forth herein).
(ii) Annual Equity Grants. Executive shall be eligible to receive additional grants pursuant to the Stock Incentive Plan or any successor thereto commencing in 2026 (together with the Initial Equity Award, the “Awards”). Any such grants shall be determined in the sole discretion of the CEO, the Board or its compensation committee. For the avoidance of doubt, nothing herein shall entitle Executive to any specific award or any specific terms or conditions in any year.
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(d) Withholding. The Company will withhold from any amounts payable under this Agreement such federal, state and local taxes as the Company determines are required to be withheld pursuant to applicable law.
(e) Expenses. The Company shall promptly reimburse Executive for all reasonable expenses incurred by Executive in furtherance of the business and affairs of the Company, including without limitation reasonable travel, lodging, meals, and entertainment, upon timely receipt by the Company of appropriate vouchers or other proof of Executive’s expenditures and otherwise in accordance with any expense reimbursement policy as may from time to time be adopted by the Company. Such reimbursements will be made in a timely manner and in accordance with the policies of the Company, but in no event later than December 31 of the year following the year in which Executive incurs such expense. The amount of expenses eligible for reimbursement during one year will not affect the expenses eligible for reimbursement in any other year, and is not subject to liquidation or exchange for another benefit. Notwithstanding anything herein to the contrary, the Company agrees that Executive will be eligible for reimbursement of business-class airfare (or, first-class, if no business-class airfare is available) for all Company-related travel. In addition, the Company agrees to pay directly to Executive’s counsel such counsel’s properly substantiated legal fees and expenses associated with the review, negotiation, and execution of this Agreement, up to ten thousand dollars ($10,000).
(f) Other Benefits. Executive shall be entitled to all rights and benefits for which Executive shall be eligible under any benefit or other plans (including, without limitation, dental, medical, medical reimbursement and hospital plans, pension plans, employee stock purchase plans, profit sharing plans, bonus plans, prescription drug reimbursement plans, short and long term disability plans, life insurance and other so-called “fringe” benefits) as the Company (or applicable subsidiary) generally makes available to its senior executives from time to time; provided, that, for the duration portion of the 2025 calendar year from and after the Effective Date, Executive shall continue to participate in the benefits and other plans sponsored by Melinta on the same basis as in effect immediately prior to the Effective Date. All such benefits are subject to the provisions of their respective plan documents in accordance with their terms and are subject to amendment or termination by the Company or the applicable subsidiary without Executive’s consent.
(g) Vacation. Executive shall be entitled to a vacation not less than four (4) weeks per annum, of which no more than two (2) weeks may be taken consecutively without explicit approval of the CEO, in addition to holidays observed by the Company and reasonable periods of paid personal and sick leave. All such paid time off shall accrue and be used in accordance with the Company’s established policies and procedures.
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| 5. | Confidential Information and Inventions. |
(a) Confidential Information; Non-Disclosure and Non-Use. Executive recognizes and acknowledges that in the course of Executive’s duties, Executive will receive confidential or proprietary information of the Company, its subsidiaries or third parties with whom the Company or any of its subsidiaries has an obligation of confidentiality. Accordingly, during and after the Term, Executive agrees to keep confidential and not disclose or make accessible to any other person or use for any other purpose other than in connection with the fulfillment of Executive’s duties under this Agreement, any “Confidential and Proprietary Information” (as defined below) owned by, or received by or on behalf of the Company or any of its subsidiaries. The term “Confidential and Proprietary Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information, data, formulas and related concepts, business plans (both current and under development), client lists, promotion and marketing programs, trade secrets, or any other confidential or proprietary business information relating to development programs, costs, revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods, and any and all information relating to the operation of the Company’s business which the Company may from time to time designate as confidential or proprietary or that Executive reasonably knows should be, or has been, treated by the Company as confidential or proprietary. Executive expressly acknowledges that the Confidential and Proprietary Information constitutes a protectable business interest of the Company. Confidential and Proprietary Information encompasses all formats in which information is preserved, whether electronic, print, or any other form, including all originals, copies, notes, or other reproductions or replicas thereof. Executive agrees: (i) not to use any such Confidential and Proprietary Information for the benefit of Executive or others; and (ii) not to take any Company material or reproductions (including but not limited to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof from the Company’s offices at any time during Executive’s employment by the Company, except in connection with the execution of Executive’s duties to the Company.
(b) Return of Property. Upon request during employment and immediately at the termination of Executive’s employment, Executive will return to the Company all Confidential and Proprietary Information in any form (including all copies and reproductions thereof) and all other property whatsoever of the Company in Executive’s possession or under Executive’s control. If requested by the Company, Executive will certify in writing that all such materials have been returned to the Company. Executive also expressly agrees that immediately upon the termination of Executive’s employment with the Company for any reason, Executive will cease using any secure website, computer systems, e-mail system, phone system or voicemail service provided by the Company for the use of its employees. Notwithstanding the foregoing, Executive may retain (i) Executive’s address book to the extent it only contains contact information, and (ii) Executive’s personal cell phone telephone number.
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(c) Exceptions. Confidential and Proprietary Information does not include any information that: (i) at the time of disclosure is generally known to, or readily ascertainable by, the public; (ii) becomes known to the public through no fault of Executive or other violation of this Agreement; (iii) is disclosed to Executive by a third party under no obligation to Executive’s knowledge to maintain the confidentiality of the information; and/or (iv) is disclosed to Executive’s spouse, attorney and/or Executive’s personal tax and financial advisors as reasonably necessary or appropriate to advance Executive’s tax, financial and other personal planning (each an “Exempt Person”), provided, however, that any disclosure or use of any Confidential and Proprietary Information by an Exempt Person shall be deemed to be a breach of this Section 5 by Executive. Confidential and Proprietary Information also does not include any information (i) the disclosure or use of which is required or appropriate in connection with Executive’s work as an employee of the Company, consistent with Company policies, and/or (ii) that is required to be disclosed to a court of law, to any governmental agency having supervisory authority over the business of the Company or to any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Executive to divulge, disclose or make accessible such information, provided that, subject to applicable law, Executive is required to disclose such information by law, provided that Executive (x) notifies the Company of the existence and terms of such obligation, (y) gives the Company prompt notice to seek a protective or similar order to prevent or limit such disclosure, and (z) only discloses that information actually required to be disclosed. Notwithstanding anything herein to the contrary, nothing in this Agreement will be construed to prohibit Executive, without notifying the Company or receiving prior authorization from the Company, from (A) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any federal, state or local government agency, (B) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation or (C) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process. The protections contained in the preceding sentence apply to prior, current and future conduct.
(d) Notice Of Immunity From Liability For Confidential Disclosure Of A Trade Secret To The Government Or In A Court Filing. Pursuant to the Federal Defend Trade Secrets Act of 2016, Executive 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. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to Executive’s attorney and use the trade secret information in the court proceeding, if the individual (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
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(e) Inventions. Executive agrees that all inventions, discoveries, improvements and patentable or copyrightable works (“Inventions”) initiated, conceived or made by Executive within the scope of the Company’s business and in the course of Executive’s employment with the Company, either alone or in conjunction with others, during the Term shall be the sole property of the Company to the maximum extent permitted by applicable law and, to the extent permitted by law, shall be “works made for hire” as that term is defined in the United States Copyright Act (17 U.S.C.A., Section 101). The Company shall be the sole owner of all patents, copyrights, trade secret rights, and other intellectual property or other rights in connection therewith; provided, however that this Section 5(e) shall not apply to Inventions which are not related to the business of the Company and which are made and conceived by Executive not during normal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential and Proprietary Information. For avoidance of doubt, this Section 5(e) shall not apply to any Inventions related to the activities described on Exhibit A. Subject to the foregoing, Executive hereby assigns to the Company all right, title and interest Executive may have or acquire in all Inventions; provided, however, that the Board may in its sole discretion agree to waive the Company’s rights pursuant to this Section 5(e).
(f) Further Actions and Assistance. Executive agrees to cooperate reasonably with the Company and at the Company’s expense, both during and after Executive’s employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries) relating to the Inventions. Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, that the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions. Executive further agrees that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such papers as Executive’s agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as Executive’s agent and attorney-in-fact to execute any such papers on Executive’s behalf and to take any and all actions as the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions, under the conditions described in this Section 5(f).
(g) Prior Inventions. Executive will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or to Executive’s duties hereunder as having been made or acquired by Executive prior to Executive’s work for the Company, except for the matters, if any, described in Exhibit A to this Agreement.
(h) Disclosure. Executive agrees that Executive will promptly disclose to the Company all Inventions initiated, made, conceived or reduced to practice by Executive, either alone or jointly with others, during the Term.
(i) Survival. The provisions of this Section 5 shall survive any termination of this Agreement.
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| 6. | Non-Competition, Non-Solicitation and Non-Disparagement. |
(a) Executive understands and recognizes that Executive’s services to the Company are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information. Executive agrees that, during the Term and the nine (9) month period immediately following Executive’s separation from employment with the Company (the “Termination Restriction Period’’), whether such separation is voluntary or involuntary, Executive shall not in any manner, directly or indirectly, on behalf of Executive or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or engage in any business involving the development or commercialization of products that compete directly against any other product being actively developed, marketed or produced by the Company or any of its subsidiaries as of the date of Executive’s termination of employment (the “Business of Company”), either as an individual for Executive’s own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of such Person, in any capacity that requires or could result in Executive’s intentional or unintentional use of the Confidential and Proprietary Information and/or requires Executive to perform services substantially similar to those performed for the benefit of the Company or any of its subsidiaries during the Term, anywhere in the world, provided, however, that nothing shall prohibit Executive from performing executive duties for any Person that does not engage in the Business of Company. Executive acknowledges that, due to the unique nature of the Business of the Company, the Company has a strong legitimate business interest in protecting the continuity of its business interests and its Confidential and Proprietary Information and the restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company and its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are engaged in the Business of Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) of any class or series of outstanding securities of such corporation; or being a passive investor holding less than four percent (4%) of a private equity, venture capital or other commingled fund; and further notwithstanding the foregoing, nothing contained in this Section 6(a) shall preclude Executive from becoming an employee of, or from otherwise providing services to, a separate division or operating unit of a multi-divisional business or enterprise (a “Division”) if: (i) the Division by which Executive is employed, or to which Executive provides services, is not engaged in the Business of Company, (ii) Executive does not provide services, directly or indirectly, to any other division or operating unit of such multi-divisional business or enterprise engaged in or proposing to engage in the Business of Company (individually, a “Competitive Division” and collectively, the “Competitive Divisions”) and (iii) the Competitive Divisions, in the aggregate, accounted for less than one-third of the multi-divisional business or enterprise’s consolidated revenues for the fiscal year, and each subsequent quarterly period, prior to Executive’s commencement of employment with or provision of services to the Division, or the Board determined that the Competitive Divisions are not material to the value of such multi-divisional business.
(b) Reasonableness of Restriction. Executive hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to its duration, geographic area and scope. In addition, Executive acknowledges that the Company engages in the Business of Company throughout the world, and Executive has been involved in the Business of the Company in that geographic area. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
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(c) Non-Solicitation. During the Term and the applicable Termination Restriction Period (as defined above), Executive shall not, directly or indirectly, on Executive’s own behalf or on behalf of any person or entity, without the prior written consent of the Company:
(i) solicit or induce any employee, consultant or independent contractor of the Company or any of its subsidiaries to leave the employ of (or end a contracting relationship with) the Company or any of its subsidiaries; or hire for any competitive purpose any employee consultant or independent contractor of the Company or any of its subsidiaries; or hire any former employee who has left the employment of the Company or any of its subsidiaries within six (6) months of the termination of such employee’s employment with the Company or any of its subsidiaries for any competitive purpose; or hire any former consultant or independent contractor who has ended his or her consultancy or contracting relationship with the Company or any of its subsidiaries within six (6) months of the end of such consultancy or contracting relationship for any competitive purpose; or hire any former employee of the Company or any of its subsidiaries in knowing violation of such employee’s non-competition or confidentiality obligations owed to the Company or any of its subsidiaries; or
(ii) solicit, divert or take away, or attempt to divert or take away, the business or patronage of any agent, client or customer of the Company or any of its subsidiaries which was served by the Company or any of its subsidiaries during the twelve (12)-month period prior to the termination of Executive’s employment with the Company; or induce, encourage, or attempt to induce or encourage any client or customer of the Company or any of its subsidiaries which was served by the Company or any of its subsidiaries during the twelve (12)-month period prior to the termination of Executive’s employment with the Company to reduce, limit, or cancel its business with the Company or any of its subsidiaries. For clarity, the foregoing shall not be violated by general advertising, by serving as a reference upon request or by actions taken in the good faith performance of Executive’s duties to the Company or any of its subsidiaries.
(d) Non-Disparagement. Executive agrees that Executive shall not, directly or indirectly, during or at any time following the Term, disparage, whether or not truthfully, the name or reputation of the Company or any of its subsidiaries, including but not limited to, any officer, director, employee or shareholder (provided Executive has had material dealings with such shareholder) of the Company or any of its subsidiaries. Upon Executive’s termination of employment, the Company shall direct its executive officers and directors not to directly or indirectly disparage, whether or not truthfully, the name or reputation of Executive. Notwithstanding this Section 6(d), nothing contained herein shall apply to statements made by Executive or the Company (x) in the course of their responsibility to evaluate the performance and/or participate in any investigation of the conduct or behavior of officers, employees and/or others, (y) as part of any judicial, administrative or other legal action or proceeding, or (z) in rebuttal of false or misleading statements by others, and nothing shall be construed to limit or impair the ability of Executive or the Company to provide truthful testimony in response to any validly issued subpoena or to file pleadings or respond to inquiries or legal proceedings by any government agency to the extent required by applicable law. Further, nothing contained herein prohibits Executive from speaking with law enforcement, the Equal Employment Opportunity Commission, any state or local division of human rights or fair employment agency, or Executive’s attorney.
(e) Enforcement. In the event that Executive breaches or threatens to breach any provisions of Section 5 or this Section 6, then, in addition to any other rights the Company or any of its subsidiaries may have, it shall be entitled to seek injunctive relief to enforce such provisions. In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company or any of its subsidiaries be prevented from seeking any other remedies that may be available to it nor shall the Company or any of its subsidiaries be required to post a bond.
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(f) Remedies Cumulative; Judicial Modification. Each of the rights and remedies enumerated in Section 6(e) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its subsidiaries at law or in equity. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies, which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and in its reduced form such provision shall then be enforceable.
(g) Survival. The provisions of this Section 6 shall survive any termination of the Term.
| 7. | Representations and Warranties. |
(a) By Executive. Executive hereby represents and warrants to the Company as follows:
(i) Executive is entering into this Agreement voluntarily and that Executive’s employment hereunder and compliance with the terms and conditions hereof will not conflict with or result in the breach by Executive of any agreement to which Executive is a party or by which Executive may be bound;
(ii) Executive has not (i) violated, and in connection with Executive’s employment with the Company will not violate, any non-solicitation, non-competition, or other similar covenant or agreement of a prior employer by which Executive is or may be bound, or (ii) engaged in any conduct or made any representations that could result in a court of competent jurisdiction granting a temporary or permanent injunction or restraining order against Executive commencing, or continuing, his employment with the Company;
(iii) Executive (i) is not aware of any reason why Executive’s hiring by, or work for, the Company could cause any damage to the Company’s reputation, (ii) was not subject to any disciplinary action while employed by (or providing services to) any former employer (or other entity) that could reasonably be expected to cause any damage to the Company’s reputation, and (iii) is not aware of any on-going investigation or cause of action by any regulatory, self-regulatory or other governmental authority involving acts or omissions of Executive or any of Executive’s direct reports at any former employer (or other entity);
(iv) Executive has not engaged in any illegal conduct (including, without limitation, violations of any regulatory or self-regulatory agency rules or regulations) during the course of his employment with (or provision of services to) any former employer (or other entity);
(v) Neither the execution or delivery of this Agreement nor the performance by Executive of Executive’s duties and other obligations hereunder conflict with or constitute a default or breach of any covenant or obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement, contract, or other instrument to which Executive is a party or by which Executive is bound;
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(vi) Executive has the full right, power and legal capacity to enter and deliver this Agreement and to perform Executive’s duties and other obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Executive enforceable against Executive in accordance with its terms. No approvals or consents of any persons or entities are required for Executive to execute and deliver this Agreement or perform Executive’s duties and other obligations hereunder;
(vii) Executive will not use any confidential information or trade secrets of any third party in Executive’s employment by the Company in violation of the terms of the agreements under which Executive had access to or knowledge of such confidential information or trade secrets; and
(viii) Executive has no knowledge of information that would cause the Company not to receive satisfactory results of Executive’s background check, as determined in good faith by the Board.
(b) By The Company. The Company hereby represents and warrants to Executive that the Company has the full right and power to enter and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of the Company enforceable against it in accordance with its terms. All approvals or consents required for the Company to validly execute and deliver this Agreement and perform its obligations hereunder, including, without limitation, approval of the Board, if required, have been obtained.
| 8. | Termination. |
(a) Cause. Executive’s employment hereunder may be terminated by the Company immediately for Cause. Any of the following actions by Executive shall constitute “Cause”:
(i) The continued willful failure or refusal by Executive, after Executive has actually received written notice from the Board or the CEO of such failure or refusal, to perform Executive’s material duties or obligations under this Agreement (other than as a result of Executive’s mental or physical incapacity or illness, as confirmed by medical evidence provided by a licensed physician mutually selected by the Company and Executive (or Executive’s representatives));
(ii) Any willfully, intentionally harmful or grossly negligent act by Executive having the effect of materially injuring (whether financially or otherwise) the business or reputation of the Company or any of its subsidiaries (other than acts that were performed in a good faith attempt to advance the business interests of the Company);
(iii) Executive’s conviction of any felony involving moral turpitude (including entry of a guilty or nolo contendere plea);
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(iv) Executive’s qualification as a “bad actor,” as defined by 17 CFR 230.506(d);
(v) The good faith determination by the Board, after a reasonable and good-faith investigation by the Company or any of its subsidiaries that Executive engaged in some form of harassment prohibited by law (including, without limitation, harassment on the basis of age, sex or race) unless Executive’s actions were specifically directed by the Board;
(vi) Any material misappropriation or embezzlement by Executive of the property of the Company or any of its subsidiaries (whether or not a misdemeanor or felony); or
(vii) Breach by Executive of any material provision of this Agreement that is materially injurious to the Company or any of its subsidiaries.
An act or failure to act shall not be “willful” if (i) done by Executive in good faith or (ii) Executive reasonably believed that such action or inaction was in the best interests of the Company. Notwithstanding the foregoing, in no event shall Cause exist unless the Board has made a formal determination of Cause by majority vote and provided Executive with ten (10) days advance notice followed by the right to be heard in front of the entire Board followed by a second majority vote finding that Cause still exists. Such meeting of the Board can occur in person or via teleconference. If the circumstances surrounding Cause are reasonably curable, then Executive shall have the right to cure those circumstances over the next twenty (20) days. If the circumstances are not curable or if those circumstances still exist after the cure period has expired, then (and only then) shall Cause be deemed to exist for purposes of this Agreement.
(b) Death. Executive’s employment hereunder shall be terminated upon Executive’s death.
(c) Disability. The Company may terminate Executive’s employment hereunder due to Executive’s “Disability” (defined below) while Executive is so Disabled. For purposes of this Agreement, a termination due to Executive’s “Disability” shall be deemed to have occurred if the Executive has not been able to perform Executive’s material duties for one hundred eighty (180) days in a three hundred sixty five (365) day period.
(d) Good Reason. Executive may terminate Executive’s employment hereunder for “Good Reason” (as defined below) pursuant to the procedures set forth in this Section 8(d). In order for Executive to resign for Good Reason, Executive must provide written notice to the Board of the existence of the Good Reason condition within sixty (60) days of Executive’s knowledge of the initial existence of such Good Reason condition. Upon receipt of such notice, the Company will have thirty (30) days during which it may attempt to remedy the Good Reason condition. If so remedied, Executive may not resign for Good Reason based on such condition. If the Good Reason condition is not remedied within such thirty (30) day period, Executive may resign based on the Good Reason condition specified in the notice effective no later than thirty (30) days following the expiration of the ten (10) day cure period. The term “Good Reason” shall mean any of the following occurring without Executive’s written consent:
(i) any material breach of this Agreement by the Company or its affiliates;
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(ii) any material reduction by the Company of Executive’s title, duties, responsibilities, or authority or the assignment to Executive of titles, duties, responsibilities, or authority that are inconsistent with Executive’s title and position as the Company’s Executive Vice President and Chief Financial Officer;
(iii) a reduction in Executive’s annual Base Salary unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary and/or total compensation; and (ii) Executive’s Base Salary and/or total compensation reduction is no greater than ten percent (10%);
(iv) a reduction in Executive’s target bonus level unless: (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction related to target bonus levels; and (ii) Executive’s target bonus level reduction is no greater than ten percent (10%);
(v) any change to the hybrid nature of the performance of Executive’s duties under Section 3(b) (other than a change to full-time remote (subject to travel) in the event that the Company ceases to maintain an office within twenty-five (25) miles of the existing Melinta office in Illinois as contemplated by Section 3(b)), including a relocation of Executive’s non-remote principal place of employment to a location more than twenty-five (25) miles from Executive’s non-remote principal place of employment as of the Closing Date;
(vi) the Company providing Executive with a Notice of Nonrenewal as described in Section 2 above, and Executive was willing and able to renew this Agreement and continue services under this Agreement, which Executive shall confirm by providing the Company a notice in writing at least ninety (90) days before the expiration of the Initial Term or the expiration of any Extended Term (or, if later, not less than thirty (30) days following the receipt of the Notice of Nonrenewal from the Company) that Executive is willing and able to renew this Agreement and continue services under this Agreement (a “Notice by Executive of Renewal”); or
(vii) the failure of the Company to obtain the assumption in writing of its obligations under this Agreement by any successor (i) to all or substantially all of the assets of the Company or (ii) due to the occurrence of any other Corporate Transaction, within ten (10) days of such Corporate Transaction.
(e) Convenience. Either Party may terminate Executive’s employment hereunder for any reason or no reason at any time upon sixty (60) days written notice of termination to the other Party, which notice shall specify the termination date, or by providing a Notice of Nonrenewal to the other Party pursuant to the terms of Section 2.
(f) Background Checks. Executive agrees that the Company shall conduct appropriate background checks as a condition of Executive’s employment. In the event the Company does not receive satisfactory results of the background checks for Executive, as determined in good faith by the Board, the Company may terminate Executive’s employment hereunder immediately, and Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation (if any).
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(g) Survival. The provisions of this Section 8 shall survive any termination of the Term.
| 9. | Compensation upon Termination. |
In the event Executive’s employment is terminated, the Company shall promptly pay to Executive the Base Salary and benefits otherwise payable to Executive under Section 4 through the last day of Executive’s actual employment by the Company, along with any reimbursable business expenses subject to Company policy and any amounts due under any benefit or compensation plan, policy, arrangement or program in accordance with its terms (together, the “Accrued Compensation”). Except for the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance, and as otherwise required by law, Executive will have no further entitlement hereunder to any other compensation or benefits from the Company except as expressly provided below:
(a) Death or Disability. If Executive’s employment is terminated as a result of Executive’s death or Disability, the Company shall pay to Executive or to Executive’s estate, as applicable, the Accrued Compensation. In addition, Executive shall receive the bonus due for any completed fiscal year to the extent that such bonus has not yet been paid (including timing of payment, the “Prior Year Bonus”) plus (ii) the Prorated Bonus (as defined below) for the year of termination. Executive’s outstanding equity awards shall vest (and remain exercisable, as applicable) to the extent provided in the Stock Incentive Plan and the underlying award agreements.
(b) Cause. If Executive’s employment is terminated by the Company for Cause, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law. All outstanding Awards that are granted on or after the Effective Date, whether or not vested, shall be forfeited to the Company as of such date.
(c) Other than for Cause, Death or Disability; Resignation for Good Reason. If the Company terminates Executive’s employment, other than as a result of Executive’s death, Disability or for Cause, or if Executive terminates Executive’s employment for Good Reason, then conditioned upon Executive executing and not revoking a Release (as defined below) following such termination, the Company will provide to Executive the following separation benefits:
(i) Payment of the Accrued Compensation and Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
(ii) Payment to Executive of an amount equal to nine (9) months of Executive’s Base Salary, which shall be paid in equal monthly installments over a period of nine (9) months following the termination date,
(iii) Payment to Executive of a prorated annual bonus for the year in which the termination date occurs, based on the actual achievement of the objectives referenced in Section 4(b). The prorated bonus will be calculated as the annual bonus based on performance, multiplied by a fraction, the numerator of which is the number of days preceding the termination date in the year of termination and the denominator of which is three hundred sixty-five (365) (the “Prorated Bonus”);
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(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above multiplied by the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”), consistent with Section 409A of the Code,
(v) All Awards that are scheduled to vest on or before the next succeeding anniversary of the date of termination shall be accelerated and deemed to have vested as of the termination date; provided that, for the avoidance of doubt, any performance-based Awards whose vesting requirements have not been successfully met as of the date of Executive’s termination of employment or resignation with Good Reason will not accelerate, and
(vi) If Executive’s employment terminates prior to January 1, 2026, payment of Executive’s 2025 Annual Bonus in lieu of the Prorated Bonus otherwise payable pursuant to clause (iii) above.
The separation benefits set forth above are conditioned upon Executive executing a release of claims against the Company, its parents, subsidiaries and affiliates and each of their respective officers, directors, employees, agents, successors and assigns in substantially the form attached hereto as Exhibit B (the “Release”) within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary continuation described in Section 9(c)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with Code Section 409A, may begin the payments earlier. The Prorated Bonus described in Section 9(c)(iii) above shall be paid at the date on which the annual bonus would have been paid had Executive continued in employment, and the COBRA payments Section 9(c)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences. Notwithstanding the foregoing, if the Company provides a timely Notice of Nonrenewal to Executive and Executive does not provide to the Company a timely Notice by Executive of Renewal in accordance with Section 8(d)(v) above, such event shall not constitute a Good Reason for purposes of this Agreement. In that event, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, the Prior Year’s Bonus, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law.
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(d) Termination without Good Reason or Notice of Nonrenewal by Executive. If, pursuant to Section 8(e) above, Executive terminates Executive’s employment hereunder by written notice of termination without Good Reason or by providing a Notice of Nonrenewal to the Company, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, the Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law unless otherwise agreed to in writing by the Parties.
(e) This Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of Executive’s employment, Executive shall not be entitled to any payments or benefits which are not explicitly provided in this Section 9, except as required by law or the terms of another employee plan, program or arrangement covering Executive. Executive acknowledges and agrees that upon the termination of Executive’s employment with the Company, regardless of the reason or grounds therefor, Executive shall resign from any board, organization or foundation wherein Executive sits or belongs as a representative of the Company.
(f) Mitigation; Offset. In the event of any termination of Executive’s employment under this Section 9, Executive shall be under no obligation to seek other employment and there shall be no offset against amounts due Executive under this Agreement on account of any compensation attributable to any subsequent employment that Executive may obtain (other than as described in Section 9(c)(iv) or Section 10(b)(iv) with respect to COBRA). Notwithstanding anything herein to the contrary, the payments made pursuant to Section 9 and Section 10 shall be reduced by any amounts paid or required to be paid to you by the Company (or any of its subsidiaries) pursuant to any applicable federal, state and local statute or regulation that relates to notice, severance or separation benefits, including but not limited to the Worker Adjustment Retraining Notification Act (29 U.S.C. § 2101 et seq.), the Illinois Worker Adjustment and Retraining Notification Act (820 ILCS 65/1 et seq.), the Millvale Dallas Airmotive Plant Job Loss Notification Act (N.J. Stat. § 34:21-1 et seq.), and any other state or local statute concerning notice, severance, or separation benefits during any notice or similar period required by such statutes or regulations (or any payment in lieu of such notice).
(g) The obligations of the Company that arise under this Section 9 shall survive the expiration or earlier termination of this Agreement.
| 10. | Corporate Transaction. |
(a) Corporate Transaction Defined. The term “Corporate Transaction” shall have the same meaning as defined in the Company’s 2019 Omnibus Stock Incentive Plan, as in effect on the date of this Agreement.
(b) Consequence upon Executive’s Termination Without Cause or Executive’s Resignation With Good Reason. Upon Executive’s termination of employment without Cause or Executive’s resignation of employment with Good Reason within twenty-four (24) months after a Corporate Transaction, the Company shall provide Executive the following separation benefits:
(i) Payment of the Accrued Compensation, the Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
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(ii) Payment to Executive of an amount equal to nine (9) months of Executive’s Base Salary and target bonus as in effect for the nine (9) months following the termination date,
(iii) Payment to Executive of the Prorated Bonus,
(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary and bonus payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above times the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Code, consistent with Section 409A of the Code, and
(v) All unvested Awards held by Executive shall be accelerated and deemed to have vested as of the date of Executive’s termination of employment.
The separation benefits set forth above are conditioned upon Executive executing a Release within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary and bonus continuation described in Section 10(b)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with “Section 409A” (defined below), may begin the payments earlier. The Prorated Bonus described in Section 10(b)(iii) above shall be paid at the date on which the bonus would have been paid had Executive continued in employment, and the COBRA payments described in Section 10(b)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences.
(c) Potential Adjustments due to Tax Implications. Notwithstanding anything in this Agreement or any other agreement between Executive and the Company to the contrary, but subject to this Section 10(c), the Company will effectuate the acceleration contemplated under Section 10(b) and will make the payments and other acceleration of benefits under this Agreement and other compensatory arrangements without regard to whether Section 280G of the Code would limit or preclude the deductibility of such payments or benefits. However, if reducing or eliminating any payment and/or other benefit would increase the “Total After-Tax Payments” (defined below), then the amounts payable to Executive will be reduced or eliminated as follows (or in such other manner as Executive may specify at the applicable time if permitted to do so without violation of Code Sections 280G, 409A and 4999) to the extent necessary to maximize such Total After-Tax Payments:
(i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of any equity awards) and
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(ii) second, by reducing or eliminating the vesting of equity awards that occurs as a result of a Corporate Transaction or other event covered by Section 280G of the Code in reverse order of vesting and with grants whose parachute value is calculated without regard to Treasury Regulations 280G-1 Q&A 24(c) being reduced prior to those subject to Q&A 24(c).
The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting are required to be reduced or eliminated in accordance with the foregoing. If there is ultimately determined to be an underpayment of or overpayment to Executive under this provision, the amount of such underpayment or overpayment will be immediately paid to Executive or refunded by Executive, as the case may be, with interest at the applicable federal rate under the Code. The term “Total After Tax Payments” means the total value of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to Executive or for Executive’s benefit (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The cost of the accountant shall be paid by the Company and the accountant shall deliver to the parties its calculations in a form that can be relied upon for filing of tax returns. The calculation made pursuant to this section shall be made by allocating the full summary compensation table value (from the latest filed proxy) or an estimate thereof (to the extent that Executive was not included on such table) of Executive’s annual total compensation to the noncompete set forth in this Agreement.
| 11. | Indemnification. |
The Company shall defend and indemnify Executive regard to Executive’s capacities with the Company, its subsidiaries and their respective benefit plans to the fullest extent permitted under the Delaware General Corporate Law (the “DGCL”). The Company shall also maintain a policy for indemnifying its officers and directors, including but not limited to Executive, for all actions permitted under the DGCL taken in good faith pursuit of their duties for the Company, including, but not limited to, the obtaining of an appropriate level of directors and officers liability insurance coverage and including such provisions in the Company’s bylaws or certificate of incorporation, as applicable and customary. Executive shall be designated as a named insured on such directors and officers liability insurance policy. Executive’s rights to, and the Company’s obligation to provide, indemnification shall survive termination of this Agreement. The provisions of this Section 11 shall survive any termination of the Term. Nothing herein shall limit any right that Executive may have in respect of indemnification, contribution, advancement, or liability insurance coverage, under any other Company contract or under applicable law.
| 12. | Compliance with Code Section 409A. |
(a) Intent of the Parties. The intent of the Parties is that the payments, compensation and benefits under this Agreement will be exempt from or comply with Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and, in this connection, the Agreement shall be interpreted to be exempt or in compliance with Section 409A. Further, if any benefit or payment payable under this Agreement is deemed to not comply with Section 409A, the Company and Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereunder) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved; provided, however, that any resulting renegotiated terms shall provide to Executive the after-tax economic equivalent of what otherwise has been provided to Executive pursuant to the terms of this Agreement, and provided further, that any deferral of payments or other benefits shall be only for such time period as may be required to comply with Section 409A.
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(b) Potential Delay of Payment(s) and Adjustments. For the avoidance of doubt, the Parties intend that payments of the separation benefits set forth in Section 9 and Section 10 above satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-l(b)(4), 1.409A-l(b)(5), and 1.409A- 1(b)(9). If any payment, compensation or other benefit provided to Executive in connection with Executive’s separation from service is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A and Executive is a “specified employee” within the meaning of Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the termination date or Executive’s earlier death (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to Executive during the period between the termination date and the New Payment Date shall be paid to Executive in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement.
(c) Separation from Service. Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under Section 9 or Section 10 above that constitute “deferred compensation” within the meaning of Section 409A will not commence in connection with Executive’s termination of employment unless and until Executive has also incurred a “separation from service” (as such term is defined in Treasury Regulation Section l.409A-l(h)), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur additional tax under Section 409A.
(d) Installments: Year of Payment. If any payment, compensation or other benefit required by the Agreement is to be paid in a series of installment payments, each individual payment in the series shall be considered a separate payment for purposes of Section 409A. In no event may Executive designate the year of payment of a benefit under this Agreement, except in accordance with Section 409A.
(e) Survival. The provisions of this Section 12 shall survive any termination of the Term.
| 13. | Miscellaneous. |
(a) Governing Law. This Agreement and all questions relating to its validity, interpretation, performance, remediation, and enforcement (including, without limitation, provisions concerning limitations of actions) shall be governed by and construed in accordance with the substantive laws of the State of Delaware, notwithstanding any choice-of-law doctrines of that jurisdiction or any other jurisdiction that ordinarily would or might cause the substantive law of another jurisdiction to apply.
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(b) Company Policies. All incentive compensation under this Agreement shall be subject to the terms of any clawback, recoupment or other policies approved by the Board and applicable to executive officers of the Company.
(c) Personal Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ACTION OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT MAY ONLY BE BROUGHT AND ENFORCED IN THE STATE OR FEDERAL COURTS LOCATED IN SUSSEX COUNTY, DELAWARE, TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFORE. THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, AS WELL AS ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM.
(d) Service of Process. THE PARTIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN THE MANNER AND TO THE ADDRESS SPECIFIED IN SECTION 13(i) OF THIS AGREEMENT.
(e) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIYER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(f) Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. The Company may assign its rights, together with its obligations, hereunder only in connection with any sale, transfer or other disposition of all or substantially all of its business or assets and to an assignee who assumes such obligations by law or in writing. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, legal representatives, successors and assigns.
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(g) Amendment. This Agreement cannot be amended orally, or by any course of conduct or dealing, but only by a written agreement duly executed by the Parties.
(h) Waiver. The failure of either Party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance therewith, and such terms, conditions and provisions shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either Party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such Party. Unless the written waiver instrument expressly provides otherwise, no waiver by a Party of any right or remedy or breach by the other Party in any particular instance shall be construed to apply to any right, remedy or breach arising out of or related to a subsequent instance.
(i) Notices. All notices, demands or other communications desired or required to be given by a Party to the other Party shall be in writing and shall be deemed effectively given upon (i) personal delivery to the Party to be notified, (ii) upon confirmation of receipt of fax or other electronic transmission, (iii) one business day after deposit with a reputable overnight courier, prepaid for priority overnight delivery, or (iv) five days after deposit with the United States Postal Service, postage prepaid, certified mail, return receipt requested, in each case to the Party to be notified at the Company’s principal executive officers in the case of the Company and at the latest address of the Executive on the books of the Company in the case of the Executive; or to such other addresses and to the attention of such other individuals as either Party shall have designated to the other by notice given in the foregoing manner.
(j) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral between the Parties, relating to the subject matter hereof.
(k) Captions, Headings and Cross-References. The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement. Except as expressly set forth otherwise, all cross-references to sections refer to sections of this Agreement.
(l) Severability. In addition to, and not in conflict with, the provisions of Sections 6(b) and 6(f), the Parties agree that each and every provision of this Agreement shall be deemed valid, legal and enforceable in all jurisdictions to the fullest extent possible. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be adjusted and reformed rather than voided, if possible, in order to achieve the intent of the Parties. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction which cannot be adjusted and reformed shall for the purposes of that jurisdiction, be voided. Any adjustment, reformation or voidance of any provisions of this Agreement shall only be effective in the jurisdiction requiring such adjustment or voidance, without affecting in any way the remaining provisions of this Agreement in such jurisdiction or adjusting, reforming, voiding or rendering that provision or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
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(m) Controlling Document. If any provision of any agreement, plan, program, policy, arrangement or other written document between or relating to the Company and Executive conflicts with any provision of this Agreement, the provision of this Agreement shall control and prevail, unless Executive agrees otherwise in writing.
(n) Counterpart Execution. This Agreement may be executed in one or more counterparts each of which shall be an original document and all of which together shall constitute one and the same instrument. The Parties acknowledge that this Agreement may be executed and delivered by means of electronic signatures and that use and acceptance of electronic signatures to bind the Parties represents the voluntary agreement and intention of the Parties to conduct this transaction by electronic means. The Parties agree that execution and delivery by electronic means will have the same legal effect as if signatures had been manually written on this Agreement. This Agreement will be deemed lawfully executed by the Parties by such action for purposes of any statute or rule of law that requires this Agreement to be executed by the Parties to make the mutual promises, agreements and obligations of the Parties set forth herein legally enforceable. Facsimile and .pdf exchanges of signatures will have the same legal force and effect as the exchange of original signatures. THE PARTIES HEREBY WAIVE ANY RIGHT TO RAISE ANY DEFENSE OR WAIVER BASED UPON EXECUTION OF THIS AGREEMENT BY MEANS OF ELECTRONIC SIGNATURES IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT. The Parties agree that the legal effect, validity and enforceability of this Agreement will not be impaired solely because of its execution in electronic form or that an electronic record was used in its formation. The Parties acknowledge that they are capable of retaining electronic records of this transaction.
Signature page follows.
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IN WITNESS WHEREOF, the Parties hereto have executed this Employment Agreement as of the date set forth above.
| CORMEDIX INC. | EXECUTIVE | |||
| By: | /s/ Joseph Todisco | /s/ Susan Blum | ||
| Name: | Joseph Todisco | |||
| Title: | Chief Executive Officer | Date: | August 28, 2025 | |
| Date: | August 29, 2025 | |||
[Signature Page to S. Blum Employment Agreement]
EXHIBIT A
PERMITTED ACTIVITIES; PRIOR INVENTIONS
None.
A-1
EXHIBIT B
RELEASE OF CLAIMS
As used in this Release of Claims (this “Release”), the term “claims” will include all claims, covenants, warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments, losses, and liabilities, of whatsoever kind or nature, in law, equity or otherwise.
For and in consideration of the severance benefits provided under Section 9 or Section 10 of my Executive Employment Agreement, dated [Date], with CorMedix Inc., other than any Accrued Compensation (as defined therein) (such benefits, the “Severance Benefits,” such corporation, the “Company” and, together with its current and future parents and subsidiaries, the “Company Group” and, such agreement, my “Employment Agreement”)), and other good and valuable consideration, I, Susan Blum, for and on behalf of myself and my heirs, administrators, executors and assigns, effective as of the date on which this release becomes effective pursuant to its terms, do fully and forever release, remise and discharge each member of the Company Group (including any co-employer of any member of the Company Group) and each of their successors and assigns, together with their respective current and former officers, directors, partners, members, shareholders (including any management company of a member or shareholder), employees and agents (collectively, and with the Company, the “Company Parties”) from any and all claims whatsoever up to the date I execute this Release which I had, may have had, or now have against the Company Parties, whether known or unknown, for or by reason of any matter, cause or thing whatsoever, including any claim arising out of or attributable to my employment or the termination of my employment with the Company or any member of the Company Group, whether for tort, breach of express or implied contract, intentional infliction of emotional distress, wrongful termination, unjust dismissal, violation of public policy, defamation, libel or slander, or under any federal, state, or local law dealing with discrimination, harassment or retaliation, and any other purported restriction on an employer’s right to terminate the employment of employees. The release of claims in this Release includes, but is not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, as amended (“ADEA”), the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, the Worker Adjustment and Retraining Notification Act of 1988 and the Employee Retirement Income Security Act of 1974 (excluding claims for accrued, vested benefits under any retirement or other employee benefit plan of the Company Parties (other than any severance or similar plan or policy)), each as may be amended from time to time, and all other federal, state, and local laws, the common law or constitution of any jurisdiction. I intend the release contained herein to be a general release of any and all claims to the fullest extent permissible by law and for the provisions regarding the release of claims against the Company Parties to be construed as broadly as possible, and hereby incorporate in this release similar federal, state or other laws, including any and all claims arising under the New Jersey Law Against Discrimination (NJLAD) (with respect to existing but not prospective claims), the New Jersey Family Leave Act (NJFLA), the New Jersey Conscientious Employee Protection Act (NJCEPA), the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, retaliation claims under the New Jersey Workers’ Compensation Law (NJWCL), all including any amendments and their respective implementing regulations, and any other state or local law (statutory, regulatory, or otherwise) that may be legally waived and released, all of which I also hereby expressly waive.
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I understand and agree that claims or facts in addition to or different from those which are now known or believed by me to exist may hereafter be discovered, but it is my intention to fully and forever release, remise and discharge all claims arising prior to the date hereof which I had, may have had, or now have against the Company Parties, whether known or unknown, suspected or unsuspected, asserted or unasserted, contingent or noncontingent, without regard to the subsequent discovery or existence of such additional or different facts. Without limiting the foregoing, by signing this Release, I expressly waive and release any provision of law that purports to limit the scope of a general release.
I acknowledge and agree that as of the date I execute this Release, I have no knowledge of any facts or circumstances that give rise or could give rise to any claims under any of the laws listed in the preceding paragraphs
Notwithstanding any provision of this Release to the contrary, by executing this Release, I am not releasing any claims relating to: (i) my rights under Section 9 and Section 10 of my Employment Agreement, (ii) my right to accrued, vested benefits due to terminated employees under any employee benefit plan of the Company or any other member of the Company Group in which I participated (excluding any severance or similar plan or policy), in accordance with the terms thereof (including my right to elect COBRA continuation coverage), including any claims pursuant to any award of equity in any member of the Company Group, or due to my status as an equityholder in any member of the Company Group, including pursuant to the governing documents thereof; (iii) any claims that cannot be waived by law or that arise after the date I execute this Agreement; or (iv) my right to indemnification, advancement and reimbursement of legal fees and expenses, and directors and officers liability insurance, as provided by, and in accordance with the terms of, such program or policy, applicable law, the Company’s by-laws or otherwise.
Notwithstanding any provision of this Release to the contrary, nothing herein or in any Company policy or agreement prevents me, without notifying the Company or receiving prior authorization from the Company, from (i) speaking with law enforcement, my attorney, the attorney general, the U.S. Equal Employment Opportunity Commission, any state or local division of human rights or fair employment agency; (ii) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any government agency; (iii) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation; (iv) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process; or (v) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which I may be entitled; provided, however, in each case, I agree to forgo any monetary benefit from the filing of a charge or complaint with a government agency except pursuant to a whistleblower program or where my right to receive such a monetary benefit is otherwise not waivable by law. The protections contained in this paragraph apply to prior, current and future conduct.
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I acknowledge and agree that as of the date I execute this Release, I have reported all accidents, injuries or illnesses relating to or arising from my employment with the Company or the Company Group and that I have not suffered any on-the-job injury or illness for which I have not yet filed a claim.
By signing below, I represent and warrant to the Company that (i) prior to the date I execute this Release, I have provided the Company with written disclosure of any unethical or illegal behavior and any material violations of the Company’s code of ethics or other material policy, in each case, that I observed, suspected or became aware of during the course of my employment or, if no such written disclosure was provided, that I have not observed, suspected or become aware of any such behavior or violations and (ii) I have complied with all laws and Company policies in respect of my employment with the Company.
I expressly acknowledge and agree that I:
| § | Am able to read the language, and understand the meaning and effect, of this Release; |
| § | Have no physical or mental impairment of any kind that has interfered with my ability to read and understand the meaning of this Release or its terms, and that I am not acting under the influence of any medication, drug, or chemical of any type in entering into this Release; |
| § | Am specifically agreeing to the terms of the release contained in this Release because the Company has agreed to pay me the Severance Benefits in consideration for my agreement to accept it in full settlement of all possible claims I might have or ever had against the Company Parties, and because of my execution of this Release; |
| § | Acknowledge that, but for my execution of this Release, I would not be entitled to the Severance Benefits; |
| § | Had or could have had [twenty-one (21)][forty-five (45)]1 calendar days from the date of my termination of employment (the “Release Expiration Date”) to review and consider this Release, and that if I execute this Release prior to the Release Expiration Date, I have voluntarily and knowingly waived the remainder of the review period; |
| § | Understand that, by entering into this Release, I do not waive rights or claims under ADEA that may arise after the date I execute this Release; |
| 1 | To be 21 days unless the applicable termination is “in connection with an exit incentive or other employment termination program” (as such phase is defined in the Age Discrimination in Employment Act of 1967), in which case it will be 45 days. |
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| § | Have not relied upon any representation or statement not set forth in this Release or my Employment Agreement made by the Company Group or any of its representatives; |
| § | Am hereby advised to consult with my attorney regarding the terms and effect of this Release; and |
| § | Have signed this Release knowingly and voluntarily. |
Except as otherwise provided in this Release and to the maximum extent permitted by law, I represent and warrant that I have not previously filed, and I agree that I will not file, a complaint, charge or lawsuit against any of the Company Parties regarding any of the claims released herein. If, notwithstanding this representation and warranty, I have filed or file such a complaint, charge or lawsuit, I agree that I shall cause such complaint, charge or lawsuit to be dismissed with prejudice and shall pay any and all costs required in obtaining dismissal of such complaint, charge or lawsuit, including without limitation the attorneys’ fees of any of the Company Parties against whom I have filed such a complaint, charge or lawsuit.
I hereby agree to waive any and all claims to re-employment with the Company or any of its direct or indirect parent(s) or subsidiaries and affirmatively agree not to seek further employment with the Company or any of its direct or indirect parent(s) or subsidiaries. I acknowledge that if I re-apply for or seek employment with the Company or any of its direct or indirect parent(s) or subsidiaries, the refusal to hire me based on this provision will provide a complete defense to any claims arising from my attempt to apply for employment.
Notwithstanding anything contained herein to the contrary, this Release will not become effective or enforceable for a period of seven (7) calendar days following the date of my execution of this Release (the “Revocation Period”), during which time I may revoke my acceptance of this Release by notifying the Company, in writing, delivered to Beth Zelnick Kaufman (the “Company Representative”), Executive Vice President, Chief Legal Officer and Corporate Secretary, by email ([email protected]), or by other electronic copies (complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign)). To be effective, such revocation must be received by the Company Representative no later than 11:59 p.m. Eastern Time on the seventh (7th) calendar day following the execution of this Release. Provided that the Release is executed prior to the Release Expiration Date and I do not revoke it during the Revocation Period, the date on which this Release is executed and delivered to the Company Representative shall be its effective date. In the event that I fail to execute and deliver this Release prior to the Release Expiration Date or, if I revoke this Release during the Revocation Period, this Release will be null and void and of no effect, and neither the me nor the Company nor any of the Company Parties will have any obligations to pay me the Severance Benefits.
The provisions of this Release shall be binding upon my heirs, executors, administrators, legal personal representatives and assigns. If any provision of this Release shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon and shall not impair the enforceability of any other provision of this Release. I acknowledge and agree that each of the Company Parties shall be a third-party beneficiary to the releases set forth in this Release, with full rights to enforce this Release and the matters documented herein.
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EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS RELEASE IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND IN ANY COURT SITTING IN SUSSEX COUNTY, DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS RELEASE, I CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE. FURTHER, I HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE.
Capitalized terms used, but not defined herein, shall have the meanings ascribed to such terms in my Employment Agreement.
* * *
I, Susan Blum, have executed this Release of Claims on the date set forth below:
| Susan Blum | ||
| Date: | [To Be Executed Following Termination of Employment] | |
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EXHIBIT C
FORM OF AWARD AGREEMENT
(See attached.)
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CORMEDIX INC.
amended and restated
2019 OMNIBUS STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this “Agreement”) is made and entered into between CorMedix Inc. (the “Company”) and Susan Blum (the “Grantee”), effective as of [●], 2025 (the “Date of Grant”). This Agreement sets forth the terms and conditions associated with the Company’s award to the Grantee of restricted stock units payable, as described below, in shares of Common Stock from the Company, pursuant to the Company’s Amended and Restated 2019 Omnibus Stock Incentive Plan (as may be amended from time to time, the “Plan”) for the number of Units (as defined below) set forth below (collectively, the “Award”). Capitalized terms used herein, which are not otherwise defined herein will have the meanings ascribed to them under the Plan.
NOW, THEREFORE, in consideration of the foregoing and the Grantee’s continued provision of valuable services to the Company, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Units. Effective as of the Date of Grant, the Company hereby grants to the Grantee [●] Restricted Stock Units (the “Units”), each of which shall represent the right of the Grantee to receive a share (“Share”) of Common Stock that will be delivered to the Grantee pursuant to this Agreement if and when such Unit becomes vested in accordance with this Agreement. The Units represent hypothetical Shares and not actual Shares. The Company shall establish and maintain a Unit account, as a bookkeeping account on its records, for the Grantee and shall record in such account the number of Units granted to the Grantee. The Units are subject to the vesting, payment, and other provisions of this Agreement and the Plan.
2. Vesting. Subject to the Grantee remaining in Continuous Service through the applicable vesting dates, the Units shall vest over four (4) years in four (4) approximately equal full share installments with the first vest occurring on the first anniversary of the Date of Grant, provided that vesting may accelerate or cease as provided in this Agreement or in the Plan (or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company). Vesting of the Units shall be cumulative, and will represent 100% of the Units.
3. Effect of Termination of Continuous Service.
(a) In the event of the termination of the Grantee’s Continuous Service, all Units that are not vested will be immediately and automatically forfeited, except as provided in Sections 3(b) and 4 below or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company.
(b) In the event that Grantee’s Continuous Service is terminated by the Company (other than for Cause or on account of Grantee’s death or Disability) or by the Grantee for Good Reason (as defined in Grantee’s employment agreement with the Company), then, conditioned upon Grantee executing and not revoking a release of claims against the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns in a form reasonably acceptable to the Company that becomes effective by its terms on or prior to the sixtieth (60) day following such termination, all then-unvested Units that would have vested during the twelve (12) months immediately following the date on which Grantee’s Continuous Service was terminated had such termination not occurred shall fully vest.
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4. Corporate Transaction.
(a) Unless otherwise set forth in an employment agreement or other written agreement between the Grantee and the Company, if a Corporate Transaction occurs and the Award remains outstanding after the Corporate Transaction (or is assumed by, or converted to a similar award with equivalent value as of the date of the Corporate Transaction of, the surviving corporation (or a parent or subsidiary of the surviving corporation)), and the Grantee incurs an involuntary separation from Continuous Service by the Company or a Related Entity or successor other than for Cause upon or within 24 months following the Corporate Transaction and prior to the full vesting of the Units, the Units shall fully vest upon such involuntary separation.
(b) Subject to the terms of any employment agreement or other written agreement by and between the Grantee and the Company, or as set forth in Section 3(a) above, the provisions of the Plan applicable to a Corporate Transaction shall apply to the Units, and, in the event of a Corporate Transaction, the Committee may take such actions as it deems appropriate pursuant to the Plan.
5. Delivery of Shares to Settle Vested Units. Vested Units shall be settled by delivering to the Grantee a number of Shares equal to the number of vested Units as soon as administratively practicable after the date on which the Units vest, provided that the Company may provide a reasonable delay in the issuance or delivery of the Shares to address tax withholding and other administrative matters and provided further that delivery of the Shares will occur no later than two and one-half months following the conclusion of the calendar year in which the vesting occurs. On such date, the Company will, at its election, either: (a) issue a certificate representing the Shares deliverable pursuant to this Agreement; or (b) not issue any certificate representing the Shares deliverable pursuant to this Agreement and instead document the Grantee’s interest in the Shares by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Grantee’s name.
6. Capitalization Changes. The number of Units convertible to Shares subject to this Award may be adjusted from time to time by the Committee to account for changes in capitalization as described in Section 13 of the Plan.
7. Rights as a Stockholder. The Units represent a right to payment from the Company if the conditions of the Agreement are met and do not give the Grantee ownership of any Common Stock prior to delivery as provided in Section 5. The Grantee will not have any rights and/or privileges of a stockholder of the Company with respect to the Units prior to such delivery. If the Grantee becomes vested in Units, any Shares to which the Grantee becomes entitled will be delivered to the Grantee as provided in Section 5, and the Grantee will have full ownership of the Shares upon such delivery.
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8. Non-Transferability of the Award. The Units and the right to payment under this Agreement are not transferable, may not be sold, exchanged, transferred, pledged, hypothecated, encumbered or otherwise disposed of except as provided in the Plan. Any purported transfer of the Units or the right to payment under this Agreement not in compliance with the preceding sentence is null and void and will not be given effect.
9. No Right to Continuous Service. The Award is not an employment or service contract, and nothing this Agreement confers or will be construed as conferring upon the Grantee any right to continue in the employment or service of the Company, or as interfering with or restricting in any way the right of either party to terminate such employment or service at any time.
10. Tax Consequences. The Grantee acknowledges that the Grantee understands the federal, state, and local tax consequences of the Award and the issuance, vesting, forfeiture, and delivery provisions hereof relating to the Units. The Grantee will rely solely on the advice of the Grantee’s own tax advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands that the Grantee (and not the Company) will be responsible for the Grantee’s own tax liability that may arise as a result of the Award or the transactions contemplated by this Agreement.
11. Withholding Obligations. The Grantee understands that, at the time that the Grantee becomes vested and/or receives payment for any Units (including through the delivery of Shares), the Company may be required to withhold federal, state and local income and employment taxes. At the time of vesting, or at or before the time the Grantee receives a distribution of the Shares underlying the Units, or at any time thereafter as requested by the Company, the Grantee hereby authorizes the Company to satisfy any required withholding to satisfy federal, state, local, payroll, and foreign tax withholding obligations of the Company or any Related Entity that arise in connection with the Units (the “Withholding Taxes”). Notwithstanding any other provision of this Section, the Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to the Units by any of the following means or by a combination of such means: (a) withholding from any compensation otherwise payable to the Grantee by the Company or any Related Entity; (b) causing the Grantee to tender a cash payment; or (c) withholding Shares from the Shares issued or otherwise issuable to the Grantee in connection with the Units with a Fair Market Value (measured as of the date the Withholding Taxes are to be determined) equal to the amount required to be withheld, based on a tax rate not in excess of the maximum federal, state, local and foreign marginal income tax rates applicable to the Grantee. The Grantee understands that all matters with respect to the total amount of Withholding Taxes in respect of such compensation or income will be determined by the Committee in its reasonable discretion. The Grantee further understands that, although the Company or any Related Entity may pay withheld amounts to the applicable taxing authorities, the Grantee is responsible for payment of all taxes due as a result of compensation arising under the Agreement. If the Grantee is subject to Section 16 of the Securities Exchange Act, any surrender of previously owned Shares to satisfy Withholding Taxes arising upon exercise of this Award must comply with the applicable provisions of Rule 16b-3 promulgated under the Exchange Act and shall be subject to such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
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12. Data Privacy. The Grantee consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee acknowledges that the Company holds certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security number or other identification number, salary, nationality, job title, details of this Award or any other entitlement to shares of stock awarded, cancelled, exercised, vested or unvested, for the purpose of implementing, administering and managing the Plan (the “Data”). The Grantee acknowledges that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan and that these recipients may be located in jurisdictions that may have different data privacy laws and protections, and the Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee or the Company may elect to deposit any Shares acquired upon settlement of the vested Units in accordance with the Plan and Applicable Laws.
13. Notices. Any notice or request required or permitted hereunder will be given in writing to each of the other parties hereto and will be deemed effectively given on the earlier of (a) the date of personal delivery, or (b) three days after the date of deposit in the United States Mail by registered or certified mail, postage prepaid, return receipt requested, addressed in the case of the Company to the Company’s Chief Executive Officer at the Company’s primary business address and in the case of the Grantee to the most recent address shown in the Company’s records.
14. Incorporation of the Plan; Entire Agreement; Modification. The Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of this Agreement, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this Agreement and those of the Plan, the provisions of the Plan will control. This Agreement (including the Plan) sets forth all of the promises, agreements, conditions and understandings between the parties hereto with respect to the Award, and there are no promises, agreements, conditions, understandings, warranties or representations, oral or written, express or implied, between them with respect to the Award other than as set forth therein or herein. This Agreement supersedes and replaces any and all prior agreements between the parties hereto with respect to Units granted under this Award. Except as provided by the Plan, no modification, amendment or waiver of any of the provisions of this Agreement will be effective unless approved in writing by both parties.
15. Choice of Law; Policies. The interpretation, performance and enforcement of this Agreement will be governed by the law of the State of Delaware without regard to the conflicts of laws rules of any jurisdiction. This Agreement shall be subject to any applicable clawback or recoupment policies, share trading policies, and other policies that may be implemented by the Board from time to time in accordance with Applicable Laws.
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16. Miscellaneous.
(a) The headings of the Sections in this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement or to affect the meaning of this Agreement.
(b) If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
(c) This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. The rights and obligations of the Company under this Agreement will be transferable by the Company to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
(d) The waiver by either party of compliance with any provision of this Agreement by the other party will not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
(e) The Grantee agrees upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of the Award.
(f) The Grantee acknowledges and agrees that the Grantee (i) has reviewed this Agreement and the Plan in their entirety; (ii) fully understands the provisions of each such document; and (iii) has had an opportunity to obtain the advice of counsel prior to executing and accepting the Award.
(g) This Agreement will be subject to all Applicable Laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(h) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
(i) This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same agreement. Facsimile or PDF reproductions of original signatures will be deemed binding for the purpose of the execution of this Agreement.
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17. Application of Section 409A of the Code.
(a) The parties intend that the delivery of Shares in respect of the Units provided under this Agreement satisfies, to the greatest extent possible, the exemption from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Section 1.409A-1(b)(4) (or any other applicable exemption), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, the delivery of Shares in respect of the Units provided under this Agreement will be conducted, and this Agreement will be construed, in a manner that complies with Section 409A and is consistent with the requirements for avoiding taxes or penalties under Section 409A. In such case, distributions made under this Agreement may only be made in a manner and upon an event permitted by Section 409A.
(b) The parties further intend that each installment of any payments provided for in this Agreement is a separate “payment” for purposes of Section 409A. In no event shall the Grantee, directly or indirectly, designate the calendar year of payment.
(c) To the extent that (i) one or more of the payments received or to be received by the Grantee pursuant to this Agreement would constitute deferred compensation subject to the requirements of Section 409A, and (ii) the Grantee is a “specified employee” within the meaning of Section 409A as determined by the Committee, then solely to the extent necessary to avoid the imposition of any additional taxes or penalties under Section 409A, the commencement of any payments under this Agreement will be deferred until the date that is six months and one day following the Grantee’s termination of Continuous Service (or, if earlier, the date of death of the Grantee) and will instead be paid on the date that immediately follows the end of such period (or death) or as soon as administratively practicable within thirty (30) days thereafter.
(d) To the extent that any provision of this Agreement would cause a conflict with the requirements of Section 409A, or would cause the administration of this Agreement to fail to satisfy the requirements of Section 409A, such provision shall be deemed null and void to the extent permitted by Applicable Law. The Company makes no representations to the Grantee regarding the compliance of this Agreement or the Units with Section 409A, and the Grantee is solely responsible for the payment of any taxes or penalties arising under Section 409A(a)(1), or any state law of similar effect, with respect to the grant or vesting of the Units or the delivery of the Shares subject to this Award.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized officer, and the Grantee has hereunto set his/her hand and seal, effective as of the Date of Grant.
| GRANTEE: | COMPANY: | |||
| CORMEDIX INC. | ||||
| By: | ||||
| Name: | Susan Blum | Name: | ||
| Title: | ||||
[Signature Page to Restricted Stock Unit Award Agreement]
Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made as of August 29, 2025 by and between CorMedix Inc., a Delaware corporation (the “Company”), and Elizabeth Hurlburt (“Executive”). Each of the Company and Executive is referred to herein as a “Party” and together they are referred to as the “Parties.”
TERMS
In consideration of the foregoing premises and the mutual covenants and agreements herein contained, the Parties, intending to be legally bound, agree as follows:
| 1. | Employment. |
(a) Services. Effective as of August 29, 2025 (the “Effective Date”), Executive will cease to serve as the Company’s Executive Vice President, Chief Clinical Strategy and Operations Officer and begin serving as the Company’s Executive Vice President and Chief Operating Officer. Executive will report directly to, and be subject to the supervision of, the Company’s Chief Executive Officer (the “CEO”). Executive will perform such services for the Company and have such powers, responsibilities and authority as are customarily associated with the position of Executive Vice President and Chief Operating Officer and shall perform customary and appropriate duties consistent with the position of Executive Vice President and Chief Operating Officer as may otherwise be reasonably assigned to Executive from time to time by the CEO. Executive acknowledges and agrees that the Company may cause Executive’s employer to be a directly or indirectly wholly-owned subsidiary of the Company (including, without limitation, Melinta Subsidiary Corp.), in which case, the Company may cause all compensation and benefits provided hereunder to be provided by such subsidiary, provided, however that the Company shall continue to be liable for all of the Company’s obligations under this Agreement.
(b) Acceptance. Executive hereby accepts such employment subject to the terms of this Agreement.
| 2. | Term. |
The duration of employment under this Agreement shall commence on the Effective Date and shall continue for a term of three (3) years thereafter, unless sooner terminated pursuant to Section 8 (such three (3)-year period referred to herein as the “Initial Term”); provided, however, that on the expiration of the Term (as defined below), the Term shall be extended automatically for additional, successive one (1)-year periods (such extended periods referred to herein as the “Extended Term”), unless one Party shall notify the other in writing at least ninety (90) days before the initial expiration of the Initial Term or the expiration of any successive one (1)-year period during the Extended Term that this Agreement shall not be so extended after such expiry (a “Notice of Nonrenewal”). The Initial Term and the Extended Term collectively shall be referred to herein as the “Term.” Notwithstanding anything to the contrary contained herein, the provisions of this Agreement specified in Sections 5, 6, 9, 10, 11, 12, and 13 shall survive the expiration or termination hereof.
| 3. | Duties; Place of Performance. |
(a) Duties. Except as otherwise set forth in this Section 3(a) or as set forth on Exhibit A, Executive (i) shall devote substantially all of Executive’s business time, attention and energies to the business and affairs of the Company, shall use Executive’s best efforts to advance the interests of the Company, and shall perform Executive’s duties diligently and to the best of Executive’s ability, in compliance with the Company’s policies and procedures and the laws and regulations that apply to the Company’s business; and (ii) shall not be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that will interfere with the performance by Executive of Executive’s duties hereunder or Executive’s availability to perform such duties or that Executive knows, or should reasonably know, will adversely affect, or negatively reflect upon, the Company. With the advance written consent of the Company’s Board of Directors (the “Board”), Executive may serve as a director of, or on the advisory committee of, other pharmaceutical and life science companies. Approval for any such business activity shall not be unreasonably withheld by the Board, so long as the activity is not competitive with the business of the Company and does not interfere with the performance of Executive’s duties hereunder. Notwithstanding the foregoing, nothing herein shall preclude Executive from (i) engaging in charitable activities and community affairs, and (ii) managing Executive’s personal and family investments and affairs; provided, however, that the activities set out in clauses (i) and (ii) shall be limited by Executive so as not to interfere, individually or in the aggregate, with the performance of Executive’s duties and responsibilities hereunder.
(b) Place of Performance. The duties to be performed by Executive hereunder shall be performed primarily at the executive offices of the Company and the Executive’s primary residence, subject to reasonable travel requirements on behalf of the Company, or such other place as the Company may reasonably designate.
| 4. | Compensation. |
As full compensation for Executive’s performance of services as an employee of the Company, the Company shall pay Executive as follows:
(a) Base Salary. During the Initial Term, the Company shall pay Executive an annual base salary of $500,000 (as it may be increased from time to time as provided hereunder, the “Base Salary”), less applicable withholdings and deductions. Payment shall be made in accordance with the Company’s normal payroll practices. At the same time as base salaries are reviewed for other senior executives of the Company, the Board, or its compensation committee, shall review the Base Salary to determine whether an increase in the amount thereof is warranted in its sole discretion. The Base Salary will not be decreased unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary; and (ii) Executive’s Base Salary reduction is no greater than ten percent (10%).
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(b) Annual Bonus. Subject to the following provisions of this Section 4(b), for each fiscal year of the Company during the Term (commencing with the Company’s 2025 fiscal year), Executive shall be eligible for an annual bonus, less applicable withholdings and deductions, based upon a target amount of forty-five percent (45%) of the Base Salary then in effect, as determined by the Board (or its compensation committee) in good faith based upon the achievement, during the year in question, of corporate objectives for the Company as a whole established by the Board (or its compensation committee) and such other factors as the Board (or its compensation committee) deems appropriate. The Board (or its compensation committee) will endeavor to determine the executive team’s corporate and individual objectives for a given year within the first sixty (60) days of each fiscal year and to communicate such objectives to Executive promptly thereafter. Executive must be employed by the Company through December 31 of a given year in order to be eligible to earn the annual bonus for such year (except as explicitly set forth herein). The annual bonus for a given year will be paid no later than March 15 of the year following the year to which it relates.
(c) Equity Grants.
(i) Annual Equity Grants. Executive shall be eligible to receive equity grants pursuant to the Company’s 2019 Omnibus Stock Incentive Plan (the “Stock Incentive Plan”) or any successor thereto commencing in 2026 (the “Awards”), and such Awards shall be subject to the terms and conditions of the Stock Incentive Plan and shall be further subject to the terms of the applicable award agreement, in substantially the form attached to this Agreement as Exhibit C. Any such grants shall be determined in the sole discretion of the CEO, the Board or its compensation committee. For the avoidance of doubt, nothing herein shall entitle Executive to any specific award or any specific terms or conditions in any year.
(d) Withholding. The Company will withhold from any amounts payable under this Agreement such federal, state and local taxes as the Company determines are required to be withheld pursuant to applicable law.
(e) Expenses. The Company shall promptly reimburse Executive for all reasonable expenses incurred by Executive in furtherance of the business and affairs of the Company, including without limitation reasonable travel, lodging, meals, and entertainment, upon timely receipt by the Company of appropriate vouchers or other proof of Executive’s expenditures and otherwise in accordance with any expense reimbursement policy as may from time to time be adopted by the Company. Such reimbursements will be made in a timely manner and in accordance with the policies of the Company, but in no event later than December 31 of the year following the year in which Executive incurs such expense. The amount of expenses eligible for reimbursement during one year will not affect the expenses eligible for reimbursement in any other year, and is not subject to liquidation or exchange for another benefit.
(f) Other Benefits. Executive shall be entitled to all rights and benefits for which Executive shall be eligible under any benefit or other plans (including, without limitation, dental, medical, medical reimbursement and hospital plans, pension plans, employee stock purchase plans, profit sharing plans, bonus plans, prescription drug reimbursement plans, short and long term disability plans, life insurance and other so-called “fringe” benefits) as the Company (or applicable subsidiary) generally makes available to its senior executives from time to time. All such benefits are subject to the provisions of their respective plan documents in accordance with their terms and are subject to amendment or termination by the Company or the applicable subsidiary without Executive’s consent.
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(g) Vacation. Executive shall be entitled to a vacation not less than four (4) weeks per annum, of which no more than two (2) weeks may be taken consecutively without explicit approval of the CEO, in addition to holidays observed by the Company and reasonable periods of paid personal and sick leave. All such paid time off shall accrue and be used in accordance with the Company’s established policies and procedures.
| 5. | Confidential Information and Inventions. |
(a) Confidential Information; Non-Disclosure and Non-Use. Executive recognizes and acknowledges that in the course of Executive’s duties, Executive will receive confidential or proprietary information of the Company, its subsidiaries or third parties with whom the Company or any of its subsidiaries has an obligation of confidentiality. Accordingly, during and after the Term, Executive agrees to keep confidential and not disclose or make accessible to any other person or use for any other purpose other than in connection with the fulfillment of Executive’s duties under this Agreement, any “Confidential and Proprietary Information” (as defined below) owned by, or received by or on behalf of the Company or any of its subsidiaries. The term “Confidential and Proprietary Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information, data, formulas and related concepts, business plans (both current and under development), client lists, promotion and marketing programs, trade secrets, or any other confidential or proprietary business information relating to development programs, costs, revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods, and any and all information relating to the operation of the Company’s business which the Company may from time to time designate as confidential or proprietary or that Executive reasonably knows should be, or has been, treated by the Company as confidential or proprietary. Executive expressly acknowledges that the Confidential and Proprietary Information constitutes a protectable business interest of the Company. Confidential and Proprietary Information encompasses all formats in which information is preserved, whether electronic, print, or any other form, including all originals, copies, notes, or other reproductions or replicas thereof. Executive agrees: (i) not to use any such Confidential and Proprietary Information for the benefit of Executive or others; and (ii) not to take any Company material or reproductions (including but not limited to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof from the Company’s offices at any time during Executive’s employment by the Company, except in connection with the execution of Executive’s duties to the Company.
(b) Return of Property. Upon request during employment and immediately at the termination of Executive’s employment, Executive will return to the Company all Confidential and Proprietary Information in any form (including all copies and reproductions thereof) and all other property whatsoever of the Company in Executive’s possession or under Executive’s control. If requested by the Company, Executive will certify in writing that all such materials have been returned to the Company. Executive also expressly agrees that immediately upon the termination of Executive’s employment with the Company for any reason, Executive will cease using any secure website, computer systems, e-mail system, phone system or voicemail service provided by the Company for the use of its employees. Notwithstanding the foregoing, Executive may retain (i) Executive’s address book to the extent it only contains contact information, and (ii) Executive’s personal cell phone telephone number.
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(c) Exceptions. Confidential and Proprietary Information does not include any information that: (i) at the time of disclosure is generally known to, or readily ascertainable by, the public; (ii) becomes known to the public through no fault of Executive or other violation of this Agreement; (iii) is disclosed to Executive by a third party under no obligation to Executive’s knowledge to maintain the confidentiality of the information; and/or (iv) is disclosed to Executive’s spouse, attorney and/or Executive’s personal tax and financial advisors as reasonably necessary or appropriate to advance Executive’s tax, financial and other personal planning (each an “Exempt Person”), provided, however, that any disclosure or use of any Confidential and Proprietary Information by an Exempt Person shall be deemed to be a breach of this Section 5 by Executive. Confidential and Proprietary Information also does not include any information (i) the disclosure or use of which is required or appropriate in connection with Executive’s work as an employee of the Company, consistent with Company policies, and/or (ii) that is required to be disclosed to a court of law, to any governmental agency having supervisory authority over the business of the Company or to any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Executive to divulge, disclose or make accessible such information, provided that, subject to applicable law, Executive is required to disclose such information by law, provided that Executive (x) notifies the Company of the existence and terms of such obligation, (y) gives the Company prompt notice to seek a protective or similar order to prevent or limit such disclosure, and (z) only discloses that information actually required to be disclosed. Notwithstanding anything herein to the contrary, nothing in this Agreement will be construed to prohibit Executive, without notifying the Company or receiving prior authorization from the Company, from (A) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any federal, state or local government agency, (B) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation or (C) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process. The protections contained in the preceding sentence apply to prior, current and future conduct.
(d) Notice Of Immunity From Liability For Confidential Disclosure Of A Trade Secret To The Government Or In A Court Filing. Pursuant to the Federal Defend Trade Secrets Act of 2016, Executive 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. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to Executive’s attorney and use the trade secret information in the court proceeding, if the individual (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
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(e) Inventions. Executive agrees that all inventions, discoveries, improvements and patentable or copyrightable works (“Inventions”) initiated, conceived or made by Executive within the scope of the Company’s business and in the course of Executive’s employment with the Company, either alone or in conjunction with others, during the Term shall be the sole property of the Company to the maximum extent permitted by applicable law and, to the extent permitted by law, shall be “works made for hire” as that term is defined in the United States Copyright Act (17 U.S.C.A., Section 101). The Company shall be the sole owner of all patents, copyrights, trade secret rights, and other intellectual property or other rights in connection therewith; provided, however that this Section 5(e) shall not apply to Inventions which are not related to the business of the Company and which are made and conceived by Executive not during normal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential and Proprietary Information. For avoidance of doubt, this Section 5(e) shall not apply to any Inventions related to the activities described on Exhibit A. Subject to the foregoing, Executive hereby assigns to the Company all right, title and interest Executive may have or acquire in all Inventions; provided, however, that the Board may in its sole discretion agree to waive the Company’s rights pursuant to this Section 5(e).
(f) Further Actions and Assistance. Executive agrees to cooperate reasonably with the Company and at the Company’s expense, both during and after Executive’s employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries) relating to the Inventions. Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, that the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions. Executive further agrees that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such papers as Executive’s agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as Executive’s agent and attorney-in-fact to execute any such papers on Executive’s behalf and to take any and all actions as the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions, under the conditions described in this Section 5(f).
(g) Prior Inventions. Executive will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or to Executive’s duties hereunder as having been made or acquired by Executive prior to Executive’s work for the Company, except for the matters, if any, described in Exhibit A to this Agreement.
(h) Disclosure. Executive agrees that Executive will promptly disclose to the Company all Inventions initiated, made, conceived or reduced to practice by Executive, either alone or jointly with others, during the Term.
(i) Survival. The provisions of this Section 5 shall survive any termination of this Agreement.
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| 6. | Non-Competition, Non-Solicitation and Non-Disparagement. |
(a) Executive understands and recognizes that Executive’s services to the Company are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information. Executive agrees that, during the Term and the twelve (12) month period immediately following Executive’s separation from employment with the Company (the “Termination Restriction Period’’), whether such separation is voluntary or involuntary, Executive shall not in any manner, directly or indirectly, on behalf of Executive or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or engage in any business involving the development or commercialization of products in the therapeutic area of nephrology, infectious disease, or hospital specialty segment, or that compete directly against any other product being actively developed, marketed or produced by the Company or any of its subsidiaries as of the date of Executive’s termination of employment (the “Business of Company”), either as an individual for Executive’s own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of such Person, in any capacity that requires or could result in Executive’s intentional or unintentional use of the Confidential and Proprietary Information and/or requires Executive to perform services substantially similar to those performed for the benefit of the Company or any of its subsidiaries during the Term, anywhere in the world, provided, however, that nothing shall prohibit Executive from performing executive duties for any Person that does not engage in the Business of Company. Executive acknowledges that, due to the unique nature of the Business of the Company, the Company has a strong legitimate business interest in protecting the continuity of its business interests and its Confidential and Proprietary Information and the restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company and its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are engaged in the Business of Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) of any class or series of outstanding securities of such corporation; or being a passive investor holding less than four percent (4%) of a private equity, venture capital or other commingled fund; and further notwithstanding the foregoing, nothing contained in this Section 6(a) shall preclude Executive from becoming an employee of, or from otherwise providing services to, a separate division or operating unit of a multi-divisional business or enterprise (a “Division”) if: (i) the Division by which Executive is employed, or to which Executive provides services, is not engaged in the Business of Company, (ii) Executive does not provide services, directly or indirectly, to any other division or operating unit of such multi-divisional business or enterprise engaged in or proposing to engage in the Business of Company (individually, a “Competitive Division” and collectively, the “Competitive Divisions”) and (iii) the Competitive Divisions, in the aggregate, accounted for less than one-third of the multi-divisional business or enterprise’s consolidated revenues for the fiscal year, and each subsequent quarterly period, prior to Executive’s commencement of employment with or provision of services to the Division, or the Board determined that the Competitive Divisions are not material to the value of such multi-divisional business.
(b) Reasonableness of Restriction. Executive hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to its duration, geographic area and scope. In addition, Executive acknowledges that the Company engages in the Business of Company throughout the world, and Executive has been involved in the Business of the Company in that geographic area. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
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(c) Non-Solicitation. During the Term and the applicable Termination Restriction Period (as defined above), Executive shall not, directly or indirectly, on Executive’s own behalf or on behalf of any person or entity, without the prior written consent of the Company:
(i) solicit or induce any employee, consultant or independent contractor of the Company or any of its subsidiaries to leave the employ of (or end a contracting relationship with) the Company or any of its subsidiaries; or hire for any competitive purpose any employee consultant or independent contractor of the Company or any of its subsidiaries; or hire any former employee who has left the employment of the Company or any of its subsidiaries within six (6) months of the termination of such employee’s employment with the Company or any of its subsidiaries for any competitive purpose; or hire any former consultant or independent contractor who has ended his or her consultancy or contracting relationship with the Company or any of its subsidiaries within six (6) months of the end of such consultancy or contracting relationship for any competitive purpose; or hire any former employee of the Company or any of its subsidiaries in knowing violation of such employee’s non-competition or confidentiality obligations owed to the Company or any of its subsidiaries; or
(ii) solicit, divert or take away, or attempt to divert or take away, the business or patronage of any agent, client or customer of the Company or any of its subsidiaries which was served by the Company or any of its subsidiaries during the twelve (12)-month period prior to the termination of Executive’s employment with the Company; or induce, encourage, or attempt to induce or encourage any client or customer of the Company or any of its subsidiaries which was served by the Company or any of its subsidiaries during the twelve (12)-month period prior to the termination of Executive’s employment with the Company to reduce, limit, or cancel its business with the Company or any of its subsidiaries.
For clarity, the foregoing shall not be violated by general advertising, by serving as a reference upon request or by actions taken in the good faith performance of Executive’s duties to the Company or any of its subsidiaries.
(d) Non-Disparagement. Executive agrees that Executive shall not, directly or indirectly, during or at any time following the Term, disparage, whether or not truthfully, the name or reputation of the Company or any of its subsidiaries, including but not limited to, any officer, director, employee or shareholder (provided Executive has had material dealings with such shareholder) of the Company or any of its subsidiaries. Upon Executive’s termination of employment, the Company shall direct its executive officers and directors not to directly or indirectly disparage, whether or not truthfully, the name or reputation of Executive. Notwithstanding this Section 6(d), nothing contained herein shall apply to statements made by Executive or the Company (x) in the course of their responsibility to evaluate the performance and/or participate in any investigation of the conduct or behavior of officers, employees and/or others, (y) as part of any judicial, administrative or other legal action or proceeding, or (z) in rebuttal of false or misleading statements by others, and nothing shall be construed to limit or impair the ability of Executive or the Company to provide truthful testimony in response to any validly issued subpoena or to file pleadings or respond to inquiries or legal proceedings by any government agency to the extent required by applicable law. Further, nothing contained herein prohibits Executive from speaking with law enforcement, the Equal Employment Opportunity Commission, any state or local division of human rights or fair employment agency, or Executive’s attorney.
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(e) Enforcement. In the event that Executive breaches or threatens to breach any provisions of Section 5 or this Section 6, then, in addition to any other rights the Company or any of its subsidiaries may have, it shall be entitled to seek injunctive relief to enforce such provisions. In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company or any of its subsidiaries be prevented from seeking any other remedies that may be available to it nor shall the Company or any of its subsidiaries be required to post a bond.
(f) Remedies Cumulative; Judicial Modification. Each of the rights and remedies enumerated in Section 6(e) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its subsidiaries at law or in equity. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies, which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and in its reduced form such provision shall then be enforceable.
(g) Survival. The provisions of this Section 6 shall survive any termination of the Term.
| 7. | Representations and Warranties. |
(a) By Executive. Executive hereby represents and warrants to the Company as follows:
(i) Neither the execution or delivery of this Agreement nor the performance by Executive of Executive’s duties and other obligations hereunder conflict with or constitute a default or breach of any covenant or obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement, contract, or other instrument to which Executive is a party or by which Executive is bound;
(ii) Executive has the full right, power and legal capacity to enter and deliver this Agreement and to perform Executive’s duties and other obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Executive enforceable against Executive in accordance with its terms. No approvals or consents of any persons or entities are required for Executive to execute and deliver this Agreement or perform Executive’s duties and other obligations hereunder;
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(iii) Executive will not use any confidential information or trade secrets of any third party in Executive’s employment by the Company in violation of the terms of the agreements under which Executive had access to or knowledge of such confidential information or trade secrets; and
(iv) Executive has no knowledge of information that would cause the Company not to receive satisfactory results of Executive’s background check, as determined in good faith by the Board.
(b) By The Company. The Company hereby represents and warrants to Executive that the Company has the full right and power to enter and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of the Company enforceable against it in accordance with its terms. All approvals or consents required for the Company to validly execute and deliver this Agreement and perform its obligations hereunder, including, without limitation, approval of the Board, if required, have been obtained.
| 8. | Termination. |
(a) Cause. Executive’s employment hereunder may be terminated by the Company immediately for Cause. Any of the following actions by Executive shall constitute “Cause”:
(i) The continued willful failure or refusal by Executive, after Executive has actually received written notice from the Board or the CEO of such failure or refusal, to perform Executive’s material duties or obligations under this Agreement (other than as a result of Executive’s mental or physical incapacity or illness, as confirmed by medical evidence provided by a licensed physician mutually selected by the Company and Executive (or Executive’s representatives));
(ii) Any willfully, intentionally harmful or grossly negligent act by Executive having the effect of materially injuring (whether financially or otherwise) the business or reputation of the Company or any of its subsidiaries (other than acts that were performed in a good faith attempt to advance the business interests of the Company);
(iii) Executive’s conviction of any felony involving moral turpitude (including entry of a guilty or nolo contendere plea);
(iv) Executive’s qualification as a “bad actor,” as defined by 17 CFR 230.506(d);
(v) The good faith determination by the Board, after a reasonable and good-faith investigation by the Company or any of its subsidiaries that Executive engaged in some form of harassment prohibited by law (including, without limitation, harassment on the basis of age, sex or race) unless Executive’s actions were specifically directed by the Board;
(vi) Any material misappropriation or embezzlement by Executive of the property of the Company or any of its subsidiaries (whether or not a misdemeanor or felony); or
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(vii) Breach by Executive of any material provision of this Agreement that is materially injurious to the Company or any of its subsidiaries.
An act or failure to act shall not be “willful” if (i) done by Executive in good faith or (ii) Executive reasonably believed that such action or inaction was in the best interests of the Company. Notwithstanding the foregoing, in no event shall Cause exist unless the Board has made a formal determination of Cause by majority vote and provided Executive with ten (10) days advance notice followed by the right to be heard in front of the entire Board followed by a second majority vote finding that Cause still exists. Such meeting of the Board can occur in person or via teleconference. If the circumstances surrounding Cause are reasonably curable, then Executive shall have the right to cure those circumstances over the next twenty (20) days. If the circumstances are not curable or if those circumstances still exist after the cure period has expired, then (and only then) shall Cause be deemed to exist for purposes of this Agreement.
(b) Death. Executive’s employment hereunder shall be terminated upon Executive’s death.
(c) Disability. The Company may terminate Executive’s employment hereunder due to Executive’s “Disability” (defined below) while Executive is so Disabled. For purposes of this Agreement, a termination due to Executive’s “Disability” shall be deemed to have occurred if the Executive has not been able to perform Executive’s material duties for one hundred eighty (180) days in a three hundred sixty five (365) day period.
(d) Good Reason. Executive may terminate Executive’s employment hereunder for “Good Reason” (as defined below) pursuant to the procedures set forth in this Section 8(d). In order for Executive to resign for Good Reason, Executive must provide written notice to the Board of the existence of the Good Reason condition within sixty (60) days of Executive’s knowledge of the initial existence of such Good Reason condition. Upon receipt of such notice, the Company will have thirty (30) days during which it may attempt to remedy the Good Reason condition. If so remedied, Executive may not resign for Good Reason based on such condition. If the Good Reason condition is not remedied within such thirty (30) day period, Executive may resign based on the Good Reason condition specified in the notice effective no later than thirty (30) days following the expiration of the ten (10) day cure period. The term “Good Reason” shall mean any of the following occurring without Executive’s written consent:
(i) any material breach of this Agreement by the Company;
(ii) any material reduction by the Company of Executive’s title, duties, responsibilities, or authority or the assignment to Executive of titles, duties, responsibilities, or authority that are inconsistent with Executive’s title and position as Executive Vice President and Chief Operating Officer;
(iii) a reduction in Executive’s annual Base Salary unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary and/or total compensation; and (ii) Executive’s Base Salary and/or total compensation reduction is no greater than ten percent (10%);
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(iv) a reduction in Executive’s target bonus level unless: (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction related to target bonus levels; and (ii) Executive’s target bonus level reduction is no greater than ten percent (10%);
(v) the Company providing Executive with a Notice of Nonrenewal as described in Section 2 above, and Executive was willing and able to renew this Agreement and continue services under this Agreement, which Executive shall confirm by providing the Company a notice in writing at least ninety (90) days before the expiration of the Initial Term or the expiration of any Extended Term (or, if later, not less than thirty (30) days following the receipt of the Notice of Nonrenewal from the Company) that Executive is willing and able to renew this Agreement and continue services under this Agreement (a “Notice by Executive of Renewal”); and/or
(vi) the failure of the Company to obtain the assumption in writing of its obligations under this Agreement by any successor (i) to all or substantially all of the assets of the Company or (ii) due to the occurrence of any other Corporate Transaction, within ten (10) days of such Corporate Transaction.
(e) Convenience. Either Party may terminate Executive’s employment hereunder for any reason or no reason at any time upon sixty (60) days written notice of termination to the other Party, which notice shall specify the termination date, or by providing a Notice of Nonrenewal to the other Party pursuant to the terms of Section 2.
(f) Background Checks. Executive agrees that the Company shall conduct appropriate background checks as a condition of Executive’s employment. In the event the Company does not receive satisfactory results of the background checks for Executive, as determined in good faith by the Board, the Company may terminate Executive’s employment hereunder immediately, and Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation (if any).
(g) Survival. The provisions of this Section 8 shall survive any termination of the Term.
| 9. | Compensation upon Termination. |
In the event Executive’s employment is terminated, the Company shall promptly pay to Executive the Base Salary and benefits otherwise payable to Executive under Section 4 through the last day of Executive’s actual employment by the Company, along with any reimbursable business expenses subject to Company policy and any amounts due under any benefit or compensation plan, policy, arrangement or program in accordance with its terms (together, the “Accrued Compensation”). Except for the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance, and as otherwise required by law, Executive will have no further entitlement hereunder to any other compensation or benefits from the Company except as expressly provided below:
(a) Death or Disability. If Executive’s employment is terminated as a result of Executive’s death or Disability, the Company shall pay to Executive or to Executive’s estate, as applicable, the Accrued Compensation. In addition, Executive shall receive the bonus due for any completed fiscal year to the extent that such bonus has not yet been paid (including timing of payment, the “Prior Year Bonus”) plus (ii) the Prorated Bonus (as defined below) for the year of termination. Executive’s outstanding equity awards shall vest (and remain exercisable, as applicable) to the extent provided in the Stock Incentive Plan and the underlying award agreements.
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(b) Cause. If Executive’s employment is terminated by the Company for Cause, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law. All outstanding Awards that are granted on or after the Effective Date, whether or not vested, shall be forfeited to the Company as of such date.
(c) Other than for Cause, Death or Disability; Resignation for Good Reason. If the Company terminates Executive’s employment, other than as a result of Executive’s death, Disability or for Cause, or if Executive terminates Executive’s employment for Good Reason, then conditioned upon Executive executing and not revoking a Release (as defined below) following such termination, the Company will provide to Executive the following separation benefits:
(i) Payment of the Accrued Compensation and Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
(ii) Payment to Executive of an amount equal to nine (9) months of Executive’s Base Salary, which shall be paid in equal monthly installments over a period of nine (9) months following the termination date,
(iii) Payment to Executive of a prorated annual bonus for the year in which the termination date occurs, based on the actual achievement of the objectives referenced in Section 4(b). The prorated bonus will be calculated as the annual bonus based on performance, multiplied by a fraction, the numerator of which is the number of days preceding the termination date in the year of termination and the denominator of which is three hundred sixty five (365) (the “Prorated Bonus”).
(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above times the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”), consistent with Section 409A of the Code, and
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(v) All Awards that are scheduled to vest on or before the next succeeding anniversary of the date of termination shall be accelerated and deemed to have vested as of the termination date; provided that, for the avoidance of doubt, any performance-based Awards whose vesting requirements have not been successfully met as of the date of Executive’s termination of employment or resignation with Good Reason will not accelerate.
The separation benefits set forth above are conditioned upon Executive executing a release of claims against the Company, its parents, subsidiaries and affiliates and each of their respective officers, directors, employees, agents, successors and assigns in substantially the form attached hereto as Exhibit B (the “Release”) within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary continuation described in Section 9(c)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with Code Section 409A, may begin the payments earlier. The Prorated Bonus described in Section 9(c)(iii) above shall be paid at the date on which the annual bonus would have been paid had Executive continued in employment, and the COBRA payments Section 9(c)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences. Notwithstanding the foregoing, if the Company provides a timely Notice of Nonrenewal to Executive and Executive does not provide to the Company a timely Notice by Executive of Renewal in accordance with Section 8(d)(v) above, such event shall not constitute a Good Reason for purposes of this Agreement. In that event, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, the Prior Year’s Bonus, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law.
(d) Termination without Good Reason or Notice of Nonrenewal by Executive. If, pursuant to Section 8(e) above, Executive terminates Executive’s employment hereunder by written notice of termination without Good Reason or by providing a Notice of Nonrenewal to the Company, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, the Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law.
(e) This Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of Executive’s employment, Executive shall not be entitled to any payments or benefits which are not explicitly provided in this Section 9, except as required by law or the terms of another employee plan, program or arrangement covering Executive. Executive acknowledges and agrees that upon the termination of Executive’s employment with the Company, regardless of the reason or grounds therefor, Executive shall resign from any board, organization or foundation wherein Executive sits or belongs as a representative of the Company.
(f) Mitigation; Offset. In the event of any termination of Executive’s employment under this Section 9, Executive shall be under no obligation to seek other employment and there shall be no offset against amounts due Executive under this Agreement on account of any compensation attributable to any subsequent employment that Executive may obtain (other than as described in Section 9(c)(iv) or Section 10(b)(iv) with respect to COBRA). Notwithstanding anything herein to the contrary, the payments made pursuant to Section 9 and Section 10 shall be reduced by any amounts paid or required to be paid to Executive by the Company (or any of its subsidiaries) pursuant to any applicable federal, state and local statute or regulation that relates to notice, severance or separation benefits, including but not limited to the Worker Adjustment Retraining Notification Act (29 U.S.C. § 2101 et seq.), the Illinois Worker Adjustment and Retraining Notification Act (820 ILCS 65/1 et seq.), the Millvale Dallas Airmotive Plant Job Loss Notification Act (N.J. Stat. § 34:21-1 et seq.), and any other state or local statute concerning notice, severance, or separation benefits during any notice or similar period required by such statutes or regulations (or any payment in lieu of such notice).
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(g) The obligations of the Company that arise under this Section 9 shall survive the expiration or earlier termination of this Agreement.
| 10. | Corporate Transaction. |
(a) Corporate Transaction Defined. The term “Corporate Transaction” shall have the same meaning as defined in the Company’s 2019 Omnibus Stock Incentive Plan, as in effect on the date of this Agreement.
(b) Consequence upon Executive’s Termination Without Cause or Executive’s Resignation With Good Reason. Upon Executive’s termination of employment without Cause or Executive’s resignation of employment with Good Reason within twenty-four (24) months after a Corporate Transaction, the Company shall provide Executive the following separation benefits:
(i) Payment of the Accrued Compensation, the Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
(ii) Payment to Executive of an amount equal to nine (9) months of Executive’s Base Salary and target bonus as in effect for the nine (9) months following the termination date,
(iii) Payment to Executive of the Prorated Bonus,
(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary and bonus payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above times the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Code, consistent with Section 409A of the Code, and
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(v) All unvested Awards held by Executive shall be accelerated and deemed to have vested as of the date of Executive’s termination of employment.
The separation benefits set forth above are conditioned upon Executive executing a Release within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary and bonus continuation described in Section 10(b)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with “Section 409A” (defined below), may begin the payments earlier. The Prorated Bonus described in Section 10(b)(iii) above shall be paid at the date on which the bonus would have been paid had Executive continued in employment, and the COBRA payments described in Section 10(b)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences.
(c) Potential Adjustments due to Tax Implications. Notwithstanding anything in this Agreement or any other agreement between Executive and the Company to the contrary, but subject to this Section 10(c), the Company will effectuate the acceleration contemplated under Section 10(b) and will make the payments and other acceleration of benefits under this Agreement and other compensatory arrangements without regard to whether Section 280G of the Code would limit or preclude the deductibility of such payments or benefits. However, if reducing or eliminating any payment and/or other benefit would increase the “Total After-Tax Payments” (defined below), then the amounts payable to Executive will be reduced or eliminated as follows (or in such other manner as Executive may specify at the applicable time if permitted to do so without violation of Code Sections 280G, 409A and 4999) to the extent necessary to maximize such Total After-Tax Payments:
(i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of any equity awards) and
(ii) second, by reducing or eliminating the vesting of equity awards that occurs as a result of a Corporate Transaction or other event covered by Section 280G of the Code in reverse order of vesting and with grants whose parachute value is calculated without regard to Treasury Regulations 280G-1 Q&A 24(c) being reduced prior to those subject to Q&A 24(c).
The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting are required to be reduced or eliminated in accordance with the foregoing. If there is ultimately determined to be an underpayment of or overpayment to Executive under this provision, the amount of such underpayment or overpayment will be immediately paid to Executive or refunded by Executive, as the case may be, with interest at the applicable federal rate under the Code. The term “Total After Tax Payments” means the total value of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to Executive or for Executive’s benefit (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The cost of the accountant shall be paid by the Company and the accountant shall deliver to the parties its calculations in a form that can be relied upon for filing of tax returns. The calculation made pursuant to this section shall be made by allocating the full summary compensation table value (from the latest filed proxy) or an estimate thereof (to the extent that Executive was not included on such table) of Executive’s annual total compensation to the noncompete set forth in this Agreement.
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| 11. | Indemnification. |
The Company shall defend and indemnify Executive regard to Executive’s capacities with the Company, its subsidiaries and their respective benefit plans to the fullest extent permitted under the Delaware General Corporate Law (the “DGCL”). The Company shall also maintain a policy for indemnifying its officers and directors, including but not limited to Executive, for all actions permitted under the DGCL taken in good faith pursuit of their duties for the Company, including, but not limited to, the obtaining of an appropriate level of directors and officers liability insurance coverage and including such provisions in the Company’s bylaws or certificate of incorporation, as applicable and customary. Executive shall be designated as a named insured on such directors and officers liability insurance policy. Executive’s rights to, and the Company’s obligation to provide, indemnification shall survive termination of this Agreement. The provisions of this Section 11 shall survive any termination of the Term. Nothing herein shall limit any right that Executive may have in respect of indemnification, contribution, advancement, or liability insurance coverage, under any other Company contract or under applicable law.
| 12. | Compliance with Code Section 409A. |
(a) Intent of the Parties. The intent of the Parties is that the payments, compensation and benefits under this Agreement will be exempt from or comply with Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and, in this connection, the Agreement shall be interpreted to be exempt or in compliance with Section 409A. Further, if any benefit or payment payable under this Agreement is deemed to not comply with Section 409A, the Company and Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereunder) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved; provided, however, that any resulting renegotiated terms shall provide to Executive the after-tax economic equivalent of what otherwise has been provided to Executive pursuant to the terms of this Agreement, and provided further, that any deferral of payments or other benefits shall be only for such time period as may be required to comply with Section 409A.
(b) Potential Delay of Payment(s) and Adjustments. For the avoidance of doubt, the Parties intend that payments of the separation benefits set forth in Section 9 and Section 10 above satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-l(b)(4), 1.409A-l(b)(5), and 1.409A- 1(b)(9). If any payment, compensation or other benefit provided to Executive in connection with Executive’s separation from service is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A and Executive is a “specified employee” within the meaning of Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the termination date or Executive’s earlier death (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to Executive during the period between the termination date and the New Payment Date shall be paid to Executive in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement.
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(c) Separation from Service. Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under Section 9 or Section 10 above that constitute “deferred compensation” within the meaning of Section 409A will not commence in connection with Executive’s termination of employment unless and until Executive has also incurred a “separation from service” (as such term is defined in Treasury Regulation Section l.409A-l(h)), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur additional tax under Section 409A.
(d) Installments: Year of Payment. If any payment, compensation or other benefit required by the Agreement is to be paid in a series of installment payments, each individual payment in the series shall be considered a separate payment for purposes of Section 409A. In no event may Executive designate the year of payment of a benefit under this Agreement, except in accordance with Section 409A.
(e) Survival. The provisions of this Section 12 shall survive any termination of the Term.
| 13. | Miscellaneous. |
(a) Governing Law. This Agreement and all questions relating to its validity, interpretation, performance, remediation, and enforcement (including, without limitation, provisions concerning limitations of actions) shall be governed by and construed in accordance with the substantive laws of the State of Delaware, notwithstanding any choice-of-law doctrines of that jurisdiction or any other jurisdiction that ordinarily would or might cause the substantive law of another jurisdiction to apply.
(b) Company Policies. All incentive compensation under this Agreement shall be subject to the terms of any clawback, recoupment or other policies approved by the Board and applicable to executive officers of the Company.
(c) Personal Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ACTION OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT MAY ONLY BE BROUGHT AND ENFORCED IN THE STATE OR FEDERAL COURTS LOCATED IN SUSSEX COUNTY, DELAWARE, TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFORE. THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, AS WELL AS ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM.
(d) Service of Process. THE PARTIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN THE MANNER AND TO THE ADDRESS SPECIFIED IN SECTION 13(i) OF THIS AGREEMENT.
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(e) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIYER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(f) Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. The Company may assign its rights, together with its obligations, hereunder only in connection with any sale, transfer or other disposition of all or substantially all of its business or assets and to an assignee who assumes such obligations by law or in writing. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, legal representatives, successors and assigns.
(g) Amendment. This Agreement cannot be amended orally, or by any course of conduct or dealing, but only by a written agreement duly executed by the Parties.
(h) Waiver. The failure of either Party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance therewith, and such terms, conditions and provisions shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either Party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such Party. Unless the written waiver instrument expressly provides otherwise, no waiver by a Party of any right or remedy or breach by the other Party in any particular instance shall be construed to apply to any right, remedy or breach arising out of or related to a subsequent instance.
(i) Notices. All notices, demands or other communications desired or required to be given by a Party to the other Party shall be in writing and shall be deemed effectively given upon (i) personal delivery to the Party to be notified, (ii) upon confirmation of receipt of fax or other electronic transmission, (iii) one business day after deposit with a reputable overnight courier, prepaid for priority overnight delivery, or (iv) five days after deposit with the United States Postal Service, postage prepaid, certified mail, return receipt requested, in each case to the Party to be notified at the Company’s principal executive officers in the case of the Company and at the latest address of the Executive on the books of the Company in the case of the Executive; or to such other addresses and to the attention of such other individuals as either Party shall have designated to the other by notice given in the foregoing manner.
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(j) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral between the Parties, relating to the subject matter hereof.
(k) Captions, Headings and Cross-References. The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement. Except as expressly set forth otherwise, all cross-references to sections refer to sections of this Agreement.
(l) Severability. In addition to, and not in conflict with, the provisions of Sections 6(b) and 6(f), the Parties agree that each and every provision of this Agreement shall be deemed valid, legal and enforceable in all jurisdictions to the fullest extent possible. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be adjusted and reformed rather than voided, if possible, in order to achieve the intent of the Parties. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction which cannot be adjusted and reformed shall for the purposes of that jurisdiction, be voided. Any adjustment, reformation or voidance of any provisions of this Agreement shall only be effective in the jurisdiction requiring such adjustment or voidance, without affecting in any way the remaining provisions of this Agreement in such jurisdiction or adjusting, reforming, voiding or rendering that provision or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
(m) Controlling Document. If any provision of any agreement, plan, program, policy, arrangement or other written document between or relating to the Company and Executive conflicts with any provision of this Agreement, the provision of this Agreement shall control and prevail, unless Executive agrees otherwise in writing.
(n) Counterpart Execution. This Agreement may be executed in one or more counterparts each of which shall be an original document and all of which together shall constitute one and the same instrument. The Parties acknowledge that this Agreement may be executed and delivered by means of electronic signatures and that use and acceptance of electronic signatures to bind the Parties represents the voluntary agreement and intention of the Parties to conduct this transaction by electronic means. The Parties agree that execution and delivery by electronic means will have the same legal effect as if signatures had been manually written on this Agreement. This Agreement will be deemed lawfully executed by the Parties by such action for purposes of any statute or rule of law that requires this Agreement to be executed by the Parties to make the mutual promises, agreements and obligations of the Parties set forth herein legally enforceable. Facsimile and .pdf exchanges of signatures will have the same legal force and effect as the exchange of original signatures. THE PARTIES HEREBY WAIVE ANY RIGHT TO RAISE ANY DEFENSE OR WAIVER BASED UPON EXECUTION OF THIS AGREEMENT BY MEANS OF ELECTRONIC SIGNATURES IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT. The Parties agree that the legal effect, validity and enforceability of this Agreement will not be impaired solely because of its execution in electronic form or that an electronic record was used in its formation. The Parties acknowledge that they are capable of retaining electronic records of this transaction.
Signature page follows.
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IN WITNESS WHEREOF, the Parties hereto have executed this Employment Agreement as of the date set forth above.
| CORMEDIX INC. | EXECUTIVE | |||
| By: | /s/ Joseph Todisco | /s/ Elizabeth Hurlburt | ||
| Name: | Joseph Todisco | Elizabeth Hurlburt | ||
| Title: | Chief Executive Officer | |||
| Date: | August 29, 2025 | Date: | August 29, 2025 | |
[Signature Page to E. Hurlburt Employment Agreement]
EXHIBIT A
PERMITTED ACTIVITIES; PRIOR INVENTIONS
None.
A-1
EXHIBIT B
RELEASE
(See attached.)
B-1
RELEASE OF CLAIMS
As used in this Release of Claims (this “Release”), the term “claims” will include all claims, covenants, warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments, losses, and liabilities, of whatsoever kind or nature, in law, equity or otherwise.
For and in consideration of the severance benefits provided under Section 9 or Section 10 of my Executive Employment Agreement, dated August 29, 2025, with CorMedix Inc., other than any Accrued Compensation (as defined therein) (such benefits, the “Severance Benefits,” such corporation, the “Company” and, together with its current and future parents and subsidiaries, the “Company Group” and, such agreement, my “Employment Agreement”)), and other good and valuable consideration, I, Elizabeth Hurlburt, for and on behalf of myself and my heirs, administrators, executors and assigns, effective as of the date on which this release becomes effective pursuant to its terms, do fully and forever release, remise and discharge each member of the Company Group (including any co-employer of any member of the Company Group) and each of their successors and assigns, together with their respective current and former officers, directors, partners, members, shareholders (including any management company of a member or shareholder), employees and agents (collectively, and with the Company, the “Company Parties”) from any and all claims whatsoever up to the date I execute this Release which I had, may have had, or now have against the Company Parties, whether known or unknown, for or by reason of any matter, cause or thing whatsoever, including any claim arising out of or attributable to my employment or the termination of my employment with the Company or any member of the Company Group, whether for tort, breach of express or implied contract, intentional infliction of emotional distress, wrongful termination, unjust dismissal, violation of public policy, defamation, libel or slander, or under any federal, state, or local law dealing with discrimination, harassment or retaliation, and any other purported restriction on an employer’s right to terminate the employment of employees. The release of claims in this Release includes, but is not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, as amended (“ADEA”), the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, the Worker Adjustment and Retraining Notification Act of 1988 and the Employee Retirement Income Security Act of 1974 (excluding claims for accrued, vested benefits under any retirement or other employee benefit plan of the Company Parties (other than any severance or similar plan or policy)), each as may be amended from time to time, and all other federal, state, and local laws, the common law or constitution of any jurisdiction. I intend the release contained herein to be a general release of any and all claims to the fullest extent permissible by law and for the provisions regarding the release of claims against the Company Parties to be construed as broadly as possible, and hereby incorporate in this release similar federal, state or other laws, including any and all claims arising under the New Jersey Law Against Discrimination (NJLAD) (with respect to existing but not prospective claims), the New Jersey Family Leave Act (NJFLA), the New Jersey Conscientious Employee Protection Act (NJCEPA), the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, retaliation claims under the New Jersey Workers’ Compensation Law (NJWCL), all including any amendments and their respective implementing regulations, and any other state or local law (statutory, regulatory, or otherwise) that may be legally waived and released, all of which I also hereby expressly waive.
B-2
I understand and agree that claims or facts in addition to or different from those which are now known or believed by me to exist may hereafter be discovered, but it is my intention to fully and forever release, remise and discharge all claims arising prior to the date hereof which I had, may have had, or now have against the Company Parties, whether known or unknown, suspected or unsuspected, asserted or unasserted, contingent or noncontingent, without regard to the subsequent discovery or existence of such additional or different facts. Without limiting the foregoing, by signing this Release, I expressly waive and release any provision of law that purports to limit the scope of a general release.
I acknowledge and agree that as of the date I execute this Release, I have no knowledge of any facts or circumstances that give rise or could give rise to any claims under any of the laws listed in the preceding paragraphs
Notwithstanding any provision of this Release to the contrary, by executing this Release, I am not releasing any claims relating to: (i) my rights under Section 9 and Section 10 of my Employment Agreement, (ii) my right to accrued, vested benefits due to terminated employees under any employee benefit plan of the Company or any other member of the Company Group in which I participated (excluding any severance or similar plan or policy), in accordance with the terms thereof (including my right to elect COBRA continuation coverage), including any claims pursuant to any award of equity in any member of the Company Group, or due to my status as an equityholder in any member of the Company Group, including pursuant to the governing documents thereof; (iii) any claims that cannot be waived by law or that arise after the date I execute this Agreement; or (iv) my right to indemnification, advancement and reimbursement of legal fees and expenses, and directors and officers liability insurance, as provided by, and in accordance with the terms of, such program or policy, applicable law, the Company’s by-laws or otherwise.
Notwithstanding any provision of this Release to the contrary, nothing herein or in any Company policy or agreement prevents me, without notifying the Company or receiving prior authorization from the Company, from (i) speaking with law enforcement, my attorney, the attorney general, the U.S. Equal Employment Opportunity Commission, any state or local division of human rights or fair employment agency; (ii) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any government agency; (iii) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation; (iv) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process; or (v) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which I may be entitled; provided, however, in each case, I agree to forgo any monetary benefit from the filing of a charge or complaint with a government agency except pursuant to a whistleblower program or where my right to receive such a monetary benefit is otherwise not waivable by law. The protections contained in this paragraph apply to prior, current and future conduct.
B-3
I acknowledge and agree that as of the date I execute this Release, I have reported all accidents, injuries or illnesses relating to or arising from my employment with the Company or the Company Group and that I have not suffered any on-the-job injury or illness for which I have not yet filed a claim.
By signing below, I represent and warrant to the Company that (i) prior to the date I execute this Release, I have provided the Company with written disclosure of any unethical or illegal behavior and any material violations of the Company’s code of ethics or other material policy, in each case, that I observed, suspected or became aware of during the course of my employment or, if no such written disclosure was provided, that I have not observed, suspected or become aware of any such behavior or violations and (ii) I have complied with all laws and Company policies in respect of my employment with the Company.
I expressly acknowledge and agree that I:
| § | Am able to read the language, and understand the meaning and effect, of this Release; |
| § | Have no physical or mental impairment of any kind that has interfered with my ability to read and understand the meaning of this Release or its terms, and that I am not acting under the influence of any medication, drug, or chemical of any type in entering into this Release; |
| § | Am specifically agreeing to the terms of the release contained in this Release because the Company has agreed to pay me the Severance Benefits in consideration for my agreement to accept it in full settlement of all possible claims I might have or ever had against the Company Parties, and because of my execution of this Release; |
| § | Acknowledge that, but for my execution of this Release, I would not be entitled to the Severance Benefits; |
| § | Had or could have had [twenty-one (21)][forty-five (45)]1 calendar days from the date of my termination of employment (the “Release Expiration Date”) to review and consider this Release, and that if I execute this Release prior to the Release Expiration Date, I have voluntarily and knowingly waived the remainder of the review period; |
| § | Understand that, by entering into this Release, I do not waive rights or claims under ADEA that may arise after the date I execute this Release; |
| § | Have not relied upon any representation or statement not set forth in this Release or my Employment Agreement made by the Company Group or any of its representatives; |
| § | Am hereby advised to consult with my attorney regarding the terms and effect of this Release; and |
| § | Have signed this Release knowingly and voluntarily. |
| 1 | To be selected based on whether applicable termination was “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967). |
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Except as otherwise provided in this Release and to the maximum extent permitted by law, I represent and warrant that I have not previously filed, and I agree that I will not file, a complaint, charge or lawsuit against any of the Company Parties regarding any of the claims released herein. If, notwithstanding this representation and warranty, I have filed or file such a complaint, charge or lawsuit, I agree that I shall cause such complaint, charge or lawsuit to be dismissed with prejudice and shall pay any and all costs required in obtaining dismissal of such complaint, charge or lawsuit, including without limitation the attorneys’ fees of any of the Company Parties against whom I have filed such a complaint, charge or lawsuit.
I hereby agree to waive any and all claims to re-employment with the Company or any of its direct or indirect parent(s) or subsidiaries and affirmatively agree not to seek further employment with the Company or any of its direct or indirect parent(s) or subsidiaries. I acknowledge that if I re-apply for or seek employment with the Company or any of its direct or indirect parent(s) or subsidiaries, the refusal to hire me based on this provision will provide a complete defense to any claims arising from my attempt to apply for employment.
Notwithstanding anything contained herein to the contrary, this Release will not become effective or enforceable for a period of seven (7) calendar days following the date of my execution of this Release (the “Revocation Period”), during which time I may revoke my acceptance of this Release by notifying the Company, in writing, delivered to Beth Zelnick Kaufman (the “Company Representative”), Executive Vice President, Chief Legal Officer and Corporate Secretary, by email ([email protected]), or by other electronic copies (complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign)). To be effective, such revocation must be received by the Company Representative no later than 11:59 p.m. Eastern Time on the seventh (7th) calendar day following the execution of this Release. Provided that the Release is executed prior to the Release Expiration Date and I do not revoke it during the Revocation Period, the date on which this Release is executed and delivered to the Company Representative shall be its effective date. In the event that I fail to execute and deliver this Release prior to the Release Expiration Date or, if I revoke this Release during the Revocation Period, this Release will be null and void and of no effect, and neither the me nor the Company nor any of the Company Parties will have any obligations to pay me the Severance Benefits.
The provisions of this Release shall be binding upon my heirs, executors, administrators, legal personal representatives and assigns. If any provision of this Release shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon and shall not impair the enforceability of any other provision of this Release. I acknowledge and agree that each of the Company Parties shall be a third-party beneficiary to the releases set forth in this Release, with full rights to enforce this Release and the matters documented herein.
EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS RELEASE IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND IN ANY COURT SITTING IN SUSSEX COUNTY, DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS RELEASE, I CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE. FURTHER, I HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE.
Capitalized terms used, but not defined herein, shall have the meanings ascribed to such terms in my Employment Agreement.
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I, Elizabeth Hurlburt, have executed this Release of Claims on the date set forth below:
| Elizabeth Hurlburt | ||
| Date: | [To Be Executed Following Termination of Employment] | |
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EXHIBIT C
FORM OF AWARD AGREEMENT
(See attached.)
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CORMEDIX INC.
amended and restated
2019 OMNIBUS STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this “Agreement”) is made and entered into between CorMedix Inc. (the “Company”) and Elizabeth Hurlburt (the “Grantee”), effective as of [●] (the “Date of Grant”). This Agreement sets forth the terms and conditions associated with the Company’s award to the Grantee of restricted stock units payable, as described below, in shares of Common Stock from the Company, pursuant to the Company’s Amended and Restated 2019 Omnibus Stock Incentive Plan (as may be amended from time to time, the “Plan”) for the number of Units (as defined below) set forth below (collectively, the “Award”). Capitalized terms used herein, which are not otherwise defined herein will have the meanings ascribed to them under the Plan.
NOW, THEREFORE, in consideration of the foregoing and the Grantee’s continued provision of valuable services to the Company, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Units. Effective as of the Date of Grant, the Company hereby grants to the Grantee [●] Restricted Stock Units (the “Units”), each of which shall represent the right of the Grantee to receive a share (“Share”) of Common Stock that will be delivered to the Grantee pursuant to this Agreement if and when such Unit becomes vested in accordance with this Agreement. The Units represent hypothetical Shares and not actual Shares. The Company shall establish and maintain a Unit account, as a bookkeeping account on its records, for the Grantee and shall record in such account the number of Units granted to the Grantee. The Units are subject to the vesting, payment, and other provisions of this Agreement and the Plan.
2. Vesting. Subject to the Grantee remaining in Continuous Service through the applicable vesting dates, the Units shall vest over four (4) years in four (4) approximately equal full share installments with the first vest occurring on the Date of Grant, provided that vesting may accelerate or cease as provided in this Agreement or in the Plan (or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company). Vesting of the Units shall be cumulative, and will represent 100% of the Units.
3. Effect of Termination of Continuous Service.
(a) In the event of the termination of the Grantee’s Continuous Service, all Units that are not vested will be immediately and automatically forfeited, except as provided in Sections 3(b) and 4 below or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company.
(b) In the event that Grantee’s Continuous Service is terminated by the Company (other than for Cause or on account of Grantee’s death or Disability) or by the Grantee for Good Reason (as defined in Grantee’s employment agreement with the Company), then, conditioned upon Grantee executing and not revoking a release of claims against the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns in a form reasonably acceptable to the Company that becomes effective by its terms on or prior to the sixtieth (60) day following such termination, all then-unvested Units that would have vested during the twelve (12) months immediately following the date on which Grantee’s Continuous Service was terminated had such termination not occurred shall fully vest.
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4. Corporate Transaction.
(a) Unless otherwise set forth in an employment agreement or other written agreement between the Grantee and the Company, if a Corporate Transaction occurs and the Award remains outstanding after the Corporate Transaction (or is assumed by, or converted to a similar award with equivalent value as of the date of the Corporate Transaction of, the surviving corporation (or a parent or subsidiary of the surviving corporation)), and the Grantee incurs an involuntary separation from Continuous Service by the Company or a Related Entity or successor other than for Cause upon or within 24 months following the Corporate Transaction and prior to the full vesting of the Units, the Units shall fully vest upon such involuntary separation.
(b) Subject to the terms of any employment agreement or other written agreement by and between the Grantee and the Company, or as set forth in Section 3(a) above, the provisions of the Plan applicable to a Corporate Transaction shall apply to the Units, and, in the event of a Corporate Transaction, the Committee may take such actions as it deems appropriate pursuant to the Plan.
5. Delivery of Shares to Settle Vested Units. Vested Units shall be settled by delivering to the Grantee a number of Shares equal to the number of vested Units as soon as administratively practicable after the date on which the Units vest, provided that the Company may provide a reasonable delay in the issuance or delivery of the Shares to address tax withholding and other administrative matters and provided further that delivery of the Shares will occur no later than two and one-half months following the conclusion of the calendar year in which the vesting occurs. On such date, the Company will, at its election, either: (a) issue a certificate representing the Shares deliverable pursuant to this Agreement; or (b) not issue any certificate representing the Shares deliverable pursuant to this Agreement and instead document the Grantee’s interest in the Shares by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Grantee’s name.
6. Capitalization Changes. The number of Units convertible to Shares subject to this Award may be adjusted from time to time by the Committee to account for changes in capitalization as described in Section 13 of the Plan.
7. Rights as a Stockholder. The Units represent a right to payment from the Company if the conditions of the Agreement are met and do not give the Grantee ownership of any Common Stock prior to delivery as provided in Section 5. The Grantee will not have any rights and/or privileges of a stockholder of the Company with respect to the Units prior to such delivery. If the Grantee becomes vested in Units, any Shares to which the Grantee becomes entitled will be delivered to the Grantee as provided in Section 5, and the Grantee will have full ownership of the Shares upon such delivery.
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8. Non-Transferability of the Award. The Units and the right to payment under this Agreement are not transferable, may not be sold, exchanged, transferred, pledged, hypothecated, encumbered or otherwise disposed of except as provided in the Plan. Any purported transfer of the Units or the right to payment under this Agreement not in compliance with the preceding sentence is null and void and will not be given effect.
9. No Right to Continuous Service. The Award is not an employment or service contract, and nothing this Agreement confers or will be construed as conferring upon the Grantee any right to continue in the employment or service of the Company, or as interfering with or restricting in any way the right of either party to terminate such employment or service at any time.
10. Tax Consequences. The Grantee acknowledges that the Grantee understands the federal, state, and local tax consequences of the Award and the issuance, vesting, forfeiture, and delivery provisions hereof relating to the Units. The Grantee will rely solely on the advice of the Grantee’s own tax advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands that the Grantee (and not the Company) will be responsible for the Grantee’s own tax liability that may arise as a result of the Award or the transactions contemplated by this Agreement.
11. Withholding Obligations. The Grantee understands that, at the time that the Grantee becomes vested and/or receives payment for any Units (including through the delivery of Shares), the Company may be required to withhold federal, state and local income and employment taxes. At the time of vesting, or at or before the time the Grantee receives a distribution of the Shares underlying the Units, or at any time thereafter as requested by the Company, the Grantee hereby authorizes the Company to satisfy any required withholding to satisfy federal, state, local, payroll, and foreign tax withholding obligations of the Company or any Related Entity that arise in connection with the Units (the “Withholding Taxes”). Notwithstanding any other provision of this Section, the Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to the Units by any of the following means or by a combination of such means: (a) withholding from any compensation otherwise payable to the Grantee by the Company or any Related Entity; (b) causing the Grantee to tender a cash payment; or (c) withholding Shares from the Shares issued or otherwise issuable to the Grantee in connection with the Units with a Fair Market Value (measured as of the date the Withholding Taxes are to be determined) equal to the amount required to be withheld, based on a tax rate not in excess of the maximum federal, state, local and foreign marginal income tax rates applicable to the Grantee. The Grantee understands that all matters with respect to the total amount of Withholding Taxes in respect of such compensation or income will be determined by the Committee in its reasonable discretion. The Grantee further understands that, although the Company or any Related Entity may pay withheld amounts to the applicable taxing authorities, the Grantee is responsible for payment of all taxes due as a result of compensation arising under the Agreement. If the Grantee is subject to Section 16 of the Securities Exchange Act, any surrender of previously owned Shares to satisfy Withholding Taxes arising upon exercise of this Award must comply with the applicable provisions of Rule 16b-3 promulgated under the Exchange Act and shall be subject to such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
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12. Data Privacy. The Grantee consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee acknowledges that the Company holds certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security number or other identification number, salary, nationality, job title, details of this Award or any other entitlement to shares of stock awarded, cancelled, exercised, vested or unvested, for the purpose of implementing, administering and managing the Plan (the “Data”). The Grantee acknowledges that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan and that these recipients may be located in jurisdictions that may have different data privacy laws and protections, and the Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee or the Company may elect to deposit any Shares acquired upon settlement of the vested Units in accordance with the Plan and Applicable Laws.
13. Notices. Any notice or request required or permitted hereunder will be given in writing to each of the other parties hereto and will be deemed effectively given on the earlier of (a) the date of personal delivery, or (b) three days after the date of deposit in the United States Mail by registered or certified mail, postage prepaid, return receipt requested, addressed in the case of the Company to the Company’s Chief Executive Officer at the Company’s primary business address and in the case of the Grantee to the most recent address shown in the Company’s records.
14. Incorporation of the Plan; Entire Agreement; Modification. The Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of this Agreement, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this Agreement and those of the Plan, the provisions of the Plan will control. This Agreement (including the Plan) sets forth all of the promises, agreements, conditions and understandings between the parties hereto with respect to the Award, and there are no promises, agreements, conditions, understandings, warranties or representations, oral or written, express or implied, between them with respect to the Award other than as set forth therein or herein. This Agreement supersedes and replaces any and all prior agreements between the parties hereto with respect to Units granted under this Award. Except as provided by the Plan, no modification, amendment or waiver of any of the provisions of this Agreement will be effective unless approved in writing by both parties.
15. Choice of Law; Policies. The interpretation, performance and enforcement of this Agreement will be governed by the law of the State of Delaware without regard to the conflicts of laws rules of any jurisdiction. This Agreement shall be subject to any applicable clawback or recoupment policies, share trading policies, and other policies that may be implemented by the Board from time to time in accordance with Applicable Laws.
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16. Miscellaneous.
(a) The headings of the Sections in this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement or to affect the meaning of this Agreement.
(b) If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
(c) This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. The rights and obligations of the Company under this Agreement will be transferable by the Company to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
(d) The waiver by either party of compliance with any provision of this Agreement by the other party will not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
(e) The Grantee agrees upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of the Award.
(f) The Grantee acknowledges and agrees that the Grantee (i) has reviewed this Agreement and the Plan in their entirety; (ii) fully understands the provisions of each such document; and (iii) has had an opportunity to obtain the advice of counsel prior to executing and accepting the Award.
(g) This Agreement will be subject to all Applicable Laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(h) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
(i) This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same agreement. Facsimile or PDF reproductions of original signatures will be deemed binding for the purpose of the execution of this Agreement.
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17. Application of Section 409A of the Code.
(a) The parties intend that the delivery of Shares in respect of the Units provided under this Agreement satisfies, to the greatest extent possible, the exemption from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Section 1.409A-1(b)(4) (or any other applicable exemption), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, the delivery of Shares in respect of the Units provided under this Agreement will be conducted, and this Agreement will be construed, in a manner that complies with Section 409A and is consistent with the requirements for avoiding taxes or penalties under Section 409A. In such case, distributions made under this Agreement may only be made in a manner and upon an event permitted by Section 409A.
(b) The parties further intend that each installment of any payments provided for in this Agreement is a separate “payment” for purposes of Section 409A. In no event shall the Grantee, directly or indirectly, designate the calendar year of payment.
(c) To the extent that (i) one or more of the payments received or to be received by the Grantee pursuant to this Agreement would constitute deferred compensation subject to the requirements of Section 409A, and (ii) the Grantee is a “specified employee” within the meaning of Section 409A as determined by the Committee, then solely to the extent necessary to avoid the imposition of any additional taxes or penalties under Section 409A, the commencement of any payments under this Agreement will be deferred until the date that is six months and one day following the Grantee’s termination of Continuous Service (or, if earlier, the date of death of the Grantee) and will instead be paid on the date that immediately follows the end of such period (or death) or as soon as administratively practicable within thirty (30) days thereafter.
(d) To the extent that any provision of this Agreement would cause a conflict with the requirements of Section 409A, or would cause the administration of this Agreement to fail to satisfy the requirements of Section 409A, such provision shall be deemed null and void to the extent permitted by Applicable Law. The Company makes no representations to the Grantee regarding the compliance of this Agreement or the Units with Section 409A, and the Grantee is solely responsible for the payment of any taxes or penalties arising under Section 409A(a)(1), or any state law of similar effect, with respect to the grant or vesting of the Units or the delivery of the Shares subject to this Award.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized officer, and the Grantee has hereunto set his/her hand and seal, effective as of the Date of Grant.
| GRANTEE: | COMPANY: | |||
| CORMEDIX INC. | ||||
| By: | ||||
| Name: | Elizabeth Hurlburt | Name: | ||
| Title: | ||||
[Signature Page to Restricted Stock Unit Award Agreement]
Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made as of August 31, 2025 by and between CorMedix Inc., a Delaware corporation (the “Company”), and Dr. Matt David (“Executive”). Each of the Company and Executive is referred to herein as a “Party” and together they are referred to as the “Parties.”
TERMS
In consideration of the foregoing premises and the mutual covenants and agreements herein contained, the Parties, intending to be legally bound, agree as follows:
1. Employment.
(a) Services. Effective as of August 31, 2025 (the “Commencement Date”), Executive will cease serving as the Company’s Executive Vice President and Chief Financial Officer and begin serving as the Company’s Executive Vice President and Chief Business Officer. Executive will report directly to, and be subject to the supervision of, the Company’s Chief Executive Officer (the “CEO”). Executive will perform such services for the Company and have such powers, responsibilities and authority as are customarily associated with the position of Executive Vice President and Chief Business Officer and shall perform customary and appropriate duties as may otherwise be reasonably assigned to the Executive from time to time by the CEO. Executive acknowledges and agrees that the Company may cause Executive’s employer to be a directly or indirectly wholly-owned subsidiary of the Company (including, without limitation, Melinta Subsidiary Corp.), in which case, the Company may cause all compensation and benefits provided hereunder to be provided by such subsidiary, provided, however that the Company shall continue to be liable for all of the Company’s obligations under this Agreement.
(b) Acceptance. Executive hereby accepts such employment subject to the terms of this Agreement.
2. Term.
The duration of employment under this Agreement shall commence on the Commencement Date and shall continue for a term of three (3) years thereafter, unless sooner terminated pursuant to Section 8 (such three-year period referred to herein as the “Initial Term”); provided, however, that on the expiration of the Term, the Term shall be extended automatically for additional, successive one (1)-year periods (such extended periods referred to herein as the “Extended Term”), unless one Party shall notify the other in writing at least ninety (90) days before the initial expiration of the Initial Term or the expiration of any successive one (1)-year period during the Extended Term that this Agreement shall not be so extended after such expiry (a “Notice of Nonrenewal”). The Initial Term and the Extended Term collectively shall be referred to herein as the “Term.” Notwithstanding anything to the contrary contained herein, the provisions of this Agreement specified in Sections 5, 6, 9, 10, 11, 12, and 13 shall survive the expiration or termination hereof.
3. Duties; Place of Performance.
(a) Duties. Except as otherwise set forth in this Section 3(a), Executive (i) shall devote all of his business time, attention and energies to the business and affairs of the Company, shall use his best efforts to advance the interests of the Company, and shall perform his duties diligently and to the best of his ability, in compliance with the Company’s policies and procedures and the laws and regulations that apply to the Company’s business; and (ii) shall not be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that will interfere with the performance by Executive of his duties hereunder or Executive’s availability to perform such duties or that Executive knows, or should reasonably know, will adversely affect, or negatively reflect upon, the Company. With the advance written consent of the Company’s Board of Directors (the “Board”), Executive may serve as a director of, or on the advisory committee of, other pharmaceutical and life science companies. Approval for any such business activity shall not be unreasonably withheld by the Board, so long as the activity is not competitive with the business of the Company and does not interfere with the performance of Executive’s duties hereunder.
(b) Place of Performance. The duties to be performed by Executive hereunder shall be performed primarily at the executive offices of the Company in Berkeley Heights, New Jersey, or wherever the principal executive offices of the Company shall hereafter be located, subject to reasonable travel requirements on behalf of the Company, or such other place as the Company may reasonably designate.
4. Compensation.
As full compensation for Executive’s performance of services as an employee of the Company, the Company shall pay Executive as follows:
(a) Base Salary. During the Initial Term, the Company shall pay Executive an annual base salary of $423,833 (as it may be increased from time to time as provided hereunder, the “Base Salary”), less applicable withholdings and deductions. Payment shall be made in accordance with the Company’s normal payroll practices. At the same time as base salaries are reviewed for other senior executives of the Company, the Board, or its Compensation Committee, shall review the Base Salary to determine whether an increase in the amount thereof is warranted in its sole discretion. The Base Salary will not be decreased unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary; and (ii) Executive’s Base Salary reduction is no greater than ten percent (10%) .
(b) Annual Bonus. Subject to the following provisions of this Section 4(b), Executive shall be eligible for an annual bonus, less applicable withholdings and deductions, based upon a target amount of forty five percent (45%) of the Base Salary then in effect, as determined by the Board (or its Compensation Committee) in good faith based upon the achievement, during the year in question, of corporate objectives for the Company as a whole established by the Board (or its Compensation Committee) and such other factors as the Board (or its Compensation Committee) deems appropriate. Executive must be employed by the Company through December 31 of a given year in order to be eligible to earn the annual bonus for such year. The annual bonus for a given year will be paid no later than March 15 of the year following the year to which it relates.
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(c) Equity Grants.
(i) Annual Equity Grants. Executive shall be eligible to receive equity grants pursuant to the Company’s 2019 Omnibus Stock Incentive Plan (the “Stock Incentive Plan”) or any successor thereto commencing in 2026 (the “Awards”), and such Awards shall be subject to the terms and conditions of the Stock Incentive Plan and shall be further subject to the terms of the applicable award agreement, in substantially the form attached to this Agreement as Exhibit C. Any such grants shall be determined in the sole discretion of the CEO, the Board or its compensation committee. For the avoidance of doubt, nothing herein shall entitle Executive to any specific award or any specific terms or conditions in any year.
(d) Withholding. The Company will withhold from any amounts payable under this Agreement such federal, state and local taxes as the Company determines are required to be withheld pursuant to applicable law.
(e) Expenses. The Company shall reimburse Executive for all normal, usual and necessary expenses incurred by Executive in furtherance of the business and affairs of the Company, including without limitation reasonable travel, lodging, meals, and entertainment, upon timely receipt by the Company of appropriate vouchers or other proof of Executive’s expenditures and otherwise in accordance with any expense reimbursement policy as may from time to time be adopted by the Company. Such reimbursements will be made in a timely manner and in accordance with the policies of the Company, but in no event later than December 31 of the year following the year in which Executive incurs such expense. The amount of expenses eligible for reimbursement during one year will not affect the expenses eligible for reimbursement in any other year, and is not subject to liquidation or exchange for another benefit.
(f) Other Benefits. Executive shall be entitled to all rights and benefits for which he shall be eligible under any benefit or other plans (including, without limitation, dental, medical, medical reimbursement and hospital plans, pension plans, employee stock purchase plans, profit sharing plans, bonus plans, prescription drug reimbursement plans, short and long term disability plans, life insurance and other so-called “fringe” benefits) as the Company shall make available to its senior executives from time to time. All such benefits are subject to the provisions of their respective plan documents in accordance with their terms and are subject to amendment or termination by the Company without Executive’ s consent.
(g) Vacation. Executive shall be entitled to a vacation up to four (4) weeks per annum, of which no more than two (2) weeks may be taken consecutively, in addition to holidays observed by the Company and reasonable periods of paid personal and sick leave. All such paid time off shall accrue and be used in accordance with the Company’s established policies and procedures.
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5. Confidential Information and Inventions.
(a) Confidential Information; Non-Disclosure and Non-Use. Executive recognizes and acknowledges that in the course of his duties he will receive confidential or proprietary information of the Company, its affiliates or third parties with whom the Company or any such affiliates has an obligation of confidentiality. Accordingly, during and after the Term, Executive agrees to keep confidential and not disclose or make accessible to any other person or use for any other purpose other than in connection with the fulfillment of his duties under this Agreement, any “Confidential and Proprietary Information” (defined below) owned by, or received by or on behalf of the Company or any of its affiliates. The term “Confidential and Proprietary Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information, data, formulas and related concepts, business plans (both current and under development), client lists, promotion and marketing programs, trade secrets, or any other confidential or proprietary business information relating to development programs, costs, revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods, and any and all information relating to the operation of the Company’s business which the Company may from time to time designate as confidential or proprietary or that Executive reasonably knows should be, or has been, treated by the Company as confidential or proprietary. Executive expressly acknowledges that the Confidential and Proprietary Information constitutes a protectable business interest of the Company. Confidential and Proprietary Information encompasses all formats in which information is preserved, whether electronic, print, or any other form, including all originals, copies, notes, or other reproductions or replicas thereof. Executive agrees: (i) not to use any such Confidential and Proprietary Information for himself or others; and (ii) not to take any Company material or reproductions (including but not limited to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof from the Company’s offices at any time during his employment by the Company, except in connection with the execution of Executive’s duties to the Company.
(b) Return of Property. Upon request during employment and immediately at the termination of his employment, Executive will return to the Company all Confidential and Proprietary Information in any form (including all copies and reproductions thereof) and all other property whatsoever of the Company in his possession or under his control. If requested by the Company, Executive will certify in writing that all such materials have been returned to the Company. Executive also expressly agrees that immediately upon the termination of his employment with the Company for any reason, Executive will cease using any secure website, computer systems, e-mail system, phone system or voicemail service provided by the Company for the use of its employees. Notwithstanding the foregoing, Executive may retain his address book to the extent it only contains contact information.
(c) Exceptions. Confidential and Proprietary Information does not include any information that: (i) at the time of disclosure is generally known to, or readily ascertainable by, the public; (ii) becomes known to the public through no fault of Executive or other violation of this Agreement; or (iii) is disclosed to Executive by a third party under no obligation to Executive’s knowledge to maintain the confidentiality of the information. The restrictions in Section 5(a) above will not apply to any information the extent that that Executive is required to disclose such information by law, provided that the Executive (x) notifies the Company of the existence and terms of such obligation, (y) gives the Company prompt notice to seek a protective or similar order to prevent or limit such disclosure, and (z) only discloses that information actually required to be disclosed. Notwithstanding anything herein to the contrary, nothing in this Agreement will be construed to prohibit Executive, without notifying the Company or receiving prior authorization from the Company, from (A) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any federal, state or local government agency, (B) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation or (C) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process. The protections contained in the preceding sentence apply to prior, current and future conduct.
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(d) Notice Of Immunity From Liability For Confidential Disclosure Of A Trade Secret To The Government Or In A Court Filing. Pursuant to the Federal Defend Trade Secrets Act of 2016, Executive 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. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to his attorney and use the trade secret information in the court proceeding, if the individual (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
(e) Inventions. Executive agrees that all inventions, discoveries, improvements and patentable or copyrightable works (“Inventions”) initiated, conceived or made by him within the scope of the Company’s business and in the course of his employment with the Company, either alone or in conjunction with others, during the Term shall be the sole property of the Company to the maximum extent permitted by applicable law and, to the extent permitted by law, shall be “works made for hire” as that term is defined in the United States Copyright Act (17 U.S.C.A., Section 101). The Company shall be the sole owner of all patents, copyrights, trade secret rights, and other intellectual property or other rights in connection therewith; provided, however that this Section 5(e) shall not apply to Inventions which are not related to the business of the Company and which are made and conceived by Executive not during normal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential and Proprietary Information. Subject to the foregoing, Executive hereby assigns to the Company all right, title and interest he may have or acquire in all Inventions; provided, however, that the Board may in its sole discretion agree to waive the Company’s rights pursuant to this Section 5(e).
(f) Further Actions and Assistance. Executive agrees to cooperate reasonably with the Company and at the Company’s expense, both during and after his employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries) relating to the Inventions. Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, that the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions. Executive further agrees that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such papers as his agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf and to take any and all actions as the Company reasonably may deem necessary or desirable in order to protect its rights and interests in any Inventions, under the conditions described in this Section 5(f).
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(g) Prior Inventions. Executive will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or to his duties hereunder as having been made or acquired by Executive prior to his work for the Company, except for the matters, if any, described in Exhibit A to this Agreement.
(h) Disclosure. Executive agrees that he will promptly disclose to the Company all Inventions initiated, made, conceived or reduced to practice by him, either alone or jointly with others, during the Term.
(i) Survival. The provisions of this Section 5 shall survive any termination of this Agreement.
6. Non-Competition, Non-Solicitation and Non-Disparagement.
(a) Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information. Executive agrees that, during the Term and the twelve (12) month period immediately following Executive’s separation from employment (the “Termination Restriction Period”), whether such separation is voluntary or involuntary, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or engage in any business involving the development or commercialization of a preventive anti-infective product that would be a competitor of Neutrolin or a product containing taurolodine or any other product being actively developed or produced by the Company as of the date of Executive’s termination of employment (the “Business of Company”), either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of such Person, in any capacity that requires or could result in Executive’s intentional or unintentional use of the Confidential and Proprietary Information and/or requires Executive to perform services substantially similar to those performed for the benefit of the Company during the Term, anywhere in the world, provided, however, that nothing shall prohibit Executive from performing executive duties for any Person that does not engage in the Business of Company. Executive acknowledges that, due to the unique nature of the Business of the Company, the Company has a strong legitimate business interest in protecting the continuity of its business interests and its Confidential and Proprietary Information and the restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are engaged in the Business of Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) of any class or series of outstanding securities of such corporation; or being a passive investor holding less than four percent (4%) of a private equity, venture capital or other commingled fund; and further notwithstanding the foregoing, nothing contained in this Section 6(a) shall preclude Executive from becoming an employee of, or from otherwise providing services to, a separate division or operating unit of a multi-divisional business or enterprise (a “Division”) if: (i) the Division by which Executive is employed, or to which Executive provides services, is not engaged in the Business of Company, (ii) Executive does not provide services, directly or indirectly, to any other division or operating unit of such multi-divisional business or enterprise engaged in or proposing to engage in the Business of Company (individually, a “Competitive Division” and collectively, the “Competitive Divisions”) and (iii) the Competitive Divisions, in the aggregate, accounted for less than one-third of the multi-divisional business or enterprise’s consolidated revenues for the fiscal year, and each subsequent quarterly period, prior to Executive’s commencement of employment with or provision of services to the Division.
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(b) Reasonableness of Restriction. Executive hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to its duration, geographic area and scope. In addition, Executive acknowledges that the Company engages in the Business of Company throughout the world, and Executive has been involved in the Business of the Company in that geographic area. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
(c) Non-Solicitation. During the Term and the applicable Termination Restriction Period (as defined below), Executive shall not, directly or indirectly, on his own behalf or on behalf of any person or entity, without the prior written consent of the Company:
(i) solicit or induce any employee, consultant or independent contractor of the Company or any of its affiliates to leave the employ of (or end a contracting relationship with) the Company or any affiliate; or hire for any competitive purpose any employee consultant or independent contractor of the Company; or hire any former employee who has left the employment of the Company or any affiliate of the Company within six (6) months of the termination of such employee’s employment with the Company or any such affiliate for any competitive purpose; or hire any former consultant or independent contractor who has ended his or her consultancy or contracting relationship with the Company or any affiliate of the Company within six (6) months of the end of such consultancy or contracting relationship for any competitive purpose; or hire any former employee of the Company in knowing violation of such employee’s non-competition agreement with the Company or any such affiliate; or (ii) solicit, divert or take away, or attempt to divert or take away, the business or patronage of any agent, client or customer of the Company which was served by the Company during the twelve (12) -month period prior to the termination of Executive’s employment with the Company; or induce, encourage, or attempt to induce or encourage any client or customer of the Company which was served by the Company during the twelve (12) -month period prior to the termination of Executive’s employment with the Company to reduce, limit, or cancel its business with the Company.
For clarity, the foregoing shall not be violated by general advertising, by serving as a reference upon request or by actions taken in the good faith performance of Executive’s duties to the Company.
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(d) Non-Disparagement. Executive agrees that he shall not, directly or indirectly disparage, whether or not truthfully, the name or reputation of the Company or any of its affiliates, including but not limited to, any officer, director, employee or shareholder (provided Executive has had material dealings with such shareholder) of the Company or any of its affiliates; provided that, nothing in this Section shall be construed to interfere with Executive’s right to engage in protected concerted activity under the National Labor Relations Act. Upon Executive’s termination of employment, the Company shall direct its senior officers and directors not to directly or indirectly disparage, whether or not truthfully, the name or reputation of Executive. Notwithstanding this Section 6(d), nothing contained herein shall apply to statements made by Executive or the Company (x) in the course of their responsibility to evaluate the performance and/or participate in any investigation of the conduct or behavior of officers, employees and/or others, (y) as part of any judicial, administrative or other legal action or proceeding, or (z) in rebuttal of false or misleading statements by others, and nothing shall be construed to limit or impair the ability of Executive or the Company to provide truthful testimony in response to any validly issued subpoena or to file pleadings or respond to inquiries or legal proceedings by any government agency to the extent required by applicable law. These non-disparagement obligations will cease to apply two (2) years after Executive’s termination of employment.
(e) Enforcement. In the event that Executive breaches or threatens to breach any provisions of Section 5 or this Section 6, then, in addition to any other rights the Company may have, it shall be entitled to seek injunctive relief to enforce such provisions. In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies that may be available to it nor shall the Company be required to post a bond.
(f) Remedies Cumulative; Judicial Modification. Each of the rights and remedies enumerated in Section 6(e) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies, which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and in its reduced form such provision shall then be enforceable.
(g) Survival. The provisions of this Section 6 shall survive any termination of this Agreement.
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7. Representations and Warranties.
(a) By Executive. Executive hereby represents and warrants to the Company as follows:
(i) Neither the execution or delivery of this Agreement nor the performance by Executive of his duties and other obligations hereunder conflict with or constitute a default or breach of any covenant or obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement, contract, or other instrument to which Executive is a party or by which he is bound.
(ii) Executive has the full right, power and legal capacity to enter and deliver this Agreement and to perform his duties and other obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Executive enforceable against him in accordance with its terms. No approvals or consents of any persons or entities are required for Executive to execute and deliver this Agreement or perform his duties and other obligations hereunder.
(iii) Executive will not use any confidential information or trade secrets of any third Party in his employment by the Company in violation of the terms of the agreements under which he had access to or knowledge of such confidential information or trade secrets.
(iv) Executive has no knowledge of information that would cause the Company not to receive satisfactory results of Executive’s California background check, as determined in good faith by the Company’s Board of Directors.
(b) By The Company. The Company hereby represents and warrants to Executive that the Company has the full right and power to enter and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of the Company enforceable against it in accordance with its terms. All approvals or consents required for the Company to validly execute and deliver this Agreement and perform its obligations hereunder, including, without limitation, approval of the Board, if required, have been obtained.
8. Termination.
(a) Cause. Executive’s employment hereunder may be terminated by the Company immediately for Cause. Any of the following actions by Executive shall constitute “Cause”:
(i) The willful failure, disregard or refusal by Executive to perform his material duties or obligations under this Agreement (other than as a result of Executive’s mental incapacity or illness, as confirmed by medical evidence provided by a physician selected by the Company);
(ii) Any willful, intentional or grossly negligent act by Executive having the effect of materially injuring (whether financially or otherwise) the business or reputation of the Company or any of its affiliates (other than acts that were performed in a good faith attempt to advance the business interests of the Company);
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(iii) Executive’s conviction of any felony involving moral turpitude (including entry of a guilty or nolo contendere plea);
(iv) The Executive’s qualification as a “bad actor,” as defined by 17 CFR 230.506(a);
(v) The good faith determination by the Board, after a reasonable and good-faith investigation by the Company that Executive engaged in some form of harassment prohibited by law (including, without limitation, harassment on the basis of age, sex or race) unless Executive’s actions were specifically directed by the Board;
(vi) Any material misappropriation or embezzlement by Executive of the property of the Company or its affiliates (whether or not a misdemeanor or felony); or (vii) Breach by Executive of any material provision of this Agreement that is materially injurious to the Company.
Notwithstanding the foregoing, in no event shall Cause exist unless the Company’s Board has made a formal determination of Cause by majority vote and provided Executive with ten (10) days advance notice followed by the right to be heard in front of the entire Board followed by a second majority vote finding that Cause still exists. Such meeting of the Board can occur in person or via teleconference. If the circumstances surrounding Cause are reasonably curable, then the Executive shall have the right to cure those circumstances over the next twenty (20) days. If the circumstances are not curable or if those circumstances still exist after the cure period has expired, then (and only then) shall Cause be deemed to exist for purposes of this Agreement.
(b) Death. Executive’s employment hereunder shall be terminated upon Executive’s death.
(c) Disability. The Company may terminate Executive’s employment hereunder due to Executive’s “Disability” (defined below) while Executive is so Disabled. For purposes of this Agreement, a termination due to Executive’s “Disability” shall be deemed to have occurred if the Executive has not been able to perform his material duties for one hundred eighty (180) days in a three hundred sixty five (365) day period.
(d) Good Reason. Executive may terminate his employment hereunder for “Good Reason” (as defined below) pursuant to the procedures set forth in this Section 8(d). In order for Executive to resign for Good Reason, Executive must provide written notice to the Board of the existence of the Good Reason condition within sixty (60) days of the initial existence of such Good Reason condition. Upon receipt of such notice, the Company will have thirty (30) days during which it may attempt to remedy the Good Reason condition. If so remedied, Executive may not resign for Good Reason based on such condition. If the Good Reason condition is not remedied within such thirty (30) day period, Executive may resign based on the Good Reason condition specified in the notice effective no later than thirty (30) days following the expiration of the thirty (30) day cure period. The term “Good Reason” shall mean any of the following occurring without the Executive’s consent:
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(i) any material breach of this Agreement by the Company;
(ii) any material reduction by the Company of Executive’s duties, responsibilities, or authority (it being understood that the change in Executive’s title hereunder from Executive Vice President and Chief Financial Officer to Executive Vice President and Chief Business Officer shall not constitute a violation of this Section 8(d)(ii));
(iii) a reduction in Executive’s annual Base Salary unless (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction in annual base salary and/or total compensation; and (ii) Executive’s Base Salary and/or total compensation reduction is no greater than ten percent (10%); or
(iv) a reduction in Executive’s target bonus level unless: (i) all officers and/or members of the Company’s executive management team experience an equal or greater percentage reduction related to target bonus levels; and (ii) Executive’s target bonus level reduction is no greater than ten percent (10%).
(e) Convenience. Either Party may terminate Executive’s employment hereunder for any reason or no reason at any time upon sixty (60) days written notice of termination to the other Party, which notice shall specify the termination date, or by providing a Notice of Nonrenewal to the other Party pursuant to the terms of Section 2.
9. Compensation upon Termination.
In the event Executive’s employment is terminated, the Company shall pay to Executive the Base Salary and benefits otherwise payable to him under Section 4 through the last day of his actual employment by the Company, along with any reimbursable business expenses subject to Company policy and any amounts due under any benefit plan or program in accordance with its terms (together, the “Accrued Compensation”). Except for the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance, and as otherwise required by law, Executive will have no further entitlement hereunder to any other compensation or benefits from the Company except as expressly provided below:
(a) Death or Disability. If Executive’s employment is terminated as a result of his death or Disability, the Company shall pay to Executive or to Executive’s estate, as applicable, the Accrued Compensation. In addition, Executive shall receive the bonus due for any completed fiscal year to the extent that such bonus has not yet been paid (including timing of payment, the “Prior Year Bonus”).
(b) Cause. If Executive’s employment is terminated by the Company for Cause, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law. All outstanding Awards that are granted on or after the Commencement Date, whether or not vested, shall be forfeited to the Company as of such date.
(c) Other than for Cause, Non-Renewal, Death or Disability. If the Company terminates Executive’s employment, other than as a result of Executive’s death or Disability, other than by Notice of Nonrenewal and other than for Cause, or if Executive terminates Executive’s employment for Good Reason, then conditioned upon Executive executing and not revoking a Release (as defined below) following such termination, the Company will provide to Executive the following separation benefits:
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(i) Payment of the Accrued Compensation and Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
(ii) Payment to Executive of an amount equal to nine (9) months of his Base Salary, which shall be paid over a period of nine (9) months following the termination date,
(iii) Payment to Executive of a prorated annual bonus for the year in which the termination date occurs, based on the actual achievement of the objectives referenced in Section 4(b). The prorated bonus will be calculated as the annual bonus based on performance, multiplied by a fraction, the numerator of which is the number of days preceding the termination date in the year of termination and the denominator of which is three hundred sixty five (365) (the “Prorated Bonus”).
(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above times the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Code, consistent with Section 409A of the Code, and
(v) All Awards that are scheduled to vest on or before the next succeeding anniversary of the date of termination shall be accelerated and deemed to have vested as of the termination date; provided that, for the avoidance of doubt, any performance based Awards whose vesting requirements have not been successfully met as of the date of Executive’s termination of employment or resignation with Good Reason will not accelerate.
The separation benefits set forth above are conditioned upon Executive executing a release of claims against the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns in substantially the form attached hereto as Exhibit B (the “Release”) within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary continuation described in Section 9(c)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with Internal Revenue Code Section 409A, may begin the payments earlier. The Prorated Bonus described in Section 9(c)(iii) above shall be paid at the date on which the annual bonus would have been paid had Executive continued in employment, and the COBRA payments Section 9(c)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences.
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(d) By Notice of Non-Renewal; Termination without Good Reason. If, pursuant to Section 8(e), Executive terminates his employment hereunder by written notice of termination without Good Reason or if either Party terminates Executive’s employment by providing a Notice of Nonrenewal to the other Party, Executive shall not be entitled to receive any payments or benefits other than the Accrued Compensation, the Prior Year’s Bonus, rights to indemnification and directors’ and officers’ liability insurance and as otherwise required by law.
(e) This Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in this Section 9, except as required by law or the terms of another employee plan, program or arrangement covering him. Executive acknowledges and agrees that upon the termination of his employment with the Company, regardless of the reason or grounds therefor, he shall resign from any board, organization or foundation wherein Executive sits or belongs as a representative of the Company. Notwithstanding anything herein to the contrary, the payments made pursuant to Section 9 and Section 10 shall be reduced by any amounts paid or required to be paid to Executive by the Company (or any of its subsidiaries) pursuant to any applicable federal, state and local statute or regulation that relates to notice, severance or separation benefits, including but not limited to the Worker Adjustment Retraining Notification Act (29 U.S.C. § 2101 et seq.), the Illinois Worker Adjustment and Retraining Notification Act (820 ILCS 65/1 et seq.), the Millvale Dallas Airmotive Plant Job Loss Notification Act (N.J. Stat. § 34:21-1 et seq.), and any other state or local statute concerning notice, severance, or separation benefits during any notice or similar period required by such statutes or regulations (or any payment in lieu of such notice).
(f) The obligations of the Company that arise under this Section 9 shall survive the expiration or earlier termination of this Agreement.
10. Corporate Transaction.
(a) Corporate Transaction Defined. The term “Corporate Transaction” shall have the same meaning as defined in the Company’s 2019 Omnibus Stock Incentive Plan, as in effect on the date of this Agreement.
(b) Consequence upon Executive’s Termination Without Cause or Executive’s Resignation With Good Reason. Upon Executive’s termination of employment without Cause or Executive’s resignation of employment with Good Reason within twenty-four (24) months after a Corporate Transaction, the Company shall provide Executive the following separation benefits:
(i) Payment of the Accrued Compensation, the Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law,
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(ii) Payment to Executive of an amount equal to nine (9) months of his Base Salary and full target bonus as in effect for the year of termination, which shall be paid over a period of nine (9) months following the termination date,
(iii) Payment to Executive of the Prorated Bonus,
(iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and Executive’s eligible dependents that is equal to the portion paid for by the Company at the date of termination, until the conclusion of the time when Executive is receiving continuation of Base Salary and bonus payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and instead pay Executive a lump sum amount equal to the COBRA premium amount described above times the number of months remaining in the specified period if the Company determines in its discretion that continued payment of the COBRA premiums is or may be discriminatory under Section 105(h) of the Code, consistent with Section 409A of the Code, and
(v) All unvested Awards held by Executive shall be accelerated and deemed to have vested as of the date of the Executive’s termination of employment.
The separation benefits set forth above are conditioned upon Executive executing a Release within the time specified therein, which Release is not revoked within any time period allowed for revocation under applicable law. The salary and bonus continuation described in Section 10(b)(ii) above will be payable to Executive over time in accordance with the Company’s payroll practices and procedures beginning on the sixtieth (60th) day following the termination of Executive’s employment with the Company, provided that the Company, in its sole discretion but in accordance with “Section 409A” (defined below), may begin the payments earlier. The Prorated Bonus described in Section 10(b)(iii) above shall be paid at the date on which the bonus would have been paid had Executive continued in employment, and the COBRA payments described in Section 10 (b)(iv) above shall be paid monthly beginning on the date on which the salary continuation commences.
(c) Potential Adjustments due to Tax Implications. Notwithstanding anything in this Agreement or any other agreement between Executive and the Company to the contrary, but subject to this Section 10(c), the Company will effectuate the acceleration contemplated under Section 10(b) and will make the payments and other acceleration of benefits under this Agreement and other compensatory arrangements without regard to whether Section 280G of the Code would limit or preclude the deductibility of such payments or benefits. However, if reducing or eliminating any payment and/or other benefit would increase the “Total After-Tax Payments” (defined below), then the amounts payable to Executive will be reduced or eliminated as follows (or in such other manner as Executive may specify at the applicable time if permitted to do so without violation of Internal Revenue Code Sections 280G, 409A and 4999) to the extent necessary to maximize such Total After-Tax Payments:
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(i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of any equity awards) and (ii) second, by reducing or eliminating the vesting of equity awards that occurs as a result of a Corporate Transaction or other event covered by Section 280G of the Code in reverse order of vesting and with grants whose parachute value is calculated without regard to Treasury Regulations 280G-1 Q&A 24(c) being reduced prior to those subject to Q&A 24(c).
The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting are required to be reduced or eliminated in accordance with the foregoing. If there is ultimately determined to be an underpayment of or overpayment to Executive under this provision, the amount of such underpayment or overpayment will be immediately paid to Executive or refunded by him, as the case may be, with interest at the applicable federal rate under the Code. The term “Total After Tax Payments” means the total value of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to Executive or for his benefit (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The cost of the accountant shall be paid by the Company and the accountant shall deliver to the parties its calculations in a form that can be relied upon for filing of tax returns. The calculations made pursuant to this section shall be made by allocating the full summary compensation table value (from the latest filed proxy) or an estimate thereof of the Executive’s annual total compensation to the noncompete set forth in this Agreement.
11. Indemnification.
The Company shall defend and indemnify Executive regard to his capacities with the Company, its affiliates and its benefit plans to the fullest extent permitted under the Delaware General Corporate Law (the “DGCL”). The Company shall also maintain a policy for indemnifying its officers and directors, including but not limited to Executive, for all actions permitted under the DGCL taken in good faith pursuit of their duties for the Company, including, but not limited to, the obtaining of an appropriate level of directors and officers liability insurance coverage and including such provisions in the Company’s bylaws or certificate of incorporation, as applicable and customary. Executive shall be designated as a named insured on such directors and officers liability insurance policy. Executive’s rights to, and the Company’s obligation to provide, indemnification shall survive termination of this Agreement. Nothing herein shall limit any right that Executive may have in respect of indemnification, contribution, advancement, or liability insurance coverage, under any other Company contract or under applicable law.
12. Compliance with Code Section 409A.
(a) Intent of the Parties. The intent of the Parties is that the payments, compensation and benefits under this Agreement will be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and, in this connection, the Agreement shall be interpreted to be exempt or in compliance with Section 409A. Further, if any benefit or payment payable under this Agreement is deemed to not comply with Section 409A, the Company and Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereunder) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved; provided, however, that any resulting renegotiated terms shall provide to Executive the after-tax economic equivalent of what otherwise has been provided to Executive pursuant to the terms of this Agreement, and provided further, that any deferral of payments or other benefits shall be only for such time period as may be required to comply with Section 409A.
15
(b) Potential Delay of Payment(s) and Adjustments. For the avoidance of doubt, the Parties intend that payments of the separation benefits set forth in Section 9 and Section 10 above satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9). If any payment, compensation or other benefit provided to Executive in connection with his separation from service is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A and Executive is a “specified employee” within the meaning of Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the termination date or his earlier death (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to Executive during the period between the termination date and the New Payment Date shall be paid to Executive in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement.
(c) Separation from Service. Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under Section 9 and Section 10 above that constitute “deferred compensation” within the meaning of Section 409A will not commence in connection with Executive’s termination of employment unless and until Executive has also incurred a “separation from service” (as such term is defined in Treasury Regulation Section 1.409A-1(h)), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur additional tax under Section 409A.
(d) Installments; Year of Payment. If any payment, compensation or other benefit required by the Agreement is to be paid in a series of installment payments, each individual payment in the series shall be considered a separate payment for purposes of Section 409A. In no event may Executive designate the year of payment of a benefit under this Agreement, except in accordance with Section 409A.
13. Miscellaneous.
(a) Governing Law. This Agreement and all questions relating to its validity, interpretation, performance, remediation, and enforcement (including, without limitation, provisions concerning limitations of actions) shall be governed by and construed in accordance with the substantive laws of the State of Delaware, notwithstanding any choice-of-law doctrines of that jurisdiction or any other jurisdiction that ordinarily would or might cause the substantive law of another jurisdiction to apply.
(b) Company Policies. All incentive compensation under this Agreement shall be subject to the terms of any clawback, recoupment or other policies approved by the Board and applicable to executive officers of the Company.
16
(c) Personal Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ACTION OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT MAY ONLY BE BROUGHT AND ENFORCED IN THE STATE OR FEDERAL COURTS LOCATED IN UNION COUNTY, NEW JERSEY, TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFORE. THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, AS WELL AS ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM.
(d) Service of Process. THE PARTIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN THE MANNER AND TO THE ADDRESS SPECIFIED IN SECTION 13(i) OF THIS AGREEMENT.
(e) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(f) Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. The Company may assign its rights, together with its obligations, hereunder only in connection with any sale, transfer or other disposition of all or substantially all of its business or assets and to an assignee who assumes such obligations by law or in writing. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, legal representatives, successors and assigns.
(g) Amendment. This Agreement cannot be amended orally, or by any course of conduct or dealing, but only by a written agreement duly executed by the Parties.
(h) Waiver. The failure of either Party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance therewith, and such terms, conditions and provisions shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either Party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such Party. Unless the written waiver instrument expressly provides otherwise, no waiver by a Party of any right or remedy or breach by the other Party in any particular instance shall be construed to apply to any right, remedy or breach arising out of or related to a subsequent instance.
17
(i) Notices. All notices, demands or other communications desired or required to be given by a Party to the other Party shall be in writing and shall be deemed effectively given upon (i) personal delivery to the Party to be notified, (ii) upon confirmation of receipt of fax or other electronic transmission, (iii) one business day after deposit with a reputable overnight courier, prepaid for priority overnight delivery, or (iv) five days after deposit with the United States Postal Service, postage prepaid, certified mail, return receipt requested, in each case to the Party to be notified at the Company’s principal executive officers in the case of the Company and at the latest address of the Executive on the books of the Company in the case of the Executive; or to such other addresses and to the attention of such other individuals as either Party shall have designated to the other by notice given in the foregoing manner.
(j) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral between the Parties, relating to the subject matter hereof.
(k) Affiliate and Control Defined. As used in this Agreement, the term “affiliate” of a specified Person shall mean and include any Person controlling, controlled by or under common control with the specified Person. A Person shall be deemed to “control” another Person if such first Person possesses directly or indirectly the power to direct, or cause the direction of, the management and policies of the second Person, whether through the ownership of voting securities, by contract or otherwise.
(l) Captions, Headings and Cross-References. The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement. Except as expressly set forth otherwise, all cross-references to sections refer to sections of this Agreement.
(m) Severability. In addition to, and not in conflict with, the provisions of Sections 6(b) and 6(f), the Parties agree that each and every provision of this Agreement shall be deemed valid, legal and enforceable in all jurisdictions to the fullest extent possible. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be adjusted and reformed rather than voided, if possible, in order to achieve the intent of the Parties. Any provision of this Agreement that is determined to be invalid, illegal or unenforceable in any jurisdiction which cannot be adjusted and reformed shall for the purposes of that jurisdiction, be voided. Any adjustment, reformation or voidance of any provisions of this Agreement shall only be effective in the jurisdiction requiring such adjustment or voidance, without affecting in any way the remaining provisions of this Agreement in such jurisdiction or adjusting, reforming, voiding or rendering that provision or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
(n) Counterpart Execution. This Agreement may be executed in one or more counterparts each of which shall be an original document and all of which together shall constitute one and the same instrument. The Parties acknowledge that this Agreement may be executed and delivered by means of electronic signatures and that use and acceptance of electronic signatures to bind the Parties represents the voluntary agreement and intention of the Parties to conduct this transaction by electronic means. The Parties agree that execution and delivery by electronic means will have the same legal effect as if signatures had been manually written on this Agreement. This Agreement will be deemed lawfully executed by the Parties by such action for purposes of any statute or rule of law that requires this Agreement to be executed by the Parties to make the mutual promises, agreements and obligations of the Parties set forth herein legally enforceable. Facsimile and .pdf exchanges of signatures will have the same legal force and effect as the exchange of original signatures. THE PARTIES HEREBY WAIVE ANY RIGHT TO RAISE ANY DEFENSE OR WAIVER BASED UPON EXECUTION OF THIS AGREEMENT BY MEANS OF ELECTRONIC SIGNATURES IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT. The Parties agree that the legal effect, validity and enforceability of this Agreement will not be impaired solely because of its execution in electronic form or that an electronic record was used in its formation. The Parties acknowledge that they are capable of retaining electronic records of this transaction.
Signature page follows.
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IN WITNESS WHEREOF, the Parties hereto have executed this Employment Agreement as of the date set forth above.
| CORMEDIX INC. | EXECUTIVE | ||
| /s/ Joseph Todisco | /s/ Matt David | ||
| Name: | Joseph Todisco | Dr. Matt David | |
| Title: | Chief Executive Officer | ||
| Date: August 31, 2025 | Date: August 31, 2025 | ||
[Signature Page to M. David Employment Agreement]
EXHIBIT A
PRIOR INVENTIONS
None.
A-1
EXHIBIT B
RELEASE OF CLAIMS
As used in this Release of Claims (this “Release”), the term “claims” will include all claims, covenants, warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments, losses, and liabilities, of whatsoever kind or nature, in law, equity or otherwise.
For and in consideration of the severance benefits provided under Section 9 or Section 10 of my Executive Employment Agreement, dated August 31, 2025, with CorMedix Inc., other than any Accrued Compensation (as defined therein) (such benefits, the “Severance Benefits,” such corporation, the “Company” and, together with its current and future subsidiaries, the “Company Group” and, such agreement, my “Employment Agreement”)), and other good and valuable consideration, I, Dr. Matt David, for and on behalf of myself and my heirs, administrators, executors and assigns, effective as of the date on which this release becomes effective pursuant to its terms, do fully and forever release, remise and discharge each member of the Company Group (including any co-employer of any member of the Company Group) and each of their successors and assigns, together with their respective current and former officers, directors, partners, members, shareholders (including any management company of a member or shareholder), employees and agents (collectively, and with the Company, the “Company Parties”) from any and all claims whatsoever up to the date I execute this Release which I had, may have had, or now have against the Company Parties, whether known or unknown, for or by reason of any matter, cause or thing whatsoever, including any claim arising out of or attributable to my employment or the termination of my employment with the Company or any member of the Company Group, whether for tort, breach of express or implied contract, intentional infliction of emotional distress, wrongful termination, unjust dismissal, violation of public policy, defamation, libel or slander, or under any federal, state, or local law dealing with discrimination, harassment or retaliation, and any other purported restriction on an employer’s right to terminate the employment of employees. The release of claims in this Release includes, but is not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, as amended (“ADEA”), the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, the Worker Adjustment and Retraining Notification Act of 1988 and the Employee Retirement Income Security Act of 1974 (excluding claims for accrued, vested benefits under any retirement or other employee benefit plan of the Company Parties (other than any severance or similar plan or policy)), each as may be amended from time to time, and all other federal, state, and local laws, the common law or constitution of any jurisdiction. I intend the release contained herein to be a general release of any and all claims to the fullest extent permissible by law and for the provisions regarding the release of claims against the Company Parties to be construed as broadly as possible, and hereby incorporate in this release similar federal, state or other laws, including any and all claims arising under the New Jersey Law Against Discrimination (NJLAD) (with respect to existing but not prospective claims), the New Jersey Family Leave Act (NJFLA), the New Jersey Conscientious Employee Protection Act (NJCEPA), the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, retaliation claims under the New Jersey Workers’ Compensation Law (NJWCL), all including any amendments and their respective implementing regulations, and any other state or local law (statutory, regulatory, or otherwise) that may be legally waived and released, all of which I also hereby expressly waive.
B-1
I understand and agree that claims or facts in addition to or different from those which are now known or believed by me to exist may hereafter be discovered, but it is my intention to fully and forever release, remise and discharge all claims arising prior to the date hereof which I had, may have had, or now have against the Company Parties, whether known or unknown, suspected or unsuspected, asserted or unasserted, contingent or noncontingent, without regard to the subsequent discovery or existence of such additional or different facts. Without limiting the foregoing, by signing this Release, I expressly waive and release any provision of law that purports to limit the scope of a general release.
I acknowledge and agree that as of the date I execute this Release, I have no knowledge of any facts or circumstances that give rise or could give rise to any claims under any of the laws listed in the preceding paragraphs
Notwithstanding any provision of this Release to the contrary, by executing this Release, I am not releasing any claims relating to: (i) my rights under Section 9 and Section 10 of my Employment Agreement, (ii) my right to accrued, vested benefits due to terminated employees under any employee benefit plan of the Company or any other member of the Company Group in which I participated (excluding any severance or similar plan or policy), in accordance with the terms thereof (including my right to elect COBRA continuation coverage), including any claims pursuant to any award of equity in any member of the Company Group, or due to my status as an equityholder in any member of the Company Group, including pursuant to the governing documents thereof; (iii) any claims that cannot be waived by law or that arise after the date I execute this Agreement; or (iv) my right to indemnification, advancement and reimbursement of legal fees and expenses, and directors and officers liability insurance, as provided by, and in accordance with the terms of, such program or policy, applicable law, the Company’s by-laws or otherwise.
Notwithstanding any provision of this Release to the contrary, nothing herein or in any Company policy or agreement prevents me, without notifying the Company or receiving prior authorization from the Company, from (i) speaking with law enforcement, my attorney, the attorney general, the U.S. Equal Employment Opportunity Commission, any state or local division of human rights or fair employment agency; (ii) filing a charge or complaint with, participating in an investigation or proceeding conducted by, or reporting possible violations of law or regulation to any government agency; (iii) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Securities and Exchange Commission, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation; (iv) truthfully testifying in a legal proceeding or responding to or complying with a subpoena, court order, or other legal process; or (v) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which I may be entitled; provided, however, in each case, I agree to forgo any monetary benefit from the filing of a charge or complaint with a government agency except pursuant to a whistleblower program or where my right to receive such a monetary benefit is otherwise not waivable by law. The protections contained in this paragraph apply to prior, current and future conduct.
B-2
I acknowledge and agree that as of the date I execute this Release, I have reported all accidents, injuries or illnesses relating to or arising from my employment with the Company or the Company Group and that I have not suffered any on-the-job injury or illness for which I have not yet filed a claim.
By signing below, I represent and warrant to the Company that (i) prior to the date I execute this Release, I have provided the Company with written disclosure of any unethical or illegal behavior and any material violations of the Company’s code of ethics or other material policy, in each case, that I observed, suspected or became aware of during the course of my employment or, if no such written disclosure was provided, that I have not observed, suspected or become aware of any such behavior or violations and (ii) I have complied with all laws and Company policies in respect of my employment with the Company.
I expressly acknowledge and agree that I:
§ Am able to read the language, and understand the meaning and effect, of this Release;
§ Have no physical or mental impairment of any kind that has interfered with my ability to read and understand the meaning of this Release or its terms, and that I am not acting under the influence of any medication, drug, or chemical of any type in entering into this Release;
§ Am specifically agreeing to the terms of the release contained in this Release because the Company has agreed to pay me the Severance Benefits in consideration for my agreement to accept it in full settlement of all possible claims I might have or ever had against the Company Parties, and because of my execution of this Release;
§ Acknowledge that, but for my execution of this Release, I would not be entitled to the Severance Benefits;
§ Had or could have had [twenty-one (21)][forty-five (45)]1 calendar days from the date of my termination of employment (the “Release Expiration Date”) to review and consider this Release, and that if I execute this Release prior to the Release Expiration Date, I have voluntarily and knowingly waived the remainder of the review period;
§ Understand that, by entering into this Release, I do not waive rights or claims under ADEA that may arise after the date I execute this Release;
§ Have not relied upon any representation or statement not set forth in this Release or my Employment Agreement made by the Company Group or any of its representatives;
| 1 | To be selected based on whether applicable termination was “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967). |
B-3
§ Am hereby advised to consult with my attorney regarding the terms and effect of this Release; and
§ Have signed this Release knowingly and voluntarily.
Except as otherwise provided in this Release and to the maximum extent permitted by law, I represent and warrant that I have not previously filed, and I agree that I will not file, a complaint, charge or lawsuit against any of the Company Parties regarding any of the claims released herein. If, notwithstanding this representation and warranty, I have filed or file such a complaint, charge or lawsuit, I agree that I shall cause such complaint, charge or lawsuit to be dismissed with prejudice and shall pay any and all costs required in obtaining dismissal of such complaint, charge or lawsuit, including without limitation the attorneys’ fees of any of the Company Parties against whom I have filed such a complaint, charge or lawsuit.
I hereby agree to waive any and all claims to re-employment with the Company or any of its direct or indirect parent(s) or subsidiaries and affirmatively agree not to seek further employment with the Company or any of its direct or indirect parent(s) or subsidiaries. I acknowledge that if I re-apply for or seek employment with the Company or any of its direct or indirect parent(s) or subsidiaries, the refusal to hire me based on this provision will provide a complete defense to any claims arising from my attempt to apply for employment.
Notwithstanding anything contained herein to the contrary, this Release will not become effective or enforceable for a period of seven (7) calendar days following the date of my execution of this Release (the “Revocation Period”), during which time I may revoke my acceptance of this Release by notifying the Company, in writing, delivered to Beth Zelnick Kaufman (the “Company Representative”), Executive Vice President, Chief Legal Officer and Corporate Secretary, by email ([email protected]), or by other electronic copies (complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign)). To be effective, such revocation must be received by the Company Representative no later than 11:59 p.m. Eastern Time on the seventh (7th) calendar day following the execution of this Release. Provided that the Release is executed prior to the Release Expiration Date and I do not revoke it during the Revocation Period, the date on which this Release is executed and delivered to the Company Representative shall be its effective date. In the event that I fail to execute and deliver this Release prior to the Release Expiration Date or, if I revoke this Release during the Revocation Period, this Release will be null and void and of no effect, and neither the me nor the Company nor any of the Company Parties will have any obligations to pay me the Severance Benefits.
The provisions of this Release shall be binding upon my heirs, executors, administrators, legal personal representatives and assigns. If any provision of this Release shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon and shall not impair the enforceability of any other provision of this Release. I acknowledge and agree that each of the Company Parties shall be a third-party beneficiary to the releases set forth in this Release, with full rights to enforce this Release and the matters documented herein.
B-4
EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS RELEASE IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND IN ANY COURT SITTING IN SUSSEX COUNTY, DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS RELEASE, I CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE. FURTHER, I HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS RELEASE.
Capitalized terms used, but not defined herein, shall have the meanings ascribed to such terms in my Employment Agreement.
* * *
I, Dr. Matt David, have executed this Release of Claims on the date set forth below:
| Dr. Matt David | ||
| Date: | [To Be Executed Following | |
| Termination of Employment] | ||
B-5
EXHIBIT C
FORM OF AWARD AGREEMENT
(See attached.)
C-1
CORMEDIX INC.
amended and restated
2019 OMNIBUS STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this “Agreement”) is made and entered into between CorMedix Inc. (the “Company”) and Dr. Matt David (the “Grantee”), effective as of [●] (the “Date of Grant”). This Agreement sets forth the terms and conditions associated with the Company’s award to the Grantee of restricted stock units payable, as described below, in shares of Common Stock from the Company, pursuant to the Company’s Amended and Restated 2019 Omnibus Stock Incentive Plan (as may be amended from time to time, the “Plan”) for the number of Units (as defined below) set forth below (collectively, the “Award”). Capitalized terms used herein, which are not otherwise defined herein will have the meanings ascribed to them under the Plan.
NOW, THEREFORE, in consideration of the foregoing and the Grantee’s continued provision of valuable services to the Company, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Units. Effective as of the Date of Grant, the Company hereby grants to the Grantee [●] Restricted Stock Units (the “Units”), each of which shall represent the right of the Grantee to receive a share (“Share”) of Common Stock that will be delivered to the Grantee pursuant to this Agreement if and when such Unit becomes vested in accordance with this Agreement. The Units represent hypothetical Shares and not actual Shares. The Company shall establish and maintain a Unit account, as a bookkeeping account on its records, for the Grantee and shall record in such account the number of Units granted to the Grantee. The Units are subject to the vesting, payment, and other provisions of this Agreement and the Plan.
2. Vesting. Subject to the Grantee remaining in Continuous Service through the applicable vesting dates, the Units shall vest over four (4) years in four (4) approximately equal full share installments with the first vest occurring on the Date of Grant, provided that vesting may accelerate or cease as provided in this Agreement or in the Plan (or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company). Vesting of the Units shall be cumulative, and will represent 100% of the Units.
3. Effect of Termination of Continuous Service.
(a) In the event of the termination of the Grantee’s Continuous Service, all Units that are not vested will be immediately and automatically forfeited, except as provided in Sections 3(b) and 4 below or as otherwise provided in an employment agreement or other written agreement by and between the Grantee and the Company.
(b) In the event that Grantee’s Continuous Service is terminated by the Company (other than for Cause or on account of Grantee’s death or Disability) or by the Grantee for Good Reason (as defined in Grantee’s employment agreement with the Company), then, conditioned upon Grantee executing and not revoking a release of claims against the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns in a form reasonably acceptable to the Company that becomes effective by its terms on or prior to the sixtieth (60) day following such termination, all then-unvested Units that would have vested during the twelve (12) months immediately following the date on which Grantee’s Continuous Service was terminated had such termination not occurred shall fully vest.
C-2
4. Corporate Transaction.
(a) Unless otherwise set forth in an employment agreement or other written agreement between the Grantee and the Company, if a Corporate Transaction occurs and the Award remains outstanding after the Corporate Transaction (or is assumed by, or converted to a similar award with equivalent value as of the date of the Corporate Transaction of, the surviving corporation (or a parent or subsidiary of the surviving corporation)), and the Grantee incurs an involuntary separation from Continuous Service by the Company or a Related Entity or successor other than for Cause upon or within 24 months following the Corporate Transaction and prior to the full vesting of the Units, the Units shall fully vest upon such involuntary separation.
(b) Subject to the terms of any employment agreement or other written agreement by and between the Grantee and the Company, or as set forth in Section 3(a) above, the provisions of the Plan applicable to a Corporate Transaction shall apply to the Units, and, in the event of a Corporate Transaction, the Committee may take such actions as it deems appropriate pursuant to the Plan.
5. Delivery of Shares to Settle Vested Units. Vested Units shall be settled by delivering to the Grantee a number of Shares equal to the number of vested Units as soon as administratively practicable after the date on which the Units vest, provided that the Company may provide a reasonable delay in the issuance or delivery of the Shares to address tax withholding and other administrative matters and provided further that delivery of the Shares will occur no later than two and one-half months following the conclusion of the calendar year in which the vesting occurs. On such date, the Company will, at its election, either: (a) issue a certificate representing the Shares deliverable pursuant to this Agreement; or (b) not issue any certificate representing the Shares deliverable pursuant to this Agreement and instead document the Grantee’s interest in the Shares by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Grantee’s name.
6. Capitalization Changes. The number of Units convertible to Shares subject to this Award may be adjusted from time to time by the Committee to account for changes in capitalization as described in Section 13 of the Plan.
7. Rights as a Stockholder. The Units represent a right to payment from the Company if the conditions of the Agreement are met and do not give the Grantee ownership of any Common Stock prior to delivery as provided in Section 5. The Grantee will not have any rights and/or privileges of a stockholder of the Company with respect to the Units prior to such delivery. If the Grantee becomes vested in Units, any Shares to which the Grantee becomes entitled will be delivered to the Grantee as provided in Section 5, and the Grantee will have full ownership of the Shares upon such delivery.
C-3
8. Non-Transferability of the Award. The Units and the right to payment under this Agreement are not transferable, may not be sold, exchanged, transferred, pledged, hypothecated, encumbered or otherwise disposed of except as provided in the Plan. Any purported transfer of the Units or the right to payment under this Agreement not in compliance with the preceding sentence is null and void and will not be given effect.
9. No Right to Continuous Service. The Award is not an employment or service contract, and nothing this Agreement confers or will be construed as conferring upon the Grantee any right to continue in the employment or service of the Company, or as interfering with or restricting in any way the right of either party to terminate such employment or service at any time.
10. Tax Consequences. The Grantee acknowledges that the Grantee understands the federal, state, and local tax consequences of the Award and the issuance, vesting, forfeiture, and delivery provisions hereof relating to the Units. The Grantee will rely solely on the advice of the Grantee’s own tax advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands that the Grantee (and not the Company) will be responsible for the Grantee’s own tax liability that may arise as a result of the Award or the transactions contemplated by this Agreement.
11. Withholding Obligations. The Grantee understands that, at the time that the Grantee becomes vested and/or receives payment for any Units (including through the delivery of Shares), the Company may be required to withhold federal, state and local income and employment taxes. At the time of vesting, or at or before the time the Grantee receives a distribution of the Shares underlying the Units, or at any time thereafter as requested by the Company, the Grantee hereby authorizes the Company to satisfy any required withholding to satisfy federal, state, local, payroll, and foreign tax withholding obligations of the Company or any Related Entity that arise in connection with the Units (the “Withholding Taxes”). Notwithstanding any other provision of this Section, the Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to the Units by any of the following means or by a combination of such means: (a) withholding from any compensation otherwise payable to the Grantee by the Company or any Related Entity; (b) causing the Grantee to tender a cash payment; or (c) withholding Shares from the Shares issued or otherwise issuable to the Grantee in connection with the Units with a Fair Market Value (measured as of the date the Withholding Taxes are to be determined) equal to the amount required to be withheld, based on a tax rate not in excess of the maximum federal, state, local and foreign marginal income tax rates applicable to the Grantee. The Grantee understands that all matters with respect to the total amount of Withholding Taxes in respect of such compensation or income will be determined by the Committee in its reasonable discretion. The Grantee further understands that, although the Company or any Related Entity may pay withheld amounts to the applicable taxing authorities, the Grantee is responsible for payment of all taxes due as a result of compensation arising under the Agreement. If the Grantee is subject to Section 16 of the Securities Exchange Act, any surrender of previously owned Shares to satisfy Withholding Taxes arising upon exercise of this Award must comply with the applicable provisions of Rule 16b-3 promulgated under the Exchange Act and shall be subject to such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
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12. Data Privacy. The Grantee consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee acknowledges that the Company holds certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security number or other identification number, salary, nationality, job title, details of this Award or any other entitlement to shares of stock awarded, cancelled, exercised, vested or unvested, for the purpose of implementing, administering and managing the Plan (the “Data”). The Grantee acknowledges that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan and that these recipients may be located in jurisdictions that may have different data privacy laws and protections, and the Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee or the Company may elect to deposit any Shares acquired upon settlement of the vested Units in accordance with the Plan and Applicable Laws.
13. Notices. Any notice or request required or permitted hereunder will be given in writing to each of the other parties hereto and will be deemed effectively given on the earlier of (a) the date of personal delivery, or (b) three days after the date of deposit in the United States Mail by registered or certified mail, postage prepaid, return receipt requested, addressed in the case of the Company to the Company’s Chief Executive Officer at the Company’s primary business address and in the case of the Grantee to the most recent address shown in the Company’s records.
14. Incorporation of the Plan; Entire Agreement; Modification. The Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of this Agreement, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this Agreement and those of the Plan, the provisions of the Plan will control. This Agreement (including the Plan) sets forth all of the promises, agreements, conditions and understandings between the parties hereto with respect to the Award, and there are no promises, agreements, conditions, understandings, warranties or representations, oral or written, express or implied, between them with respect to the Award other than as set forth therein or herein. This Agreement supersedes and replaces any and all prior agreements between the parties hereto with respect to Units granted under this Award. Except as provided by the Plan, no modification, amendment or waiver of any of the provisions of this Agreement will be effective unless approved in writing by both parties.
15. Choice of Law; Policies. The interpretation, performance and enforcement of this Agreement will be governed by the law of the State of Delaware without regard to the conflicts of laws rules of any jurisdiction. This Agreement shall be subject to any applicable clawback or recoupment policies, share trading policies, and other policies that may be implemented by the Board from time to time in accordance with Applicable Laws.
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16. Miscellaneous.
(a) The headings of the Sections in this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement or to affect the meaning of this Agreement.
(b) If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
(c) This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. The rights and obligations of the Company under this Agreement will be transferable by the Company to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
(d) The waiver by either party of compliance with any provision of this Agreement by the other party will not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
(e) The Grantee agrees upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of the Award.
(f) The Grantee acknowledges and agrees that the Grantee (i) has reviewed this Agreement and the Plan in their entirety; (ii) fully understands the provisions of each such document; and (iii) has had an opportunity to obtain the advice of counsel prior to executing and accepting the Award.
(g) This Agreement will be subject to all Applicable Laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(h) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
(i) This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same agreement. Facsimile or PDF reproductions of original signatures will be deemed binding for the purpose of the execution of this Agreement.
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17. Application of Section 409A of the Code.
(a) The parties intend that the delivery of Shares in respect of the Units provided under this Agreement satisfies, to the greatest extent possible, the exemption from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Section 1.409A-1(b)(4) (or any other applicable exemption), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, the delivery of Shares in respect of the Units provided under this Agreement will be conducted, and this Agreement will be construed, in a manner that complies with Section 409A and is consistent with the requirements for avoiding taxes or penalties under Section 409A. In such case, distributions made under this Agreement may only be made in a manner and upon an event permitted by Section 409A.
(b) The parties further intend that each installment of any payments provided for in this Agreement is a separate “payment” for purposes of Section 409A. In no event shall the Grantee, directly or indirectly, designate the calendar year of payment.
(c) To the extent that (i) one or more of the payments received or to be received by the Grantee pursuant to this Agreement would constitute deferred compensation subject to the requirements of Section 409A, and (ii) the Grantee is a “specified employee” within the meaning of Section 409A as determined by the Committee, then solely to the extent necessary to avoid the imposition of any additional taxes or penalties under Section 409A, the commencement of any payments under this Agreement will be deferred until the date that is six months and one day following the Grantee’s termination of Continuous Service (or, if earlier, the date of death of the Grantee) and will instead be paid on the date that immediately follows the end of such period (or death) or as soon as administratively practicable within thirty (30) days thereafter.
(d) To the extent that any provision of this Agreement would cause a conflict with the requirements of Section 409A, or would cause the administration of this Agreement to fail to satisfy the requirements of Section 409A, such provision shall be deemed null and void to the extent permitted by Applicable Law. The Company makes no representations to the Grantee regarding the compliance of this Agreement or the Units with Section 409A, and the Grantee is solely responsible for the payment of any taxes or penalties arising under Section 409A(a)(1), or any state law of similar effect, with respect to the grant or vesting of the Units or the delivery of the Shares subject to this Award.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized officer, and the Grantee has hereunto set his/her hand and seal, effective as of the Date of Grant.
| GRANTEE: | COMPANY: | ||
| CORMEDIX INC. | |||
| By: | |||
| Name: Dr. Matt David | Name: | ||
| Title: | |||
[Signature Page to Restricted Stock Unit Award Agreement]
Exhibit 99.1
CorMedix
completes ACQUIsition of MELINTA THERAPEUTICS AND
ANNOUNCES NEW LEADERSHIP TEAM
- Transformational deal for CorMedix that expands and diversifies company’s commercial
product portfolio, with seven innovative drug products and a pipeline expansion indication
with near-term revenue growth potential -
- Revised guidance of pro forma 2025 combined revenues, now estimated to be in the range of $325 to $350 million -
- Transaction expected to be near-term
accretive to EPS with double-digit accretion expected
in 2026; annual run-rate synergies expected to be ~$35 to $45 million
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Berkeley Heights, NJ – September 2, 2025 – CorMedix Inc. (“CorMedix”) (Nasdaq: CRMD), a biopharmaceutical company focused on developing and commercializing therapeutic products for life-threatening diseases and conditions, today announced that it has successfully completed its previously announced acquisition of Melinta Therapeutics LLC (“Melinta”), a private commercial-stage company providing innovative therapies for acute and life-threatening illnesses.
“This acquisition is a transformational step in the evolution of CorMedix, providing an attractive revenue base of highly synergistic assets, as well as multiple opportunities to drive future growth. We are excited to complete the acquisition of Melinta, which enables us to expand our product portfolio in the hospital space while delivering therapies to patients with high unmet need,” said Joseph Todisco, CEO of CorMedix Inc. “The combination with Melinta creates a formidable and diversified specialty platform with a deep and experienced team in the hospital acute care and infectious disease arena.”
Strategic and Financial Benefits
| ● | Strengthens portfolio with multiple growth-driving assets - Seven marketed products (MINOCIN®, REZZAYO™, VABOMERE®, ORBACTIV™, BAXDELA®, KIMYRSA®, and TOPROL-XL®) will add revenue and expanded reach in infectious disease. |
| ● | Diversifies and increases portfolio and revenue base and cash flow - Melinta’s portfolio generated total revenues of $120 million in 2024 and is expected to deliver $125 million to $135 million of revenue for FY 2025. |
Growth asset in REZZAYO™ for prophylaxis - Ongoing Phase III study of REZZAYO™, if successful, is expected to support a supplemental New Drug Application (sNDA) for expanded use for the prophylaxis of invasive fungal infections in adult patients undergoing allogeneic blood and marrow transplant. If approved, peak annual sales for REZZAYO™ in this indication could exceed $200 million.
| ● | Strong fit with existing CorMedix infrastructure and future deployment needs - With the potential to achieve annual run-rate synergies of $35 million to $45 million in the near-term, the combination sets the stage for the future potential expansion of DefenCath® into total parenteral nutrition (TPN), for which inpatient utilization is expected to account for a significant portion of the addressable market. CorMedix expects that if approved, peak annual sales of DefenCath® in the TPN indication will be in the range of $150 to $200 million. |
| ● | Acquisition is expected to be highly accretive in 2026 |
Revised Full Year Financial Guidance
| ● | Pro forma 2025 Revenue: $325 million – $350 million |
| ● | Pro forma 2025 Synergized Adjusted EBITDA: $165 million – $185 million |
| ● | DefenCath® 2025 Revenue: $200 million – $215 million |
Planned Senior Leadership
The following executives will form the core of the senior leadership team of the newly merged company serving in roles that are the same or essentially similar to the one each executive currently holds, unless otherwise stated:
| ● | Susan Blum, CFO of Melinta Therapeutics LLC, will assume the role of EVP & Chief Financial Officer; |
| ● | Dr. Matt David, EVP & CFO of CorMedix Inc., will assume the newly created role of EVP & Chief Business Officer; |
| ● | Liz Hurlburt, EVP & Chief Clinical Strategy and Operations Officer of CorMedix Inc., will assume the newly created role of EVP & Chief Operating Officer, and will serve as Chief Integration Officer; |
| ● | Beth Steinbrenner, SVP and Chief Human Resource Officer of CorMedix Inc., will continue in her role for the newly merged company; and |
| ● | Beth Zelnick Kaufman, EVP & Chief Legal and Compliance Officer and Corporate Secretary of CorMedix Inc., will continue in her role for the newly merged company. |
Post closing, both Melinta Therapeutics LLC and CorMedix Inc. commercial leaders will retain oversight of their respective commercial teams on an interim basis, reporting directly to the CEO individually. The Company expects to finalize a permanent commercial organization structure by the end of the year.
“This combination with Melinta has allowed us to significantly bolster all levels of our organization as well as create a dynamic leadership team that harnesses the best of both organizations,” said Joseph Todisco, CEO of CorMedix Inc. “I am proud of what both organizations have achieved independently and I am excited about the potential for the newly merged organization to achieve success.”
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Acquisition Terms and Financing
Under the terms of the agreement, CorMedix paid $300 million in upfront consideration, comprised of $260 million in cash and $40 million in CorMedix equity issued to affiliates of Deerfield Management Company, L.P. (“Deerfield”) as Melinta’s sole owners. The cash consideration was funded by a combination of CorMedix’s existing cash on hand and the proceeds of a $150 million convertible debt financing with high quality healthcare focused institutional investors, including Deerfield, the terms of which are described in a Current Report on Form 8-K filed by CorMedix on August 7, 2025. The agreement contains an additional regulatory milestone payment of up to $25 million (payable in cash or shares at CorMedix’s election) for the FDA approval of the expanded indication of REZZAYO™ for prophylaxis of invasive fungal infections in adults undergoing allogeneic blood and marrow transplantation, if this milestone event is achieved by June 30, 2029. Furthermore, the agreement includes tiered royalties on REZZAYO™ U.S. net sales and low-single-digit royalties on MINOCIN® U.S. net sales.
About CorMedix
CorMedix Inc. is a biopharmaceutical company focused on developing and commercializing therapeutic products for the prevention and treatment of life-threatening conditions and diseases. CorMedix is commercializing DefenCath® (taurolidine and heparin) for the prevention of catheter related bloodstream infections in patients undergoing hemodialysis via a central venous catheter. Following its August 2025 acquisition of Melinta Therapeutics LLC, CorMedix is also commercializing a portfolio of anti-infective products including MINOCIN® (minocycline), REZZAYO® (rezafungin), VABOMERE® (meropenem and vaborbactam), ORBACTIV® (oritavancin), BAXDELA® (delafloxacin), and KIMYRSA® (oritavancin), as well as TOPROL-XL® (metoprolol succinate).
CorMedix has ongoing clinical studies for DefenCath® in Total Parenteral Nutrition and Pediatric patient populations and also intends to develop DefenCath® as a catheter lock solution for use in other patient populations. REZZAYO® is currently approved for the treatment of candidemia and invasive candidiasis in adults, with an ongoing Phase III study for the prophylaxis of invasive fungal infections in adult patients undergoing allogeneic blood and marrow transplantation. The completion of the Phase III study for REZZAYO™ is expected in 1H 2026. For more information visit: www.cormedix.com or www.melinta.com.
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Forward-Looking Statements
This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act, and Section 21E of the Exchange, as amended (the “Exchange Act”), that are subject to risks and uncertainties. Forward-looking statements are often identified by the use of words such as, but not limited to, “anticipate,” “believe,” “can,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “will,” “plan,” “project,” “seek,” “should,” “target,” “will,” “would,” and similar expressions or variations intended to identify forward-looking statements. All statements, other than statements of historical facts, regarding management’s expectations, beliefs, goals, plans or CorMedix’s prospects should be considered forward-looking statements, including, but not limited to statements regarding Melinta providing an attractive revenue base of highly synergistic assets with multiple opportunities to drive future growth; financial guidance, peak annual sales estimates, synergy estimates and timing, accretion estimates, and EBITDA or Adjusted EBITDA estimates. Readers are cautioned that actual results may differ materially from projections or estimates due to a variety of important factors, and readers are directed to the Risk Factors identified in CorMedix’s filings with the SEC, including its most recent Annual Report on Form 10-K, copies of which are available free of charge at the SEC’s website at www.sec.gov or upon request from CorMedix and in the Quarterly Report on Form 10-Q for the quarter ended, on June 30, 2025. CorMedix may not actually achieve the goals or plans described in its forward-looking statements, and such forward-looking statements speak only as of the date of this press release. Investors should not place undue reliance on these statements. CorMedix assumes no obligation and does not intend to update these forward-looking statements, except as required by law.
Forward-looking statements involve estimates, expectations, projections, goals, forecasts, assumptions, risks and uncertainties. Actual outcomes or results may differ from anticipated results, sometimes materially. Factors that could cause actual results to differ include, but are not limited to: the ability to integrate the Melinta business into CorMedix and realize the anticipated strategic benefits of the transaction within the expected time-frames or at all; that such integration may be more difficult, time-consuming or costly than expected; the ability of the combined company to achieve the identified synergies; that operating costs, customer loss and business disruption (including, without limitation, difficulties in maintaining relationships with employees, customers or suppliers) may be greater than expected following the transaction; the retention of certain key employees; the expected benefits and success of Melinta’s products and product candidates; potential litigation relating to the transaction that could be instituted against CorMedix or its directors; rating agency actions and CorMedix’s ability to access short- and long-term debt markets on a timely and affordable basis; general economic conditions that are less favorable than expected; geopolitical developments and additional changes in international trade policies and relations, including tariffs; and the ability of our products and product candidates to compete effectively against current and future competitors.
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Non-GAAP Financial Measures
This release includes certain non-GAAP financial measures, including Adjusted EBITDA, which are intended as supplemental measures of CorMedix’s performance that are not required by or presented in accordance with GAAP. Management uses these non-GAAP measures internally to evaluate and manage CorMedix’s operations and to better understand its business because they facilitate a comparative assessment of CorMedix’s operating performance relative to its performance based on results calculated under GAAP. These non-GAAP measures also isolate the effects of some items that vary from period to period without any correlation to core operating performance and eliminate certain charges that management believes do not reflect CorMedix’s operations and underlying operational performance.
CorMedix believes that these non-GAAP measures also provide useful information to investors regarding certain financial and business trends relating to CorMedix’s financial condition and operating results and facilitate an evaluation of the financial performance of CorMedix and its operations on a consistent basis. Providing this information therefore allows investors to make independent assessments of CorMedix’s financial performance, results of operations and trends while viewing the information through the eyes of management.
These non-GAAP measures are subject to limitations. The non-GAAP measures presented in this release may not be comparable to similarly titled measures used by other companies because other companies may not calculate one or more in the same manner. Additionally, the non-GAAP performance measures exclude significant expenses and income that are required by GAAP to be recorded in CorMedix’s financial statements; do not reflect changes in, or cash requirements for, working capital needs. Further, our historical adjusted results are not intended to project our adjusted results of operations or financial position for any future period. To compensate for these limitations, management presents and considers these non-GAAP measures in conjunction with CorMedix’s GAAP results; no non-GAAP measure should be considered in isolation from or as alternatives to any measure determined in accordance with GAAP. Readers should review the reconciliations included below, and should not rely on any single financial measure to evaluate CorMedix’s business.
Adjusted EBITDA is a non-GAAP financial measure and excludes non-cash items such as stock based compensation and certain non-recurring items. See CorMedix’s earnings release dated August 7, 2025 for further information. Pro forma 2025 Synergized Adjusted EBITDA and Pro Forma 2025 Revenue were prepared by combining the estimated financial results and guidance for CorMedix and Melinta for the full fiscal year ended December 31, 2025, without further adjustment, and taking into account 100% realization of expected synergies and full year run-rate of estimated synergies (as if the transaction had closed on January 1, 2025). As a result, we believe this pro forma financial information includes non-GAAP financial measures. CorMedix has not provided a reconciliation to the most directly comparable GAAP measures because certain items needed to make a reasonable forward-looking estimate of the comparable GAAP measures cannot be reasonably calculated or predicted at this time. Accordingly, a reconciliation is not available without unreasonable effort. Pro forma financial information does not necessarily reflect the actual results that we would have achieved had the pro forma transaction been consummated as of the date indicated nor does it reflect the potential future results of the combined company. Our forward-looking estimates of both GAAP and non-GAAP measures of our financial performance may differ materially from our actual results and should not be relied upon as statements of fact.
Investor Contact:
Dan Ferry
Managing Director
LifeSci Advisors
[email protected]
(617) 430-7576
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