Nuvation Bio Inc 10-K/A, filed Apr 26, 2024
Nuvation Bio Inc. (NUVB)
About this 10-K/A
Nuvation Bio Inc filed this 10-K/A on April 26, 2024, covering the fiscal year ended December 31, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
Amendment No. 1
(Mark One)
For the fiscal year ended
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Securities registered pursuant to section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ☐
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. YES ☐
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files).
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act:
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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. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES
The aggregate market value of the voting common stock, par value $0.0001 per share, held by non-affiliates of the registrant computed by reference to the closing sales price for the registrant’s common stock on June 30, 2023, as reported on the New York Stock Exchange was approximately $
In determining the market value of the voting stock held by any non-affiliates, shares of common stock of the registrant beneficially owned by directors and officers have been excluded. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of February 16, 2024, the registrant had
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DOCUMENTS INCORPORATED BY REFERENCE:
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EXPLANATORY NOTE
Table of Contents
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Item 10. |
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Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
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Certain Relationships and Related Transactions, and Director Independence |
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PART III
Item 10. Directors, Executive Officers and Corporate Governance.
Nuvation Bio’s Board of Directors is divided into three classes. Each class consists, as nearly as possible, of one-third of the total number of directors, and each class has a three-year term. Vacancies on the Board may be filled only by persons elected by a majority of the remaining directors or, for certain vacancies, by the holders of Class B Stock or the directors elected or appointed by the holders of Class B Stock. A director elected by the Board to fill a vacancy in a class, including vacancies created by an increase in the number of directors, shall serve for the remainder of the full term of that class and until the director’s successor is duly elected and qualified. The Board of Directors presently has nine members, with three directors in each class. Biographical information about each of the current directors, including their ages as of the date of this Amendment, and a discussion of the qualifications, attributes and skills of each director is contained in the following section.
Directors Continuing in Office until the 2024 Annual Meeting
Min Cui, Ph.D., 55, has served as a member of our board of directors since his appointment in April 2024 in connection with the Company’s acquisition of AnHeart Therapeutics, Ltd. Dr. Cui founded Decheng Capital LLC in 2011, where he has served as Managing Director since the firm’s formation. From 2006 to 2011, Dr. Cui served as a principal at Bay City Capital, a venture capital firm. Prior to that, Dr. Cui served as Director of Strategic Investment for the Southern Research Institute, a not-for-profit organization concentrating on drug research and development. Prior to that, Dr. Cui co-founded Pan Pacific Pharmaceuticals, a U.S. biotech company, and Hucon Biopharmaceuticals, a PRC pharmaceutical company. He served as the Chief Scientific Officer and Executive Vice President of Pan Pacific Pharmaceuticals from 1998 to 2002 and Chief Executive Officer and President of Hucon Biopharmaceuticals from 2003 to 2005, respectively. Dr. Cui serves on the board of directors of Alpine Immune Sciences Inc., a publicly traded clinical stage biopharmaceutical company. Dr. Cui also currently serves on the board of directors of several privately held biotechnology and medical technology companies, including Accuragen, Inc., Nanjing Bioheng Biotech Co., Ltd., EpimAb Biotherapeutics, Inc., Harton, Inc., ImmPACT Bio USA, Inc., Mammoth Biosciences, Inc., Mirvie, Inc., Shape Therapeutics Inc. and VintaBio, Inc. Dr. Cui previously served on the board of directors of other biotechnology and medical technology companies, including ARMO BioSciences (acquired by Eli Lilly & Co), Cirina, Ltd. (acquired by GRAIL, Inc.), Cue Health Inc., GeneWEAVE Biosciences, Inc. (acquired by Roche Molecular Systems Inc.), GenturaDx Inc. (acquired by Luminex Corporation), GRAIL (acquired by Illumina, Inc.), Ion Torrent Systems Inc. (acquired by Life Technologies Corporation), Sino MedicalDevice Technology Co., Ltd. and Velos Biopharma (acquired by Merck & Co.). Dr. Cui received his B.S. and M.S. in Molecular Biology from Peking University, and his Ph.D. in Cancer Biology from Stanford University. Dr. Cui is currently on the board of trustees at Western University of Health Sciences.
We believe that Dr. Cui’s experience serving on the boards of directors of public and private companies in the pharmaceutical/biotechnology sector, his experience as an executive, as well as his role as founder and Manager Partner of Decheng Capital, qualify him to serve as a member of our board of directors.
W. Anthony Vernon, 68, has served as a member of our board of directors since June 2019 and serves as the Chair of the Compensation Committee. Mr. Vernon served as senior advisor to Kraft Foods Group, Inc. from January 2015 through May 2015, and Chief Executive Officer for Kraft Foods Group, Inc. from October 2012 to December 2014. Mr. Vernon previously served as Executive Vice President and President at Kraft Foods of North America from 2009 to October 2012. From 2006 to 2009, Mr. Vernon was the Healthcare Industry Partner at Ripplewood Holdings, Inc., a private equity firm. Mr. Vernon previously led a number of Johnson & Johnson’s largest franchises during a 23-year career at Johnson & Johnson, a public company engaged in the research and development, manufacture and sale of products in the healthcare field. From 2004 until 2005, Mr. Vernon was employed as Company Group Chairman of Depuy Inc., an orthopedics company, which is a subsidiary of Johnson & Johnson. From 2001 until 2004, Mr. Vernon served as President and Chief Executive Officer of Centocor, Inc., a biomedicines company, a division of Johnson & Johnson. He has also served as President of McNeil Consumer Products and Nutritionals, Worldwide President of The Johnson & Johnson-Merck Joint Venture and as a member of Johnson & Johnson’s Group Operating Committees for Consumer Healthcare and Nutritionals, Biopharmaceuticals, and Medical Devices and Diagnostics. Mr. Vernon serves on the boards of directors of NovoCure Ltd., a public medical device company, since 2006, Intersect ENT, Inc., a public medical device company, since 2015 and McCormick & Co., a global food company, since 2017. He formerly served as a director of Medivation, Inc. and Kraft Foods Group, Inc. Mr. Vernon received a
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B.A. from Lawrence University and an MBA from the Northwestern University Kellogg Graduate School of Management.
We believe that Mr. Vernon’s business and investment experience, as an executive in various industries and as the former chief executive officer of a global Fortune 500 company, qualify him to serve as a member of our board of directors.
Daniel G. Welch, 66, has served as Chair of our board since July 2020 and serves as the Chair of the Nominating and Corporate Governance Committee. From January 2015 to February 2018, Mr. Welch served as an Executive Partner of Sofinnova Ventures, a venture capital firm. From September 2003 until its acquisition by Roche Holdings in September 2014, Mr. Welch served as Chief Executive Officer and President of InterMune, Inc., a biotechnology company which was acquired by Roche in 2014. Mr. Welch also served as Chairman of InterMune from May 2008 to September 2014. From 2002 to 2003, Mr. Welch served as Chairman and Chief Executive Officer of Triangle Pharmaceuticals, Inc., a pharmaceutical company that was acquired by Gilead Sciences. From 2000 to 2002, Mr. Welch served as President of Biopharmaceuticals at Elan Corporation. From 1987 to 2000, Mr. Welch served in various senior management roles at Sanofi-Synthelabo, now Sanofi, including Vice President of Worldwide Marketing and Chief Operating Officer of the U.S. business. From 1980 to 1987, Mr. Welch was with American Critical Care, a division of American Hospital Supply. He has had leadership and board director roles in companies bringing new medicines to patients with HIV, MS, cardiovascular disease, cancer, infectious disease and rare diseases. He currently serves as Chair of the Boards of Ultragenyx Pharmaceutical, Structure Therapeutics, and Incarda, and as Chair Designate of Prothena Biosciences. His past board service includes a director role at Hyperion Therapeutics, which was acquired by Horizon Pharma in 2015, a Chairman of the Board role at Avexis Inc, which was acquired by Novartis Pharmaceuticals in 2018, a Chairman of the Board role at Levo Pharmaceuticals until it was acquired by Acadia Pharmaceuticals in 2022, and a director role at Seattle Genetics until it was acquired by Pfizer in 2023. Mr. Welch received a B.S. from the University of Miami and an MBA from the University of North Carolina.
We believe that Mr. Welch is a strong operating executive with operational and strategic expertise in the global pharmaceutical market, whose experience contributes valuable insight to our board of directors.
Directors Continuing in Office until the 2025 Annual Meeting
Kathryn E. Falberg, 63, has served as a member of our board of directors since October 2020 and serves as the Chair of the Audit Committee. Ms. Falberg served as Executive Vice President and Chief Financial Officer of Jazz Pharmaceuticals plc, a public biopharmaceutical company, from March 2012 to March 2014 after serving as Senior Vice President and Chief Financial Officer since December 2009. From 1995 to 2001, Ms. Falberg served as Senior Vice President, Finance and Strategy and Chief Financial Officer at Amgen Inc., and prior to that as Vice President Chief Accounting Officer, and Vice President, Treasurer. Ms. Falberg also serves as a member of the board of directors for the public biopharmaceutical companies, Arcus Biosciences, Inc. and Tricida, Inc., as well as The Trade Desk, Inc., a public technology company. She previously served on the board of directors of biotechnology companies Medivation, Inc. from February 2013 to September 2016, Aimmune Therapeutics Inc. from May 2015 to October 2020, Axovant Sciences Ltd. from April 2017 to February 2018 and UroGen Pharma from April 2017 to June 2022. Ms. Falberg received a B.A. in Economics and an MBA in Finance from the University of California, Los Angeles.
We believe that Ms. Falberg’s experience in the biopharmaceutical industry qualifies her to serve as a member of our board of directors.
David Hung, M.D., 66, is our founder and has served as our President, Chief Executive Officer and member of the board of directors since inception (April 2018). Dr. Hung founded Medivation, Inc. in 2003, which developed oncology drugs Xtandi®, which was taken from first in vitro laboratory experiment to FDA approval in seven years and approved in 60+ countries, and talazoparib (now marketed as Talzenna®), a potentially best-in-class PARP inhibitor, and was sold to Pfizer Inc. in 2016 for $14.3 billion. Between Medivation and founding Nuvation Bio, Dr. Hung served for 10 months as Chief Executive Officer at Axovant Sciences before tendering his resignation. Prior to founding Medivation, he served as President and Chief Executive Officer of ProDuct Health, Inc., a medical device company founded in 1998 that developed, manufactured and commercialized a breast microcatheter for breast cancer risk assessment and which was acquired in 2001 for $168 million by Cytyc Corporation. Dr. Hung received an A.B. in Biology from Harvard College and an M.D. from the University of California, San Francisco, School of Medicine. He completed simultaneous clinical fellowships in hematology, oncology and transfusion medicine as well as two basic science research fellowships in molecular biology at the University of California, San Francisco, School of Medicine.
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We believe that Dr. Hung is qualified to serve on our board of directors because of his deep knowledge of our company, history leading life sciences companies and his industry experience.
Junyuan Jerry Wang, Ph.D., 52, has served as a member of our board of directors since his appointment in April 2024 in connection with the Company’s acquisition of AnHeart Therapeutics, Ltd. Dr. Wang co-founded AnHeart in 2018, where he has served as Chief Executive Officer since AnHeart’s formation and leads the in-license and development of taletrectinib and safusidenib. From June 2014 to September 2018, Dr. Wang was the Head of Global Biostatistics, EPI, and Medical Writing (GBEM) China at Merck Serono. Prior to that, from September 2011 to June 2014, he served as Director of Biostatistics at Bristol Myers Squibb. Prior to that, Dr. Wang served as Director of Biostatistics at Pfizer from October 2007 to September 2011. Prior to that, from January 2006 to October 2007, Dr. Wang served as Director of Biostatistics for The Medicines Company. Prior to that, he served as a senior biometrician at Merck and Co. Dr. Wang made key contributions to the successful NDAs of Bosulif and Eliquis, and the latter became a multi-billion blockbuster drug. He has extensive experience with global health authorities including FDA, EMA, PMDA, and NMPA. He also previously served in leadership roles for professional societies and on the programming committee of leading scientific conferences. Dr. Wang earned his B.S. in Mathematics from the University of Science and Technology of China and his Ph.D. in Statistics from Iowa State University.
We believe that Dr. Wang's experience in the biopharmaceutical industry qualifies him to serve as a member of our board of directors.
Dr. Hung, as the sole holder of Class B Stock, has agreed with Dr. Wang that he will vote his shares so as to ensure that Dr. Wang is nominated and elected to, and not removed from (other than for cause), our board of directors prior to April 9, 2026, so long as Dr. Wang continues to be employed by and provide services to us, other than as a director.
Directors Continuing in Office until the 2026 Annual Meeting
Robert B. Bazemore Jr., 56, has served as a member of our board of directors since July 2020. From September 2015 to August 2021, Mr. Bazemore served as the President, Chief Executive Officer and member of the board of directors of Epizyme, Inc., a biopharmaceutical company, developing and launching TAZVERIK® for patients with Follicular Lymphoma and Sarcoma. Prior to that, from September 2014 to June 2015, Mr. Bazemore served as the Chief Operating Officer of Synageva BioPharma Corp., a biopharmaceutical company, where he established the company’s global commercial and medical organization, through the company’s acquisition by Alexion Pharmaceuticals, Inc. Prior to joining Synageva, Mr. Bazemore served in increasing levels of responsibility at Johnson & Johnson, a healthcare company, including Vice President of Centocor Ortho Biotech Sales & Marketing from 2008 to 2010, President of Janssen Biotech from 2010 to 2013, where he led the successful launches of numerous products and indications, including the US launches of the oncology therapies ZYTIGA® and IBRUVICA®, and Vice President of Global Surgery at Ethicon from 2013 to 2014. Prior to Johnson & Johnson, Mr. Bazemore worked at Merck & Co., Inc. from 1991 to 2013, where he served in a variety of roles in medical affairs, sales and marketing, including supporting the launch of SINGULAIR® in the U.S. Mr. Bazemore also serves on the board of directors of Ardelyx, Inc., a public biopharmaceutical company, since June 2016. Mr. Bazemore received a B.S. in Biochemistry from the University of Georgia.
We believe that Mr. Bazemore’s extensive experience in the pharmaceutical industry, his experience as an executive, and his past service on the board of directors of a life sciences industry group, qualify him to serve as a member of our board of directors.
Kim Blickenstaff, 71, has served as a member of our board of directors since August 2019. From September 2007 to March 2019, Mr. Blickenstaff served as the President and Chief Executive Officer of Tandem Diabetes Care, Inc., a medical device manufacturer. Mr. Blickenstaff has served on Tandem’s board of directors since September 2007, serving as the Executive Chairman of the Tandem board since March 2019 and the Chairman of the Tandem board since March 2020. Mr. Blickenstaff served as Chairman and Chief Executive Officer of Biosite Incorporated, or Biosite, a provider of medical diagnostic products, from 1988 until its acquisition by Inverness Medical Innovations, Inc. in June 2007. Mr. Blickenstaff previously served as a director of Medivation, Inc., a biotechnology company, from 2005 to 2016, until its acquisition by Pfizer, and as a director of DexCom, Inc., a provider of continuous glucose monitoring systems, from June 2001 to September 2007. Mr. Blickenstaff was formerly a certified public accountant and has more than 20 years of experience overseeing the preparation of financial statements. He held various positions in finance, operations, research, management, sales management, strategic planning, and marketing with Baxter
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Travenol National Health Laboratories and Hybritech Incorporated. He holds a B.A. in Political Science from Loyola University, Chicago, and an M.B.A. from the Graduate School of Business, Loyola University, Chicago.
We believe that Mr. Blickenstaff’s extensive experience at the board level of various healthcare companies, as well as leadership skills, industry experience and knowledge, qualify him to serve as a member of our board of directors.
Robert Mashal, M.D., 64, has served as a member of our board of directors since January 2024 and serves as consultant to the life sciences industry since April 2020 through Robert Mashal LLC and Beacon Prince Partners. From November 2016 to April 2020, he was the Global Head of Strategy for the Immunology and Oncology franchises at Sanofi, a global pharmaceutical and healthcare company. Prior to November 2016, Dr. Mashal worked as CEO of NKT Therapeutics and Alinea Pharmaceuticals, two venture capital-backed life sciences firms. Prior to that, he was a partner at Boston Millennia Partners, a private equity firm, where he was on the Board of Directors of GlycoFi, CardioMEMS, and Sapphire Therapeutics. Prior to that, he served as a Program Executive at Vertex Pharmaceuticals, where he was on the Joint Steering Committee for the Vertex-Novartis kinase collaboration, and was a consultant at McKinsey & Company. Prior to McKinsey, Dr. Mashal was a board-certified medical oncologist and received his training in internal medicine at the University of California, San Francisco, and in oncology at the Dana-Farber Cancer Institute. Dr. Mashal received a B.A. in Natural Sciences and an M.D. from Johns Hopkins University.
We believe that Dr. Mashal’s experience in the biopharmaceutical industry qualifies him to serve as a member of our board of directors.
Directors and Corporate Governance
Board Leadership Structure
The Board of Directors has an independent chair, Daniel G. Welch, who has authority, among other things, to call and preside over Board meetings, including meetings of the independent directors, to set meeting agendas and to determine materials to be distributed to the Board. Accordingly, the Board Chair has substantial ability to shape the work of the Board. The Company believes that separation of the positions of Board Chair and Chief Executive Officer reinforces the independence of the Board in its oversight of the business and affairs of the Company. In addition, the Company believes that having an independent Board Chair creates an environment that is more conducive to objective evaluation and oversight of management’s performance, increasing management accountability and improving the ability of the Board to monitor whether management’s actions are in the best interests of the Company and its stockholders. As a result, the Company believes that having an independent Board Chair can enhance the effectiveness of the Board as a whole.
Role of the Board in Risk Oversight
One of the board’s key functions is informed oversight of the Company’s risk management process. The Board does not have a standing risk management committee, but rather administers this oversight function directly through the Board as a whole, as well as through various Board standing committees that address risks inherent in their respective areas of oversight. In particular, our Board is responsible for monitoring and assessing strategic risk exposure, including a determination of the nature and level of risk appropriate for the Company. Our audit committee has the responsibility to consider and discuss our major financial risk exposures and the steps our management has taken to monitor and control these exposures, including guidelines and policies to govern the process by which risk assessment and management is undertaken. The audit committee also monitors compliance with legal and regulatory requirements, in addition to oversight of the performance of our internal audit function. Audit committee responsibilities also include oversight of cybersecurity risk management, and, to that end, the committee typically meets twice annually with both IT and business personnel responsible for cybersecurity risk management and receives periodic reports from the head of cybersecurity risk management, as well as incidental reports as matters arise. Our nominating and corporate governance committee monitors the effectiveness of our corporate governance guidelines, including whether they are successful in preventing illegal or improper liability-creating conduct. Our compensation committee assesses and monitors whether any of our compensation policies and programs has the potential to encourage excessive risk-taking. Typically, the applicable Board committees meet at least annually with the employees responsible for risk management in the committees’ respective areas of oversight. Both the Board as a whole and the various standing committees receive periodic reports from management, as well as incidental reports as matters may arise. It is the responsibility of the committee chairs to report findings regarding material risk exposures
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to the Board as quickly as possible. The Board Chair coordinates between the Board and management with regard to the determination and implementation of responses to any problematic risk management issues.
Code of Business Conduct and Ethics
We have adopted a code of business conduct and ethics that applies to all of our employees, officers and directors, including those officers responsible for financial reporting. The code of business conduct and ethics is available on our website at www.nuvationbio.com. We intend to disclose any amendments to the code, or any waivers of its requirements, on our website to the extent required by the applicable rules and exchange requirements. The inclusion of our website address in this Amendment does not incorporate by reference the information on or accessible through our website into this Amendment.
The Board of Directors adopted the Corporate Governance Guidelines to assure that the Board will have the necessary authority and practices in place to review and evaluate the company’s business operations as needed and to make decisions that are independent of the company’s management. The guidelines are also intended to align the interests of directors and management with those of the company’s stockholders. The Corporate Governance Guidelines set forth the practices the Board intends to follow with respect to board composition and selection, board meetings and involvement of senior management, Chief Executive Officer’s performance evaluation and succession planning, and board committees and compensation. The Corporate Governance Guidelines, as well as the charters for each committee of the Board, may be viewed at www.nuvationbio.com.
Board of Directors and Committees
Our Board of Directors has established an audit committee, a compensation committee and a nominating and corporate governance committee. Our Board of Directors may establish other committees to facilitate the management of our business. The composition and functions of each committee are described below. Members serve on these committees until their resignation or until otherwise determined by our Board of Directors.
During the fiscal year ended December 31, 2023, our Board of Directors held eight meetings. Our audit committee met four times, our compensation committee met eight times, and our nominating and corporate governance committee met one time during 2023. Each of our directors attended at least 75% of the aggregate of the total number of meetings of the Board of Directors and the total number of meetings held by all committees of the Board on which such member served.
As required under applicable NYSE listing standards, in fiscal 2023, the Company’s non-management directors met 16 times in regularly scheduled executive sessions of the Board or its committees at which only non-management directors were present. The Chairs of the Board or the various committees presided over the executive sessions.
Audit Committee
Our audit committee consists of Kim Blickenstaff, Kathryn E. Falberg and Daniel G. Welch. The chair of our audit committee is Ms. Falberg, who our Board of Directors has determined is an “audit committee financial expert” as that term is defined under the SEC rules implementing Section 407 of the Sarbanes-Oxley Act of 2002, and possesses financial sophistication, as defined under the NYSE listing standards. Our Board of Directors has also determined that each member of our audit committee can read and understand fundamental financial statements in accordance with applicable requirements. In arriving at these determinations, the Board of Directors has examined each audit committee member’s scope of experience and the nature of their experience in the corporate finance sector. Our Board of Directors has adopted a written audit committee charter that is available to stockholders on our website at www.nuvationbio.com.
The primary purpose of the audit committee is to discharge the responsibilities of our Board of Directors with respect to our accounting, financial and other reporting and internal control practices and to oversee our independent registered public accounting firm. Specific responsibilities of our audit committee include:
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Report of the Audit Committee of the Board of Directors
The audit committee has reviewed and discussed the audited financial statements for the fiscal year ended December 31, 2023 with management of our company. The audit committee has discussed with the independent registered public accounting firm the matters required to be discussed by Auditing Standard No. 16, Communications with audit committees, as adopted by the Public Company Accounting Oversight Board (“PCAOB”). The audit committee has also received the written disclosures and the letter from the independent registered public accounting firm required by applicable requirements of the PCAOB regarding the independent accountants’ communications with the audit committee concerning independence, and has discussed with the independent registered public accounting firm the accounting firm’s independence. Based on the foregoing, the audit committee has recommended to the Board of Directors that the audited financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023.
Kim Blickenstaff
Kathryn E. Falberg (Chair)
Daniel G. Welch
Compensation Committee
Our compensation committee consists of Robert B. Bazemore, Jr., W. Anthony Vernon and Daniel G. Welch. The chair of our compensation committee is Mr. Vernon. All members of our compensation committee are independent, as independence is currently defined in NYSE listing standards. Our Board of Directors has adopted a written compensation committee charter that is available to stockholders on our website at www.nuvationbio.com.
The primary purpose of our compensation committee is to discharge the responsibilities of our Board of Directors to oversee our compensation policies, plans and programs and to review and determine the compensation to be paid to our executive officers, directors and other senior management, as appropriate. Specific responsibilities of our compensation committee include:
Compensation Committee Processes and Procedures
Typically, the compensation committee meets at least four times annually and with greater frequency if necessary. The agenda for each meeting is usually developed by the Chair of the compensation committee. The
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compensation committee meets regularly in executive session. However, from time to time, various members of management and other employees as well as outside advisors or consultants may be invited by the compensation committee to make presentations, to provide financial or other background information or advice or to otherwise participate in compensation committee meetings. The Chief Executive Officer may not participate in, or be present during, any deliberations or determinations of the compensation committee regarding his compensation or individual performance objectives. The charter of the compensation committee grants the compensation committee full access to all our books, records, facilities and personnel.
In addition, under the charter, the compensation committee has the authority to obtain, at the expense of Nuvation Bio, advice and assistance from compensation consultants and internal and external legal, accounting or other advisors and other external resources that the compensation committee considers necessary or appropriate in the performance of its duties. The compensation committee takes into consideration factors prescribed by the SEC and NYSE that bear upon the adviser’s independence; however, there is no requirement that any adviser be independent. The compensation committee has direct responsibility for the oversight of the work of such consultants or advisers.
During the past year, the compensation committee engaged FW Cook, as a compensation consultant. The compensation committee requested that FW Cook:
Although our Board and compensation committee consider the advice and recommendations of such independent compensation consultants as to our executive and non-employee director compensation program, the Board and compensation committee ultimately make their own decisions regarding these matters.
Nominating and Corporate Governance Committee
Our nominating and corporate governance committee consists of Robert B. Bazemore, Jr., W. Anthony Vernon and Daniel G. Welch. The chair of our nominating and corporate governance committee is Mr. Welch. Our Board of Directors has adopted a written nominating and corporate governance committee charter that is available to stockholders on our website at www.nuvationbio.com. Specific responsibilities of our nominating and corporate governance committee include:
The nominating and corporate governance committee believes that candidates for director should have certain minimum qualifications, including the ability to read and understand basic financial statements, being over 21 years
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of age and having the highest personal integrity and ethics. The nominating and corporate governance committee also intends to consider such factors as possessing relevant expertise upon which to be able to offer advice and guidance to management, having sufficient time to devote to the affairs of the Company, demonstrated excellence in his or her field, having the ability to exercise sound business judgment and having the commitment to rigorously represent the long-term interests of the company’s stockholders. However, the nominating and corporate governance committee retains the right to modify these qualifications from time to time. Candidates for director nominees are reviewed in the context of the current composition of the Board, the operating requirements of the company and the long-term interests of stockholders. In conducting this assessment, the nominating and corporate governance committee typically considers diversity (including gender, racial and ethnic diversity), age, skills and such other factors as it deems appropriate, given the current needs of the Board and the company, to maintain a balance of knowledge, experience and capability.
In the case of incumbent directors whose terms of office are set to expire, the nominating and corporate governance committee reviews these directors’ overall service to the company during their terms, including the number of meetings attended, level of participation, quality of performance and any other relationships and transactions that might impair the directors’ independence. The committee also takes into account the results of the Board’s self-evaluation, conducted annually on a group and individual basis. In the case of new director candidates, the nominating and corporate governance committee also determines whether the nominee is independent for NYSE purposes, which determination is based upon applicable NYSE listing standards, applicable SEC rules and regulations and the advice of counsel, if necessary. The nominating and corporate governance committee then uses its network of contacts to compile a list of potential candidates, but may also engage, if it deems appropriate, a professional search firm. The nominating and corporate governance committee conducts any appropriate and necessary inquiries into the backgrounds and qualifications of possible candidates after considering the function and needs of the Board. The nominating and corporate governance committee meets to discuss and consider the candidates’ qualifications and then selects a nominee for recommendation to the Board by majority vote.
Nomination Process
Our nominating and corporate governance committee is responsible for identifying, recruiting, evaluating and recommending to our Board of Directors nominees for membership on the Board of Directors and committees of our Board of Directors. The goal of this process is to maintain and further develop a highly qualified Board of Directors of directors consisting of members with experience and expertise in areas of importance to our company. Candidates may come to our attention through current members of our Board of Directors, professional search firms, stockholders or other persons.
The nominating and corporate governance committee recommends to the Board of Directors for selection all nominees to be proposed by the Board of Directors for election by the stockholders, including approval or recommendation of a slate of director nominees to be proposed by our Board of Directors for election at each annual or special meeting of stockholders, and recommends all director nominees to be appointed by our Board of Directors to fill director vacancies. Our Board of Directors is responsible for nominating members for election to the Board of Directors and for filling vacancies on the Board of Directors that may occur between annual meetings of stockholders.
Evaluation of Director Candidates
In its evaluation of director candidates, the nominating and corporate governance committee will consider a candidate’s skills, characteristics and experience taking into account a variety of factors, including the candidate’s:
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The nominating and corporate governance committee will also consider the current size and composition of the Board of Directors, the needs of the Board of Directors its committees and the potential independence of director candidates under relevant NYSE and SEC rules.
Although the Board of Directors does not maintain a specific policy with respect to board diversity, the nominating and corporate governance committee considers each candidate in the context of the membership of the Board as a whole, with the objective of including an appropriate mix of viewpoints and experience among members of the Board reflecting differences in professional background, education, skill and other individual qualities and attributes. In making determinations regarding nominations of directors, the nominating and corporate governance committee may take into account the benefits of diverse viewpoints to the extent it deems appropriate.
Stockholder Recommendations for Nomination to the Board of Directors
The nominating and corporate governance committee will consider properly submitted stockholder recommendations for candidates for our Board. The nominating and corporate governance committee does not intend to alter the manner in which it evaluates candidates, including the criteria described above, based on whether or not the candidate was recommended by a stockholder.
Any stockholder recommendations proposed for consideration by the nominating and corporate governance committee should be in writing and delivered to Nuvation Bio Inc., Attn: Investor Relations, 1500 Broadway, Suite 1401, New York, New York, 10036. Submissions must include the following information:
In addition, any stockholder wishing to recommend a nominee to our Board of Directors must provide a questionnaire regarding the proposed nominee, information regarding any arrangement or agreement with respect to such nominee’s voting while a member of our Board of Directors and information regarding equity ownership of the company (including derivative ownership) by the proposing stockholder and the proposed nominee.
Stockholder Communications with the Board of Directors
Stockholders and other interested parties wishing to communicate with our Board of Directors may send a written communication addressed to the Secretary at our principal executive offices. The Secretary will promptly forward the communication to the Board or member to whom it is addressed, as appropriate, unless it is unduly hostile, threatening, illegal or similarly inscrutable. Historically, we have not provided a formal process related to stockholder communications with the Board. Nevertheless, every effort has been made to ensure that the views of stockholders are heard by the Board or individual directors, as applicable, and that appropriate responses are provided to stockholders in a timely manner. The company believes its responsiveness to stockholder communications to the Board has been excellent.
Executive Officers of the Company
The following table shows information for our current executive officers as of April 15, 2024. Biographical information for our President, Chief Executive Officer and Director, David Hung, M.D., and our Chief Executive Officer of AnHeart Therapeutics and Director, Junyuan Jerry Wang, Ph.D., is included above with the Director biographies.
9
Name |
|
Age |
|
|
Position(s) |
|
David Hung, M.D. |
|
|
66 |
|
|
President, Chief Executive Officer and Director |
Junyuan Jerry Wang, Ph.D. |
|
|
52 |
|
|
Chief Executive Officer of AnHeart Therapeutics and Director |
Moses Makunje, CPA |
|
|
46 |
|
|
VP Finance, Principal Financial and Accounting Officer |
David Liu, M.D., Ph.D. |
|
|
54 |
|
|
Chief Medical Officer |
Gary Hattersley, Ph.D. |
|
|
57 |
|
|
Chief Scientific Officer |
David Hanley, Ph.D. |
|
|
54 |
|
|
Chief Technical Operations Officer |
Stacy Markel |
|
|
59 |
|
|
Chief People Officer |
Colleen Sjogren |
|
|
54 |
|
|
Chief Commercial Officer |
Kerry Wentworth |
|
|
51 |
|
|
Chief Regulatory Officer |
Executive Officers
David Hanley, Ph.D. has served as our Chief Technical Operations Officer since June 2021. Prior to this role, from August 2018 to May 2021, Dr. Hanley held positions of increasing responsibility at BioXcel Therapeutics Inc., most recently serving as Senior Vice President and Head of Global Pharmaceutical Development and Operations. From August 2014 to August 2018, Dr. Hanley held positions of increasing responsibility at Radius Health, Inc., most recently serving as Vice President of Pharmaceutical Sciences and Technical Operations. He also held positions at The Medicines Company from June 2011 to August 2014, including Senior Director. Prior to that, Dr. Hanley held positions at Boehringer Ingelheim from August 2010 to December 2010, The Medicines Company from September 2009 to July 2010, Medarex from September 2006 to September 2009, and Berlex, a subsidiary of Schering A.G., from November 2001 to September 2006. Dr. Hanley earned his Ph.D. in Physical and Analytical Chemistry from the University of Utah and his B.S. in Chemistry from Virginia Commonwealth University.
Gary Hattersley, Ph.D. has served as our Chief Scientific Officer since June 2019. Prior to this role, December 2003 to November 2018, Dr. Hattersley held roles of increasing seniority, including Senior Vice President of Preclinical Development, Vice President of Biology, and most recently as Chief Scientific Officer at Radius Health Inc. where he supported the development of its oncology and women’s health portfolio, including TYMLOS®, approved by the FDA in 2017 for the treatment of postmenopausal women with osteoporosis at high risk of fracture. Prior to that, Dr. Hattersley was a Senior Scientist at Millennium Pharmaceuticals, Inc. from 2000 to 2003. He also held positions at Genetics Institute from 1992 to 2000, including Principle Scientist. Dr. Hattersley received a Ph.D. from St. George’s Hospital Medical School in London and a BSc from the University of Hull.
David Liu, M.D., Ph.D. joined Nuvation Bio in 2022 with over 20 years of experience leading the discovery and development of oncology therapies, including NDA submissions for multiple oncology assets in the U.S., Europe, and China. Most recently, Dr. Liu served as the Chief Medical Officer at a biotechnology company (3D Medicines) based in Shanghai, China. Earlier in his career, Dr. Liu held several roles of increasing strategic responsibility at Bristol Myers Squibb, where he became a leader in Oncology Global Clinical Research, including leading the Global Prostate Cancer Program, Pediatric Clinical Development, and Translational Research for ipilimumab, and development of nivolumab and ipilimumab for China. After Bristol Myers Squibb, Dr. Liu was the Global Lead Physician at Celgene for the revlimid plus rituximab submission program in indolent lymphoma. Dr. Liu earned a Ph.D. from the Massachusetts Institute of Technology, an M.S. from the University of Toledo, and a Medical Degree from Beijing Medical University (Peking University School of Medicine).
Moses Makunje, CPA has served as our Vice President, Finance since January 2022, and as Senior Director, Finance since July 2020. Prior to joining the Company, Mr. Makunje held a position as Corporate Controller at Maze Therapeutics, Inc. from March 2019 until July 2020, and a position as Corporate Controller at Adverum Biotechnologies, Inc. from July 2017 until March 2019. Mr. Makunje started his professional career at Ernst & Young, where he worked in audit for 7 years serving clients in life sciences. Overall, Mr. Makunje has over 16 years of experience in finance, accounting and tax. Mr. Makunje received a B.S. in Accounting and an MBA from Golden Gate University.
Stacy Markel has served as our Chief People Officer since January 2022, and before that served as our Senior Vice President, Human Resources since October 2019. From March 2018 to September 2019, she served as Executive Vice President, Human Resources, at Rigel Pharmaceuticals, Inc. Prior to Rigel, from March 2015 to March 2018, Ms. Markel served as Senior Vice President of Human Resources at Portola Pharmaceuticals, Inc. Ms. Markel also served in various roles, most recently as Senior Vice President of Human Resources and Professional Development at
10
Actelion Pharmaceuticals, Ltd. from 2005 to 2015, where she was a member of the Executive Leadership Team and Global Human Resources Leadership Team. Ms. Markel received a B.A. from the University of California, Davis.
Colleen Sjogren has served as our Chief Commercial Officer since April 2024. Prior to this role, she served as Senior Vice President, Sales, at Madrigal Pharmaceuticals from October 2022 to December 2023. Prior to Madrigal, Ms. Sjogren served as Vice President, U.S. Sales at Mirati Therapeutics from April 2021 to September 2022, and as Vice President, National Cell Therapy Team at Kite Pharma from February 2017 until April 2021. Ms. Sjogren also served in various prior roles, including National Sales Director at Medivation. Ms. Sjogren received her B.S. and B.A. from Bryant University.
Kerry Wentworth has served as our Chief Regulatory Officer since May 2022. Prior to this role, she served as Chief Regulatory Officer for Flexion Therapeutics, which was acquired by Pacira Biosciences in 2021, where she was in an executive leadership role responsible for setting and delivering on regulatory and quality strategies across their product portfolio. Prior to joining Flexion, she served as Vice President, Clinical, Regulatory and Quality at Agenus, Inc., where she was responsible for leading all global regulatory and clinical development efforts. Previously, she led the Regulatory and Quality function for Genelabs Technologies, Inc. and prior to that held positions of increasing responsibility within Regulatory Affairs at Genzyme. Ms. Wentworth holds a B.S. in pre-veterinary medicine from the University of New Hampshire.
Delinquent Section 16(a) Reports
Section 16(a) of the 1934 Act requires our directors and executive officers, and persons who own more than ten percent of a registered class of our equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of our Common Stock and other equity securities. Officers, directors and greater than ten percent stockholders are required by SEC regulation to furnish us with copies of all Section 16(a) forms they file. To our knowledge, based solely on a review of the copies of such reports furnished to us and written representations that no other reports were required during the fiscal year ended December 31, 2023, all Section 16(a) filing requirements applicable to our reporting persons were made and made timely.
Item 11. Executive Compensation.
Summary Compensation Table
The following table provides certain information concerning the compensation earned by each of the following individuals (the “Named Executive Officers”): our President and Chief Executive Officer and our two other most highly compensated executive officers as of December 31, 2023:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity |
|
|
|
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
|
Incentive Plan |
|
|
All Other |
|
|
|
|
|||||||
Name and Principal Position |
|
Year |
|
|
Salary |
|
|
Bonus |
|
|
Options (1) |
|
|
Compensation (2) |
|
|
Compensation (3) |
|
|
Total |
|
|||||||
David Hung, M.D. |
|
|
2023 |
|
|
$ |
593,000 |
|
|
$ |
— |
|
|
$ |
3,323,675 |
|
|
$ |
400,275 |
|
|
$ |
7,330 |
|
|
$ |
4,324,280 |
|
President and Chief Executive Officer |
|
|
2022 |
|
|
|
570,004 |
|
|
|
— |
|
|
|
7,127,820 |
|
|
|
363,375 |
|
|
|
11,130 |
|
|
|
8,072,329 |
|
David Liu, M.D., Ph.D. |
|
|
2023 |
|
|
|
490,000 |
|
|
|
— |
|
|
|
664,735 |
|
|
|
176,400 |
|
|
|
10,751 |
|
|
|
1,341,886 |
|
Chief Medical Officer |
|
|
2022 |
|
|
|
217,708 |
|
|
|
— |
|
|
|
2,561,163 |
|
|
|
280,750 |
|
|
|
6,911 |
|
|
|
3,066,532 |
|
Gary Hattersley, Ph.D. |
|
|
2023 |
|
|
|
484,000 |
|
|
|
— |
|
|
|
664,735 |
|
|
|
174,240 |
|
|
|
36,318 |
|
|
|
1,359,293 |
|
Chief Scientific Officer |
|
|
2022 |
|
|
|
465,000 |
|
|
|
— |
|
|
|
2,616,995 |
|
|
|
158,100 |
|
|
|
20,156 |
|
|
|
3,260,251 |
|
(1) The amounts included in the Stock Options column represent the grant date fair value of stock options granted, calculated in accordance with ASC Topic 718. The valuation assumptions used in determining such amounts are described in Note 10 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023.
(2) Amounts listed for 2022 were paid in 2023 in respect of services rendered in 2022.
(3) Consists of 401(k) Match, life insurance premium and commuting expenses.
2023 Executive Officer Compensation
In reviewing this section, please note that we are permitted to report as a “smaller reporting company” as defined under the U.S. federal securities laws and therefore, among other things, are not required to provide a “Compensation Discussion and Analysis” of the type required by Item 402 of Regulation S-K. The disclosure in this section is intended to supplement the SEC-required disclosure and is not a Compensation Discussion and Analysis.
11
Objectives and Philosophy of Our Executive Compensation Program
We recognize that our ability to excel as a company depends on the integrity, knowledge, imagination, skill, diversity and teamwork of our Named Executive Officers and employees. To this end, we strive to create an environment of mutual respect, encouragement and teamwork that rewards commitment and performance and that is responsive to the needs of our Named Executive Officers and employees. Compensation Committee Processes and Role in Determining Executive Compensation The compensation committee of our Board of Directors, which is comprised entirely of independent directors, is tasked with, among other things, setting compensation for our executive officers, including the Named Executive Officers identified above, evaluating and recommending compensation plans and programs to our Board of Directors and awards under those plans, and administering our incentive and equity-based compensation plans. Various members of management and other employees as well as outside advisors or consultants are invited from time to time by the compensation committee to make presentations, to provide objective analyses, financial or other background information, advice, or to otherwise participate in meetings. Members of our executive management team advise and inform the compensation committee regarding potential company-wide and individual performance objectives with respect to incentive compensation plans, and provide evaluations of the achievements of employees under their respective supervision.
The compensation committee has the authority to delegate any of its responsibilities to one or more subcommittees as it deems appropriate. The compensation committee has delegated authority to a stock option committee (which committee currently consists of the following: Dr. Hung and Ms. Markel), within specified parameters, to grant options to our non-executive employees and consultants.
Components of Our Executive Compensation Program
The individual components of our executive compensation program consist primarily of: (a) base salary, (b) annual, performance-based bonuses, (c) long-term equity incentives and (d) retirement savings opportunities and various other benefits offered to all full-time employees. In addition, we provide protection for post-termination benefits in certain instances. We determine the appropriate level for each compensation component based in part, but not exclusively, on our understanding of the market in which we compete for talent, the unique skills and experience of our Named Executive Officers, the length of service of our Named Executive Officers, our overall performance and other considerations we deem relevant. We expect our compensation committee to make compensation decisions that are consistent with our recruiting and retention goals. We review each compensation component for internal equity and consistency between Named Executive Officers with similar levels of responsibility.
Each of the individual components of our Named Executive Officers’ compensation is discussed in more detail below. We do not currently have any specific policies for allocating compensation between short- and long-term compensation or cash and non-cash compensation, although our strategy is to tie a greater percentage of total compensation to stockholder returns through the use of equity incentives. While we have identified particular compensation objectives that each component of our Named Executive Officers’ compensation serves, our compensation programs are designed to be flexible and complementary and to collectively serve all of the compensation objectives described above.
Base Salary
A base salary provides our NEOs with a fixed component of annual compensation for performing specific duties and functions. Base salaries for our Named Executive Officers are determined by members of our compensation committee and other members of our Board based on their experience and review of industry surveys. Salaries are reviewed by our compensation committee on a periodic basis and may be adjusted from time-to-time.
Annual Performance-Based Bonuses
Annual performance-based bonuses provide our Named Executive Officers with an opportunity to earn additional compensation based on achievement of pre-determined short-term corporate goals in order to incentivize our executives to drive growth in key areas of our business. Each of our Named Executive Officers is eligible to receive performance awards based on a target opportunity expressed as a percent of base salary (for 2023: 75% of base salary for Dr. Hung, 40% for Dr. Liu and 40% for Dr. Hattersley). The amount payable to each Named Executive Officer is based on the attainment of pre-established corporate performance goals, which is subject to the discretion
12
of the compensation committee, and also of the full Board (other than our Chief Executive Officer) in the case of our Chief Executive Officer. At the beginning of each year, the Board in consultation with the Chief Executive Officer establishes corporate objectives that it believes are the most significant goals for the company in the upcoming year that are critical to the success of the company in the short and long-term. The company does not disclose the specific goals as they contain competitively sensitive information.
Long-Term Equity Incentives
We believe that the achievement of our business and financial objectives should be reflected in the value of our equity, thereby increasing stockholder value. To that end, our Named Executive Officers will be incentivized to achieve these objectives when a larger percentage of their total compensation is tied to the value of our shares. We believe that granting our Named Executive Officers stock options provides a meaningful incentive to achieve increases in the value of our stock price over time, as they will be able to profit from stock options only if our stock price increases relative to the stock option’s exercise price. In addition, we believe that equity grants promote executive retention because they incentivize our executive officers to remain in our employment during the vesting period.
Our Named Executive Officers are generally awarded an initial grant in the form of time-vested stock options and stock options granted under our Long-Term Incentive Plan, or LTIP, which vest based on either market conditions or performance conditions that are met only upon our achievement of important corporate milestones. After commencement of employment, additional grants of time-based stock options are generally awarded on an annual basis to incentivize and motivate Named Executive Officers, as well as continue to create an ownership culture among our employees that provides an incentive to contribute to the continued growth and development of our business and aligns interests of Named Executive Officers with those of our stockholders. In determining the size of the equity incentives to be awarded to our Named Executive Officers, the compensation committee takes into account a number of factors, such as job scope, the vested and unvested value of existing long-term incentive awards, individual performance history, prior contributions to the company and the size of prior equity grants.
Outstanding Equity Awards
The following table provides information regarding outstanding equity awards held by the Named Executive Officers as of December 31, 2023:
|
|
|
|
Vesting |
|
Number of Securities |
|
|
|
|
|
|
||||||
|
|
|
|
Commencement |
|
Underlying Unexercised Options |
|
|
Exercise |
|
|
Expiration |
||||||
|
|
Grant Date |
|
Date |
|
Exercisable |
|
|
Unexercisable |
|
|
Price |
|
|
Date |
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
David Hung, M.D. |
|
3/9/21 |
|
3/9/21 |
|
|
113,757 |
|
|
|
51,708 |
|
(1) |
$ |
12.66 |
|
|
3/8/31 |
|
|
3/9/21 |
|
3/9/21 |
|
|
— |
|
|
|
224,760 |
|
(2) |
$ |
12.66 |
|
|
3/8/31 |
|
|
2/28/22 |
|
2/28/22 |
|
|
916,666 |
|
|
|
1,083,334 |
|
(3) |
$ |
5.06 |
|
|
2/27/32 |
|
|
2/28/23 |
|
2/28/23 |
|
|
— |
|
|
|
2,500,000 |
|
(4) |
$ |
1.94 |
|
|
2/27/33 |
David Liu, M.D., Ph.D. |
|
7/15/22 |
|
7/15/22 |
|
|
173,541 |
|
|
|
316,459 |
|
(5) |
$ |
3.61 |
|
|
7/14/32 |
|
|
7/15/22 |
|
7/15/22 |
|
|
— |
|
|
|
292,500 |
|
(6) |
$ |
3.61 |
|
|
7/14/32 |
|
|
8/29/22 |
|
8/29/22 |
|
|
105,000 |
|
|
|
210,000 |
|
(7) |
$ |
2.93 |
|
|
8/28/32 |
|
|
2/28/23 |
|
2/28/23 |
|
|
— |
|
|
|
500,000 |
|
(8) |
$ |
1.94 |
|
|
2/27/33 |
Gary Hattersley, Ph.D. |
|
1/22/20 |
|
1/22/20 |
|
|
398,935 |
|
|
|
— |
|
(9) |
$ |
1.74 |
|
|
1/21/30 |
|
|
10/5/20 |
|
10/5/20 |
|
|
79,787 |
|
|
|
319,148 |
|
(10) |
$ |
4.60 |
|
|
10/4/30 |
|
|
2/28/22 |
|
2/28/22 |
|
|
229,166 |
|
|
|
270,834 |
|
(11) |
$ |
5.06 |
|
|
2/27/32 |
|
|
8/29/22 |
|
8/29/22 |
|
|
133,333 |
|
|
|
266,667 |
|
(12) |
$ |
2.93 |
|
|
8/28/32 |
|
|
2/28/23 |
|
2/28/23 |
|
|
— |
|
|
|
500,000 |
|
(13) |
$ |
1.94 |
|
|
2/27/33 |
______________________________________________
(1) Approximately 69% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through March 9, 2025.
(2) None of the shares subject to this option were vested as of December 31, 2023, option vests upon the achievement of certain performance goals, including market-price goals, through October 5, 2030.
13
(3) Approximately 46% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through February 28, 2026.
(4) None of the shares subject to this option were vested as of December 31, 2023, 25% will vest on February 28, 2024, and the remainder vest in equal increments on a monthly basis thereafter through February 28, 2027.
(5) Approximately 35% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through July 15, 2026.
(6) None of the shares subject to this option were vested as of December 31, 2023, option vests upon the achievement of certain performance goals, including market-price goals, through October 5, 2030.
(7) Approximately 33% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through August 29, 2026.
(8) None of the shares subject to this option were vested as of December 31, 2023, 25% will vest on February 28, 2024, and the remainder vest in equal increments on a monthly basis thereafter through February 28, 2027.
(9) All of the shares subject to this option were vested as of December 31, 2023.
(10) Approximately 20% of the shares subject to this option were vested as of December 31, 2023, option vests upon the achievement of certain performance goals, including market-price goals, through October 5, 2030.
(11) Approximately 46% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through February 28, 2026.
(12) Approximately 33% of the shares subject to this option were vested as of December 31, 2023, and the remainder vest in equal increments on a monthly basis thereafter through August 29, 2026.
(13) None of the shares subject to this option were vested as of December 31, 2023, 25% will vest on February 28, 2024, and the remainder vest in equal increments on a monthly basis thereafter through February 28, 2027.
Employee Benefits
We provide standard employee benefits to our full- and part-time employees, including our Named Executive Officers, in the United States (in the case of part-time, those that work 30 or more hours per week), including health, disability and life insurance and a 401(k) plan as a means of attracting and retaining our executives and employees.
We sponsor a 401(k) plan, which is a retirement savings defined contribution plan established in accordance with Section 401(a) of the Code (in 2023). We provide fully vested Safe Harbor contributions equal to 3% of each employee’s eligible compensation.
Tax Considerations
Our Board has considered the potential future effects of Section 162(m) of the Internal Revenue Code on the compensation paid to our Named Executive Officers. Section 162(m) disallows a tax deduction for any publicly held corporation for individual compensation exceeding $1.0 million in any taxable year for our Chief Executive Officer and each of the other Named Executive Officers (other than our Chief Financial Officer), unless compensation is performance-based. As we are an early-stage pre-commercial company, our Board has not previously taken the deductibility limit imposed by Section 162(m) into consideration in setting compensation.
Pension Benefits
We do not maintain any defined benefit pension plans.
Non-qualified Deferred Compensation
We do not maintain any non-qualified deferred compensation plans.
14
Offer Letters
We extended offer letters to each of our Named Executive Officers in connection with their employment. The letters generally provide for at-will employment and set forth the Named Executive Officer’s initial base salary, initial equity grant amount and eligibility for employee benefits. In addition, each of our Named Executive Officers has executed a form of our standard confidential information and invention assignment agreement. The key terms of the offer letters extended to our Named Executive Officers that continue to be in effect are described below.
David Hung, M.D.
In February 2019, we entered into an offer letter with Dr. Hung, our President and Chief Executive Officer. Pursuant to the offer letter, Dr. Hung’s initial base salary was established at $475,000 per year, and his annual target bonus was subsequently established at 75% of his annual base salary, based upon achievement of performance objectives and other criteria determined by our Board of Directors.
David Liu, M.D., Ph.D.
In April 2022, we entered into an offer letter with Dr. Liu, our Chief Medical Officer. Pursuant to the offer letter, Dr. Liu’s initial base salary was established at $475,000 per year, and his annual target bonus was established at 40% of his annual base salary, based upon achievement of performance objectives and other criteria determined by our Board of Directors.
Gary Hattersley, Ph.D.
In June 2019, we entered into an offer letter with Dr. Hattersley, our Chief Scientific Officer. Pursuant to the offer letter, Dr. Hattersley’s initial base salary was established at $425,000 per year, and his annual target bonus was established at 40% of his annual base salary, based upon achievement of performance objectives and other criteria determined by our Board of Directors.
Severance Policy
Under our severance policy applicable to executive officers, upon an involuntary termination without “cause,” executive officers designated as Tier 1 (which includes all of our current executive officers) are eligible to receive, upon execution of a release of claims, cash severance in an amount equal to 12 months of base salary (nine months for Tier 2 and six months for Tier 3), as well as 12 months of COBRA health insurance reimbursement (nine months for Tier 2 and six months for Tier 3). Upon a termination without “cause” or a resignation for “good reason” within 12 months after a “change in control” of our company (each such term as defined in the policy), executive officers are eligible to receive the cash severance and COBRA reimbursement described above and also (1) a lump sum cash payment equal to 100% of target annual bonus if designated as Tier 1 (75% for Tier 2 and 50% for Tier 3); and (2) full acceleration of vesting of any equity awards that are subject to vesting based solely on the passage of time. Vesting of any equity awards that contain unachieved performance conditions at the time of termination is not accelerated under the policy, except as otherwise determined by the Board in its sole discretion.
Compensation for Directors
In April 2023, in consultation with FW Cook, our Board of Directors approved a non-employee director compensation policy. Under the policy, each of our non-employee directors (other than Dr. Cui, who is not compensated by us for his service on our Board) receives an annual cash retainer of $40,000, and our Board Chair receives an additional annual cash retainer of $30,000. In addition, all non-employee directors who serve on one or more committees are eligible to receive the following cash committee fees:
Committee |
|
Chair |
|
|
Member |
|
|
||
|
|
|
|||||||
Audit |
|
$ |
15,000 |
|
|
$ |
7,500 |
|
|
Compensation |
|
|
12,000 |
|
|
|
6,000 |
|
|
Nominating and Corporate Governance |
|
|
10,000 |
|
|
|
5,000 |
|
|
15
Other than the annual retainers and committee fees described above, non-employee directors are not entitled to receive any cash fees in connection with their service on our Board. Each non-employee director, other than Dr. Cui, holds a stock option for 366,744 shares of Class A Stock that was granted in May 2023 and will vest on the earlier of May 15, 2024 or the date of the Annual Meeting. Pursuant to the non-employee director compensation policy, at each annual stockholders’ meeting, each non-employee director whose service will continue after the annual meeting (other than Dr. Cui and any other non-employee director who declines the award) will be granted a stock option for a number of shares of Class A Stock having a grant date fair value of $385,000. These annual stock options will vest in full on the earlier of the one-year anniversary of the date of grant or the next stockholder annual meeting. New non-employee directors will receive an initial stock option grant for a number of shares of Class A Stock having a grant date fair value of $770,000. These initial grants will vest monthly over three years, provided the non-employee director continues to serve. We have a policy of reimbursing our directors for their reasonable out-of-pocket expenses in connection with attending Board of Directors and committee meetings.
Non-Employee Director Compensation
The following table sets forth information concerning the compensation earned by our non-employee directors during the fiscal year ended December 31, 2023:
|
|
Fees Earned or |
|
|
|
|
|
|
|
|
|||
Name |
|
Paid in Cash |
|
|
Options Granted (1) |
|
|
Total |
|
|
|||
Robert B. Bazemore, Jr. |
|
$ |
50,167 |
|
|
$ |
392,434 |
|
|
$ |
442,601 |
|
|
Kim Blickenstaff |
|
$ |
47,917 |
|
|
$ |
392,434 |
|
|
$ |
440,351 |
|
|
Kathryn E. Falberg |
|
$ |
55,333 |
|
|
$ |
392,434 |
|
|
$ |
447,767 |
|
|
W. Anthony Vernon |
|
$ |
56,250 |
|
|
$ |
392,434 |
|
|
$ |
448,684 |
|
|
Daniel G. Welch |
|
$ |
92,333 |
|
|
$ |
392,434 |
|
|
$ |
484,767 |
|
|
_______________________
(1) The amounts in this column reflect the aggregate grant date fair value of each option award granted during the fiscal year, computed in accordance with FASB ASC Topic 718. The valuation assumptions used in determining such amounts are described in Note 10 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023.
As of December 31, 2023, each of our current non-employee directors held options to purchase an aggregate of 792,047 shares of our Class A Stock, and Mr. Welch who held options to purchase an aggregate of 951,620 shares of our Class A Stock.
Clawback Policy
In 2023, we adopted our Incentive Compensation Recoupment Policy in compliance with requirements under the Dodd Frank Wall Street Reform and Consumer Protection Act and related NYSE listing rules.
Compensation Committee Interlocks and Insider Participation
As noted above, our compensation committee consists of Mr. Bazemore, Mr. Vernon and Mr. Welch. None of the members of our compensation committee has at any time during the past three years been one of our officers or employees. None of our executive officers currently serves or in the prior three years has served as a member of the Board of Directors or compensation committee of any entity that has one or more executive officers serving on our Board of Directors or compensation committee.
Anti-Hedging and Anti-Pledging Policy
The Board has adopted an insider trading policy for our directors, employees and consultants. Under this policy, all of our directors, employees and consultants are prohibited from engaging in short-sales, transactions in put or call options, hedging transactions, margin accounts, pledges, or other inherently speculative transactions with respect to the Company’s stock at any time.
16
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The following table presents information as to the beneficial ownership of our common stock as of April 15, 2024, for:
Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares beneficially owned, subject to community property laws where applicable. Common stock subject to options that are currently exercisable or exercisable within 60 days of April 15, 2024, are deemed to be outstanding and to be beneficially owned by the person holding the options for the purpose of computing the percentage ownership of that person, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person. Because Class B Stock is convertible into Class A Stock on a share-for-share basis, each beneficial owner of Class B Stock is deemed by the SEC to be a beneficial owner of the same number of shares of Class A Stock. Therefore, in indicating a person’s beneficial ownership of shares of Class A Stock in the table, it has been assumed that such person has converted into Class A Stock all shares of Class B Stock of which such person is a beneficial owner. For these reasons the table contains substantial duplications in the numbers of shares and percentages of Class A Stock and Class B Stock shown for Dr. Hung. Percentages of beneficial ownership of our common stock in the table is based on 245,729,474 shares of Class A Stock issued and outstanding on April 15, 2024 and 1,000,000 shares of Class B Stock issued and outstanding on April 15, 2024. Unless otherwise indicated, each of the persons and entities have sole voting and investment power with respect to the share beneficially owned by them, and the address of each of the individuals and entities named below is c/o Nuvation Bio Inc., 1500 Broadway, Suite 1401, New York, New York, 10036:
|
|
Class A Stack |
|
|
Class B Stack |
|
||||||||||||||||||||||||||
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
||||||||
|
|
Number of |
|
|
Shares |
|
|
Total |
|
|
|
|
|
Number of |
|
|
Shares |
|
|
Total |
|
|
|
|
||||||||
|
|
Shares |
|
|
Exercisable |
|
|
Shares |
|
|
|
|
|
Shares |
|
|
Exercisable |
|
|
Shares |
|
|
|
|
||||||||
|
|
Beneficially |
|
|
Within |
|
|
Beneficially |
|
|
Percentage |
|
|
Beneficially |
|
|
Within |
|
|
Beneficially |
|
|
Percentage |
|
||||||||
Name of Beneficial Owner (1) |
|
Owned (2) |
|
|
60 Days (3) |
|
|
Owned (4) |
|
|
of Class (5) |
|
|
Owned (2) |
|
|
60 Days (3) |
|
|
Owned (4) |
|
|
of Class (5) |
|
||||||||
5% and Greater Holders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
David Hung, M.D. |
|
|
59,281,054 |
|
(6) |
|
2,085,642 |
|
|
|
61,366,696 |
|
|
|
25.0 |
|
|
|
1,000,000 |
|
|
|
— |
|
|
|
1,000,000 |
|
|
|
100 |
|
Entities affiliated with FMR LLC (7) |
|
|
26,130,659 |
|
|
|
— |
|
|
|
26,130,659 |
|
|
|
10.6 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Omega Fund V, L.P.(8) |
|
|
15,072,340 |
|
|
|
— |
|
|
|
15,072,340 |
|
|
|
6.1 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Entities affiliated with Blackrock, Inc. (9) |
|
|
12,882,429 |
|
|
|
— |
|
|
|
12,882,429 |
|
|
|
5.2 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Entities affiliated with EcoR1 Capital, LLC (10) |
|
|
12,674,775 |
|
|
|
— |
|
|
|
12,674,775 |
|
|
|
5.2 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Directors and Named Executive Officers: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
David Hung, M.D. |
|
|
59,281,054 |
|
(6) |
|
2,085,642 |
|
|
|
61,366,696 |
|
|
|
25.0 |
|
|
|
1,000,000 |
|
|
|
— |
|
|
|
1,000,000 |
|
|
|
100 |
|
David Liu, M.D., Ph.D. |
|
|
6,000 |
|
|
|
518,645 |
|
|
|
524,645 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Gary Hattersley, Ph.D. |
|
|
— |
|
|
|
1,091,222 |
|
|
|
1,091,222 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Min Cui, Ph.D. |
|
|
6,172,344 |
|
|
|
— |
|
|
|
6,172,344 |
|
|
|
2.5 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Junyuan Jerry Wang, Ph.D. |
|
|
1,929,747 |
|
|
|
874,968 |
|
|
|
2,804,715 |
|
|
|
1.1 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Robert B. Bazemore, Jr. |
|
|
5,000 |
|
|
|
779,918 |
|
|
|
784,918 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Kim Blickenstaff |
|
|
— |
|
|
|
787,738 |
|
|
|
787,738 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Kathryn E. Falberg |
|
|
250,000 |
|
|
|
772,100 |
|
|
|
1,022,100 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
W. Anthony Vernon |
|
|
304,100 |
|
|
|
787,738 |
|
|
|
1,091,838 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Daniel G. Welch |
|
|
— |
|
|
|
931,406 |
|
|
|
931,406 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Robert Mashal, M.D. |
|
|
— |
|
|
|
102,941 |
|
|
|
102,941 |
|
|
* |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
All company’s directors and executive officers as a group (15 individuals) |
|
|
67,981,448 |
|
|
|
11,380,212 |
|
|
|
79,361,660 |
|
|
|
32.3 |
|
|
|
1,000,000 |
|
|
|
— |
|
|
|
1,000,000 |
|
|
|
100 |
|
__________________________
* Represents less than one percent.
17
(1) Unless otherwise noted, the business address of each of the following entities or individuals is c/o Nuvation Bio Inc., 1500 Broadway, Suite 1401, New York, NY 10036.
(2) Represents the number of shares of our common stock owned directly or indirectly by each entity and person, and excludes shares underlying options held by our directors and officers, which are reported in the columns titled “Number of Shares Exercisable Within 60 Days”.
(3) Represents shares of our common stock subject to stock options that are or will become exercisable within 60 days of April 15, 2024.
(4) Equals the sum of the number of shares under the table columns titled “Number of Shares Beneficially Owned” and “Number of Shares Exercisable Within 60 Days”.
(5) The calculation of percentages is based upon 245,729,474 shares of Class A Stock issued and outstanding on April 15, 2024 and 1,000,000 shares of Class B Stock issued and outstanding on April 15, 2024, plus for each of the individuals listed above, the number of shares subject to stock options reflected in the column under the heading “Total Shares Beneficially Owned”.
(6) Interests shown include (i) 58,281,054 shares of Class A Stock and (ii) 1,000,000 shares of Class B Stock issuable upon conversion of Class A Stock.
(7) As reported on a Schedule 13G/A filed by FMR LLC and Abigail P. Johnson on February 9, 2024. Abigail P. Johnson is a Director, the Chairman and the Chief Executive Officer of FMR LLC. Members of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders' voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders' voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC. Neither FMR LLC nor Abigail P. Johnson has the sole power to vote or direct the voting of the shares owned directly by the various investment companies registered under the Investment Company Act (“Fidelity Funds”) advised by Fidelity Management & Research Company LLC (“FMR Co. LLC”), a wholly owned subsidiary of FMR LLC, which power resides with the Fidelity Funds’ Boards of Trustees. FMR Co. LLC carries out the voting of the shares under written guidelines established by the Fidelity Funds' Boards of Trustees. The principal business address for each person and entity named in this footnote is 245 Summer Street, Boston, MA 02110.
(8) As reported on a Schedule 13D filed by Omega Fund V, L.P. (“Omega Fund”), Omega Fund V GP, L.P. (“Omega GP”), Omega Fund V GP Manager, Ltd. (“Omega Ltd”), Michelle Doig (“Doig”), Claudio Nessi (“Nessi”), Anne-Mari Paster (“Paster”), and Otello Stampacchia (“Stampacchia”) (together, the “Reporting Persons”) on February 13, 2023. Omega Ltd serves as the general partner of Omega GP, which serves as the general partner of Omega Fund; and each of Omega Ltd and Omega GP may be deemed to own beneficially the shares held by Omega Fund. Doig is a partner of Omega Fund and may be deemed to beneficially own the shares held by Omega Fund. Nessi, Paster, and Stampacchia are the directors of Omega Ltd and may be deemed to beneficially own the shares held by Omega Fund. The Reporting Persons may be deemed a “group” for purposes of Section 13 of the Exchange Act and expressly disclaim status as a “group” for purposes of this Schedule 13D. Each of Doig, Nessi, Paster, and Stampacchia expressly disclaims beneficial ownership of the securities reported herein, except to the extent of his or her pecuniary interest therein, if any. The principal business address for each person and entity named in this footnote is 888 Boylston Street, Suite 1111, Boston MA 02199.
(9) As reported on a Schedule 13G filed by BlackRock, Inc. (“BlackRock”), Aperio Group, LLC, BlackRock (Netherlands) B.V., BlackRock Advisors, LLC, BlackRock Asset Management Canada Limited, BlackRock Asset Management Ireland Limited, BlackRock Asset Management Schweiz AG, BlackRock Financial Management, Inc., BlackRock Institutional Trust Company, National Association, BlackRock Investment Management (UK) Limited, BlackRock Investment Management, LLC, BlackRock Japan Co., Ltd., BlackRock Life Limited, (together, the “Reporting Persons”) on January 29, 2024. The principal business address for each person and entity named in this footnote is 50 Hudson Yards, New York, NY 10001.
(10) As reported on a Form 4/A filed by EcoR1 Capital, LLC, EcoR1 Capital Fund, L.P., EcoR1 Capital Fund Qualified, L.P., EcoR1 Venture Opportunity Fund, LP and Biotech Opportunity GP, LLC (together, the “Reporting Persons”) on September 22, 2023. EcoR1 Capital Fund, L.P. (“Capital Fund”) and EcoR1 Capital Fund Qualified, L.P. (“Qualified Fund”) are private investment funds managed by EcoR1 Capital, LLC (“EcoR1”). EcoR1 is the investment adviser to Capital Fund, Qualified Fund and EcoR1 Venture Opportunity Fund, L.P. (“Venture Fund”). EcoR1 is the general partner of Capital Fund and Qualified Fund, and Biotech Opportunity GP, LLC (“Biotech”) is the general partner of Venture Fund. Mr. Nodelman is the manager and controlling owner of EcoR1 and Biotech. The funds hold these securities directly for the benefit of their investors. EcoR1 indirectly beneficially owns them as the investment adviser to the funds. Mr. Nodelman indirectly beneficially owns them as the control person of EcoR1. The Reporting Persons disclaim beneficial ownership of such securities except to the extent of their pecuniary interest therein. EcoR1 Panacea Holdings, LLC is managed by its managing members, Capital Fund, Qualified Fund and Venture Fund. Each of the Reporting Persons may be deemed a beneficial owner of shares held by EcoR1 Panacea Holdings, LLC, but each Reporting Person disclaims beneficial ownership of any such shares except to the extent of its respective pecuniary interest therein. The principal business address for each person and entity named in this footnote is 357 Tehama Street, Floor 3, San Francisco, CA 94103.
Securities Authorized for Issuance under Equity Compensation Plans
The following table provides certain information regarding our equity compensation plans in effect as of December 31, 2023:
|
|
|
|
|
|
|
|
Number of |
|
|||
|
|
|
|
|
|
|
|
Securities Remaining |
|
|||
|
|
|
|
|
|
|
|
Available for Future |
|
|||
|
|
|
|
|
|
|
|
Issuance Under |
|
|||
|
|
Number of Securities |
|
|
|
|
|
Equity Compensation |
|
|||
|
|
to be Issued Upon |
|
|
Weighted-Average |
|
|
Plans (Excluding |
|
|||
|
|
Exercise of |
|
|
Exercise Price of |
|
|
Securities Reflected |
|
|||
|
|
Outstanding Options |
|
|
Outstanding Options |
|
|
in Column (a)) |
|
|||
|
|
(a) |
|
|
(b) |
|
|
(c) |
|
|||
Approved by Stockholders (1) |
|
|
30,649,239 |
|
|
$ |
3.86 |
|
|
|
53,183,065 |
|
Not Approved by Stockholders |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
30,649,239 |
|
|
$ |
3.86 |
|
|
|
53,183,065 |
|
______________________
18
(1) The number of shares remaining available for future issuance includes 43,992,595 shares available under our 2021 Equity Incentive Plan, or 2021 Plan, and 9,190,470 shares available under our 2021 Employee Stock Purchase Plan, or 2021 ESPP.
The number of shares of Class A Stock reserved for issuance under the 2021 Plan automatically increases on January 1 of each year, beginning on January 1, 2022, and continuing through and including January 1, 2031 by 4% of the total number of shares of our common stock outstanding on December 31 of the preceding calendar year, or a lesser number of shares determined by our Board of Directors. The number of shares of Class A Stock reserved for issuance under the 2021 ESPP automatically increases on January 1 of each year, beginning on January 1, 2022, and continuing through and including January 1, 2031 by 1% of the total number of shares of our common stock outstanding on December 31 of the preceding calendar year, or a lesser number of shares determined by our Board of Directors.
Certain Relationships and Related Party Transactions
The following is a description of transactions since January 1, 2022 to which we have been a party, in which the amount involved exceeds $120,000, and in which any of our directors, executive officers or beneficial holders of more than 5% of our common stock, or an affiliate or immediate family member thereof, had or will have a direct or indirect material interest.
Compensation arrangements for our directors and Named Executive Officers are described under the section entitled “Executive Compensation.”
Indemnification Agreements
Our amended and restated certificate of incorporation contains provisions that limit the liability of our current and former directors for monetary damages to the fullest extent permitted by Delaware law. Delaware law provides that directors of a corporation will not be personally liable for monetary damages for any breach of fiduciary duties as directors, except liability for:
Such limitation of liability does not apply to liabilities arising under federal securities laws and does not affect the availability of equitable remedies, such as injunctive relief or rescission. Our amended and restated certificate of incorporation and our Bylaws provide that we are required to indemnify our directors to the fullest extent permitted by Delaware law. Our Bylaws also provide that, upon satisfaction of certain conditions, we shall advance expenses incurred by a director in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under the provisions of Delaware law. Our amended and restated certificate of incorporation and Bylaws also provide our Board of Directors with discretion to indemnify our officers and employees when determined appropriate by the board. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and certain employees. With certain exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain customary directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and Bylaws may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions may also reduce the likelihood of derivative litigation against our directors and
19
officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. At present, there is no pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought and we are not aware of any threatened litigation that may result in claims for indemnification.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted for directors, executive officers or persons controlling us, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Employment Arrangements
We have extended offer letters to our executive officers in connection with their employment as described in greater detail in the section titled “Executive Compensation.”
Policies and Procedures for Related Party Transactions
Our Board of Directors has adopted a written related-person transaction policy setting forth the policies and procedures for the review and approval or ratification of related person transactions. This policy covers, with certain exceptions set forth in Item 404 of Regulation S-K, any transaction, arrangement or relationship, or any series of similar or related transactions, arrangements or relationships in which we were or are to be a participant, where the amount involved exceeds $120,000 and a related person had or will have a direct or indirect material interest, including, without limitation, purchases of goods or services by or from the related person or entities in which the related person has a material interest, indebtedness, guarantees of indebtedness and employment by us of a related person.
In addition, under our code of conduct, our employees and directors have an affirmative responsibility to disclose any transaction or relationship that reasonably could be expected to give rise to a conflict of interest to our legal department, or, if the employee is an executive officer, to our Board of Directors.
In considering related-person transactions, our audit committee (or other independent body of our Board of Directors) will take into account the relevant available facts and circumstances including, but not limited to, the risks, costs and benefits to us, the terms of the transaction, the availability of other sources for comparable services or products and, if applicable the impact on a director’s independence in the event that the related person is a director, immediate family member of a director or an entity with which a director is affiliated.
Board Independence
Under the listing standards of the NYSE, a majority of the members of a listed company’s Board of Directors must qualify as “independent,” as affirmatively determined by the Board of Directors. The Board consults with the Company’s counsel to ensure that the Board’s independence determinations are consistent with relevant securities and other laws and regulations regarding the definition of “independent,” including those set forth in pertinent listing standards of the NYSE, as in effect from time to time.
Consistent with these considerations, after review of all relevant identified transactions or relationships between each director, or any of his or her family members, and the Company, its senior management and its independent auditors, the Board has affirmatively determined that the following seven directors are independent directors within the meaning of the applicable NYSE listing standards: Robert B. Bazemore, Jr., Kim Blickenstaff, Min Cui, Ph.D., Kathryn E. Falberg, Robert Mashal, M.D., W. Anthony Vernon and Daniel G. Welch.
In making this determination, the Board found that none of these directors or nominees for director had a material or other disqualifying relationship with the Company. In making those independence determinations, the Board took into account certain relationships and transactions that occurred in the ordinary course of business between the Company and entities with which some of its directors are or have been affiliated. The Board considered the
20
following relationships and transactions that occurred during any 12-month period within the last three fiscal years and determined that they were not material direct or indirect relationships with the Company:
As provided in the Company’s Related-Person Transactions Policy, the Board considered that the aggregate dollar amount of the transactions during any 12-month period within the last three fiscal years did not exceed the greater of $1 million or 2% of the other company’s consolidated gross revenues and, therefore, was not regarded as compromising the director’s independence. Based on this review, the Board affirmatively determined that all of the directors nominated for election at the Annual Meeting are independent under the standards set forth in the Company’s Corporate Governance Guidelines and applicable NYSE listing standards.
Item 14. Principal Accountant Fees and Services.
Independent Registered Public Accounting Firm Fees and Services
KPMG LLP was appointed as our independent registered accounting firm in February 2021. The following table sets forth the aggregate fees for professional services rendered by KPMG LLP to us for the fiscal years ended December 31, 2023 and December 31, 2022 (in thousands):
|
|
Years Ended December 31, |
|
|||||
|
|
2023 |
|
|
2022 |
|
||
|
|
(In thousands) |
|
|||||
Audit Fees(1) |
|
$ |
587 |
|
|
$ |
570 |
|
Audit-Related Fees |
|
|
— |
|
|
|
— |
|
Tax Fees |
|
|
— |
|
|
|
— |
|
All Other Fees |
|
|
— |
|
|
|
— |
|
Total fees |
|
$ |
587 |
|
|
$ |
570 |
|
|
|
|
|
|
|
|
||
_____________________
(1) The Audit fees consist of professional services rendered in connection with the audit of our annual financial statements, and review of interim financial statements. This category also includes professional services rendered in connection with our Form S-8 registration statement, including delivery of a consent and review of documents filed with the SEC.
All fees incurred were pre-approved by our audit committee.
Pre-Approval Policies and Procedures
Our audit committee has adopted a policy and procedures for the pre-approval of all audit and non-audit services to be rendered by our independent registered public accounting firm, KPMG LLP. During the fiscal year ended December 31, 2023, the audit committee pre-approved all audit and non-audit services performed by KPMG LLP. Under the policy, the audit committee generally pre-approves specified services up to specified amounts. Pre-approval may also be given as part of the audit committee’s approval of the scope of the engagement of our independent registered public accounting firm or on a case-by-case basis for specific tasks before an engagement.
The audit committee has determined that the rendering of services other than audit services by KPMG LLP is compatible with maintaining the principal accountant’s independence.
PART IV
Item 15. Exhibits, Financial Statement Schedules.
3. Exhibits
We hereby file or incorporate by reference as part of this Amendment on Form 10-K the exhibits listed in the attached Exhibit Index.
21
|
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Incorporated by Reference
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Exhibit Number
|
Description
|
Schedule/ Form
|
File No.
|
Exhibit
|
Filing Date
|
|
|
|
|
|
|
2.1+ |
Agreement and Plan of Merger, dated October 20, 2020 |
S-4/A |
333-250036 |
2.1 |
January 8, 2021 |
|
|
|
|
|
|
2.2 |
8-K |
001-39351 |
2.1 |
March 25, 2024 |
|
|
|
|
|
|
|
3.1 |
8-K |
001-39351 |
3.1 |
February 12, 2021 |
|
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|
|
|
|
|
3.2 |
8-K |
001-39351 |
3.2 |
February 12, 2021 |
|
|
|
|
|
|
|
3.3 |
8-K |
001-39351 |
3.1 |
March 25, 2024 |
|
|
|
|
|
|
|
4.1 |
S-4/A |
333-250036 |
4.4 |
January 8, 2021 |
|
|
|
|
|
|
|
4.2 |
S-1/A |
333-239138 |
4.4 |
June 23, 2020 |
|
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|
|
|
|
|
4.3 |
S-1/A |
333-239138 |
4.4 |
June 23, 2020 |
|
|
|
|
|
|
|
4.4 |
10-K |
001-39351 |
4.4 |
March 11, 2021 |
|
|
|
|
|
|
|
10.1 |
8-K |
001-39351 |
10.1 |
October 21, 2020 |
|
|
|
|
|
|
|
10.2 |
8-K |
000-39315 |
10.7 |
July 6, 2020 |
|
|
|
|
|
|
|
10.3# |
8-K |
001-39351 |
10.3 |
February 12, 2021 |
|
|
|
|
|
|
|
10.4# |
Forms of Option Grant Notice and Option Agreement under the 2021 Equity Incentive Plan |
8-K |
001-39351 |
10.4 |
February 12, 2021 |
|
|
|
|
|
|
10.5# |
Forms of RSU Award Grant Notice and Agreement under the 2021 Equity Incentive Plan |
8-K |
001-39351 |
10.5 |
February 12, 2021 |
|
|
|
|
|
|
10.6# |
8-K |
001-39351 |
10.6 |
February 12, 2021 |
|
|
|
|
|
|
|
10.7# |
2019 Equity Incentive Plan, as amended, of Legacy Nuvation Bio |
S-4 |
333-250036 |
10.13 |
November 12, 2020 |
|
|
|
|
|
|
10.8# |
S-4 |
333-250036 |
10.14 |
November 12, 2020 |
|
|
|
|
|
|
|
10.9# |
S-4/A |
333-250036 |
10.8 |
January 19, 2021 |
|
|
|
|
|
|
|
10.10# |
S-4/A |
333-250036 |
10.12 |
January 8, 2021 |
|
|
|
|
|
|
|
10.11 |
8-K |
001-39351 |
10.12 |
February 12, 2021 |
|
22
|
Holdings, LLC, Cowen Investments and certain other stockholders of the Registrant party thereto |
|
|
|
|
|
|
|
|
|
|
10.12 |
8-K |
001-39351 |
10.1 |
July 6, 2020 |
|
|
|
|
|
|
|
10.13 |
S-4/A |
333-250036 |
10.17 |
December 18, 2020 |
|
|
|
|
|
|
|
10.14† |
S-4/A |
333-250036 |
10.19 |
December 18, 2020 |
|
|
|
|
|
|
|
10.15 |
S-4 |
333-250036 |
10.21 |
November 12, 2020 |
|
|
|
|
|
|
|
10.16 |
8-K |
001-39351 |
10.6 |
October 21, 2020 |
|
|
|
|
|
|
|
10.17#* |
Employment Agreement by and between Legacy Nuvation Bio and David Hung, dated February 11, 2019 |
|
|
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|
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|
|
|
|
10.18#* |
|
|
|
|
|
|
|
|
|
|
|
10.19#* |
Employment Letter Agreement by and between Nuvation Bio Inc. and David Liu, dated April 30, 2022 |
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|
|
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10.20#* |
|
|
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|
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10.21#* |
|
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|
|
10.22#* |
|
|
|
|
|
|
|
|
|
|
|
10.23 |
8-K |
001-39351 |
10.1 |
March 25, 2024 |
|
|
|
|
|
|
|
10.24 |
Form of Voting Agreement, by and among Nuvation Bio Inc., AnHeart Therapeutics Ltd. and David Hung. |
8-K |
001-39351 |
10.2 |
March 25, 2024 |
|
|
|
|
|
|
10.25 |
8-K |
001-39351 |
10.3 |
March 25, 2024 |
|
|
|
|
|
|
|
10.26 |
8-K |
001-39351 |
10.1 |
April 10, 2024 |
|
|
|
|
|
|
|
23
10.27* |
Letter Agreement by and between David Hung, M.D. and Junyuan Jerry Wang, Ph.D., dated March 24, 2024 |
|
|
|
|
|
|
|
|
|
|
14.1 |
8-K |
001-39351 |
14.1 |
February 12, 2021 |
|
|
|
|
|
|
|
19.1 |
10-K |
001-39351 |
19.1 |
February 29, 2024 |
|
|
|
|
|
|
|
16.1 |
8-K |
001-39351 |
16.1 |
February 12, 2021 |
|
|
|
|
|
|
|
21.1 |
8-K |
001-39351 |
21.1 |
February 12, 2021 |
|
|
|
|
|
|
|
23.1 |
Consent of KPMG LLP, independent registered public accounting firm |
10-K |
001-39351 |
23.1 |
February 29, 2024 |
|
|
|
|
|
y |
31.1 |
10-K |
001-39351 |
31.1 |
February 29, 2024 |
|
|
|
|
|
|
|
31.2 |
10-K |
001-39351 |
31.2 |
February 29, 2024 |
|
|
|
|
|
|
|
31.3* |
|
|
|
|
|
|
|
|
|
|
|
31.4* |
|
|
|
|
|
|
|
|
|
|
|
32.1 |
10-K |
001-39351 |
32.1 |
February 29, 2024 |
|
|
|
|
|
|
|
32.2* |
|
|
|
|
|
|
|
|
|
|
|
97.1 |
10-K |
001-39351 |
97.1 |
February 29, 2024 |
|
|
|
|
|
|
|
101.INS |
Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document. |
|
|
|
|
101.SCH |
Inline XBRL Taxonomy Extension Schema With Embedded Linkbase Documents |
|
|
|
|
104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
|
|
|
|
+ Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601. The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.
# Indicates a management contract or compensatory plan, contract or arrangement.
† Portions of this exhibit, as marked by asterisks, have been omitted in accordance with Regulation S-K Item 601.
* Filed herewith.
24
Item 16. Form 10K Summary
None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
NUVATION BIO INC. |
|
|
|
|
|
Date: April 26, 2024 |
|
By: |
/s/ David Hung, M.D.
|
|
|
|
David Hung, M.D. |
|
|
|
President and Chief Executive Officer |
25
Exhibit 10.17
EMPLOYMENT AGREEMENT
February 11, 2019 David T. Hung
15 Central Park West, Apartment 35D New York, NY 10023
Re: Employment Terms
Dear David:
This letter agreement (the “Agreement”) will confirm the terms of your employment with RePharmation Inc. (the “Company”) in the position of Chief Executive Officer.
You are expected to adhere to the general employment policies and practices of the Company that may be in effect from time to time, except that when the terms of this Agreement conflict with the Company’s general employment policies or practices, this Agreement will control. The Company may change your position, duties, work location and compensation from time to time in its discretion.
Your salary will be determined by the Company (subject to the approval of the director(s) elected by the holders of the Company’s Preferred Stock, to the extent any are appointed from time to time), and paid, less payroll deductions and withholdings, in accordance with the Company’s payroll practices in effect from time to time. You are eligible for the Company’s standard benefits. The Company may change compensation and benefits from time to time in its discretion.
As an exempt salaried employee, you are expected to work the Company’s normal business hours as well as additional hours as required by the nature of your work, and you are not entitled to overtime compensation. During your employment with the Company, you shall devote your full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Company and its affiliates. Notwithstanding the foregoing, you may engage in civic and not-for-profit activities and serve on the boards of directors of or as an advisor to non-competitive private or public companies, provided that such service does not materially interfere with the performance of your duties to the Company and that you receive advanced written approval for any for-profit board or advisory service from the director(s) elected by the holders of the Company’s Preferred Stock, to the extent any are appointed from time to time (or, prior to the conversion or repayment of the convertible promissory notes, from the holders of a majority in interest of such notes). You shall perform your duties and responsibilities to the best of your ability in a diligent, trustworthy and lawful manner.
As a condition of your continued employment, you must sign and abide by the Company’s form of Employee Confidential Information and Invention Assignment Agreement, a copy of which is
attached hereto as Exhibit A, which prohibits unauthorized use or disclosure of the Company’s proprietary information, among other obligations.
In your work for the Company, you are expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you are expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you have not and will not bring onto Company premises any unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company.
Your employment with the Company is “at-will.” This means that either you or the Company may terminate your employment at any time, with or without cause, and with or without advance notice. Your continued employment may be contingent upon a background check clearance, reference check, and satisfactory proof of your right to work in the United States. You agree to provide any documentation or information at the Company’s request to facilitate these processes.
During the period of your employment and for the one (1) year period after the termination of your relationship with the Company for any reason, you will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of the Company:
with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall you otherwise interfere with any business relationship between the Company and any such franchisee, joint venture, supplier, vendor or contractor.
Nothing in this Agreement shall prevent you from owning as a passive investment less than one percent (1%) of the outstanding shares of the capital stock of a publicly-held corporation if (a) such shares are actively traded on the New York Stock Exchange, the Nasdaq Stock Market, the OTC Bulletin Board or any other similar market or stock exchange, and (b) you are not otherwise associated directly or indirectly with such corporation or any affiliate of such corporation. Notwithstanding the foregoing, you may become employed by a business that engages in a Competitive Business, provided that you do not, directly or indirectly, participate in any aspect of the entity or activity that conducts the Competitive Business (as such term is defined below).
For purposes of this Agreement:
You acknowledge that you will derive significant value from the Company’s agreement to provide you with confidential information to enable you to optimize the performance of your duties to the Company. You further acknowledge that your fulfillment of the obligations contained in this Agreement, including, but not limited to, your obligation neither to disclose nor to use the Company’s confidential information other than for the Company’s exclusive benefit and your obligations not to compete and not to solicit are necessary to protect the Company’s confidential information and, consequently, to preserve the value and goodwill of the Company. You agree that this Agreement does not prevent you from earning a living or pursuing your career. You agree that the restrictions contained in this Agreement are reasonable, proper, and necessitated by the Company’s legitimate business interests. You represent and agree that you are entering into this Agreement freely and with knowledge of its contents with the intent to be bound by the Agreement and the restrictions contained in it. In the event that a court finds this Agreement, or any of its restrictions, to be overbroad, ambiguous, unenforceable, or invalid, you and the Company agree that the court will read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to the maximum extent allowed by law.
The covenants set forth above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Restricted Territory. If the court declines to enforce this Agreement in the manner provided above, this Agreement will be automatically modified to
provide the Company with the maximum protection of its business interests allowed by law, and you agree to be bound by this Agreement as modified.
If you are offered employment or the opportunity to enter into any business venture as owner, partner, consultant or other capacity while the restrictions described above are in effect, you agree to inform your potential employer, partner, co-owner and/or others involved in managing the business with which you have an opportunity to be associated of your obligations under this Agreement.
To ensure the timely and economical resolution of disputes that may arise in connection with your employment with the Company, any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, interpretation, breach, or enforcement of this Agreement, or your employment, or the termination of your employment, including but not limited to all statutory claims, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration by a single arbitrator conducted in New York, NY, by Judicial Arbitration and Mediation Services Inc. (“JAMS”) under the then applicable JAMS rules (at the following web address: https://www.jamsadr.com/rules-employment-arbitration/). A hard copy of the rules will be provided to you upon request. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. In addition, all claims, disputes, or causes of action under this section, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The Company acknowledges that you will have the right to be represented by legal counsel at any arbitration proceeding. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (c) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of you if the dispute were decided in a court of law. The arbitrator shall have the sole and exclusive authority to determine whether a dispute, claim or cause of action is subject to arbitration under this section and to determine any procedural questions which grow out of such disputes, claims or causes of action and bear on their final disposition. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. To the extent applicable law prohibits mandatory arbitration of sexual harassment claims, in the event you intend to bring multiple claims, including a sexual harassment claim, the sexual harassment claim may be publicly filed with a court, while any other claims will remain subject to mandatory arbitration.
This Agreement, together with your Employee Confidential Information and Invention Assignment Agreement, forms the complete and exclusive agreement regarding the subject matter hereof. It supersedes any other agreements or promises by anyone, whether oral or written. It is entered into without reliance on any promise or representation other than those expressly contained herein. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion in this Agreement, must be made in a written agreement signed by you and a duly authorized member of the Company’s Board of Directors, which, if one is serving at that time, shall be a director elected by the holders of the Company’s Preferred Stock. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and our respective successors, assigns, heirs, executors and administrators, except that you may not assign any of your duties or rights hereunder without the express written consent of the Company. Each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement, and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This Agreement and the terms of your employment with the Company shall be governed in all aspects by the laws of the State of New York.
Sincerely,
David T. Hung, Chief Executive Officer
David T. Hung
Understood and accepted:
February 11, 2019 Date
Exhibit A: Employee Confidential Information and Invention Assignment Agreement
EXHIBIT A
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
Exhibit 10.18
June 28, 2019
Gary Hattersley, Ph.D. 22
Brandymeade Circle
Stowe, MA 01775
Re: Offer Letter for Chief Scientific Officer
Dear Gary:
Nuvation Bio Inc. (the "Company") is pleased to offer you the position of Chief Scientific Officer on the terms set forth in this letter agreement (the "Agreement").
You will be responsible for leading and overseeing scien1ific research. drug discovery and pre-clinical development of all assets/programs and will report to me. You will work at our offices located in New York, New York, although I recognize you will be commuting from Boston and have personal obligations outside of New York. You shall devote your best efforts and full business time. skill and attention to the performance of your duties. You will also be expected to adhere to the general employment policies and practices of the Company that may be in effect from time to time, except that when the terms of this Agreement conflict with the Company's general employment policies or practices, this Agreement will control. The Company may change your position, duties, work location and compensation from time to time in its discretion.
Your salary will be paid at the annual rate of $425,000. less payroll deductions and withholdings, paid in accordance with the Company's payroll practices as in effect from time to time. As an exempt salaried employee, you will not be entitled to overtime compensation. The Company may change compensation and benefit plans from time to time in its discretion without advance notice. You will be eligible for annual cash incentive bonus with a target of 40% of salary. which will be payable based on performance against predetermined objectives as set by the Company's Board of Directors (the "Board") and executive management team. The Company will pay you this bonus, if any, by no later than March 15th of the following calendar year. The bonus is not earned until paid, and no pro-rated amount will be paid if your employment terminates for any reason prior to the payment date.
Gary Hattersley, Ph.D.
Page 2
You will be eligible to participate in all benefit programs currently available to all
employees at your level provided that you are eligible under (and subject to all
provisions of) the plan documents governing those programs. The company has put
together a rich health benefit program for you and your dependents at a minimal cost. These benefits include medical, dental, vision, life insurance, short term and long-term disability, and 401 (k) retirement pion. The company will contribute 95% of the premiums for both the medical and dental pion for all levels of coverage, but will not contribute to any deductibles or copays. These benefits ore subject to the rules, terms and
conditions for participation of the applicable benefit plans and policies.
Subject to approval by the Board, under the Company's 2019 Equity Incentive Plan (the "Plan"), the Company will grant you on option to purchase 2,035,300 shores of the
Company's Common Stock at fair market value as determined by the Board as of the date of grant (the "Option"). The Option will be subject to the terms and conditions of the Plan and your grant agreement. Your grant agreement will include a four-year
vesting schedule, under which 25 percent of your shares will vest after twelve months of employment, with the remaining shares vesting monthly thereafter, subject to your
continuous service with the Company on each such vesting date. No right to any stock is earned or accrued until such time that vesting occurs, nor does this grant confer any right to continued vesting or employment.
In your work for the Company, you will be expected not to use or disclose any
confidential information, including trade secrets, of any former employer or other
person to whom you have on obligation of confidentiality. Rother, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you will not bring onto Company premises any
unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your
activities on behalf of the Company.
Your employment with Company will be "at-will." This means that you may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying the Company, and the Company may terminate your employment at any time, with or without cause or advance notice. Your employment at-will status can only be modified in a written agreement signed by you and by an officer of the Company.
Gary Hattersley, Ph.D.
Page 3
This offer may be contingent upon a background check clearance, reference check,
and satisfactory proof of your right to work in the United States. You agree to provide
any documentation or information at the Company's request to facilitate these
processes.
To ensure the timely and economical resolution of disputes that may arise in connection with your employment with the Company, you and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Agreement, the ECIIAA, or your employment, or the termination of your employment, including but not limited to all statutory claims, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration by a single arbitrator conducted in Seattle, Washington by Judicial Arbitration and Mediation Services Inc. (“JAMS”) under the then applicable JAMS rules (at the following web address: https://www.jamsadr.com/rules-employment-arbitration/). A hard copy of the rules will be provided to you upon request. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. In addition, all claims, disputes, or causes of action under this provision, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The Arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The Company acknowledges that you will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration under this agreement) shall be decided by the arbitrator. Likewise, procedural questions which grow out of the dispute and bear on the final disposition are also matters for the arbitrator. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (c) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. You and the Company shall equally share all JAMS’ arbitration fees. Each party is responsible for its own attorneys’ fees, except as expressly set forth in your ECIIAA. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. To the extent applicable law prohibits mandatory arbitration of sexual
Gary Hattersley, Ph.D.
Page 4
harassment claims, in the event you intend to bring multiple claims, including a sexual harassment claim, the sexual harassment claim may be publicly filed with o court, while any other claims will remain subject to mandatory arbitration.
This Agreement, together with your ECIIAA, forms the complete and exclusive
agreement regarding the subject matter hereof. It supersedes any other agreements or promises by anyone, whether oral or written. including, for avoidance of doubt, the
previous offer letter dated March 15, 2019. It is entered into without reliance on any
promise or representation other than those expressly contained herein. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company's discretion in this Agreement, must be mode in a written agreement signed by you and a duly authorized officer of the Company. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and our respective successors, assigns, heirs, executors and administrators, except that you may not assign any of your duties or rights hereunder without the express written
consent of the Company. Each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable low, but if any provision of this Agreement is determined to be invalid or unenforceable, in whole or in port, this
determination shall not affect any other provision of this Agreement, and the provision in question shall be modified so as to be rendered enforceable in o manner consistent with the intent of the parties insofar as possible under applicable low. This Agreement and the terms of your employment with the Company shall be governed in all aspects by the lows of the State of New York.
Please sign and date this Agreement, and the enclosed Employee Confidential
Information and Inventions Assignment Agreement, and return them to me by July 8,
2019, if you wish to accept employment at the Company under the terms described above. You must also sign and complete the attached general statement regarding overtime pay required by the State of New York. If you accept our offer, we would like you to start as soon as possible.
Gary Hattersley, Ph.D.
Page 5
We look forward to your favorable reply and to a productive and enjoyable work relationship.
Sincerely,
/s/ David Hung, M.D.
David Hung, M.D.
Founder, President and Chief Executive Officer
Understood and accepted:
/s/ Gary Hattersley, Ph.D.
Gary Hattersley
June 30, 2019
Date
Exhibit A: Employee Confidential Information and Inventions Assignment Agreement
EXHIBIT A
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT TO BE SENT SEPARATELY
Exhibit 10.19
April 30, 2022
Dongfang Liu, MD, PhD
12925 Northeast 100th Lane
Kirkland, WA 98033
Re: Offer Letter for Chief Medical Officer
Dear Dongfang:
Nuvation Bio Inc. (the “Company”) is pleased to offer you the position of Chief Medical Officer on the terms set forth in this letter agreement (the “Agreement”).
In this role, you will be a key member of the Executive Committee and will provide leadership and direction for Nuvation Bio’s pipeline of clinical development programs. The CMO will be responsible for the strategy, direction, and execution of the company’s clinical development plans. You will report into the CEO and President, David Hung, with a start date to be determined. You will be remotely based and will come to our corporate offices as needed. You shall devote your best efforts and full business time, skill, and attention to the performance of your duties. You will also be expected to adhere to the general employment policies and practices of the Company that may be in effect from time to time, as amended in accordance with applicable law. However, when the terms of this Agreement conflict with the Company’s general employment policies or practices, this Agreement will control. The Company may change your position, duties, work location and compensation from time to time in its discretion.
Your salary will be paid at the annual rate of $475,000.00, less payroll deductions and withholdings, paid in accordance with the Company’s payroll practices, as in effect from time to time. As an exempt salaried employee, you will not be entitled to overtime compensation. The Company may change compensation and benefit plans from time to time in its discretion without advance notice.
You will be eligible to receive a discretionary annual cash incentive bonus with a target of 40% of salary, which will be determined in the Company’s sole discretion which will be based on performance against predetermined objectives as set by the Company’s Board of Directors (the “Board”) and executive management team. The bonus is not earned until paid, and no pro-rated amount will be paid if your employment terminates
Dongfang Liu
Page 2
for any reason prior to the payment date. The Company will pay you this bonus, if any, by no later than March 15th of the following calendar year
You will be eligible to participate in all benefit programs currently available to all employees at your level provided that you are eligible under (and subject to all provisions of) the plan documents governing those programs. The company has put together a rich health benefit program for you and your dependents at a minimal cost. These benefits include medical, dental, vision, life insurance, short term and long-term disability, and 401(k) retirement plan. These benefits are subject to the rules, terms and conditions for participation of the applicable benefit plans and policies. The benefits programs may be modified from time to time in accordance with applicable laws.
Subject to approval by the Board, under the Company’s 2021 Equity Incentive Plan (the “Plan”), the Company will grant you two (2) different options to purchase shares of the Company’s Class A Common Stock, totaling 782,500 shares, at a fair market value as determined by the Board as of the date of grant (the “Options”). The grant date of these options will be your hire date. An amount of 490,000 of the shares subject to the Options will vest based on the satisfaction of time-based vesting conditions alone (the “Time-Based Option”). The Time-Based Option will have a four-year vesting schedule, under which 25 percent of your shares will vest after twelve months of employment, with the remaining shares vesting monthly thereafter, subject to your continuous service with the Company on each such vesting date. An amount of 292,500 of the shares subject to the Options will vest based on the satisfaction of both
time-based vesting conditions and performance-based vesting conditions (the “Performance-Based Option”). The Performance-Based Option will be subject to a vesting schedule previously approved by the Board as part of a long-term incentive program. The full vesting schedule for the Performance-Based Options will be evidenced in the award agreement governing the Performance-Based Options. The Options will be subject to the terms and conditions of the Plan and the applicable Time-Based Option and Performance-Based Option award agreement. No right to any stock is earned or accrued until such time that vesting occurs, nor does this grant confer any right to continued vesting or employment. Please refer to the award agreement which governs the specific terms and conditions of such Options.
You will be entitled to a one-time sign-on bonus of $200,000.00, less payroll deductions and withholdings, paid within 30 business days of your hire date and in accordance with the Company's payroll practices. Should you resign your employment for any reason within twelve months after your first day of employment, you will be required to pay this amount back to the Company.
In connection with your employment with the Company, you will receive and have access to Company confidential information and trade secrets. Accordingly, enclosed with this offer letter is an Employee Confidential Information and Inventions Assignment Agreement (“ECIIAA”) which contains restrictive covenants and prohibits unauthorized use or disclosure of the Company’s confidential information and trade secrets, among
Dongfang Liu
Page 3
other obligations. Please review the ECIIAA, attached hereto as Exhibit A, and only sign it after careful consideration.
In your work for the Company, you will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you will not bring onto Company premises or introduce into Company systems any proprietary information of any former employer or any unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company.
Your employment with Company will be “at-will.” This means that you or the Company may terminate the employment relationship at any time and for any reason or no reason with or without notice Your employment at-will status can only be modified in a written agreement signed by you and by an officer of the Company specifically for that purpose.
This offer may be contingent upon a background check clearance, reference check, and satisfactory proof of your right to work in the United States. You agree to provide any documentation or information at the Company’s request to facilitate these processes.
To ensure the timely and economical resolution of disputes that may arise in connection with your employment with the Company, you and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Agreement, the ECIIAA, or your employment, or the termination of your employment, including but not limited to all statutory claims, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration by a single arbitrator conducted in Seattle, Washington by Judicial Arbitration and Mediation Services Inc. (“JAMS”) under the then applicable JAMS rules (at the following web address: https://www.jamsadr.com/rules-employment-arbitration/). A hard copy of the rules will be provided to you upon request. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. In addition, all claims, disputes, or causes of action under this provision, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The Arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent
Dongfang Liu
Page 4
that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The Company acknowledges that you will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration under this agreement) shall be decided by the arbitrator. Likewise, procedural questions which grow out of the dispute and bear on the final disposition are also matters for the arbitrator. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (c) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. You and the Company shall equally share all JAMS’ arbitration fees. Each party is responsible for its own attorneys’ fees, except as expressly set forth in your ECIIAA. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
This Agreement, together with your ECIIAA, forms the complete and exclusive agreement regarding the subject matter hereof. It supersedes any other agreements or promises by anyone, whether oral or written. It is entered into without reliance on any promise or representation other than those expressly contained herein. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion in this Agreement, must be made in a written agreement signed by you and a duly authorized officer of the Company. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and our respective successors, assigns, heirs, executors and administrators, except that you may not assign any of your duties or rights hereunder without the express written consent of the Company. Each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement, and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This Agreement and the terms of your employment with the Company shall be governed in all aspects by the laws of the State of Washington.
Please sign and date this Agreement, and the enclosed Employee Confidential Information and Inventions Assignment Agreement by Thursday, May 7th, 2022, if you wish to accept employment at the Company under the terms described above.
Dongfang Liu
Page 5
We look forward to your favorable reply and to a productive and enjoyable work relationship.
Sincerely,
/s/ Stacy Markel
Stacy Markel
Chief People Officer
Understood and accepted:
/s/ Dongfang Liu
Dongfang Liu
April 30, 2022
Date
Exhibit A: Employee Confidential Information and Inventions Assignment Agreement
EXHIBIT A
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT TO BE SENT SEPARATELY
Exhibit 10.20
AnBio Therapeutics Ltd
2021 EQUITY INCENTIVE PLAN
"Affiliate" means a corporation or other entity that, directly or through one or more intermediaries, controls, is controlled by or is under common control with, the Company.
"Applicable Laws" means the requirements related to or implicated by the administration of the Plan under applicable Cayman Islands law, United States federal and state securities laws, the Code and the applicable laws of any foreign country or jurisdiction where Awards are granted under the Plan.
"Award" means any right granted under the Plan, including an Incentive Stock Option, a Non-Qualified Stock Option, a Restricted Stock Award or a Restricted Stock Unit Award.
"Award Agreement" means a written agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically to any Participant. Each Award Agreement shall be subject to the terms and conditions of the Plan.
"Board" means the Board of Directors of the Company, as constituted at any time.
"Cause" means, unless the applicable Award Agreement provides otherwise, with respect to any Service Provider:
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(i) criminal conduct or severe violation of ethical rules or similar acts; (ii) material breach of agreements between Participant and the Company or its subsidiaries (e.g., intellectual property or invention assignment agreement, employment contract, service agreement, non-competition agreement, confidentiality or similar agreement); (iii) misrepresentation or omission of material facts in connection with the Participant’s employment with the Company or its subsidiaries or the services provided to the Company or its subsidiaries; (iv) material breach of customary duties applicable to employees, consultants or directors or failure to comply with the Company’s or its subsidiaries’ polices or code of conduct or reasonable instruction of his or her supervisors; and (v) taking actions having a material adverse effect on the Company’s or its subsidiaries’ brand, goodwill or interest. |
The Board, in its absolute discretion, shall determine the effect of all matters and questions relating to whether a Participant has been discharged for Cause.
"Change in Control" means any of the following transactions:
(i) a “Deemed Liquidation Event” as defined in the Company’s Memorandum and Articles of Association;
(ii) a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from shareholders of the Company shares representing more than fifty percent (50%) of the out standing voting power of the Company
(iii) any acquisition, reverse takeover, scheme of arrangement, or series of connected transactions ultimately resulting in a reverse takeover or a scheme of arrangement (including but not limited to any tender offer in advance of a takeover or a reverse takeover), in which the Company survives, but (A) the issued securities of the Company immediately before the completion of the transaction are converted or exchanged to other properties in the form of security, cash or otherwise through the transaction; or (B) securities accounting for more than 50% of the total voting rights of the Company’s issued securities at that time are assigned to one or more persons who did not hold any securities immediately preceding the completion of the transaction that results in a reverse takeover or a scheme of arrangement; or (C) the Company issues new voting securities with regard to such transaction and as a result of which persons holding the Company’s voting securities immediately preceding the completion of the transaction no longer hold more than fifty percent (50%) of the voting securities of the Company after the transaction; or
(iv) a one-off acquisition or a series of connected transactions through which (A) the control of the board of directors or the power to appoint a majority of the board members; or (B) the beneficial ownership of securities representing more than fifty percent
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(50%) of the total voting rights of the Company at that time is obtained by the affiliated group of any person or group (except for employees of one or more group companies or entities established for the benefit of such employees).
Notwithstanding the foregoing, if an Award is subject to Section 409A of the Code, a Change in Control shall not occur with respect to such Award unless such transaction constitutes a change in the ownership of the Company, a change in the effective control of the Company, or a change in the ownership of a substantial portion of the Company's assets under Section 409A of the Code.
"Code" means the United States Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be deemed to include a reference to any regulations promulgated thereunder.
"Competitive Act" means, during a Participant’s Continuous Service and 12 months thereafter (subject to longer non-competition periods set forth in the relevant employment or service agreements), the Participant (i) directly or indirectly establishes, invests or participates in any competing business as an owner, partner, responsible person, shareholder or operator of a Competitor (except for holding not more than 5% of a listed company as a passive investor); (ii) serves as a director, officer, employee, consultant or advisor of any Competitor, or provides services to any Competitor, or (iii) intentionally takes actions benefiting any Competitor.
"Competitor" means any enterprise that competes with or will compete with the business of the Company or its subsidiaries [in the areas in which the Company or its subsidiaries conduct business]. The Board may decide the list of Competitors from time to time.
"Company" means AnBio Therapeutics Ltd., an exempted company with limited liability incorporated and existing under the laws of Cayman Islands with registered number 374961, and any successor thereto.
"Consultant" means any individual who is engaged by the Company or any subsidiary to render consulting or advisory services, whether or not compensated for such services.
"Continuous Service" means that the Participant's service with the Company or any of its subsidiaries as a Service Provider is not interrupted or terminated. The Participant's Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders service to the Company or any of its subsidiaries as a Service Provider or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination of the Participant's Continuous Service.
"Detrimental Activity" means any of the following: (i) unauthorized disclosure of any confidential or proprietary information of the Company or any of its subsidiaries; (ii) any activity that would be grounds to terminate the Participant's
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employment or service with the Company or any of its subsidiaries for Cause; (iii) any Competitive Acts or the breach of any non-competition, non-solicitation, non-disparagement or other agreement containing restrictive covenants, with the Company or its subsidiaries; (iv) fraud or conduct contributing to any financial restatements or irregularities, as determined by the Board in its sole discretion; or (v) any other conduct or act determined to be materially injurious, detrimental or prejudicial to any interest of the Company or any of its subsidiaries, as determined by the Board in its sole discretion.
"Director" means a member of the Board.
"Disability" means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment; provided, however, for purposes of determining the term of an Incentive Stock Option pursuant to 136.10 hereof, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined under procedures established by the Board. Except in situations where the Board is determining Disability for purposes of the term of an Incentive Stock Option pursuant to 136.10 hereof within the meaning of Section 22(e)(3) of the Code, the Board may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate in which a Participant participates.
"Employee" means any person, including an officer or Director, employed by the Company or a subsidiary; provided, that, for purposes of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a parent or subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director's fee by the Company or an Affiliate shall not be sufficient to constitute "employment" by the Company or an Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and any successor thereto.
"Fair Market Value" means, on a given date, (i) if there is a public market for the Ordinary Shares on such date, the closing price of the shares as reported on such date on the principal national securities exchange on which the shares are listed or, if no sales of shares have been reported on any national securities exchange, then the immediately preceding date on which sales of the shares have been so reported or quoted, and (ii) if there is no public market for the Ordinary Shares on such date, then the fair market value shall be determined by the Board in good faith after taking into consideration all factors which it deems appropriate, including, without limitation, Sections 409A and 422 of the Code.
"Grant Date" means the date on which the Board adopt a resolution, or take other appropriate action, expressly granting an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution, then such date as is set forth in such resolution.
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"Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
"Managers" means the founders of the Company, namely Junyuan Wang, Bing Yan, and Lihua Zheng, and any other individuals appointed by the Board.
"Non-Qualified Stock Option" means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-Qualified Stock Option granted pursuant to the Plan.
"Optionholder" means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
"Option Exercise Price" means the price at which an Ordinary Share may be purchased upon the exercise of an Option.
"Ordinary Shares" means the ordinary shares, $0.0001 par value per share, of the Company.
"Participant" means an eligible person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.
"Permitted Transferee" means: (a) a member of the Optionholder's immediate family (child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships), any person sharing the Optionholder's household (other than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which these persons (or the Optionholder) control the management of assets, and any other entity in which these persons (or the Optionholder) own more than 50% of the voting interests; or (b) such other transferees as may be permitted by the Board in its sole discretion.
"Person" means any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
"Plan" means this AnBio Therapeutics Ltd 2021 Equity Incentive Plan.
"PRC" means the People’s Republic of China, excluding Hong Kong, Macau and Taiwan for the purpose of this Plan.
"Restricted Period" has the meaning set forth in 157.
"Restructuring Agreement" means the Restructuring Framework Agreement (重组框架协议 in Chinese) entered into by the Company, AnBio Inc., AnBio Therapeutics (HK) Limited, AnHeart Hangzhou, Decheng Anbio Limited, Vertex Ventures China IV,
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L.P., 杭州德佳诚誉投资合伙企业(有限合伙), 深圳市招商招银股权投资基金合伙企业（有限合伙）, 嘉兴力鼎昌煜股权投资合伙企业(有限合伙), 杭州复林创业投资合伙企业(有限合伙), Repulse Bay Associate Corp, and other relevant parties thereto dated September 22, 2021.
"Service Providers" means the Employees, Consultants, Directors, supervisors, technology licensors and project cooperation parties for the Company or any of its subsidiaries, in each case, approved by the Board.
"Ten Percent Shareholder" means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) shares possessing more than 10% of the total combined voting power of all classes of shares of the Company or of any of its Affiliates.
"Transaction Agreements" has the meaning it is given in that certain Series B Preferred Share and Warrant Purchase Agreement on August 30, 2021, by and among the Company and the other parties thereto.
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If any Manager is the Participant under the Plan and also the Director, with respect to the matters of Awards granted to such Manager under the Plan, the Manager shall not vote at the Board’s meeting. Such matters shall be approved by the majority of the remaining Directors, subject to the Company's Memorandum and Articles of Association and Transaction Agreements.
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In the event that a Participant’s Continuous Service terminates for reasons other than (i) for death or Disability or (ii) for Cause, and provided that no circumstance under Section 6.9 or Detrimental Activity hereof occurred on the part of such Participant, unless otherwise provided in an Award Agreement or approved by the Board:
If the Optionholder applies to exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), the Board has the right (but not obligation) to send the notice to the Optionholder to pay in cash to the Optionholder as an alternative:
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For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
In the event that a Participant’s Continuous Service terminates for Cause, a Participant commits a Competitive Act, a Participant breaches confidentiality obligations under an Award Agreement:
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If the Optionholder (or the Optionholder’s legal guardian or custodian) applies to exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), the Board has the right (but not obligation) to send the notice to the Optionholder (or the Optionholder’s legal guardian or custodian) to pay in cash as an alternative at a price equal to 50% of the Fair Market Value on the date when the Board send the notice minus the Option Exercise Price;
For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
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If the Successor applies to exercise his or her Option (to the extent the Optionholder was entitled to exercise such Option as of the date of death), the Board has the right (but not obligation) to send the notice to the Successor to pay in cash as an alternative at a price equal to 50% of the Fair Market Value on the date when the Board send the notice minus the Option Exercise Price;
For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
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No Restricted Award may be granted or settled for a fraction of an Ordinary Shares.
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As adopted by the Board of Directors of AnBio Therapeutics Ltd on [DATE].
As approved by the shareholders of AnBio Therapeutics Ltd on [DATE].
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Exhibit 10.21
Incentive Stock Option Agreement
This Incentive Stock Option Agreement (this “Agreement”) is made and entered into as of [__] by and between AnBio Therapeutics Ltd., an exempted company with limited liability organized and existing under the laws of Cayman Islands (the “Company”) and [__] (the “Participant”).
Option Shares Type |
Number of Option Shares |
Grant Date |
Exercise Price per Share (USD) |
Expiration Date |
Performance Stock |
[__] |
[__] |
[__] |
[__] |
Total |
[__] |
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Upon the closing of the Share Subscription of Flip-up Shareholders (in Chinese 
pursuant to Section 2.10 of the Restructuring Agreement, the Exercise Price per Share and Number of Option Shares shall be adjusted as follows:
Option Shares Type |
Number of Option Shares |
Exercise Price per Share (USD) |
Performance Stock |
[__] |
[__] |
Total |
[__] |
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If the Optionholder applies to exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of
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termination), the Board has the right (but not obligation) to send the notice to the Optionholder to pay in cash to the Optionholder as an alternative:
For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
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For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
Option Shares acquired by the Optionholder by exercise of the Option are subject to repurchase as determined by the Board at a price equal to the higher of (i) 50% of the Fair Market Value on the date when the Board sends the repurchase notice to the Optionholder; or (ii) the Option Exercise Price.
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If the Successor applies to exercise his or her Option (to the extent the Optionholder was entitled to exercise such Option as of the date of death), the Board has the right (but not obligation) to send the notice to the Successor to pay in cash as an alternative at a price equal to 50% of the Fair Market Value on the date when the Board send the notice minus the Option Exercise Price;
For the part of the Option that the Board has determined to pay in cash as an alternative, such Option shall be deemed as not exercised and immediately terminate.
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The Company has the right to withhold from any compensation paid to a Participant.
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[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
ANBIO THERAPEUTICS LTD.
By: _____________________
Name: Junyuan Wang
Title: Chief Executive Officer
[__]
Acknowledgment and Agreement of Spouse
The undersigned spouse of the Participant acknowledges that he or she has read this Agreement and agrees to be bound by its terms to the extent that the Participant has executed such document.
Name:
Declaration of Unmarried Status
The Participant hereby declares that he or she is not married as of the date hereof.
Name:
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Exhibit 10.22
Restricted Stock Unit Agreement
(New Hire Grant)
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of March 24, 2024 (the “Grant Date”) by and between AnHeart Therapeutics Ltd. (f/k/a AnBio Therapeutics Ltd.), an exempted company with limited liability organized and existing under the laws of the Cayman Islands (the “Company”), and ______________, (the “Participant”). This Agreement is being entered into pursuant to the AnBio Therapeutics Ltd 2021 Equity Incentive Plan (the “Plan”). Capitalized terms used in this Agreement but not defined herein will have the meaning ascribed to them in the Plan.
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For avoidance of doubt, if the Board elects to (i) pay cash or part cash and part Ordinary Shares in lieu of delivering only Ordinary Shares in respect of the Restricted Stock Units, the payment by cash is not subject to the repurchase set forth in this Section 7.2 (a), (c) and (d).
Notwithstanding anything to the contrary, the Board does not have the right to repurchase the Settled Shares under this Section 7.2 (a), (c) and (d) after the initial public offering (the “IPO”) of the Company or a Change in Control (as defined in the Plan). The disposal of the Settled Shares under Section 7.2 is also subject to the Securities Act and other relevant Applicable Laws after the Company consummates the IPO.
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[SIGNATURE PAGE FOLLOWS]
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Restricted Stock Unit Agreement
(Promotion Grant)
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of March 24, 2024 (the “Grant Date”) by and between AnHeart Therapeutics Ltd. (f/k/a AnBio Therapeutics Ltd.), an exempted company with limited liability organized and existing under the laws of the Cayman Islands (the “Company”), and ________________, (the “Participant”). This Agreement is being entered into pursuant to the AnBio Therapeutics Ltd 2021 Equity Incentive Plan (the “Plan”). Capitalized terms used in this Agreement but not defined herein will have the meaning ascribed to them in the Plan.
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[Signature Page to Restricted Stock Unit Agreement] |
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[Signature Page to Restricted Stock Unit Agreement] |
For avoidance of doubt, if the Board elects to (i) pay cash or part cash and part Ordinary Shares in lieu of delivering only Ordinary Shares in respect of the Restricted Stock Units, the payment by cash is not subject to the repurchase set forth in this Section 7.2 (a), (c) and (d).
Notwithstanding anything to the contrary, the Board does not have the right to repurchase the Settled Shares under this Section 7.2 (a), (c) and (d) after the initial public offering (the “IPO”) of the Company or a Change in Control (as defined in the Plan). The disposal of the Settled Shares under Section 7.2 is also subject to the Securities Act and other relevant Applicable Laws after the Company consummates the IPO.
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[Signature Page to Restricted Stock Unit Agreement] |
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[Signature Page to Restricted Stock Unit Agreement] |
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[Signature Page to Restricted Stock Unit Agreement] |
[SIGNATURE PAGE FOLLOWS]
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[Signature Page to Restricted Stock Unit Agreement] |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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AnHEART therapeutics ltd. |
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By: _____________________ Name: Junyuan (Jerry) Wang Title: Chief Executive Officer |
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PARTICIPANT
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By: _____________________ Name: |
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[Signature Page to Restricted Stock Unit Agreement] |
Restricted Stock Unit Agreement
(Special Grant)
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of March 24, 2024 (the “Grant Date”) by and between AnHeart Therapeutics Ltd. (f/k/a AnBio Therapeutics Ltd.), an exempted company with limited liability organized and existing under the laws of the Cayman Islands (the “Company”), and _______________, (the “Participant”). This Agreement is being entered into pursuant to the AnBio Therapeutics Ltd 2021 Equity Incentive Plan (the “Plan”). Capitalized terms used in this Agreement but not defined herein will have the meaning ascribed to them in the Plan.
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For avoidance of doubt, if the Board elects to (i) pay cash or part cash and part Ordinary Shares in lieu of delivering only Ordinary Shares in respect of the Restricted Stock Units, the payment by cash is not subject to the repurchase set forth in this Section 7.2 (a), (c) and (d).
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Notwithstanding anything to the contrary, the Board does not have the right to repurchase the Settled Shares under this Section 7.2 (a), (c) and (d) after the initial public offering (the “IPO”) of the Company or a Change in Control (as defined in the Plan). The disposal of the Settled Shares under Section 7.2 is also subject to the Securities Act and other relevant Applicable Laws after the Company consummates the IPO.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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AnHEART therapeutics ltd. |
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By: _____________________ Name: Junyuan (Jerry) Wang Title: Chief Executive Officer |
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PARTICIPANT
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By: _____________________ Name: |
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Exhibit 10.27
March 24, 2024
Jerry Wang
14 Kent Ct
Princeton, NJ 08540
E-mail: jwang@anhearttherapeutics.com
AnHeart Therapeutics Ltd.
777 3rd Ave
New York, NY 10017
Attention: Junyuan (Jerry) Wang
E-mail: jwang@anhearttherapeutics.com
Re: Agreement Regarding Certain Board Matters
Dear Dr. Wang (“you” or “Dr. Wang”):
As you are aware, concurrently with the execution of this letter agreement (this “Agreement”), AnHeart Therapeutics Ltd., an exempted company incorporated under the laws of the Cayman Islands (the “Company”), is entering into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) with Nuvation Bio Inc., a Delaware corporation (“Parent”), and certain other parties thereto, pursuant to which the Company will survive the transactions contemplated in the Merger Agreement as a direct, wholly owned subsidiary of Parent, subject to the terms and conditions set forth therein.
This Agreement records certain agreements between you and Dr. David Hung (“Dr. Hung”), the record and beneficial holder of 100% of the issued and outstanding shares of Parent Class B Common Stock (the “Class B Shares”), regarding certain matters with respect to the post-Closing board of directors of Parent (the “Board”). Capitalized terms not otherwise defined herein shall bear the meaning given to them in the Merger Agreement.
Board Directorship
1.
Termination
Definitions
Miscellaneous
2.
[Signature page follows]
3.
Very truly yours,
David Hung, M.D.
By: /s/ David Hung, M.D.
Agreed and Accepted:
Junyuan Wang, Ph.D.
By: /s/ Junyuan Wang, Ph.D.
Signature Page to Side Letter Agreement
Exhibit 31.3
CERTIFICATION
I, David Hung, M.D., certify that:
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Date: April 25, 2024 |
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/s/ David Hung, M.D.
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David Hung, M.D. Chief Executive Officer |
Exhibit 31.4
CERTIFICATION
I, Moses Makunje, certify that:
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Date: April 25, 2024 |
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/s/ Moses Makunje
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Moses Makunje VP, Finance (Principal Financial and Accounting Officer) |
Exhibit 32.2
CERTIFICATION
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), David Hung, M.D., Chief Executive Officer of Nuvation Bio Inc. (the “Company”), and Moses Makunje, VP, Finance of the Company, each hereby certifies that, to the best of his or her knowledge:
Dated: April 25, 2024
IN WITNESS WHEREOF, the undersigned have set their hands hereto as of the 25th day of April, 2024.
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/s/ David Hung, M.D.
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/s/ Moses Makunje
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David Hung, M.D. |
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Moses Makunje |
Chief Executive Officer |
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VP, Finance |
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(Principal Financial and Accounting Officer) |
This certification accompanies the Report to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Nuvation Bio Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date hereof), irrespective of any general incorporation language contained in such filing.