8-K
Rafael Holdings, Inc. (RFL)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the SecuritiesExchange Act of 1934
Date of Report (Date of earliest event reported):
January 19, 2022
RAFAEL HOLDINGS, INC.
(Exact name of registrantas specified in its charter)
| Delaware | 1-38411 | 82-2296593 |
|---|---|---|
| (State or other jurisdiction<br><br> <br>of Incorporation) | (Commission File Number) | (IRS Employer<br><br> <br>Identification No.) |
| 520 Broad Street<br><br> <br>Newark, New Jersey | 07102 | |
| --- | --- | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including
area code: 212 658-1450
Not Applicable
(Former name or former address, if changed sincelast report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b)-2 of the Exchange Act:
| Title of each class | Trading Symbol | Name of each exchange on<br><br> <br>which registered |
|---|---|---|
| Class B common stock, par value $0.1 per share | RFL | New York Stock Exchange |
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors;Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. | |
| --- | --- |
(c) On January 19, 2022, the Board of Directors of Rafael Holdings, Inc. (the “Company”) elected William Conkling, the Company’s current Chief Commercial and Business Officer, as the Company’s Chief Executive Officer, effective February 1, 2022 and Mr. Conkling will no longer serve in his role as Chief Commercial and Business Officer.
In connection with Mr. Conkling’s election as Chief Executive Officer, the Company’s Board of Directors and its Compensation Committee approved the Letter Agreement with Mr. Conkling, dated January 20, 2022, which provides, among other things, the following: (i) an annual base salary of $500,000; (ii) annual target performance bonus of 50% of the base salary, entitlement to which and any amount thereof to be determined in the sole and absolute discretion of the Company’s Compensation Committee; (iii) a grant of 623,732 restricted shares of the Company’s Class B common stock that will vest as to 25% of the shares (including any anti-dilution grants) on December 21, 2022 (the “Initial Vesting Date”) and the remainder of the Shares shall vest in twelve substantially equal amounts on or near each of the first through the twelfth quarterly anniversaries of the Initial Vesting Date; (iv) in the event that the Company issues capital stock or derivative equity securities in connection with the consummation, modification or termination of the Agreement and Plan of Merger, dated as of June 17, 2021 (the “Merger Agreement”), by and among the Company, Rafael Pharmaceuticals, Inc. and the other parties thereto, provided that Mr. Conkling has not given notice of termination of the Letter Agreement or his employment with the Company and the Letter Agreement or his employment with the Company shall not have otherwise terminated, the Company will grant Mr. Conkling additional restricted shares of Class B common stock of the Company so that his relative equity interest in the Company shall not be diluted thereby; (v) options previously granted to Mr. Conkling shall vest on September 30, 2026; (vi) at-will employment, provided that if Mr. Conkling’s employment is terminated without cause (as such term is defined the Letter Agreement) or resigns for good reason (as such term is defined the Letter Agreement) and upon other conditions set forth in the Letter Agreement, Mr. Conkling will be entitled to severance in the amount equal to (1) twelve (12) months of his base salary, (2) a prorated portion of the annual bonus for the fiscal year in which the termination occurs equal to 100% of his target annual bonus amount for the year during which the termination occurs multiplied by (y) a fraction, the numerator of which is the number of days in the fiscal year that Mr. Conkling was employed through the termination date and the denominator of which is 365, and (3) to the extent not already paid, the annual bonus for the year preceding the termination date that Mr. Conkling would have received had he remained continuously employed by the Company through the payment date of such Annual Bonus, if any.
Mr. Conkling, age 50, has served as Chief Commercial and Business Officer of the Company since November 10, 2021 and Chief Commercial Officer of the Company from March 2021 to November 10, 2021. Mr. Conkling has over 20 years’ experience in the pharmaceutical/biotech industry working in Oncology. He has extensive experience launching innovative oncology products. His experience has spans across all areas of commercialization including marketing, sales, market access, commercial operations and business development. Prior to joining the Company, Mr. Conkling helped lead the launch of Trodelvy at Immunomedics Inc. (acquired by Gilead for $21B in October 2020) as the VP Sales, Marketing and Market Access. Mr. Conkling also spent over 10 years at Novartis Oncology where he helped lead the launch of the first CAR-T therapy approved in the US as the Global Commercial Leader — Kymriah. Mr. Conkling earned his Bachelor’s Degree from Fordham University and his Master’s in Business Administration from New York University Stern School of Business in 1998.
The foregoing summary of the Letter Agreement is qualified in its entirety by reference to the Letter Agreement, a copy of which is filed as Exhibit 10.01 to this report and is incorporated herein by reference.
A copy of the January 21, 2022, press release relating to the above is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
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| Item 5.07 | Submission of Maters to a Vote of Security Holders. |
|---|---|
| (a) | The Company’s Annual Meeting of Stockholders was held<br>on January 19, 2022 (the “Meeting”). |
| --- | --- |
(b) (1) A majority of the votes present or represented at the Meeting by the holders of shares entitled to vote on the following matter were voted in connection with the election of each of the Board of Directors nominees named in the Proxy Statement of the Company.
The nominees for election to the Board of Directors were elected, each for a one-year term, based upon the following votes:
| Nominee | Votes For | Votes Against | Abstentions | Broker Non-Vote | % Votes For |
|---|---|---|---|---|---|
| Stephen M. Greenberg | 3,277,483 | 125,617 | 1,449 | 324,846 | 87.88 |
| Howard S. Jonas | 3,322,064 | 82,171 | 314 | 324,846 | 89.08 |
| Rachel Jonas | 3,331,735 | 71,447 | 1,367 | 324,846 | 89.34 |
| Shannon Klinger | 3,398,203 | 4,874 | 1,472 | 324,846 | 91.12 |
| Ameet Mallik | 3,396,273 | 6,708 | 1,569 | 324,846 | 91.07 |
| Mark McCamish | 3,398,151 | 4,857 | 1,542 | 324,846 | 91.12 |
| Boris C. Pasche | 3,278,062 | 125,025 | 1,462 | 324,846 | 87.90 |
| Michael J. Weiss | 3,226,940 | 176,178 | 1,431 | 324,846 | 86.53 |
(2) A majority of the votes present or represented at the Meeting by the holders of shares entitled to vote on the following matter were voted in connection with the ratification of the appointment of CohnReznick LLP as the Company’s independent registered public accounting firm for the Fiscal Year ending July 31, 2022.
The number of votes cast with respect to this matter was as follows:
| Votes For | Votes Against | Abstentions | Broker Non-Vote | % Votes For |
|---|---|---|---|---|
| 3,712,157 | 3,680 | 13,558 | 0 | 99.54 |
(3) A majority of the votes present or represented at the Meeting by the holders of shares entitled to vote on the following matter were voted in connection with the adoption of the 2021 Equity Incentive Plan (the “2021 Plan”)
The number of votes cast with respect to this matter was as follows:
| Votes For | Votes Against* | Broker Non-Vote | % Votes For |
|---|---|---|---|
| 3,194,746 | 209,804 | 324,846 | 85.66 |
| * | Abstentions are counted<br>as a vote “Against” this proposal. | ||
| --- | --- | ||
| Item 9.01 | Financial Statements and Exhibits. | ||
| --- | --- | ||
| (d) | Exhibits. | ||
| --- | --- | ||
| Exhibit No. | Document | ||
| --- | --- | ||
| 10.01 | Letter Agreement dated January 20, 2022, between the Company and William Conkling. | ||
| 99.1 | Press Release, dated January 21, 2022. | ||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RAFAEL HOLDINGS, INC. | |||
|---|---|---|---|
| By: | /s/ Ameet Mallik | ||
| Name: | Ameet Mallik | ||
| Title: | Chief Executive Officer | ||
| Dated: January 21, 2022 |
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EXHIBIT INDEX
| Exhibit No. | Document |
|---|---|
| 10.01 | Letter Agreement dated January 20, 2022, between the Company and William Conkling. |
| 99.1 | Press Release, dated January 21, 2022. |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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Exhibit10.1
| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 |
|---|
January 20, 2022
VIA EMAIL
William Conkling
110 Woods End Drive
Basking Ridge, NJ 07920
| william.conkling@rafaelholdings.com |
|---|
Dear Bill,
It is our pleasure to offer you continued employment at Rafael Holdings, Inc. (“Rafael” or the “Company”) in accordance with the terms and conditions provided herein. Effective February 1, 2022 (the “Effective Date”), the Employment Agreement between you and the Company dated as of March 7, 2021 (the “Prior Agreement”) shall terminate and be of no further force and effect and shall be superseded and replaced in its entirety by this letter agreement (the “Letter Agreement”), which outlines the terms of your continued employment at the Company as follows:
| 1. | Position and Duties: |
|---|
From and after the Effective Date, you will be employed as the Chief Executive Officer of the Company (the “Position”), which shall be an executive officer position with the Company, and in that role you will oversee and direct, subject to the direction, supervision and oversight of the Board of Directors of the Company (the “Board”) and the Chairman of the Board of the Company (the “Chairman”), all of the Company’s operations and its subsidiaries, affiliates, and entities in which the Company holds equity and other interests. You shall also serve in such additional capacities with subsidiaries and affiliates of the Company as shall be agreed upon in writing between you and the Company from time to time.
During the Term, you shall devote substantially all of your business time, and on a full-time basis, use your skills and render services to the best of your abilities on behalf of the Company (and its subsidiaries and affiliates). You shall report directly to the Board or to such other parties as reasonably designated by the Chairman from time to time commensurate with the Position. You shall be responsible for all duties as reasonably required by the Position as determined by the Board that are commensurate with the Position. You shall comply with all of the published policies and procedures of the Company. Notwithstanding the foregoing, with the prior written consent of the Board (which consent shall not be unreasonably withheld or delayed), you shall be permitted to act or serve as a director, trustee, or committee member of any type of business, civic, or charitable organization, provided that such activities do not, individually or in the aggregate, create a potential or actual conflict with the interests of the Company or materially interfere with your service to the Company or duties hereunder (in each case, as determined by the Board).
You will work at the Company’s headquarters -- currently located at 520 Broad Street, Newark, NJ 07102 -- or such other location designated by the Company, on a regular basis, and you will travel for purposes of Company business, in accordance with the Company’s needs and as otherwise determined by the Board.
| 2. | Term: |
|---|
Your employment pursuant to this Letter Agreement shall be from the Effective Date through January 31, 2023; and thereafter, the term of this Letter Agreement will automatically renew for additional successive terms of one (1) year each unless either party gives notice to the other party at least ninety (90) days before January 31, 2023 or January 31st of any succeeding year that such party does not wish to renew this Letter Agreement, in which case both the Letter Agreement and your employment hereunder shall automatically terminate on such January 31st (the term in effect, the “Term”). Notwithstanding the foregoing, your employment shall be at will may be terminated at any time by either you or the Company pursuant to Section 7 hereof.
| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 | |
|---|---|
| 3. | Compensation: |
| --- | --- |
From and after the Effective Date during the Term, you will be compensated at an annual base salary rate of $500,000.00 (the “Base Salary”), which will be paid to you on a prorated basis less payroll deductions and required withholdings, in accordance with the Company’s standard payroll procedures. Your position is classified as exempt for purposes of relevant wage-hour law and therefore you will not be entitled to overtime pay.
In addition to the Base Salary, you will also be eligible for an annual discretionary bonus (the “Annual Bonus”). The Annual Bonus at target or 100% achievement will be in the amount of 50% of your Base Salary, your entitlement to which and any amount thereof to be determined in the sole and absolute discretion of the Compensation Committee of the Board.
| 4. | Paid Time Off and Benefits: |
|---|
In addition to Company-designated paid holidays, each calendar year you shall be eligible to accrue twenty (20) days of paid vacation time (prorated for partial years of employment), as well as use sick time, in each case as shall be calculated and administered in accordance with the Company’s applicable policies, as may be updated from time to time, and applicable law.
As a full-time employee of the Company, you will be eligible for health insurance coverage and other employee benefits, in each case as available to similarly situated employees, in accordance with the relevant plans, as such plans are adopted by the Company.
You shall also be entitled to reimbursement for pre-approved business expenses incurred by you in the course of your performance of your duties, as per Company policy, provided that you submit to the Company applicable invoices and other documentation, in form and in substance in accordance with Company policy.
| 5. | Equity: |
|---|
Within thirty (30) days following the Effective Date, the Company will grant to you, under the Company’s 2021 Equity Incentive Plan (as amended from time to time, the “Plan”), SIX HUNDRED TWENTY-THREE THOUSAND SEVEN HUNDRED THIRTY-TWO (623,732) shares (“Shares”) of Restricted Class stock of the Company.
In the event that the Company issues capital stock or derivative equity securities in connection with the consummation, modification or termination of the Agreement and Plan of Merger, dated as of June 17, 2021 (the “Merger Agreement”), by and among the Company, Rafael Pharmaceuticals, Inc. (“Pharma”) and the other parties thereto, provided that you shall not have given notice of termination of this Letter Agreement or your employment with the Company and this Letter Agreement or your employment with the Company shall not have otherwise terminated, the Company will grant you additional restricted shares of Class B common stock of the Company so that your relative equity interest in the Company shall not be diluted thereby.
Twenty-five percent of the Shares (including any anti-dilution grants) will vest on December 21, 2022 at (the “Initial Vesting Date”) and the remainder of the Shares shall vest in twelve substantially equal amounts on or near each of the first through the twelfth quarterly anniversaries of the Initial Vesting Date, provided that vesting will be timed to coincide with expected open trading windows under the Company’s Insider Trading policy. The terms and conditions of the grant of the Shares shall be as set forth in the Plan and the related grant agreement. Except as otherwise specifically set forth herein, all unvested Shares shall terminate if your full-time employment with the Company shall cease for any reason. All unvested Shares shall vest upon a “Change of Control” (as defined in the Plan). Any tax liability in connection with the Shares shall be borne solely by you.
Additionally, the vesting schedule of the Options granted to you pursuant to the Prior Agreement shall be amended to be as follows: all Options will vest on September 30, 2026.
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| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 | |
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| 6. | Company Property: |
| --- | --- |
During the Term, the Company may provide you with the benefit of using Company property, such as, but not limited to, a Company-provided laptop. You are obligated to use such Company property in accordance with Company guidelines, and to return any such property to the Company upon the Company’s request, but in any case, upon the termination of your employment, regardless of the reason for such termination.
| 7. | Termination: |
|---|
Your employment at the Company may be terminated as set forth below:
(a) Death; Disability. Your employment at the Company shall terminate upon your death or, as permitted by law, “Disability” (as hereafter defined). Upon any such termination, you (or, in the event of your death, your estate) shall receive the Base Salary and all benefits as generally eligible, in each case through the Date of Termination (as hereafter defined). You (and, in the event of your death, your estate) shall not be entitled to any other amounts or benefits from the Company other than as set forth in this Section 7(a). For purposes of this Letter Agreement, “Disability” shall mean your inability to perform your duties on account of a physical or mental illness for a period of sixty (60) consecutive days or ninety (90) days in any six (6) month period. Notwithstanding anything contained herein to the contrary, during any period of disability, the Company shall not be obligated to pay any compensation or other amounts to you.
(b) Termination for Cause/Resignation without Good Reason. The Company may terminate your employment at the Company at any time without advance notice for “Cause” and you may terminate your employment at the Company without “Good Reason” (as hereafter defined) upon thirty (30) days’ written notice from you to the Company in accordance with Section 7(e) below. For purposes of this Letter Agreement, the Company shall have Cause to terminate your employment upon your:
| (i) | commission of fraud, theft, embezzlement, self-dealing, or misappropriation of corporate assets or acts<br>constituting a felony under the laws of the United States or any state thereof; |
|---|---|
| (ii) | commission of willful or negligent acts or omissions in connection with your employment which result in<br>an assessment of a civil or criminal penalty against you, the Company, or its affiliates; |
| --- | --- |
| (iii) | commission of acts or omissions constituting gross negligence or gross misconduct in the performance of<br>any aspect of your lawful duties or responsibilities which have or may be expected to have an adverse effect on the Company or its affiliates; |
| --- | --- |
| (iv) | commission of any serious offense that results in or would reasonably be expected to result in (i) financial<br>or other harm or (ii) negative publicity, to the Company or its affiliates; |
| --- | --- |
| (v) | engaging in any act covered by Rule 506(d) of Regulation D under the Securities Act of 1933, as amended,<br>and/or engaging in any act, or existence of any circumstances that would, in the reasonable judgment of the Company, be harmful to the<br>Company’s ability to have its common stock be granted approval to list, or continue to be listed, on the NYSE, American, or Nasdaq<br>exchanges; |
| --- | --- |
| (vi) | willful or continued failure to substantially perform your duties hereunder (other than any such failure<br>resulting from your incapacity due to physical or mental illness or disability), after written notice has been delivered to you by the<br>Company identifying the manner in which you have not substantially performed your duties. For the sake of clarity, failure to achieve<br>certain results shall not, on its own, be deemed Cause; |
| --- | --- |
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| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 | |
|---|---|
| (vii) | willful or continued failure to perform an act permitted by the Company’s rules, policies, or procedures,<br>including without limitation, the Company’s Code of Business Conduct and Ethics that is within your material duties hereunder (other<br>than by reason of physical or mental illness or disability) or directives of the Board, or material breach of the terms of this Letter<br>Agreement, of the NDNC (as hereafter defined), or Company policy; |
| --- | --- |
| (viii) | breach of any fiduciary duty owed to the Company or its affiliates that results in or would reasonably<br>be expected to result in (i) financial or other harm, or (ii) negative publicity, to the Company or its affiliates; |
| --- | --- |
| (ix) | extended unexcused absence; or |
| --- | --- |
| (x) | knowing and intentional misrepresentation or concealment of material information regarding the Company<br>from the Board or the Chairman. |
| --- | --- |
No act, or failure to act, on your part shall be considered “willful” if done or omitted to be done by you in good faith and in the belief that your action or omission was in the best interest of the Company or its affiliates.
In the event that the Company terminates your employment for Cause or you resign from the Company without Good Reason: (i) you shall receive the Base Salary and all benefits as generally eligible, in each case through the Date of Termination and (ii) the Company shall have the right to determine whether or not you will actively work for the Company during any notice period. You shall not be entitled to any other amounts or benefits from the Company other than as set forth in this Section 7(b).
(c) Termination without Cause. Your employment at the Company may be terminated by the Company without Cause upon thirty (30) days’ written notice to you in accordance with Section 7(e) below.
In the event of your termination by the Company without Cause or if the Company, in accordance with Section 2 hereof, provides notice to you that it does not want this Letter Agreement to automatically renew: (i) you shall receive the Base Salary and all benefits as generally eligible, in each case through the Date of Termination, (ii) the Company shall have the right to determine whether or not you will actively work for the Company during the notice period, and (iii) provided that you execute and deliver a separation and release agreement in a form acceptable to the Company within twenty-one (21) days after the Date of Termination (unless applicable law requires a longer time period, in which case this date will be extended to the minimum time required by applicable law and such 21-day or extended period, as applicable, the “Release Execution Period”) and do not revoke such agreement, (A) any unvested Shares shall continue to vest for six (6) months following the Date of Termination and (B) you will receive (1) an amount equal to twelve (12) months of Base Salary, payable, subject to Section 11 hereof, in twenty-four (24) equal installments in accordance with the Company’s regular payroll schedule, (2) a prorated portion of the Annual Bonus for the fiscal year in which the Date of Termination occurs equal to 100% of your target Annual Bonus amount for the year during which the Date of Termination occurs multiplied by (y) a fraction, the numerator of which is the number of days in the fiscal year that you were employed through the Date of Termination and the denominator of which is 365, payable, subject to Section 11 hereof, in twenty-four (24) equal installments in accordance with the Company’s regular payroll schedule, (3) to the extent not already paid, the Annual Bonus for the year preceding the Date of Termination that you would have received had you remained continuously employed by the Company through the payment date of such Annual Bonus, if any, and (4) subject to your timely election of continuation coverage under COBRA, the eligibility requirements and other terms and conditions of such insurance coverage, the terms and conditions of Section 7(g) hereof, and upon your submission to the Company of appropriate documentation substantiating payment by you to the Company’s COBRA vendor of the applicable COBRA coverage premium, reimbursement of the portion of the premium costs for such coverage during the applicable COBRA Reimbursement Period (as hereafter defined) that the Company would pay if you remained employed by the Company at the same level of coverage that was in effect as of the Date of Termination. You shall not be entitled to any other amounts or benefits from the Company other than as set forth in this Section 7(c).
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| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 |
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(d) Resignation by You for Good Reason. Your employment at the Company may be terminated by you for Good Reason if (x) you have given written notice to the Company of the existence of Good Reason no later than forty-five (45) days after its initial existence, (y) the Company has not remedied such Good Reason in all material respects within forty-five (45) days after its receipt of such written notice, and (z) you provide written notice of your resignation to the Company in accordance with Section 7(e) hereunder within one hundred twenty (120) days following the initial existence of such Good Reason. In the event of your termination of your employment for Good Reason: (i) you shall receive the Base Salary and all benefits as generally eligible, in each case through the Date of Termination, (ii) the Company shall have the right to determine whether or not you will actively work for the Company during any notice period, and (iii) provided that you execute and deliver a separation and release agreement in a form acceptable to the Company within the Release Execution Period (and do not revoke such agreement), (A) any unvested Shares shall immediately vest and (B) you will receive (1) an amount equal to twelve (12) months of Base Salary, payable, subject to Section 11 hereof, in twenty-four (24) equal installments in accordance with the Company’s regular payroll schedule, (2) a prorated portion of the Annual Bonus for the fiscal year in which the Date of Termination occurs equal to 100% of your target Annual Bonus amount for the year during which the Date of Termination occurs multiplied by (y) a fraction, the numerator of which is the number of days in the fiscal year that you were employed through the Date of Termination and the denominator of which is 365, payable, subject to Section 11 hereof, in twenty-four (24) equal installments in accordance with the Company’s regular payroll schedule, (3) to the extent not already paid, the Annual Bonus for the year preceding the Date of Termination that you would have received had you remained continuously employed by the Company through the payment date of such Annual Bonus, if any, and (4) subject to your timely election of continuation coverage under COBRA, the eligibility requirements and other terms and conditions of such insurance coverage, the terms and conditions of Section 7(g) hereof, and upon your submission to the Company of appropriate documentation substantiating payment by you to the Company’s COBRA vendor of the applicable COBRA coverage premium, reimbursement of the portion of the premium costs for such coverage during the applicable COBRA Reimbursement Period (as hereafter defined) that the Company would pay if you remained employed by the Company at the same level of coverage that was in effect as of the Date of Termination. You shall not be entitled to any other amounts or benefits from the Company other than as set forth in this Section 7(d).
As used herein, the term “Good Reason” shall mean the occurrence of either of the following, without your consent: (i) a material reduction of your responsibilities or (ii) relocation of your principal place of employment more than fifty (50) miles outside of Newark, New Jersey. Your actions approving or ratifying any of the foregoing changes (that otherwise may be considered Good Reason) in writing will be considered consent for the purposes of this Good Reason definition.
(e) Notice of Termination. Your resignation or any termination of your employment by the Company shall be communicated from one party to the other party by written “Notice of Termination”. Such Notice of Termination shall specify the last day of the Term.
(f) Date of Termination. “Date of Termination” shall mean: (i) if your employment is terminated by your death, the date of your death, or (ii) if your Employment is terminated for any other reason, the date specified in the Notice of Termination as the last day of the Term.
(g) COBRA Reimbursement. In the event that you seek reimbursement for COBRA coverage premiums pursuant to Section 7(c) or 7(d), documentation substantiating payment to the COBRA vendor shall be submitted by you to the Company within thirty (30) days of such payment and the Company shall make reimbursement to you within thirty (30) days of receipt of such documentation. The “COBRA Reimbursement Period” shall begin on the first day of the month following the Date of Termination and end upon the earliest of: (A) the conclusion of 12 months thereafter; (B) the date you are no longer eligible to receive COBRA coverage; and (C) the date on which you otherwise become eligible to receive medical insurance coverage from another employer. You agree to notify the Company within five (5) calendar days of becoming eligible to receive medical insurance coverage from another employer. You agree that if you do not timely elect COBRA coverage with the Company’s COBRA vendor, or do not timely submit COBRA premium payments to the COBRA vendor on an ongoing monthly basis, you will have voluntarily waived you entitlement to receive COBRA reimbursement hereunder. Following the expiration of the COBRA Reimbursement Period, you may elect to continue COBRA coverage for the remainder of the COBRA eligibility period as defined by law, if any, at your own expense. In no event will the Company be obligated to pay any portion of your COBRA coverage premiums for a period beyond the COBRA Reimbursement Period.
(h) Transition. Regardless of the circumstances surrounding your resignation or termination of employment, you hereby agree that upon your resignation or termination of employment, you will return to the Company all Company property and will make every effort to facilitate the orderly transition of your duties and responsibilities.
| 8. | Restrictive Covenants: |
|---|
You hereby acknowledge and agree that the Non-Disclosure and Non-Competition Agreement between you and the Company effective as of March 7, 2021 (which agreement was attached as Schedule A to the Prior Agreement) (the “NDNC”) shall remain in full force and effect.
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| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 | |
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| 9. | Governing Law and Agreements: |
| --- | --- |
During the period of your employment at the Company, you will be required to abide by all policies of the Company, as established from time to time. The terms of your employment, as well as your post-employment obligations, will be governed by the terms of this Letter Agreement, the NDNC, and applicable law. It is agreed that as of the Effective Date, the terms of this Letter Agreement and the NDNC constitute the entire understanding between you and the Company regarding the subject matter hereof and supersede any previous understanding or agreement (whether oral or written) between you and the Company and/or the Company’s management. For the avoidance of doubt, it is clarified that the Prior Agreement shall remain in effect up to and including January 31, 2022.
The Company shall have the right to assign its rights and obligations under this Letter Agreement to any individual, entity, corporation, or partnership that succeeds to all or a portion of the relevant business or assets of the Company. This Letter Agreement is personal to you, and you may not assign your rights and obligations under this Letter Agreement to any third party.
By your signature below, you represent that you are not bound by any agreement, whether oral or written, with a third party, where such agreement would in any way limit your ability to perform your obligations under this Letter Agreement, and you agree that at no time during your employment with the Company will you undertake responsibilities or obligations that will present a conflict of interest with, or limit your ability to fulfil the duties of, your position at the Company.
| 10. | Notices: |
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All notices and other communications under this Letter Agreement shall be in writing and shall be given by hand, by email, or by first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three (3) days after mailing, twenty-four (24) hours after transmission of an email, or immediately upon hand delivery or explicit acknowledgement of receipt.
| 11. | Section 409A of the Internal Revenue Code of 1986 as amended: |
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You and the Company hereby affirm that with respect to any and all payments and benefits under this Letter Agreement, the intent is that such payments and benefits either: (i) do not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code (“Section 409A”), and therefore are exempt from Section 409A, (ii) are subject to a “substantial risk of forfeiture” and are exempt from Section 409A under the “short−term deferral rule” set forth in Treasury Regulation §1.409A−1(b)(4), or (iii) are in compliance with the terms of 409A. In any event, you and the Company further confirm that they intend to have all provisions of this Letter Agreement construed, interpreted and administered in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. By way of example, and not limitation, solely for purposes of determining the time and form of payments, which are subject to Section 409A, due you under this Letter Agreement in connection with your termination of employment with the Company, you shall not be deemed to have incurred a termination of employment unless and until you shall incur a “separation from service” within the meaning of Section 409A. Each amount or installment to be paid or benefit to be provided under this Letter Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Letter Agreement or any other arrangement between you and the Company during the six (6) month period immediately following your separation from service shall instead be paid on the first business day after the date that is six (6) months following your separation from service (or, if earlier, your date of death). To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts reimbursable to you under this Letter Agreement shall be paid to you on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to you) during one year may not affect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Letter Agreement will be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to any such payment. You understand and agree that you shall be solely responsible for the payment of any taxes, penalties, interest or other expenses incurred by you on account of non-compliance with Section 409A.
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| 520<br>Broad Street<br><br><br><br>ewark, NJ 07102 | |
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| 12. | Section 280G. |
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(a) Notwithstanding any other provision of this Letter Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to you or for your benefit pursuant to the terms of this Letter Agreement or otherwise (“Covered Payments”) constitute parachute payments (“Parachute Payments”) within the meaning of Code Section 280G and would, but for this Section 12 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to you of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to you if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes.
(b) The Covered Payments shall be reduced in a manner that maximizes your economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.
(c) Any determination required under this Section 12, including whether any payments or benefits are parachute payments, shall be made by the Company in its sole discretion. You shall provide the Company with such information and documents as the Company may reasonably request in order to make a determination under this Section 12. The Company’s determination shall be final and binding on you.
| 13. | Dispute Resolution: |
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In the event of a dispute between you and the Company arising out of or related to your employment with the Company (with the exception of disputes arising under the NDNC and claims that pursuant to applicable law a party is prohibited from requiring another party to agree to submit to arbitration), you and the Company agree to exclusively settle such dispute by means of arbitration pursuant to the Federal Arbitration Act, administered by the American Arbitration Association (“AAA”), with such arbitration to take place in New Jersey or another mutually agreed upon location and to be conducted in accordance with the AAA’s Employment Arbitration Rules. In such arbitration, a single arbitrator, appointed by the mutual agreement of you and the Company: (i) shall not amend or modify the terms of this Letter Agreement or of any Company policy, and (ii) shall render a decision within ten (10) business days from the later of closing statements or submission of post-hearing briefs by the parties. The arbitration award shall be final and binding, and any state or federal court shall have jurisdiction to enter a judgment on such award. It is understood that this requirement to arbitrate disputes means that by signing below, you and the Company specifically waive any right either party may have to a trial by jury in a court of law with respect to all claims and demands arising out of or related to your employment with the Company, including, without limitation, any rights you may assert under any federal, state, or local laws or regulations applicable to your employment with the Company (with the exception of disputes arising under the NDNC and claims that pursuant to applicable law a party is prohibited from requiring another party to agree to submit to arbitration). For the avoidance of doubt, the parties acknowledge and agree that the existence of a claim by a party that is not subject to arbitration pursuant to this paragraph shall not impair the enforceability of this paragraph with respect to any other claim brought by that party. Notwithstanding the foregoing, nothing in this paragraph shall be interpreted to mean that you cannot file a charge with the Equal Employment Opportunity Commission and/or the National Labor Relations Board or any comparable federal, state, or local governmental agency.
To accept this offer of continued employment and the terms and conditions hereof, please sign and date this Letter Agreement below and return the signed document to David Polinsky at david.polinsky@rafaelholdings.com.
| Very truly yours, | |
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| /s/ Howard Jonas | |
| Howard Jonas | |
| Chairman of the Board | |
| AGREED TO AND ACCEPTED BY: | /s/<br> William Conkling |
| --- | --- |
| William Conkling | |
| DATE: 1/20/22 |
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Exhibit 99.1
William “Bill” Conkling to assumethe role of Chief Executive Officer as of February 1, 2022
NEWARK, NJ – January 21, 2022 (GLOBE NEWSWIRE) -- Rafael Holdings, Inc., (NYSE: RFL), a company focused on discovering and developing novel cancer and immune metabolism therapeuties through its Barer Institute and investment in Rafael Pharmaceuticals, Inc. and other early-stage ventures, today announced several changes to its leadership team. William (Bill) Conkling will remain with the Company and assume the responsibilities of Chief Executive Officer from Ameet Mallik as of February 1, 2022.
Bill Conkling has over 20 years of experience specializing in the development and commercialization of novel cancer therapeutics and currently serves as Rafael’s Chief Commercial and Business Officer. Previously, Bill was Vice President Sales, Marketing, Market Access and Commercial Operations at Immunomedics where he built and led the US commercial organization for the launch of Trodelvy, a breakthrough treatment for patients with triple negative breast cancer. Prior to Immunomedics, Mr. Conkling spent almost 15 years with Novartis Oncology where he held key leadership roles in the development and commercialization of several oncology products, including Kymriah, the first CAR-T therapy approved in the US. Mr. Conkling holds an MBA from New York University’s Stern School of Business, and a B.S. from Fordham University.
Dr. Rick Ewing has recently taken on the role of Head of Drug Discovery and will be responsible for expanding the research and development team and advancing our early-stage pipeline. Prior to joining Rafael Holdings, Dr. Ewing spent 21 years at Bristol Myers Squibb, most recently as Senior Director, Small Molecule Drug Discovery. Mimi Huizinga, Chief Medical Officer, will be leaving the company as of January 31, 2022, to pursue other opportunities.
“I am very pleased that Bill will be taking on the role as Chief Executive Officer. Bill is a deeply experienced leader with a successful track record of bringing innovative oncology drugs to market. I have the utmost confidence in his ability to lead our company as we work to advance, and potentially expand, our early-stage development programs,” said Howard Jonas, Chair of the Board of Rafael Holdings. “Rick’s extensive experience leading teams to deliver development candidates, manage academic collaborations and assess business development opportunities will add tremendous value as we advance our company. We believe our early-stage pipeline has great potential, and Rick will work closely with our world class scientific advisors to advance our programs.”
Dr. Ewing is a senior medicinal chemist with over 30 years of research and business development experience. Over the past 21 years, Dr. Ewing led multiple discovery programs at Bristol Myers Squibb. In his career, Dr Ewing led teams to deliver over 15 development candidates. Dr. **** Ewing has 74 patents, and 73 peer reviewed publications. In 2021, he was awarded the American Chemical Society (ACS) Fellow for his scientific achievements and contributions to the Society, and in 2018 received the Ondetti-Cushman award for leadership of the FXIa team that discovered Milvexian, currently in Phase 2 clinical trials. Over his last 5 years at BMS, Dr. Ewing was involved in over 100 business development evaluations across multiple therapeutic areas including oncology, immunology, fibrosis, heart failure and platform technologies. Dr. Ewing was the discovery chemistry lead for the BMS-Scripps Research and BMS-Princeton University academic collaborations. Rick served as the Integration Lead for small molecule drug discovery for the Bristol Myers Squibb -Celgene acquisition. Prior to Bristol Myers Squibb, Dr. Ewing spent 12 years at Rhone-Poulenc Rorer (now part of Sanofi). Dr. Ewing received his Ph.D. in Organic Chemistry from the University of Pennsylvania, and his B.S. in Chemistry West Chester University of Pennsylvania.
Ameet Mallik will remain a highly engaged member of the company’s Board of Directors and Chair the recently established Transition Committee.
About Rafael Holdings, Inc.
Rafael Holdings is focused on the development of novel cancer and immune metabolism therapeutics. The company owns the Barer Institute, Inc. and is a significant investor in two clinical stage oncology companies, Rafael Pharmaceuticals, Inc., and LipoMedix Pharmaceuticals Ltd. Through the Barer Institute, the company is developing a pipeline of compounds focused on the regulation of cancer and immune metabolism. On June 21, 2021, the company announced that it has entered into a merger agreement to acquire full ownership of Rafael Pharmaceuticals, Inc. For more information, visit www.rafaelholdings.com.
Forward Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements contained in this press release that do not relate to matters of historical fact should be considered forward-looking statements, including without limitation statements regarding our expectations surrounding the potential, safety, efficacy, and regulatory and clinical progress of our product candidates; plans regarding the further evaluation of clinical data; and the potential of our pipeline, including our internal cancer metabolism research programs. These statements are neither promises nor guarantees, but involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements, including, but not limited to, the following: the impact of public health threats, including COVID-19, on our business and operations; we depend heavily on the success of Rafael Pharmaceuticals and the future success of its lead product candidate devimistat (CPI-613^®^), and clinical trials of the product candidate may not be successful; our pharmaceutical companies may not be able to develop any medicines of commercial value; our pharmaceutical companies may not be successful in their efforts to identify or discover potential product candidates; the manufacturing and manufacturing development of our products and product candidates present technological, logistical and regulatory risks, each of which may adversely affect our potential revenue; potential unforeseen events during clinical trials could cause delays or other adverse consequences; risks relating to the regulatory approval process; interim, topline and preliminary data may change as more patient data become available, and are subject to audit and verification procedures that could result in material changes in the final data; our product candidates may cause serious adverse side effects; ongoing regulatory obligations; effects of significant competition; unfavorable pricing regulations, third-party reimbursement practices or healthcare reform initiatives; product liability lawsuits; failure to attract, retain and motivate qualified personnel; the possibility of system failures or security breaches; risks relating to intellectual property and significant costs as a result of operating as a public company. These and other important factors discussed under the caption “Risk Factors” in our Annual Report on Form 10-K for the year ended July 31, 2021, and our other filings with the SEC could cause actual results to differ materially from those indicated by the forward-looking statements made in this press release. Any such forward-looking statements represent management’s estimates as of the date of this press release. While we may elect to update such forward-looking statements at some point in the future, we disclaim any obligation to do so, even if subsequent events cause our views to change.
Contact:
Barbara Ryan
Barbara.ryan@rafaelholdings.com
(203) 274-2825