8-K
Turn Therapeutics Inc. (TTRX)
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):September 30, 2025
TURN THERAPEUTICS
INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 001-42875 | 32-0456090 |
|---|---|---|
| (State or Other Jurisdiction of<br> Incorporation or Organization) | (Commission File Number) | (I.R.S. Employer<br> Identification Number) |
| 250 N. Westlake Blvd. Westlake Village, CA 91362 (818) 564-4011 | ||
| (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) |
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:
| ¨ | Written communications pursuant to Rule 425 under the Securities<br>Act (17 CFR 230.425) | |
|---|---|---|
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange<br>Act (17 CFR 240.14a-12) | |
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| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under<br>the Exchange Act (17 CFR 240.14d-2(b)) | |
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| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)<br>under the Exchange Act (17 CFR 240.13e-4(c)) | |
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| Securities registered pursuant to Section 12(b) of the Act: | ||
| --- | --- | --- |
| Title of Each Class | Trading Symbol | Name of Each Exchange on Which Registered |
| N/A | N/A | N/A |
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 x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement |
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On September 30, 2025 (the “Effective Time”), the Securities Exchange Commission declared effective the registration statement of Turn Therapeutics Inc., a Delaware corporation (“we,” “us,” “our” or the “Company”) on Form S-1 (File No. 333-289972), as amended (the “Registration Statement”) in connection with the direct listing of its common stock, par value $0.0001 per share (“Common Stock”), on the Nasdaq Global Market (the “Direct Listing”), pursuant to which the registered stockholders named in the Registration Statement may from time to time offer and sell up to 17,868,760 shares of Common Stock. In connection with the Direct Listing, the Company entered into the following agreements, the forms of which were previously filed as exhibits to the Registration Statement. Each of the following agreements became effective as of the Effective Time.
| · | On September 11, 2025, we entered into a stockholders agreement (the “Stockholders Agreement”) with our founder and Chief<br>Executive, Bradley Burnam, and his affiliated entity, BEB Holdings, LLC (collectively, the “Holders”), pursuant to which the<br>Holders’ consent will be required for certain corporate actions by the Company. |
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| · | Concurrently with the Stockholders Agreement, we entered into a customary Registration Rights Agreement with the Holders (the “Registration<br>Rights Agreement”), detailing the obligation of the Company to grant certain registration rights to the Holders. |
| --- | --- |
| · | Each of the Stockholders Agreement and Registration Right Agreement contains customary representations, warranties, covenants and<br>agreements of the parties, and customary indemnification obligations of the Company. |
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| · | On September 15, 2025, the Company entered into employment agreements with Bradley Burnam and Zuraiz Chaudhary (collectively, the<br>“Employment Agreements”), detailing the rights and responsibilities of the employees. |
| --- | --- |
The foregoing description of the Stockholders Agreement, Registration Right Agreement and Employment Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Stockholders Agreement, Registration Right Agreement and Employment Agreements, which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4 hereto and are incorporated herein by reference.
The terms of these agreements are substantially the same as the terms set forth in the forms of such agreements filed as exhibits to the Registration Statement and as described therein under “Certain Relationships and Related Party Transactions—Registration Rights Agreement” and “Certain Relationships and Related Party Transactions—Stockholders Agreement” respectively, which description is also incorporated herein by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
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The information set forth under Item 1.01 above and Item 5.03 below is incorporated by reference into this Item 3.03.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain<br>Officers. |
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On September 30, 2025, in connection with the Direct Listing and immediately after the Effective Time, Arthur Golden and Dr. Kent Kester were appointed to the board of directors of the Company (the “Board”). Mr. Golden and Dr. Kester are independent directors. Effective September 30, 2025, Mr. Golden was appointed to the Board’s Audit Committee and Nominating and Corporate Governance Committee, serving as chair of the Compensation Committee. Effective September 30, 2025, Dr. Kester was appointed to the Board’s Audit Committee and Compensation Committee. Biographical information regarding Mr. Golden and Dr. Kester has previously been reported by the Company in the Registration Statement relating to the Direct Listing under the section titled “Management” and is incorporated herein by reference.
Other than the foregoing, none of the directors are party to any arrangement or understanding with any person pursuant to which they were appointed as directors, nor are they party to any transactions required to be disclosed under Item 404(a) of Regulation S-K involving the Company.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
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On September 30, 2025, in connection with the Direct Listing, the Company filed its amended and restated certificate of incorporation (the “Certificate of Incorporation”) with the Secretary of State of the State of Delaware, and its amended and restated bylaws (the “Bylaws”) became effective. As described in the Registration Statement, the Company’s Board and stockholders previously approved the amendment and restatement of these documents to become effective upon the effectiveness of the Registration Statement. A description of certain provisions of the Certificate of Incorporation and the Bylaws is set forth in the section titled “Description of Capital Stock” in the Registration Statement.
The foregoing description of the Certificate of Incorporation and the Bylaws is qualified in its entirety by reference to the full text of (1) the Certificate of Incorporation filed as Exhibit 3.1 hereto and (2) the Bylaws filed as Exhibit 3.2 hereto, each of which is incorporated herein by reference. The descriptions and forms of the Certificate of Incorporation and Bylaws are substantially the same as the descriptions set forth in, and forms filed as exhibits to, the Registration Statement.
| Item 9.01 | Financial Statements and Exhibits. |
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(d) The following exhibits are being filed herewith:
| Exhibit No. | Description |
|---|---|
| 3.1 | Amended and Restated Certificate of Incorporation of Turn Therapeutics Inc. |
| 3.2 | Amended and Restated Bylaws of Turn Therapeutics Inc. |
| 10.1 | Stockholders Agreement, dated as of September 11, 2025, by and between Turn Therapeutics Inc., BEB Holdings, LLC and Bradley Burnam. |
| 10.2 | Registration Rights Agreement, dated as of September 11, 2025, by and between Turn Therapeutics Inc., BEB Holdings, LLC and Bradley Burnam. |
| 10.3 § | Employment Agreement with Bradley Burnam, dated as of September 15, 2025 |
| 10.4 § | Employment Agreement with Zuraiz Chaudhary, dated as of September 15, 2025 |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| § | Indicates a management contract or compensatory plan. |
| --- | --- |
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.
| TURN THERAPEUTICS INC. | ||
|---|---|---|
| Date: October 2, 2025 | ||
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Chief Executive Officer |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBAL HEALTH SOLUTIONS, INC.
The current name of this corporation is Global Health Solutions, Inc. (the “Corporation”). The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 12, 2018, under the name of Global Health Solutions, Inc. This amended and restated certificate of incorporation, which restates, integrates, and amends the provisions of the certificate of incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware and by the written consent of the stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”). The Corporation’s certificate of incorporation is hereby amended and restated to read in its entirety as follows:
Article 1
Name
The name of the corporation is Turn Therapeutics Inc. (the “Corporation”).
Article 2
Registered Office And Agent
The address of its registered office in the State of Delaware is 251 Little Falls Drive, City of Wilmington, County of New Castle, Delaware, 19808. The name of its registered agent at such address is The Company Corporation.
Article 3
Purpose And Powers
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“Delaware Law”).
Article 4
Capital Stock
(A) Authorized Shares
1. Classes of Stock. The total number of shares of stock that the Corporation shall have authority to issue is 600,000,000, consisting of 500,000,000 shares of Common Stock, par value $0.0001 per share (the “Common Stock”), and 100,000,000 shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”).
2. Upon the time that this amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware became effective in accordance with the DGCL (the “Effective Time”), each share of Common Stock issued and outstanding or held in treasury immediately prior to the Effective Time shall be reclassified as, and shall be converted into two shares of fully paid and non-assessable Common Stock (the “Stock Split”), without any action by the holder thereof. No fractional shares of Common Stock shall be issued upon the Stock Split. If the Stock Split would result in any fractional share (after aggregating all fractional shares a holder would otherwise be entitled to receive in connection with the Stock Split), such fractional share will be rounded to the nearest whole share.
3. Preferred Stock. The Board of Directors is hereby empowered, without any action or vote by the Corporation’s stockholders (except as may otherwise be provided by the terms of any class or series of Preferred Stock then outstanding), to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by Delaware Law.
(B) Voting Rights
Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected class or series of Preferred Stock are entitled, either separately or together with the holders of one or more other such affected classes or series of Preferred Stock, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) or pursuant to Delaware Law.
Article 5
Bylaws
The Board of Directors shall have the power to adopt, amend or repeal, in whole or in part, the bylaws of the Corporation (as in effect from time to time, the “Bylaws”) without the assent or vote of the stockholders in any manner not inconsistent with Delaware Law or this Certificate of Incorporation.
The stockholders may adopt, amend or repeal the Bylaws only with the affirmative vote of the holders of not less than 66 2/3% of the voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.
Article 6
Board of Directors
(A) Power of the Board of Directors. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors.
(B) Number of Directors. The number of directors which shall constitute the Board of Directors, as of the date this Certificate of Incorporation becomes effective, shall initially be five and, thereafter, shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Board of Directors.
(C) Election of Directors.
1. The directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be practicable, of one-third of the total number of directors constituting the entire Board of Directors. Each director shall serve for a term ending on the date of the third annual meeting of stockholders next following the annual meeting at which such director was elected; provided that directors initially designated as Class I directors shall serve for a term ending on the date of the 2026 annual meeting, directors initially designated as Class II directors shall serve for a term ending on the 2027 annual meeting, and directors initially designated as Class III directors shall serve for a term ending on the date of the 2028 annual meeting. Notwithstanding the foregoing, each director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall have been duly elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal from office. The Board of Directors is authorized to assign members of the Board of Directors already in office to their respective class at the time such classification becomes effective. In the event of any change in the number of directors, the Board of Directors shall apportion any newly created directorships among, or reduce the number of directorships in, such class or classes as shall equalize, as nearly as possible, the number of directors in each class. In no event will a decrease in the number of directors shorten the term of any incumbent director.
2. The directors shall initially be classified as follows:
| Name | |
|---|---|
| Class I | Bradley Burnam |
| Dr. Neil Ghodadra | |
| Class II | Andrew Gengos |
| Arthur Golden | |
| Class III | Dr. Kent Kester |
3. There shall be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the Bylaws so provide.
(D) Vacancies. Vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, except as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term that shall coincide with the term of the Class to which such director shall have been elected, or until his or her earlier death, resignation, retirement, disqualification or removal.
(E) Removal. No director may be removed from office by the stockholders except for cause with the affirmative vote of the holders of not less than a majority of the total voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.
Article 7
Meetings of Stockholders
(A) Annual Meetings. An annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting shall be held at such place, on such date, and at such time as the Board of Directors shall determine.
(B) Special Meetings. Special meetings of the stockholders may be called by the Chief Executive Officer, the Chairperson of the Board of Directors or by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors.
(C) Action by Written Consent. Prior to the first date on which Bradley Burnam and his affiliated entities and persons cease to beneficially own in the aggregate (directly or indirectly) at least 50% of the voting power of the then outstanding voting stock of the Corporation, any action which is required or permitted to be taken by the Corporation’s stockholders may be taken without a meeting, without prior notice, and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of the Corporation’s stock entitled to vote thereon were present and voted. After such time, subject to the rights of the holders of any class or series of Preferred Stock then outstanding, as may be set forth in the resolution or resolutions adopted by the Board of Directors pursuant to Article 4(A) hereto for such class or series of Preferred Stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law, as amended from time to time, and this Article 7 and may not be taken by written consent of stockholders without a meeting.
Article 8
Indemnification
(A) LimitedLiability. To the fullest extent permitted by Delaware Law, no director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer. Any amendment, repeal or elimination of this Article 8, or the adoption of any provision of the Certificate of Incorporation inconsistent with this Article 8, shall not affect its application with respect to an act or omission by a director or officer occurring before such amendment, adoption, repeal or elimination. Solely for purposes of this paragraph, “officer” shall have the meaning provided in Section 102(b)(7) of the Delaware Law as amended from time to time.
(B) Right to Indemnification.
1. Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this Article 8 shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this Article 8 shall be a contract right.
2. The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(C) Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.
(D) Nonexclusivity of Rights. The rights and authority conferred in this Article 8 shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
(E) Preservation of Rights. Neither the amendment nor repeal of this Article 8, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
Article 9
Amendments
The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Article 4(B), 5, 6, 7 and this Article 9 may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth in any of Article 4(B), 5, 6, 7 or this Article 9, unless, in addition to any vote required by Delaware Law, such action is approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.
Article 10
Corporate Opportunities
To the fullest extent permitted by applicable law, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any of its respective officers, directors, agents, shareholders, members, partners and affiliates (other than the Corporation) (each, a “Specified Party”), even if the opportunity is one that the Corporation might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and each such Specified Party shall have no duty to communicate or offer such business opportunity to the Corporation and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Specified Party pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation. Notwithstanding the foregoing, a Specified Party who is a director or officer of the Corporation and who is offered a business opportunity in his or her capacity as a director or officer of the Corporation (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Corporation, provided, however, that all of the protections of this Article 10 shall otherwise apply to the Specified Parties with respect to such Directed Opportunity, including, without limitation, the ability of the Specified Parties to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another person.
Neither the amendment nor repeal of this Article 10, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation or the bylaws of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
If any provision or provisions of this Article 10 shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article 10 (including, without limitation, each portion of any paragraph of this Article 10 containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Article 10 (including, without limitation, each such portion of any paragraph of this Article 10 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
This Article 10 shall not limit any protections or defenses available to, or indemnification rights of, any director or officer of the Corporation under this Amended and Restated Certificate of Incorporation or applicable law.
Any person or entity purchasing or otherwise acquiring any interest in any securities of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article 10.
Article 11
Miscellaneous
The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation and for the further definition of the powers of the Corporation and of its directors and stockholders:
For so long as that certain Shareholder Agreement, dated as of September 11, 2025, by and among the Corporation and the stockholder(s) named therein, as amended from time to time (the “Shareholder Agreement”), is in effect, the provisions of the Shareholder Agreement shall be incorporated by reference into the relevant provisions hereof, and such provisions shall be interpreted and applied in a manner consistent with the terms of the Shareholder Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation this 11th day of September, 2025.
| /s/ Bradley E. Burnam |
|---|
| Bradley E. Burnam |
| Chief Executive Officer |
Exhibit 3.2
AMENDED and RESTATED BYLAWSOFTURN THERAPUETICS INC.
^* * * * *^
(Effective September 30, 2025)
Capitalized terms used in these Amended and Restated Bylaws (as the same may be further amended and/or restated from time to time, the “Bylaws”) but not otherwise defined herein shall have the meanings given such terms under the Corporation’s Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on September 30, 2025 (as amended and/or restated from time to time, the “Certificateof Incorporation”).
Article 1
Offices
Section 1.01. Registered Office. The registered office of Turn Therapeutics Inc. (the “Corporation”) shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time determine or the business of the Corporation may require.
Section 1.03. Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
Article 2
Meetings of Stockholders
Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, or at no place (by means of remote communication), on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairperson of the Board of Directors in the absence of a designation by the Board of Directors). The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized under Delaware Law. If no determination is made by the Board of Directors, the place of meeting shall be the principal executive offices of the Corporation.
Section 2.02. Annual Meetings. An annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting in accordance with these Bylaws.
Section 2.03. Special Meetings. Unless otherwise provided by the Certificate of Incorporation, special meetings of the stockholders may be called by the Chief Executive Officer, the Chairperson of the Board of Directors or by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors.
i
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a) Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“Delaware Law”), the Certificate of Incorporation of the Corporation, as amended from time to time (the “Certificate of Incorporation”) or these Bylaws, such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. The Board of Directors or the chairperson of the meeting may adjourn the meeting to another time or place (whether or not a quorum is present), and notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which such adjournment is made or provided in any other manner permitted by Delaware Law. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
(b) A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.05. Quorum. Unless otherwise provided under the Certificate of Incorporation or these Bylaws and subject to Delaware Law, the presence, in person or by proxy, of the holders of a majority of the voting power of all outstanding securities of the Corporation generally entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the chairperson of the meeting or a majority in voting power of the stockholders present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted that might have been transacted at the meeting as originally notified.
ii
Section 2.06. Voting. (a) Unless otherwise provided in the Certificate of Incorporation and subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of the holders of a majority of the votes cast at the meeting on the subject matter shall be the act of the stockholders. Abstentions and broker non-votes shall not be counted as votes cast. Subject to the rights of the holders of any class or series of preferred stock to elect additional directors under specific circumstances, as may be set forth in the certificate of designations for such class or series of preferred stock, directors shall be elected by a plurality of the votes cast in respect of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors.
(b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in writing, subscribed by such stockholder or by their attorney thereunto authorized, or by proxy sent by any means of electronic communication permitted by law, which results in a writing from such stockholder or by their attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides for a longer period.
Section 2.07. Action by Consent. Subject to the rights of the holders of any class or series of preferred stock then outstanding, as may be set forth in the certificate of designations for such class or series of preferred stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law and may not be taken by written consent of stockholders without a meeting.
Section 2.08. Organization. At each meeting of stockholders, the Chairperson of the Board of Directors, if one shall have been elected, or in the Chairperson’s absence, if one shall have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairperson of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairperson of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairperson of the meeting.
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Section 2.10. Nomination of Directors and Proposal of Other Business.
(a) AnnualMeetings of Stockholders. (i) Nominations of persons for election to the Board of Directors or the proposal of other business to be transacted by the stockholders at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board of Directors or any committee thereof duly authorized, (C) as may be provided in the certificate of designations for any class or series of preferred stock or (D) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in paragraph (ii) of this Section 2.10(a) and at the time of the annual meeting, who shall be entitled to vote at the meeting and who complies with the procedures set forth in this Section 2.10(a), and, except as otherwise required by law, any failure to comply with these procedures shall result in the nullification of such nomination or proposal. For the avoidance of doubt, the foregoing clause (D) shall be the exclusive means for a stockholder to make nominations or propose other business at an annual meeting of stockholders (other than a proposal included in the Corporation’s proxy statement pursuant to and in compliance with Rule 14a-8 under the Exchange Act).
(ii) For nominations or other business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to clause (D) of paragraph (i) of this Section 2.10(a), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business (other than the nominations of persons for election to the Board of Directors) must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting of stockholders; provided,however, that in the event that the date of the annual meeting is advanced more than 30 days prior to such anniversary date or delayed more than 70 days after such anniversary date then to be timely such notice must be received by the Corporation no earlier than 120 days prior to such annual meeting and no later than the later of 90 days prior to the date of the meeting or the 10^th^ day following the day on which public announcement of the date of the meeting was first made by the Corporation. The minimum timeliness requirements of this paragraph shall apply despite any different timeline described in Rule 14a-19 or elsewhere in Regulation 14A under the Securities Exchange Act of 1934 (as amended (together with the rules and regulations promulgated thereunder), the “Exchange Act”), including with respect to any statements or information required to be provided to the Corporation pursuant to Rule 14a-19 of the Exchange Act by a stockholder and not otherwise specified herein. In no event shall the adjournment, recess or postponement of any meeting, or any announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate for election at the annual meeting on its own behalf (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting.
Notwithstanding anything in this Section 2.10 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation at an annual meeting of stockholders is increased effective after the time period for which nominations would otherwise be due under this Section 2.10 and there is no public announcement by the Corporation naming the nominees for the additional directorships or specifying the size of the increased Board of Directors at least 100 days prior to the first anniversary of the preceding year’s annual meeting of stockholders, a stockholder’s notice required by this Section 2.10 shall also be considered timely, but only with respect to nominees for any new directorships created by such increase, if it shall be delivered to, and received by, the Secretary at the principal executive offices of the Corporation not later than the 10^th^ day following the day on which such public announcement is first made by the Corporation.
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(iii) A stockholder’s notice to the Secretary shall set forth:
(A) as to each person whom the stockholder proposes to nominate for election or reelection as a director:
(1) the name, age, business address and residence address of such person;
(2) the principal occupation or employment of such person;
(3) (i) for each class or series, the number of shares of capital stock of the Corporation that are held of record or are beneficially owned (and proof of any such beneficial ownership) by such person and any affiliates or associates (each within the meaning of Rule 12b-2 promulgated under the Exchange Act for purposes of these Bylaws) of such person, including any such shares that such person, or any affiliates or associates of such person, has the right to acquire beneficial ownership of, (ii) the name of each nominee holder of shares of all capital stock of the Corporation owned beneficially (and proof of any such beneficial ownership) but not of record by such person or any affiliates or associates of such person, and the number of such shares of each class or series of capital stock held by each such nominee holder, including any such shares that such nominee holder has the right to acquire beneficial ownership of, (iii) any agreement, arrangement, relationship or understanding pursuant to which such person, or any affiliates or associates of such person, has a right to vote any shares of any security of the Corporation, (iv) a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such person, or any affiliates or associates of such person, with respect to the Corporation’s securities, and (v) any direct or indirect interest of such person, or any affiliates or associates of such person, in any employment agreement, collective bargaining agreement or consulting agreement with the Corporation;
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(4) all information relating to such person, or any affiliates or associates of such person, that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act;
(5) all completed and signed questionnaires in the same form as those questionnaires required of the Corporation’s directors (which will be provided to such person within 5 business days following a written request therefor);
(6) a statement that such person has read the Corporation’s corporate governance guidelines and any other Corporation policies and guidelines applicable to directors (which will be provided to such person within 5 business days following a written request therefor), and a written agreement from such person to adhere to the foregoing policies and guidelines, as amended from time to time, if he or she is elected as a director;
(7) an executed agreement by such person: (i) consenting to serve as a director if elected and (if applicable) to being named in a proxy statement and/or form of proxy relating to the meeting at which directors are to be elected, along with a representation that such person intends to serve a full term as a director if elected, and (ii) that such person is not and will not become a party to (x) any direct or indirect compensatory, payment or other financial agreement, arrangement or understanding with any other person or entity other than the Corporation, in each case in connection with candidacy or service as a director of the Corporation (a “Third-PartyCompensation Arrangement”) that has not been fully disclosed to the Corporation prior to, or concurrently with, the submission of the notice from the stockholder required by this Section 2.10, (y) any agreement, arrangement or understanding, including the amount of any payment or payments received or receivable thereunder, with any other person or entity as to how such person would vote or act on any issue or question as a director (a “Voting Commitment”) that has not been fully disclosed to the Corporation prior to, or concurrently with, the submission of the notice from the stockholder required by this Section 2.10 or (z) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law; and
(8) such other information reasonably requested by the Corporation to determine whether such person is qualified under the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or any law or regulation applicable to the Corporation to serve as a director and/or independent director of the Corporation;
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(B) as to any other business that the stockholder proposes to bring before the meeting:
(1) a brief description of the business desired to be brought before the meeting;
(2) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment);
(3) the reasons for conducting such business; and
(4) any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made;
(C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(1) the name and address of such stockholder (as they appear on the Corporation’s books) and any such beneficial owner;
(2) a representation as to whether such stockholder or such beneficial owner has complied with all applicable legal requirements in connection with its acquisition of shares or other securities of the Corporation;
(3) a written agreement from such stockholder that it is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear at the meeting in person or through a qualified representative (as defined in Section 2.10(c)(ii)) to make such nomination or proposal;
(4) in the case of a nomination, a written agreement from such stockholder (and such beneficial owner) that it (or they) will not submit any substitute nominations unless they are made within the time periods set forth in this Section 2.10 and the stockholder and the substitute nominees will otherwise comply with this Section 2.10;
(5) in the case of a nomination, a written agreement from such stockholder (and such beneficial owner) that it (or they) has not, and shall not, nominate a number of nominees (inclusive of substitutes) that exceeds the number of directors to be elected at the annual meeting; and
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(6) a written agreement that such stockholder (and such beneficial owner) shall (i) update and supplement the notice required by this Section 2.10, if necessary, so that the information provided or required in such notice shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the annual meeting, and as of the date that is 5 business days prior to the meeting or any adjournment or postponement thereof and (ii) deliver such update and supplement so that it is received by the Secretary at the principal executive offices of the Corporation (A) not later than the later of (x) 5 business days after the record date for determining the stockholders entitled to receive notice of the annual meeting and (y) 5 business days after the first public announcement of such record date, in the case of any update and supplement required to be made as of the record date, and (B) not later than 5 business days before the meeting or any adjournment or postponement thereof, in the case of any update and supplement required to be made as of the date that is 5 business days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this Section 2.10 or any other section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any stockholder’s notice, extend any applicable deadlines under these Bylaws or enable or be deemed to permit a stockholder who has previously submitted a stockholder’s notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of stockholders;
(D) as to each of the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made, and, if such stockholder or beneficial owner is an entity, each person controlling, controlled by or under common control with such stockholder or beneficial owner (each such person or entity contemplated by this clause (D), a “Proposing Person”):
(1) for each class or series, the number of shares of capital stock of the Corporation that are held of record or are beneficially owned (and proof of any such beneficial ownership) by such Proposing Person, or any associates (within the meaning of Rule 12b-2 promulgated under the Exchange Act for purposes of these Bylaws) of such Proposing Person, including any such shares that such Proposing Person, or any associates of such Proposing Person, has the right to acquire beneficial ownership of;
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(2) the name of each nominee holder of each class or series of capital stock of the Corporation that are owned beneficially (and proof of any such beneficial ownership) but not of record by such Proposing Person, or any associates of such Proposing Person, and the number of such shares of each class or series of capital stock of the Corporation held by each such nominee holder, including any such shares that such nominee holder has the right to acquire beneficial ownership of;
(3) a description of any agreement, arrangement, relationship or understanding pursuant to which such Proposing Person, or any associates of such Proposing Person, has a right to vote any shares of any security of the Corporation;
(4) a description of any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation;
(5) a description of (i) any plans or proposals which any such Proposing Person may have with respect to securities of the Corporation that would be required to be disclosed pursuant to Item 4 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable) and (ii) any agreement, arrangement or understanding (including the identity of the parties thereto) with respect to the nomination or other business between or among such Proposing Parties and any other parties, including without limitation any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable), in each case as of the date the notice required by this Section 2.10 is delivered to the Corporation by the stockholder, or beneficial owner in such business, if any, presenting the nomination or other proposal;
(6) a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Proposing Person, or any associates of such Proposing Person, with respect to the Corporation’s securities;
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(7) a written representation as to whether any Proposing Person, or any other participant as defined in Item 4 of Schedule 14A under the Exchange Act, will engage in a solicitation with respect to such nomination or other business and, if so, whether such solicitation will be conducted as an exempt solicitation under Rule 14a-2(b) of the Exchange Act, the name of each participant in such solicitation and the amount of the cost of solicitation that has been and will be borne, directly or indirectly, by each participant in such solicitation and (x) in the case of a proposal of business other than nominations, whether such person or group intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry the proposal, (y) in the case of any solicitation that is subject to Rule 14a-19 of the Exchange Act, confirming that such person or group will deliver, through means satisfying each of the conditions that would be applicable to the Corporation under either Exchange Act Rule 14a-16(a) or Exchange Act Rule 14a-16(n), a proxy statement and/or form of proxy to holders of at least sixty-seven percent (67%) of the voting power of the Corporation’s capital stock entitled to vote generally in the election of directors and/or (z) whether such person or group intends to otherwise solicit proxies or votes from holders in support of such proposal or nomination (for purposes of this clause (7), the term “holders” shall include, in addition to stockholders of record, any beneficial owners pursuant to Rule 14b-1 and Rule 14b-2 of the Exchange Act);
(8) a representation that promptly after any Proposing Person solicits the holders of the Corporation’s stock referred to in the representation required under the preceding clause, and in any event no later than 5 business days before the applicable meeting, such Proposing Person will provide the Corporation with reasonable documentary evidence (as determined by the Corporation or one of its representatives, acting in good faith), which may take the form of a certified statement and documentation from a proxy solicitor, specifically demonstrating that the necessary steps have been taken to deliver a proxy statement and/or form of proxy to holders of such percentage of the Corporation’s stock;
(9) any direct or indirect interest of such Proposing Person, or any associates of such Proposing Person, in any contract (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) with the Corporation, or any affiliate of the Corporation;
(10) any other information relating to such Proposing Person, or any associates of such Proposing Person, or proposed business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies in support of such nominee or proposal pursuant to Section 14 of the Exchange Act; and
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(11) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action.
(b) Special Meetings of Stockholders. If the election of directors is included as business to be brought before a special meeting in the Corporation’s notice of meeting, then nominations of persons for election to the Board of Directors at a special meeting of stockholders may be made by any stockholder who is a stockholder of record at the time of giving of notice provided for in this Section 2.10(b) and at the time of the special meeting, who shall be entitled to vote at the meeting and who complies with the procedures set forth in this Section 2.10(b); provided, however, that the number of nominees a stockholder may nominate for election at the special meeting on its own behalf (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected as such special meeting. For nominations to be properly brought by a stockholder before a special meeting of stockholders pursuant to this Section 2.10(b), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (A) not earlier than 120 days prior to the date of the special meeting nor (B) later than the later of 90 days prior to the date of the special meeting and the 10^th^ day following the day on which public announcement of the date of the special meeting was first made by the Corporation. A stockholder’s notice to the Secretary shall comply with the notice requirements of Section 2.10(a)(iii). The minimum timeliness requirements of this paragraph shall apply despite any different timeline described in Rule 14a-19 or elsewhere in Regulation 14A under the Exchange Act, including with respect to any statements or information required to be provided to the Corporation pursuant to Rule 14a-19 of the Exchange Act by a stockholder and not otherwise specified herein. In no event shall the adjournment, recess or postponement of a special meeting, or any announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such notice of a stockholder shall include the same information, representations, certifications and agreements that would be required if the stockholder were to make a nomination in connection with an annual meeting of stockholders pursuant to the preceding provisions of this Section 2.10, and such stockholder shall be obligated to provide the same supplemental or additional information in connection with a special meeting of stockholders as required pursuant to the preceding provisions of this Section 2.10 in connection with an annual meeting of stockholders.
(c) General. (i) No person shall be eligible to be nominated by a stockholder to be elected or reelected at any meeting of stockholders to serve as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.10. No business proposed by a stockholder shall be conducted at a stockholder meeting except in accordance with this Section 2.10.
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(ii) Without limiting any remedy available to the Corporation, and unless otherwise determined by the Board of Directors, the Chairperson of the Board of Directors or the chairperson of the meeting, a stockholder may not present nominations for director or business proposals at an annual or special meeting of stockholders (and any such nominee shall be disqualified from standing for election or re-election), notwithstanding proxies or votes may have been solicited and/or received with respect thereto, if such stockholder, any beneficial owner, any Proposing Person or any nominee or substitute nominee for director: (A) acted contrary to any representation, statement, certification or agreement required by the applicable provisions of these Bylaws; (B) otherwise failed to comply with these Bylaws or with any law, rule or regulation identified in these Bylaws, including all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.10; provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.10; or (C) provided information to the Corporation (whether required by these Bylaws or otherwise) that is false, misleading, inaccurate or incomplete in any material respect. The Board of Directors, the Chairperson of the Board of Directors or the chairperson of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws or that business was not properly brought before the meeting, and if he/she should so determine, he/she shall so declare to the meeting and the defective nomination shall be disregarded or such business shall not be transacted, as the case may be. Notwithstanding the foregoing provisions of this Section 2.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or other proposed business, such nomination shall be disregarded or such proposed business shall not be transacted, as the case may be, notwithstanding that proxies in respect of such vote may have been received by the Corporation and counted for purposes of determining a quorum. For purposes of this Section 2.10, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
Notwithstanding anything to the contrary in these Bylaws, unless otherwise required by law, if any Proposing Person (i) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act (or has previously filed a preliminary or definitive proxy statement with the information required by Rule 14a-19(b)) with respect to any proposed nominee for election as a director of the Corporation and (ii) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) promulgated under the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such Proposing Person has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the following sentence), then the nomination of each such proposed nominee shall be disregarded, notwithstanding that the nominee is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any meeting (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded). Upon request by the Corporation, if any Proposing Person provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act (or has previously filed a preliminary or definitive proxy statement with the information required by Rule 14a-19(b)), such Proposing Person, shall deliver to the Corporation, no later than 5 business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
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(iii) Compliance with paragraphs (a) and (b) of this Section 2.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than as provided in Section 2.10(c)(iv)).
(iv) Notwithstanding anything to the contrary, the notice requirements set forth herein with respect to the proposal of any business pursuant to this Section 2.10(a) shall be deemed satisfied by a stockholder if such stockholder has submitted a proposal to the Corporation in compliance with Rule 14a-8 under the Exchange Act, and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for the meeting of stockholders.
(v) Any stockholder directly or indirectly soliciting proxies from other stockholders in connection with any annual or special meeting of stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use for solicitation by or on behalf of the Board of Directors.
(vi) For purposes of these Bylaws, “business day” means any day other than Saturday, Sunday or a day on which banks are closed in New York City, New York; and “close of business” means 5:00 p.m. local time at the principal executive offices of the Corporation on any calendar day, whether or not the day is a business day.
Article 3
Directors
Section 3.01. Number,Election and Term of Office. The Board of Directors shall consist of not less than three nor more than twelve directors, with the exact number of directors to be determined from time to time solely by resolution adopted by the affirmative vote of a majority of the Board. As set forth in Article 6 of the Certificate of Incorporation, the directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be practicable, of one-third of the total number of directors constituting the entire Board of Directors. Except as otherwise provided in the Certificate of Incorporation, each director shall serve for a term ending on the date of the third annual meeting of stockholders next following the annual meeting at which such director was elected. Notwithstanding the foregoing, each director shall hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation, retirement, disqualification or removal. Directors need not be stockholders.
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Section 3.02. Quorum and Manner of Acting. Unless the Certificate of Incorporation or these Bylaws require a greater number, a majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors and, except as otherwise expressly required by law or by the Certificate of Incorporation, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.03. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairperson of the Board of Directors in the absence of a determination by the Board of Directors).
Section 3.04. Annual Meeting. The Board of Directors may meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place, if any, either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.06 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.
Section 3.05. Regular Meetings. After the place, if any, and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.
Section 3.06. Special Meetings. Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors or the Chief Executive Officer and shall be called by the Chairperson of the Board of Directors, Chief Executive Officer or the Secretary, on the written request of three directors. Notice of special meetings of the Board of Directors shall be given to each director at least 48 hours before the date of the meeting in such manner as is determined by the Board of Directors. A director may waive notice of a special meeting, which waiver may be given before, at, or after the meeting. Attendance by a director at a special meeting is waiver of notice of that meeting, unless the director objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and thereafter does not participate in the meeting.
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Section 3.07. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter expressly required by Delaware Law to be submitted to the stockholders for approval or (b) adopting, amending or repealing any Bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 3.08. Action by Consent. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission and any consent may be documented, signed and delivered in any manner permitted by Delaware Law. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of proceedings of the Board of Directors or committee in the same paper or electronic form as the minutes are maintained.
Section 3.09. Virtual Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of webcast, live video conference, conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.10. Resignation. Any director may resign from the Board of Directors at any time by giving notice to the Board of Directors or to the Secretary of the Corporation. Any such notice must be in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.11. Vacancies. Unless otherwise provided in the Certificate of Incorporation, vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, except as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term that shall coincide with the term of the Class to which such director shall have been elected. If there are no directors in office, then an election of directors may be held in accordance with Delaware Law. Unless otherwise provided in the Certificate of Incorporation, when one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in the filling of the other vacancies.
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Section 3.12. Removal. No director may be removed from office by the stockholders except for cause with the affirmative vote of the holders of not less than a majority of the total voting power of all outstanding securities of the corporation generally entitled to vote in the election of directors, voting together as a single class.
Section 3.13. Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.
Article 4
Officers
Section 4.01. Principal Officers. The principal officers of the Corporation shall be appointed by the Board of Directors and may consist of a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer and a Compliance Officer who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board of Directors may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.
Section 4.02. Appointment, Term of Office and Remuneration. The principal officers of the Corporation shall be appointed by the Board of Directors in the manner determined by the Board of Directors. Each such officer shall hold office for such period as the Board of Directors may from time to time determine and until their successor is appointed, or until their earlier death, resignation, retirement, disqualification or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.
Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.
Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.
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Section 4.05. Resignations. Any officer may resign at any time by giving notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). Any such notice must be in writing. The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.
Article 5
Capital Stock
Section 5.01. Certificates For Stock; Uncertificated Shares. The shares of the Corporation shall be in book-entry, uncertificated form; provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Except as otherwise provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Corporation by any two authorized officers of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.
Section 5.02. Transfer Of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless waived by the Corporation.
Section 5.03. Authority for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may be lost or destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the registrars of its stock against any claims arising in connection therewith.
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Article 6
Indemnification
Section 6.01. Limited Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by applicable law.
Section 6.02. Right to Indemnification. (a) Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or while an officer or director of the Corporation is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by applicable law. The right to indemnification conferred in this Article 6 shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by applicable law. The right to indemnification conferred in this Article 6 shall be a contract right, provided, however, that, except with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors.
(b) The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by applicable law.
Section 6.03. Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under applicable law.
Section 6.04. Nonexclusivity of Rights. The rights and authority conferred in this Article 6 shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
Section 6.05. Preservation of Rights. Neither the amendment nor repeal of this Article 6, nor the adoption of any provision of the Certificate of Incorporation or these Bylaws, nor, to the fullest extent permitted by applicable law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
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Article 7
General Provisions
Section 7.01. Fixing the Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing such record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may in its discretion or as required by law fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall fix the same date or an earlier date as the record date for stockholders entitled to notice of such adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 7.02. Dividends. Subject to limitations contained in Delaware Law and the Certificate of Incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.
Section 7.03. Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.
Section 7.04. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
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Section 7.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.
Section 7.06. Amendments. These Bylaws or any of them, may be altered, amended or repealed, or new Bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors as provided in the Certificate of Incorporation. Unless a higher percentage is required by the Certificate of Incorporation as to any matter that is the subject of these Bylaws, all such amendments must be approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation, generally entitled to vote in the election of directors, voting together as a single class, or by a majority of the Board of Directors.
Section 7.07. Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of Delaware Law, the Certificate of Incorporation or these Bylaws (in each case, as they may be amended from time to time) or as to which Delaware Law confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) any action asserting a claim governed by the internal affairs doctrine of the law of the State of Delaware, shall be the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, the federal district court for the District of Delaware). Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for any action asserting a cause of action arising under the Securities Act of 1933, or any rule or regulation promulgated thereunder, shall be the federal district courts of the United States. The Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, another court of the State of Delaware, or if no court of the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall have the fullest authority allowed by law to issue an anti-suit injunction to enforce this forum selection clause and to preclude suit in any other forum. Any person or entity holding, purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to consent to (i) the personal jurisdiction of the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, another court of the State of Delaware, or if no court of the State of Delaware has jurisdiction, the federal district court for the District of Delaware) in any proceeding brought to enjoin, or otherwise enforce this Section 7.07 with respect to, any action by that person or entity that is inconsistent with the exclusive jurisdiction provided for in this Section 7.07 (an “Inconsistent Action”) and (ii) having service of process made upon such person or entity in any such proceeding by service upon such person's or entity’s counsel in such Inconsistent Action as agent for such person or entity.
Section 7.08. ShareholdersAgreement. For so long as that certain Shareholders Agreement, dated as of September 10, 2025, by and among the Corporation and the stockholder(s) named therein as amended from time to time (the “Shareholders Agreement”), is in effect, the provisions of the Shareholders Agreement shall be incorporated by reference into the relevant provisions hereof, and such provisions shall be interpreted and applied in a manner consistent with the terms of the Shareholders Agreement.
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Exhibit 10.1
Execution Version
STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of September 11, 2025 (“Agreement”) among the parties listed on the signature pages hereto (each, together with his, her or its Permitted Transferees (as defined below), a “Holder,” and together, the “Holders”) and Turn Therapeutics Inc. (the “Company”).
WHEREAS, the Company intends to complete a direct listing (the “Listing”) of its common stock, par value $0.0001 per share (“Common Stock”) on a national securities exchange;
WHEREAS, the Company and the Holders desire to effect an agreement that during any period following the Listing during which the Holders meet the Substantial Ownership Requirement (as defined below), the Holders’ consent will be required for certain corporate actions by the Company.
NOW, THEREFORE, the parties hereto agree as follows to be effective as of the date of the Listing:
Article 1
Stockholder Rights and Restrictions
Section 1.01*. Approval for Certain CorporateActions.* Until the Substantial Ownership Requirement is no longer met, the Holders’ consent shall be required prior to the consummation of any of the following matters (which consent shall be required in addition to, and not in lieu of, any other approvals required under applicable law):
(a) any transaction or series of related transactions resulting in the merger, consolidation or sale of all, or substantially all, of the assets of the Company and its subsidiaries; any dissolution, liquidation or reorganization (including filing for bankruptcy) of the Company and its subsidiaries or any acquisition of any asset for consideration in excess of 20% of the Total Assets (as defined below) of the Company and its subsidiaries;
(b) any transaction or series of related transactions resulting in the issuance of equity securities, or any other ownership interests, of the Company or any of its subsidiaries for consideration exceeding $50 million, other than under any equity incentive plan that has received the prior approval of the Board of Directors (as defined below);
(c) any amendments to the certificate of incorporation or bylaws of the Company;
(d) the incurrence, guarantee, assumption or refinancing of indebtedness, or grant of a security interest, in each case in excess of 20% of Total Assets (or that would cause aggregate indebtedness or guarantees thereof to exceed 20% of Total Assets);
(e) the establishment or amendment of any equity, purchase or bonus plan for the benefit of employees, consultants, officers or directors;
(e) any capital or other expenditure in excess of 20% of Total Assets;
(f) the declaration or payment of dividends on Common Stock;
(g) any change in the size of the Board of Directors;
(h) any change to the location of headquarters, jurisdiction of incorporation, name or fiscal year end of the Company or any change to the designated registered public accounting firm of the Company;
(i) the adoption of any “poison pill” or similar shareholder rights plan;
(j) any hiring, termination, or replacement of, or establishing the compensation or benefits payable to, or making any other significant decisions relating to the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer or any other senior management or key employee of the Company with annual compensation over $200,000, including entering into new employment agreements or modifying existing employment agreements, adopting or modifying any plans relating to any incentive securities or employee benefit plans or granting incentive securities or benefits to any such individuals under any existing plans; or
(k) any agreement or commitment with respect to any of the foregoing.
Article 2
Representations and Warranties of the Holders
Section 2.01*. Corporation Authorization*. Each Holder that is not a natural person represents and warrants to each of the other Holders and the Company that such Holder is validly organized and existing under the laws of its state of organization and has all requisite power and authority to execute and deliver this Agreement, to perform fully its obligations hereunder and to consummate the transactions contemplated hereby, and that this Agreement constitutes the valid and binding agreement of such Holder.
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Section 2.02*. Non-Contravention*. Each Holder represents and warrants to each of the other Holders and the Company that the execution, delivery and performance by such Holder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) if such Holder is not a natural person, contravene or conflict with, or constitute a violation of, any articles or certificate of incorporation or formation, bylaws, operating agreement, or comparable organizational documents of such Holder; (ii) contravene or conflict with, or constitute a violation of, any material applicable law or any material agreement, or order binding on such Holder; or (iii) result in the imposition of any Lien (as defined below) on any asset of such Holder.
Section 2.03*. Ownership of Shares of CommonStock.* Each Holder represents and warrants to each of the other Holders and the Company that such Holder is the record and beneficial owner of all of the shares of Common Stock owned by them on the date hereof, and that the shares of Common Stock owned by them on the date hereof are owned free of any and all liens, charges, security interests, options, claims, mortgages, pledges, proxies, voting trusts or agreements, obligations, understandings or arrangements or other restrictions on title or transfer of any nature whatsoever (collectively, “Liens”) and any other limitation or restriction (including any restriction on the right to vote or otherwise dispose of the shares of Common Stock), other than transfer restrictions under applicable securities laws, the Company’s Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws. Upon consummation of the Listing, none of the shares of Common Stock will be subject to any voting trust or other agreement or arrangement with respect to the voting of such shares of Common Stock.
Article 3
Representations and Warranties of the Company
The Company represents and warrants to each Holder that:
Section 3.01*. Corporation Authorization*. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to execute and deliver this Agreement, to perform fully its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly authorized by all necessary corporate and other action by the Company and constitutes a legal, valid and binding obligation and agreement of the Company.
Section 3.02*. Non-Contravention*. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) contravene or conflict with, or constitute a violation of, any provision of the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, or any other organizational documents of the Company; (ii) contravene or conflict with, or constitute a violation of, any material applicable law or any material agreement or order binding on the Company; or (iii) result in the imposition of any Lien on any asset of the Company.
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Article 4
Miscellaneous
Section 4.01*. Other Definitional and InterpretativeProvisions.* Unless specified otherwise, in this Agreement the obligations of any party consisting of more than one person are joint and several. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person (as defined below) include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
Section 4.02*. Additional Definitions.*
(a) “Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. It being understood and agreed that, for purposes hereof, neither the Company nor any subsidiary of the Company shall be deemed to be an Affiliate of any Holder.
(b) “Board of Directors” means the Board of Directors of the Company.
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(c) “Organization” means any corporation, partnership, joint venture or enterprise, limited liability company, unincorporated association, trust, estate, governmental entity or other entity or organization, and shall include the successor (by merger or otherwise) of any entity or organization.
(d) “Permitted Transferee” means (i) in the case of any Holder that is not a natural person, any Person that is an Affiliate of such Holder, and (ii) in the case of any Holder that is a natural person, (A) any Person to whom Common Stock are Transferred from such Holder (1) by will or the laws of descent and distribution or (2) by gift without consideration of any kind; provided that, in the case of clause (2), such transferee is the spouse, the lineal descendant, sibling, parent, heir, executor, administrator, testamentary trustee, legatee or beneficiary of such Holder, (B) a trust that is for the exclusive benefit of such Holder or its permitted transferees under (A) above or (C) any institution qualified as tax-exempt under Section 501(c)(3) of the Code.
(e) “Person” means any natural person or Organization.
(f) “Substantial Ownership Requirement” means the beneficial ownership (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) by the Holders collectively, of shares of Common Stock representing at least ten percent (10%) of the issued and outstanding shares of Common Stock.
(g) “Total Assets” of any Person means the consolidated total assets of such Person and its subsidiaries, as determined in accordance with U.S. generally accepted accounting principles, as shown on such Person’s most recent balance sheet.
(h) “Transfer” means (a) a direct or indirect transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance or other disposition of Common Stock, or any legal or beneficial interest therein, including the grant of an option or other right or the grant of any interest that would result in a Holder no longer having the power to vote, or cause to be voted, such Holder’s Common Stock, whether directly or indirectly, whether voluntarily, involuntarily or by operation of law or (b) any agreement to take or commit to any of the foregoing actions; and “Transferred,” “Transferee,” “Transferor,” and “Transferability” shall each have a correlative meaning. For the avoidance of doubt, a transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance or other disposition of an interest in any Holder, or direct or indirect parent thereof, all or substantially all of whose assets are, directly or indirectly, Common Stock shall constitute a “Transfer” of Common Stock for purposes of this Agreement. For the avoidance of doubt, a transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance or other disposition of an interest in any Holder, or direct or indirect parent thereof, which has substantial assets in addition to Common Stock shall not constitute a “Transfer” of Common Stock for purposes of this Agreement.
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Section 4.03*. Further Assurances*. Each party to this Agreement, at any time and from time to time upon the reasonable request of another party to this Agreement, shall promptly execute and deliver, or cause to be executed and delivered, all such further instruments and take all such further actions as may be reasonably necessary or appropriate to confirm or carry out the purposes and intent of this Agreement.
Section 4.04*. Expenses*. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 4.05*. Assignment*. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, other than a transfer to a Permitted Transferee.
Section 4.06*. Governing Law*. This Agreement shall be governed by, construed and enforced in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state.
Section 4.07*. Consent to Jurisdiction.* The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the Delaware Chancery Court, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Section 4.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 4.09. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 4.10*. Counterparts*. This Agreement may be executed (including by facsimile transmission or other electronic signature of this Agreement signed by such party (via PDF, TIFF, JPEG or the like)) with counterpart pages or in one or more counterparts, each of which shall be deemed an original and all of which shall, taken together, be considered one and the same agreement, it being understood that both parties need not sign the same counterpart.
Section 4.11*. Entire Agreement*. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes all prior and contemporaneous agreements and understanding, both oral and written, among the parties hereto with respect to the subject matter hereof
Section 4.12*. Amendments; Waiver.* Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective.
Section 4.13. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition to any other remedy to which they are entitled at law or in equity. Accordingly, it also is agreed that each of the Company and the Holders shall be entitled to an injunction to prevent breaches of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court of the United States or any state having subject matter jurisdiction.
Section 4.14*. Termination*. This Agreement will be effective as of the date of the Listing. This agreement will automatically terminate and be of no force and effect when the Substantial Ownership Requirement is no longer met.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| Turn Therapeutics Inc. | ||
|---|---|---|
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Chief Executive Officer | |
| BEB Holdings, LLC | ||
| --- | --- | --- |
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Manager | |
| By: | /s/ Bradley Burnam | |
| --- | --- | |
| Bradley Burnam |
[Signature Page to the Stockholders Agreement]
Exhibit 10.2
Execution Version
REGISTRATION RIGHTS AGREEMENT
by and among
TURN THERAPEUTICS INC.
and
THE STOCKHOLDERS IDENTIFIED ON THE SIGNATURE PAGE HERETO
Dated as of September 11, 2025
TABLE OF CONTENTS
Page
| Article 1<br><br> Definitions | |
|---|---|
| Section 1.01. Defined Terms | 1 |
| Section 1.02. General Interpretive Principles | 5 |
| Article 2<br><br> Registration Rights | |
| Section 2.01. Demand Registrations | 5 |
| Section 2.02. Piggyback Registrations | 10 |
| Section 2.03. Selection of Underwriter(s) | 11 |
| Section 2.04. Registration Procedures | 12 |
| Section 2.05. Holdback Agreements | 18 |
| Section 2.06. Underwriting Agreement in Underwritten Offerings | 18 |
| Section 2.07. Registration Expenses Paid By Company | 18 |
| Section 2.08. Indemnification | 19 |
| Section 2.09. Reporting Requirements; Rule 144 | 22 |
| Article 3<br><br> Miscellaneous | |
| Section 3.01. Term | 22 |
| Section 3.02. Notices | 22 |
| Section 3.03. Successors, Assigns and Transferees | 23 |
| Section 3.04. Governing Law; No Jury Trial | 24 |
| Section 3.05. Specific Performance | 24 |
| Section 3.06. Headings | 24 |
| Section 3.07. Severability | 24 |
| Section 3.08. Amendment; Waiver | 25 |
| Section 3.09. Further Assurances | 25 |
| Section 3.10. Counterparts and Electronic Signatures | 25 |
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of September 11, 2025 (this “Agreement”), is by and among Turn Therapeutics Inc., a Delaware corporation (the “Company”) and certain stockholders of the Company identified on the signature page hereto (each, a “Holder” and collectively, the “Holders”).
WITNESSETH:
WHEREAS, the Company is currently contemplating a direct listing (“Listing”) of its common stock (as defined below); and
WHEREAS, the Company desires to grant registration rights to the Holders on the terms and conditions set out in this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article 1
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“Action” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority or any federal, state, local, foreign or international arbitration or mediation tribunal.
“Affiliate” in respect of a Person, means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity; provided that the Company and its subsidiaries shall not be considered Affiliates of any Holder for the purpose of this Agreement. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions are authorized or obligated by law to be closed in New York, New York.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company and any shares into which such common stock may thereafter be converted or changed (including, without limitation, by way of a dividend or distribution or share split or in connection with a combination of shares, recapitalization, merger, consolidation, exchange or other reorganization or similar change in the capital structure of the Company involving such common stock).
“Company Notice” has the meaning set forth in Section 2.01(a).
“Demand Registration” has the meaning set forth in Section 2.01(a).
“EDGAR” means the Electronic Data Gathering, Analysis and Retrieval System administered by the SEC or any successor electronic filing system for such purposes.
“Eligible Holders” has the meaning set forth in Section 2.01(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder.
“FINRA” means the Financial Industry Regulatory Authority and any successor thereto.
“Governmental Authority” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof.
“Holder” has the meaning set forth in the preamble to this Agreement and shall include their successors, by merger, acquisition, reorganization or otherwise, any other person who joins this Agreement or is otherwise a permitted transferee pursuant to Section 3.03, and any of their Affiliates, so long as such Person holds any Registrable Securities.
“Initiating Holder(s)” has the meaning set forth in Section 2.01(a).
“Listing” has the meaning set forth in the recitals to this Agreement.
“Loss” or “Losses” has the meaning set forth in Section 2.08(a).
“Person” means an individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority.
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“Piggyback Registration” has the meaning set forth in Section 2.02(a).
“Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments, and all other material incorporated by reference in such prospectus.
“Registrable Securities” means any Shares and any securities issued or issuable directly or indirectly with respect to, in exchange for, upon the conversion of or in replacement of the Shares, whether by way of a dividend or distribution or share split or in connection with a combination of shares, recapitalization, merger, consolidation, exchange or other reorganization; provided that any such Shares shall cease to be Registrable Securities if (i) they have been registered and sold pursuant to an effective Registration Statement, (ii) they have been transferred by a Holder in a transaction in which the Holder’s rights under this Agreement are not, or cannot be, assigned, (iii) they may be sold pursuant to Rule 144 under the Securities Act without limitation thereunder with respect to holding period requirements, volume or manner of sale and the Holder of such securities does not beneficially own more than 1% of outstanding Common Stock, or (iv) they have ceased to be outstanding.
“Registration” means a registration with the SEC of the offer and sale to the public of Common Stock under a Registration Statement. The terms “Register,” “Registered” and “Registering” shall have a correlative meaning.
“Registration Expenses” shall mean all reasonable expenses incident to a Registration and any related offer and sale pursuant to the terms of this Agreement, including all (i) registration, qualification and filing fees; (ii) expenses incurred in connection with the preparation, printing and filing under the Securities Act of the Registration Statement, any Prospectus and any issuer free writing prospectus and the distribution thereof; (iii) the fees and expenses of the Company’s counsel, independent accountants and any experts, any other accounting fees, charges and expenses incurred by the Company (including any expenses arising from any comfort letters or any special audits incident to or required by any registration or qualification), and fees and expenses of one counsel to all Holders, as well one additional counsel in each jurisdiction where a Holder is organized; (iv) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Shares under the state or foreign securities or blue sky laws and the preparation, printing and distribution of a blue sky or legal investment memorandum (including the related fees and expenses of counsel); (v) the costs and charges of any transfer agent and any registrar; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of an offering by, FINRA; (vii) expenses incurred in connection with any “road show” presentation to potential investors; (viii) printing expenses, messenger, telephone and delivery expenses; (ix) internal expenses of the Company (including all salaries and expenses of employees of the Company performing legal or accounting duties); and (x) fees and expenses of listing any Registrable Securities on any securities exchange on which Common Stock are then listed; but excluding any Selling Expenses payable by the Holders.
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“Registration Period” has the meaning set forth in Section 2.01(c).
“Registration Rights” shall mean the rights of the Holders to cause the Company to Register Registrable Securities pursuant to this Agreement.
“Registration Statement” means any registration statement of the Company filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder.
“Selling Expenses” means all underwriting discounts, selling commissions and transfer taxes not customarily paid by the issuer of securities in an offering and that would be applicable to the sale of Registrable Securities hereunder, which for any Registration shall be borne and paid by the Holders in proportion to the number of Registrable Securities registered by or on behalf of each such Holder.
“Shares” means all Common Stock that are beneficially owned by the Holders or any of their Affiliates or any permitted transferee of rights under Section 3.03 from time to time, whether or not held immediately following the Listing.
“Shelf Registration” means a Registration Statement of the Company for an offering to be made on a delayed or continuous basis of Common Stock pursuant to Rule 415 under the Securities Act (or similar provisions then in effect).
“Subsidiary” means, when used with respect to any Person, (a) a corporation in which such Person or one or more Subsidiaries of such Person, directly or indirectly, owns capital stock having a majority of the total voting power in the election of directors of all outstanding shares of all classes and series of capital stock of such corporation entitled generally to vote in such election; and (b) any other Person (other than a corporation) in which such Person or one or more Subsidiaries of such Person, directly or indirectly, has (i) a majority ownership interest or (ii) the power to elect or direct the election of a majority of the members of the governing body of such first-named Person.
“Underwritten Offering” means a Registration in which securities of the Company are sold to an underwriter or underwriters on a firm commitment basis for reoffering to the public.
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Section 1.02. GeneralInterpretive Principles. Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Unless otherwise specified, the terms “hereof,” “herein,” “hereunder” and similar terms refer to this Agreement as a whole (including the exhibits hereto), and references herein to Articles and Sections refer to Articles and Sections of this Agreement. Except as otherwise indicated, all periods of time referred to herein shall include all Saturdays, Sundays and holidays; provided,however, that if the date to perform the act or give any notice with respect to this Agreement shall fall on a day other than a Business Day, such act or notice may be performed or given timely if performed or given on the next succeeding Business Day. References to a Person are also to its permitted successors and assigns. The parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
Article 2
Registration Rights
Section 2.01. Demand Registrations.
(a) Request. Each Holder shall have the right to request that the Company file a Registration Statement with the SEC on the appropriate registration form for all or part of the Registrable Securities held by such Holder once the Registrable Securities that such Holder proposes to register are no longer subject to any lock-up that may be applicable to such securities in connection with the Listing (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Securities) by delivering a written request to the Company specifying the kind and number of shares of Registrable Securities such Holder wishes to Register and the intended method of distribution thereof (a “Demand Registration” and the Holder submitting such Demand Registration, the “InitiatingHolder”). The Company shall within 10 Business Days of the receipt of such request, give written notice of such Demand Registration (the “Company Notice”) to all Holders other than the relevant Initiating Holder (the “Eligible Holders”), and such other Eligible Holders may, upon written request given no later than 10 Business Days following their receipt of the Company Notice, request that the Company also effect the Registration of all or part of each Eligible Holder’s Registrable Securities. Thereafter, the Company shall (i) use its reasonable best efforts to file a Registration Statement in respect of such Demand Registration for all Registrable Securities that the Initiating Holder and Eligible Holders have requested to be included within 45 days of receipt of the Initiating Holder’s request, and (ii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as reasonably practicable thereafter.
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(b) Limitationsof Demand Registrations. There shall be no limitation on the number of Demand Registrations pursuant to Section 2.01(a); provided, however, that, except as set forth in Section 2.01(f), the Holders shall not require the Company to take any action to effect any Demand Registration (i) within six (6) months after a Demand Registration pursuant to this Section 2.01 that has been declared or ordered effective, (ii) during the period starting with the date of filing of, and ending on a date 180 days after the effective date of a Company-initiated registration (other than a registration related solely to the sale of securities to employees of the Company pursuant to an equity incentive plan, share purchase or similar plan or to a Rule 145 transaction); provided that the Company is actively employing in good faith any reasonable efforts to cause such registration statement to become effective. In the event that any Person shall have received rights to Demand Registrations pursuant to Section 3.03, and such Person shall have made a Demand Registration request, such request shall be treated as having been made by the Holder who transferred such rights to such Person. The Registrable Securities requested to be Registered pursuant to Section 2.01(a) (including, for the avoidance of doubt, the Registrable Securities of Eligible Holders requested to be registered) must represent (i) an aggregate offering price of Registrable Securities (before deduction of underwriters’ discounts and commissions) that is reasonably expected to equal at least $20,000,000 or (ii) all of the remaining Registrable Securities owned by the Initiating Holder and its Affiliates.
(c) Effective Registration. The Company shall be deemed to have effected a Registration for purposes of Section 2.01(b) if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC, and remains effective until the earlier of (i) the date when all Registrable Securities thereunder have been sold and (ii) 60 days from the effective date of the Registration Statement (the “Registration Period”). No Registration shall be deemed to have been effective if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such Registration are not satisfied by reason of the Company or the number of Registrable Securities included in any such Registration Statement is reduced in accordance with Section 2.01(e) such that less than 25% of the aggregate number of Registrable Securities requested to be Registered pursuant to Section 2.01(a) are included. If, during the Registration Period, such Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority, the Registration Period shall be extended on a day-for-day basis for any period the Holder is unable to complete an offering as a result of such stop order, injunction or other order or requirement of the SEC or other Governmental Authority.
(d) Underwritten Offering. If the Initiating Holder so indicates at the time of its request pursuant to Section 2.01(a), such offering of Registrable Securities shall be in the form of an Underwritten Offering and the Company shall include such information in the Company Notice. In the event that the Initiating Holder intends to distribute the Registrable Securities by means of an Underwritten Offering, no Holder may include Registrable Securities in such Registration unless such Holder, subject to the limitations set forth in Section 2.06, (i) agrees to sell its Registrable Securities on the basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements in customary form; and (iii) cooperates with the Company’s reasonable requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of this Agreement).
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(e) Priority of Securities in an Underwritten Offering. If the Company, after consultation with the managing underwriter or underwriters of a proposed Underwritten Offering, pursuant to this Section 2.01, determines in good faith that the number of securities requested to be included in such Underwritten Offering exceeds the number that can be sold in such Underwritten Offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the number of securities to be included in such Underwritten Offering shall be reduced in the following order of priority:
first, there shall be excluded from the Underwritten Offering any securities to be sold for the account of any selling securityholder other than the Initiating Holder and the Eligible Holders;
second, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Company; and
third, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Initiating Holder and the Eligible Holders and their respective Affiliates that have been requested to be included therein, pro rata among such Holders based on the number of Registrable Securities so requested to be included in such Registration by each such Holder,
in each case to the extent necessary to reduce the total number of securities to be included in such offering to the number recommended by the Company after consultation with the managing underwriter or underwriters.
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(f) Shelf Registration.
(i) At any time when the Company is eligible to use Form S-3, any Holder may request the Company to effect a Shelf Registration; provided that if the Company is not eligible to use Form S-3 following twelve (12) full calendar months after the Listing, the Company shall effect a Shelf Registration on a Form S-l upon the request of any Holder. The Company shall use its reasonable best efforts to file a Registration Statement in respect of such Shelf Registration within 45 days of receipt of the request, and use its reasonable best efforts to cause such Registration Statement to become effective as soon as reasonably practicable thereafter. The Company shall use its reasonable best efforts to cause such Registration Statement to remain effective under the Securities Act until the earlier of the date (i) all Registrable Securities covered by such Registration Statement have been sold or (ii) all Registrable Securities covered by such Shelf Registration otherwise cease to be Registrable Securities. The Company shall promptly, and within two (2) Business Days after the Company confirms effectiveness of the Registration Statement in respect of such Shelf Registration with the SEC, notify the requesting Holder(s) of the effectiveness of the Registration Statement in respect of such Shelf Registration; provided,however, this requirement shall be satisfied if a notice of effectiveness of the above-referenced Registration Statement has been filed by the SEC on EDGAR by such deadline; provided, further, that notwithstanding the second sentence of this Section 2.01(f), the Company shall (i) use its reasonable best efforts to effectuate any Underwritten Offering from such Shelf Registration (an “Underwritten Shelf Takedown”) requested by an Initiating Holder as soon as practicable after receipt of such request and (ii) only be required to effectuate one (1) Underwritten Shelf Takedown from such Shelf Registration within any three-month period. The provisions of Section 2.01(a)-(e) and (g)-(h) shall apply mutatis mutandis to such Underwritten Shelf Takedown, with references to “file a Registration Statement” or “become effective” being deemed references to filing of a prospectus or supplement for such Underwritten Shelf Takedown and references to “Registration” being deemed references to the Underwritten Shelf Takedown; provided that Eligible Holders shall only include Holders whose Registrable Securities are included in such Shelf Registration or may be included therein without the need for an amendment to such Shelf Registration (other than an automatically effective amendment). So long as the Shelf Registration is effective, the Initiating Holder may not request any Demand Registration pursuant to Section 2.01(a) with respect to Registrable Shares that are Registered on such Shelf Registration; provided that, for the avoidance of doubt, any Holder whose Registrable Securities are included in such Shelf Registration (including such Initiating Holder) may request Underwritten Shelf Takedowns in accordance with this Section 2.01(f).
If the Company shall receive a request from the Initiating Holder that the Company effect a Shelf Registration (including an Underwritten Shelf Takedown), then the Company shall promptly give the Company Notice at least 10 Business Days prior to the anticipated filing date of the registration statement relating to such Shelf Registration or the anticipated pricing of such Underwritten Shelf Takedown, as the case may be, to all Holders other than the Initiating Holder and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the Registration or offering of:
(A) all Registrable Securities for which the Initiating Holder has requested Registration or inclusion in an Underwritten Shelf Takedown under this section, and
(B) all other Registrable Securities of the same class as those requested to be Registered by the Initiating Holder that any Eligible Holders have requested the Company to Register in a Shelf Registration or include in an Underwritten Shelf Takedown, in each case, by request received by the Company within 10 Business Days after such Holders receive the Company Notice,
all to the extent necessary to permit the Registration of the Registrable Securities so to be Registered on such Shelf Registration or inclusion of Registrable Securities in such Underwritten Shelf Takedown, as applicable.
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(ii) At any time prior to the effective date of such Shelf Registration, the Initiating Holder may revoke such request, without liability to any of the other Eligible Holders, by providing a notice to the Company revoking such request. For the avoidance of doubt, such request, if revoked pursuant to this paragraph, shall not constitute a Demand Registration; provided that such Initiating Holder reimburses the Company for all reasonable documented out-of-pocket expenses incurred by the Company in preparation for the inclusion of such Initiating Holder’s Registrable Shares in such Shelf Registration; and the Company shall continue all efforts to secure effectiveness of the applicable Shelf Registration Statement with respect to any other Registrable Securities requested to be included by each of the Holders that has not withdrawn its Registrable Securities.
(iii) The Company shall be liable for and pay all Registration Expenses in connection with any Shelf Registration.
(iv) For the avoidance of doubt, upon notice to the Initiating Holder and any other participating Eligible Holder, the Company may postpone effecting a Shelf Registration pursuant to Section 2.01(g).
(g) Postponement. Upon notice to, in the case of a Demand Registration, the Initiating Holder for such Demand Registration and any other Eligible Holders or, in the case of filing a Shelf Registration or Underwritten Shelf Takedown, the Initiating Holder or Holders requesting such Underwritten Shelf Takedown and any other Holders to which a Company Notice has been delivered with respect to such Underwritten Shelf Takedown, the Company may postpone effecting a Registration or Underwritten Shelf Takedown, as applicable, pursuant to this Section 2.01 on two (2) occasions during any period of twelve (12) consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) the Company reasonably determines in good faith that effecting the Registration or Underwritten Shelf Takedown, as applicable, would materially and adversely affect a proposal or plan by the Company to engage in (directly or indirectly through any of its Subsidiaries): (x) a material acquisition or divestiture of assets; (y) a merger, consolidation, tender offer, reorganization, primary offering of the Company’s securities subject to the ability of Holders to piggyback pursuant to Section 2.02 or similar material transaction; or (z) a material financing or any other material business transaction with a third party or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company.
(h) Right to Withdraw. Unless otherwise agreed, each Holder shall have the right to withdraw such Holder’s request for inclusion of its Registrable Securities in any Underwritten Offering pursuant to this Section 2.01 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of such Holder’s request to withdraw and, subject to the preceding clause, each Holder shall be permitted to withdraw, without liability to the Company or any other Eligible Holders, all or part of such Holder’s Registrable Securities from a Registration at any time prior to the effective date thereof.
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Section 2.02. Piggyback Registrations.
(a) Participation. If the Company proposes to file a Registration Statement under the Securities Act with respect to any offering of Common Stock or otherwise conduct an offering of Common Stock pursuant to an effective Registration Statement, in each case, for its own account and/or for the account of any other Persons (other than a Registration (i) under Section 2.01 hereof, (ii) pursuant to a Registration Statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit arrangement) or Form S-4 or similar form that relates to a transaction subject to Rule 145 under the Securities Act, (iii) pursuant to a registration statement required to be filed pursuant to the Share Purchase Agreement and Registration Rights Agreement, each dated December 7, 2024, by and among the Company, GEM Global Yield LLC SCS and GEM Yield Bahamas Limited (“GEM”) and the Side Letter, dated April 11, 2025, by and among the Company and GEM, (iv) in connection with any dividend reinvestment or similar plan, or (v) for the sole purpose of offering securities to another entity or its security holders in connection with the acquisition of assets or securities of such entity or any similar transaction solely for the purpose of effecting an acquisition of assets or securities of another entity), then, as soon as practicable (but in no event less than five (5) Business Days prior to the proposed date of filing such Registration Statement or the launch of such offering pursuant to an effective Registration Statement, as applicable), the Company shall give written notice of such proposed filing to each Holder, and such notice shall offer such Holders the opportunity to Register under such Registration Statement or otherwise sell in such offering such number of Registrable Securities as each such Holder may request in writing (a “Piggyback Registration”). Subject to Section 2.02(a) and Section 2.02(c), the Company shall include in such Registration Statement or other offering all such Registrable Securities that are requested to be included therein within four (4) Business Days after the receipt of any such notice; provided, however, that if, at any time after giving written notice of its intention to Register or otherwise offer any securities pursuant to this Section 2.02(a) and prior to the effective date of the Registration Statement filed in connection with such Registration or launch of such offering, the Company shall determine for any reason not to Register or to delay Registration or offering of such securities, the Company may, at its election, give prompt written notice of such determination to each such Holder and, thereupon, (i) in the case of a determination not to Register or otherwise offer securities, shall be relieved of its obligation to Register any Registrable Securities in connection with such Registration and shall have no liability to any Holder in connection with such termination, and (ii) in the case of a determination to delay Registration or other offer of securities, shall be permitted to delay Registering any Registrable Securities for the same period as the delay in Registering such other Common Stock, in each case without prejudice, however, to the rights of any Holder to request that such Registration be effected as a Demand Registration under Section 2.01. For the avoidance of doubt, no Registration or other offering effected under this Section 2.02 shall relieve the Company of its obligation to effect any Demand Registration under Section 2.01. If the offering pursuant to a Registration Statement pursuant to this Section 2.02 is to be an Underwritten Offering, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.02(a) shall, and the Company shall use reasonable best efforts to coordinate arrangements with the underwriters so that each such Holder may, participate in such Underwritten Offering. If the offering pursuant to such Registration Statement is to be on any other basis, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.02(a) shall, and the Company shall use reasonable best efforts to coordinate arrangements so that each such Holder may, participate in such offering on such basis. If the Company files a Shelf Registration for its own account and/or for the account of any other Persons, the Company agrees that it shall use its reasonable best efforts to include in such Registration Statement such disclosures as may be required by Rule 430B under the Securities Act in order to ensure that the Holders may be added to such Shelf Registration at a later time through the filing of a Prospectus supplement rather than a post-effective amendment.
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(b) Right to Withdraw. Unless otherwise agreed, each Holder shall have the right to withdraw such Holder’s request for inclusion of its Registrable Securities in any Underwritten Offering pursuant to this Section 2.02 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of such Holder’s request to withdraw and, subject to the preceding clause, each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration at any time prior to the effective date thereof.
(c) Priority of Piggyback Registration. If the Company, after consultation with the managing underwriter or underwriters of a proposed Underwritten Offering, determines in good faith that the number of securities requested to be included in such Underwritten Offering exceeds the number which can be sold in such Underwritten Offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Underwritten Offering shall be reduced in the following order of priority:
first, there shall be excluded from the Underwritten Offering any securities to be sold for the account of any selling securityholder other than the Holders,
second, there shall be excluded from the Underwritten Offering any securities to be sold for the account of Holders and their Affiliates that have been requested to be included therein, pro rata among such Holders based on the number of Registrable Securities so requested to be included in such Registration by each such Holder,
third, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Company,
in each case to the extent necessary to reduce the total number of securities to be included in such offering to the number recommended by the Company after consultation with the managing underwriter or underwriters.
Section 2.03. Selection of Underwriter(s). In any Underwritten Offering pursuant to Section 2.01, the Initiating Holder shall select the underwriter(s), providing that such selection is acceptable to the Company, acting in good faith.
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Section 2.04. Registration Procedures.
(a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities as quickly as commercially practicable in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, the Holders participating in such Registration and their respective counsel, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters, the Holders and their respective counsel, with an adequate and appropriate opportunity for review and comment, and (B) consider in good faith any comments of the underwriters and such Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the later of (x) the 3rd anniversary after the effective date of such Registration Statement or (y) the date on which all Shares Registered thereon have been sold;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in any material respect, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
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(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the selling Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
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(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder, the managing underwriter or underwriters, if any, and the transfer agent to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends and the delivery of any required legal opinions in connection therewith; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two (2) Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s (“DTC”) Direct Registration System;
(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
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(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with DTC; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of DTC’s Direct Registration System;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion and negative assurance letter from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement and any customary certificates executed by authorized officers of the Company as may be requested by any Holder or any underwriter of such Registrable Securities;
(xv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) enter into such customary agreements (including underwriting and indemnification agreements), make such representations and warranties and take all such other actions as any participating Holder or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities in form, substance and scope as are customarily made by issuers in public offerings similar to the offering then being undertaken for the Registrable Securities;
(xvii) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder and covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the Registration Statement;
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(xviii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xix) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any shares of the Company’s Common Stock are then listed or quoted and on each inter-dealer quotation system on which any shares of the Company’s Common Stock are then quoted, including the filing of any required supplemental listing application;
(xx) in the case of an Underwritten Offering, provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act) of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing; provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xx) shall agree to use best efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
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(xxi) in the case of an Underwritten Offering, to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxii) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the period during which the applicable Registration Statement for a Demand Registration is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v) or is advised in writing by the Company that the use of the Prospectus may be resumed.
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Section 2.05. HoldbackAgreements. Each of the Company and each Holder that sells Registrable Securities in an Underwritten Offering pursuant to this Agreement agrees, upon notice from the managing underwriter or underwriters in connection with such Underwritten Offering of the Company’s securities, not to effect (other than pursuant to such Registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to Rule 144, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of, any Registrable Securities, any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company without the prior written consent of the managing underwriters during such period as reasonably requested by the managing underwriters (but in no event longer than the seven (7) days before and the 90 days after the pricing of such Underwritten Offering); and subject to reasonable and customary exceptions to be agreed with such managing underwriter or underwriters, including, but not limited to, permitting Holders to transfer or distribute Shares to their respective affiliates, stockholders, partners, members, or investment funds or vehicles. Notwithstanding the foregoing, (i) no holdback agreements of the type contemplated by this Section 2.05 shall be required of participating Holders unless the Company and each of the Company’s directors and executive officers agrees to be bound by a substantially identical holdback agreement for at least the same period of time and (ii) in the event of any conflict between this Section 2.05 and the terms of a specific holdback agreement, such holdback agreement shall control.
Section 2.06. Underwriting Agreement in Underwritten Offerings. If requested by the managing underwriters for any Underwritten Offering, the Company and the participating Holders shall enter into an underwriting agreement in customary form with such underwriters for such offering; provided, however, that no Holder shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding (i) such Holder’s ownership of Registrable Securities to be transferred free and clear of all liens, claims and encumbrances created by such Holder, (ii) such Holder’s power and authority to effect such transfer, (iii) such matters pertaining to such Holder’s compliance with securities laws, and (iv) such Holder’s intended method of distribution, in each case as may reasonably be requested) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 2.08 hereof.
Section 2.07. Registration Expenses Paid By Company. In the case of any Registration of Registrable Securities required pursuant to this Agreement (including any Registration that is delayed or withdrawn) or proposed Underwritten Offering pursuant to this Agreement, the Company shall pay all Registration Expenses regardless of whether the Registration Statement becomes effective or the Underwritten Offering is completed. The Company shall have no obligation to pay any Selling Expenses for Registrable Securities offered by any Holders, however for the avoidance of doubt, the Company shall be required to pay any selling expenses in relation to any offering of Common Stock for its own account pursuant to any Registration Statement that may also relate to any Registrable Securities offered by any Holders pursuant to this Agreement.
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Section 2.08. Indemnification.
(a) Indemnificationby the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Holder and such Holder’s officers, directors, employees, advisors, Affiliates and agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act ) such Holder from and against any and all losses, claims, damages, liabilities (or actions in respect thereof, whether or not such indemnified party is a party thereto) and expenses, joint or several (including reasonable and documented costs of investigation and legal expenses) (each, a “Loss” and collectively “Losses”) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the Securities Act (including any final or preliminary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein), any such statement made in any free writing prospectus (as defined in Rule 405 under the Securities Act) that the Company has filed or is required to file pursuant to Rule 433(d) of the Securities Act, any other document produced by or on behalf of the Company or any of its subsidiaries that is filed under the Exchange Act, or any testing-the-waters materials, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus, free writing prospectus or testing-the-waters materials, in light of the circumstances under which they were made) not misleading; provided, however, that the Company shall not be liable to any particular indemnified party in any such case to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any such Registration Statement in reliance upon and in conformity with written information furnished to the Company by such indemnified party expressly for use in the preparation thereof and such untrue statement or omission was not subsequently corrected in writing by such indemnified party to the indemnifying party prior to the sale of any such Registrable Securities. This indemnity shall be in addition to any liability the Company may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the transfer of such securities by such Holder.
(b) Indemnificationby the Selling Holder. Each selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the full extent permitted by law, the Company and the Company’s directors, officers, employees, advisors, Affiliates and agents and each Person who controls the Company (within the meaning of the Securities Act and the Exchange Act) from and against any Losses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the Securities Act (including any final or preliminary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein), or any such statement made in any free writing prospectus that the Company has filed or is required to file pursuant to Rule 433(d) of the Securities Act or testing-the-waters materials, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus, free writing prospectus or testing-the-waters materials, in light of the circumstances under which they were made) not misleading but only to the extent, in each of cases (i) or (ii), that such untrue statement or omission is contained in any information furnished in writing by such selling Holder to the Company expressly for inclusion in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or testing-the-waters materials and such untrue statement or omission was not subsequently corrected in writing by such Selling Holder to the Company prior to the sale of any such Registrable Securities. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder under the sale of the Registrable Securities giving rise to such indemnification obligation. This indemnity shall be in addition to any liability the selling Holder may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any indemnified party.
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(c) Conductof Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt (but in any event within 30 days after such Person has actual knowledge of the facts constituting the basis for indemnification) written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any delay or failure to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder except to the extent that it is materially prejudiced by reason of such delay or failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the Person entitled to indemnification hereunder, (c) the named parties to any proceeding include both such indemnified and the indemnifying party and the indemnified party has reasonably concluded (based on written advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, or (d) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent, but such consent may not be unreasonably withheld. If the indemnifying party assumes the defense, the indemnifying party shall not have the right to settle such action without the consent of the indemnified party, which consent may not be unreasonably withheld. No indemnifying party shall consent to entry of any judgment or enter into any settlement without the consent of the indemnified party which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation, but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm (in addition to any appropriate local counsel) at any one time from all such indemnified party or parties unless (x) the employment of more than one counsel has been authorized in writing by the indemnifying party or parties, (y) an indemnified party has reasonably concluded (based on written advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other indemnified parties or (z) a conflict or potential conflict exists or in the reasonable judgment of such indemnified party may exist (based on advice of counsel to an indemnified party) between such indemnified party or parties and the other indemnified parties, in each of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel.
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(d) Contribution. If for any reason the indemnification provided for in Section 2.08(a) or Section 2.08(b) is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 2.08(a) or Section 2.08(b), then the indemnifying party shall, to the fullest extent permitted by law, in lieu of indemnifying such indemnified party thereunder, contribute to the amount paid or payable by the indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with the statements or omissions which resulted in such Loss as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.08(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.08(d). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The amount paid or payable by an indemnified party hereunder shall be deemed to include, for purposes of this Section 2.08(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. If indemnification is available under this Section 2.08, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.08(a) and Section 2.08(b) hereof without regard to the relative fault of said indemnifying parties or indemnified party. Notwithstanding anything in this Section 2.08(d) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 2.08(d) to contribute any amount in excess of the amount by which the net proceeds (after deducting the underwriters’ discounts and commissions) received by such indemnifying party from the sale of Registrable Securities in the offering to which the Losses of the indemnified parties relate (before deducting expenses, if any) exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such untrue statement or omission (which may include, but is not limited to, any amounts paid pursuant to Section 2.08(b) or paid as a result of liabilities incurred under the underwriting agreement, if any, related to such sale of Registrable Securities in the offering to which the Losses of the indemnified parties relate).
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Section 2.09. Reporting Requirements; Rule 144. Following the Listing, the Company shall use its reasonable best efforts to be and remain in compliance with the periodic filing requirements imposed under the SEC’s rules and regulations, including the Exchange Act, and thereafter shall timely file such information, documents and reports as the SEC may require or prescribe under Section 13 or 15(d) (whichever is applicable) of the Exchange Act. If the Company is not required to file such reports during such period, it will, upon the request of any Holder, make publicly available such necessary information for so long as necessary to permit sales pursuant to Rule 144 or Regulation S under the Securities Act, and it will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell or distribute Registrable Securities without Registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 (including in-kind distributions exempt from the requirements of Rule 144) or Regulation S under the Securities Act, as such Rules may be amended from time to time, or (b) any rule or regulation hereafter adopted by the SEC. From and after the date hereof through the date upon which no Holder owns any Registrable Securities, the Company shall forthwith upon request furnish any Holder (i) a written statement by the Company as to whether it has complied with such requirements and, if not, the specifics thereof, (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents filed by the Company with the SEC as such Holder may reasonably request in availing itself of an exemption for the sale of Registrable Securities without registration under the Securities Act.
Article 3
Miscellaneous
Section 3.01. Term. This Agreement may be terminated by written agreement among the parties, and shall terminate on the date on which there are no remaining Registrable Securities held by the Holders; and in respect of any individual Holder, shall cease to apply to such Holder at such time as it holds no Registrable Securities, except for the provisions of Section 2.07 and Section 2.08 and all of this Article 3, which shall survive any such termination.
Section 3.02. Notices. All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when (a) delivered in person, (b) deposited in the United States mail or private express mail, postage prepaid, addressed as follows or (c) when sent by email upon confirmation or acknowledgment of receipt thereof:
If to a Holder, to its address as set forth opposite its name on Schedule 1 hereto.
If to the Company to:
Turn Therapeutics Inc.
250 N. Westlake Blvd.
Westlake Village, CA 91362
Attention: Bradley Burnam
Email: brad@turntherapeutics.com
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with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Michael Kaplan, Stephen A. Byeff
Email: michael.kaplan@davispolk.com; stephen.byeff@davispolk.com
Any party may, by notice to the other party, change the address to which such notices are to be given.
Section 3.03. Successors, Assigns and Transferees. (a) This Agreement and all provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Company may assign this Agreement at any time in connection with a sale or acquisition of the Company, whether by merger, consolidation, a sale of all or substantially all of the Company’s assets, or a similar transaction, without the consent of the Holders; provided that the successor or acquiring Person agrees in writing to assume all of the Company’s rights and obligations under this Agreement. A Holder may assign its rights and obligations under this Agreement to any transferee that (i) is an Affiliate of a Holder, (ii) is a Holder’s or an Affiliate of a Holder’s family member or trust for the benefit of an individual or such person’s family member, or (iii) acquires from such Holder in a private placement a number of Ordinary Shares equal to at least 5% of the aggregate number of outstanding Ordinary Shares; and, in each case, executes a joinder agreement in the form attached hereto as Exhibit A. In addition, any Holder may assign its rights and obligations under this Agreement to any Affiliate of such Holder that directly holds Shares that executes a joinder in the form attached hereto as Exhibit A. Notwithstanding the foregoing, if such transfer is subject to covenants, agreements or other undertakings restricting transferability thereof, the Registration Rights shall not be transferred in connection with such transfer unless such transferee complies with all such covenants, agreements and other undertakings. Except as set forth in this Section 3.03, the Holders may not assign their rights and obligations hereunder.
(b) Joinder. The Company shall be permitted to join stockholders of the Company as parties to this Agreement by having such stockholders execute a joinder agreement in the form attached hereto as Exhibit A.
(c) Limitation on Subsequent Rights. Notwithstanding Section 3.03(b), the Company shall not, without the prior written consent of the Holders, enter into any agreement with any holder or prospective holder of any securities of the Company that would provide to such holder the right to include any of such securities in any registration filed under Section 2.01 hereof on other than a pro rata basis or a subordinate basis with respect to the Registrable Securities.
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Section 3.04. Governing Law; No Jury Trial.
(a) This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof that would result in the application of any law other than the laws of the State of New York. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE.
(b) With respect to any Action relating to or arising out of this Agreement, each party to this Agreement irrevocably (i) consents and submits to the exclusive jurisdiction of the courts of the State of New York and any court of the United States located in the Borough of Manhattan in New York City; (ii) waives any objection which such party may have at any time to the laying of venue of any Action brought in any such court, waives any claim that such Action has been brought in an inconvenient forum and further waives the right to object, with respect to such Action, that such court does not have jurisdiction over such party; and (iii) consents to the service of process at the address set forth for notices in Section 3.02 herein; provided, however, that such manner of service of process shall not preclude the service of process in any other manner permitted under applicable law.
Section 3.05. Specific Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the party or parties who are or are to be thereby aggrieved shall have the right to seek specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.
Section 3.06. Headings. The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 3.07. Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the parties.
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Section 3.08. Amendment; Waiver.
(a) This Agreement may not be amended or modified and waivers and consents to departures from the provisions hereof may not be given, except by an instrument or instruments in writing making specific reference to this Agreement and signed by the Company and Holders of a majority of the Registrable Securities as of such time; provided, however, that any amendment, modification or waiver that results in a non-pro rata adverse effect on the rights of a Holder under this Agreement will require the written consent of such Holder.
(b) Waiver by any party of any default by the other party of any provision of this Agreement shall not be deemed a waiver by the waiving party of any subsequent or other default, nor shall it prejudice the rights of the other party or parties.
Section 3.09. Further Assurances. Each of the parties hereto shall execute and deliver all additional documents, agreements and instruments and shall do any and all acts and things reasonably requested by the other party hereto in connection with the performance of its obligations undertaken in this Agreement.
Section 3.10. Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. This Agreement may be delivered via facsimile, electronic mail or other electronic format (including, but not limited to, “pdf,” “tif,” “jpg” or any other electronic imaged signature, including, without limitation, signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or “AdobeSign”) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the U.S. federal Electronic Signatures in Global and National Commerce (ESIGN) Act of 2000, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.
[Remainder of the Page Intentionally Left Blank;Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
| Turn Therapeutics Inc. | ||
|---|---|---|
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Chief Executive Officer | |
| BEB Holdings, LLC | ||
| --- | --- | --- |
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Manager | |
| By: | /s/ Bradley Burnam | |
| --- | --- | --- |
| Name: | Bradley Burnam |
[Signature Page to the Registration Rights Agreement]
EXHIBIT A
Form of Joinder Agreement
[●], 2025
Reference is hereby made to the Registration Rights Agreement, dated September 11, 2025 (the “RRA”), by and between Turn Therapeutics Inc., a Delaware corporation (the “Company”), and the Holders named therein. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the RRA.
Pursuant to Section 3.03 of the RRA, each of the undersigned hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, it shall be deemed to be a party to the RRA as if it were an original signatory thereto and hereby expressly assumes, and agrees to perform and discharge, all of the obligations and liabilities of a party thereto as the case may be, under the RRA. All references in the RRA to the “Holders” shall hereafter include each of the undersigned and their respective successors, as applicable.
Each of the undersigned hereby agrees to promptly execute and deliver any and all further documents and take such further action as the Company, the Holders or any undersigned party may reasonably require to effect the purpose of this Joinder Agreement.
This Joinder Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof that would result in the application of any law other than the laws of the State of New York. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE.
With respect to any Action relating to or arising out of this Joinder Agreement, each party to this Joinder Agreement irrevocably (i) consents and submits to the exclusive jurisdiction of the courts of the State of New York and any court of the United States located in the Borough of Manhattan in New York City; (ii) waives any objection which such party may have at any time to the laying of venue of any Action brought in any such court, waives any claim that such Action has been brought in an inconvenient forum and further waives the right to object, with respect to such Action, that such court does not have jurisdiction over such party; and (iii) consents to the service of process at the address set forth for notices in Section 3.02 in the RRA; provided, however, that such manner of service of process shall not preclude the service of process in any other manner permitted under applicable law.
[Signature Pages Follow]
EXHIBITA-1
IN WITNESS WHEREOF, the parties hereto have executed this Joinder Agreement as of the date herein above set forth.
| Company: | |
|---|---|
| Turn Therapeutics Inc. | |
| By: | |
| Name: | |
| Title: | |
| [Assignee]: | |
| --- | --- |
| By: | |
| Name: | |
| Title: |
SCHEDULE 1
Addresses for Notice for Holder Parties to Registration Rights Agreement
| Holder’s Name | Address for Notice |
|---|---|
| BEB Holdings LLC | 250 N. Westlake Blvd., Westlake Village, CA 91362 |
SCHEDULE 1-1
Exhibit 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”), dated as of September 15, 2025, is by and between Turn Therapeutics, Inc., a Delaware limited liability company (the “Company”), and Bradley E. Burnam (the “Executive”).
WHEREAS, the Company desires to employ the Executive, and the Executive desires to accept such employment, in each case on the terms and conditions set forth in this Agreement;
WHEREAS, this Agreement is intended to supersede any and all prior agreements, arrangements and understandings between the Company and the Executive relating to the provision of services by the Executive to the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, terms and conditions set forth herein, and intending to be legally bound hereby, the Company and the Executive hereby agree as follows:
1. Effectiveness of Agreement; Term of Employment. This Agreement shall become effective as of the date on which the Company’s registration statement on the Form S-1 in connection with the direct listing of its common stock is declared effective by the U.S. Securities and Exchange Commission (the “Effective Date”) and shall remain in effect until terminated in accordance with the provisions set forth herein (the “Term”).
2. Employment and Duties.
(a) General. For the period of the Executive’s employment during the Term, the Executive shall serve as the Chief Executive Officer of the Company. The Executive shall have such duties and responsibilities as are commensurate with the Executive’s position, as may be assigned to the Executive from time to time by the Board of Directors of the Company (the “Board”). During the Term, the Executive shall directly report to the Board. During the Term, the Executive shall serve as a member of the Board.
(b) Services. During the period of the Executive’s employment during the Term, the Executive shall devote his full-time working time and attention to the Executive’s duties hereunder, shall faithfully serve the Company and shall use his best efforts to promote and serve the interests of the Company. During the Term, the Executive shall not engage in any other business, profession or occupation, whether paid or unpaid, or serve on any board of directors or any other company; provided, however, that, with the prior written consent of the Board, which consent shall not be unreasonably withheld, the Executive may (i) serve as a member of the board of directors or advisory boards (or their equivalents in the case of a non-corporate entity) of no more than two non-competing business or charitable organizations, (ii) engage in charitable activities and community affairs and (iii) manage the Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii) and (iii) shall not materially interfere, individually or in the aggregate, with the performance of the Executive’s duties and responsibilities hereunder or otherwise create a conflict of interest with the interests of the Company and its subsidiaries.
Notwithstanding the foregoing, the Executive may engage in personal media projects and speaking roles, provided that such activities (i) do not materially interfere with the performance of the Executive’s duties and responsibilities hereunder, (ii) do not create a conflict of interest with the interests of the Company and its subsidiaries and are not competitive with the business of the Company and (iii) are reasonably expected to promote the mission, public visibility or commercial interests of the Company (the “Permitted Projects”). The Company may, at its sole discretion, elect to support or contribute resources to such Permitted Projects if it determines that doing so is in its strategic interest. In connection with any Permitted Projects, the Executive agrees that the Executive will not attribute, or cause to be attributed, any of his own personal views or opinions to the Company or take any action that is or could reasonably be expected to be materially injurious to the operations, financial condition or business reputation of the Company.
(c) Company Policies. The Executive shall be subject to and shall abide by each of the Company's personnel policies applicable to the Executive to the extent applicable to similarly situated employees of the Company or as otherwise required by law or applicable stock exchange listing rules, including but not limited to, any code of conduct, any insider trading policy, any policy restricting pledging and hedging investments in equity securities of the Company, any share ownership policy or commitment and any policy regarding the recoupment of compensation that the Company may adopt from time to time or that may otherwise be required under any applicable law or applicable listing rules. This Section 2(d) shall survive the termination of the Term.
(d) Location. The Executive shall perform his duties remotely; provided that the Executive shall travel to other locations as may be reasonably required from time to time to fulfill the Executive’s duties.
3. Compensation and Other Benefits. Subject to the provisions of this Agreement, the Company shall pay and provide the following compensation and other benefits to the Executive during the Term as compensation for services rendered hereunder:
(a) Base Salary. The Company shall pay to the Executive an annual salary (the “Base Salary”) at the rate of $575,000, payable in accordance with the Company’s ordinary payroll practices as established from time to time. During the Term, the Base Salary will be reviewed annually by, and is subject to adjustment at the sole discretion of, the Board (or the compensation committee thereof).
(b) AnnualBonus. For each fiscal year of the Company during the Term, the Executive shall be eligible to participate in, and receive an annual cash bonus under, the Company's annual cash performance bonus program, as established by the Board (or the compensation committee thereof) from time to time (the “Annual Bonus”). The Executive’s target Annual Bonus shall be equal to 50% of the Executive’s Base Salary in effect for the applicable fiscal year (the “Target Bonus”). The actual amount of the Annual Bonus for any fiscal year, if any, shall be subject to an assessment, in the sole discretion of Board (or the compensation committee thereof), of Company and individual performance in accordance with the terms of the annual cash bonus program established by the Board (or the compensation committee) in respect of such fiscal year. The actual amount of the Executive’s Annual Bonus earned in respect of any fiscal year shall be paid no later than March 15 of the year following the fiscal year to which such Annual Bonus relates. Except as provided in Section 4 below, in order to receive payment of the Annual Bonus for any fiscal year, the Executive must remain employed by the Company through the applicable payment date of such Annual Bonus.
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(c) Equity Compensation. Commencing with the Company’s 2026 fiscal year, for each year during the Term, the Executive shall be eligible to receive annual equity awards under the Omnibus Plan or any other equity incentive plan as in effect from time to time. The targeted grant date fair value of such annual equity awards shall be equal to 50% of Base Salary in effect for the applicable fiscal year, which will be reviewed annually by the Board (or the compensation committee thereof); provided that the actual amount of any annual equity awards granted to the Executive by the Board (or the compensation committee thereof) with respect to any fiscal year shall be determined in the sole discretion of the Board (or the compensation committee thereof). The terms of such annual equity awards shall be determined by the Board (or the compensation committee thereof) in its sole discretion in accordance with the terms of the applicable equity incentive plan.
(d) Other Benefits. During the Term, the Executive shall be eligible to participate in the employee benefit plans and programs applicable generally to other similarly situated executives of the Company, in accordance with the terms of such plans, as they may be amended from time to time; provided that, during the Term, the Company shall reimburse (or pay on the Executive’s behalf) the applicable premiums for private health insurance coverage maintained by the Executive (including, for the avoidance of doubt, premiums for any coverage of pre-existing conditions) consistent with the Company’s historical practice prior to the Effective Date (such private health insurance coverage, the “Health Insurance Coverage”).
(e) Expenses. The Company shall reimburse the Executive for reasonable travel and other business-related expenses incurred by the Executive in the fulfillment of his duties hereunder; provided, in each case, that such expenses are incurred and accounted for in accordance with the policies and procedures established by the Company. Any such reimbursement of expenses shall be made by the Company upon or as soon as practicable following receipt of supporting documentation reasonably satisfactory to the Company (but in any event not later than the close of the Executive’s taxable year following the taxable year in which the expense is incurred).
(f) Vacation. During the Term, the Executive shall be entitled to vacation in accordance with the Company’s policies to the same extent applicable generally to other similarly situated employees of the Company, as they may be amended from time to time.
(g) Indemnification. During the Term, the Executive shall be covered by the Company’s Directors and Officers (D&O) liability insurance policy and indemnified to the maximum extent permitted by the Company’s Amended and Restated Operating Agreement (as may be amended from time to time) and appliable law.
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4. Termination of Employment.
(a) Generally. The Term and the Executive’s employment under this Agreement shall be terminated in accordance with this Section 4: (i) immediately upon the Executive’s death or Disability (as defined below); (ii) by the Company at any time for Cause (as defined below) or, upon at least 30 days’ prior written notice, without Cause; (iii) voluntarily by Executive without Good Reason (as defined below) upon at least 60 days’ prior written notice (provided that, at any time after the Executive has provided such written notice to the Company, the Company may, in its sole discretion, elect to terminate the Executive’s employment hereunder at any time prior to the end of such 60-day period, in which case, and notwithstanding anything to the contrary in this Agreement or otherwise, the Executive shall thereupon only be entitled to receive the Accrued Obligations (as defined below), and such termination of employment will not constitute a termination of employment without Cause, result in Good Reason or otherwise entitle Executive to any Severance Benefits (as defined below)); or (iv) by the Executive for Good Reason. The effective date of the termination of the Executive’s employment hereunder is referred to herein as the “Termination Date”.
(b) Termination for Cause or Resignation Without Good Reason. If the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive without Good Reason, the Executive shall be entitled to receive:
(i) any accrued but unpaid Base Salary through Termination Date;
(ii) reimbursement for any unreimbursed business expenses properly incurred by the Executive in accordance with Company policy prior to Termination Date; and
(iii) such accrued and vested employee benefits, if any, as to which the Executive may be entitled under the employee benefit plans of the Company.
The amounts described in clauses (i) through (iii) above shall hereinafter be referred to as the “Accrued Obligations.”
(c) Death or Disability. If the Executive’s employment with the Company terminates due to the Executive’s death or Disability (as defined below), the Executive (or his or her estate, executor, administrator or trustee, as the case may be) shall be entitled to receive (i) the Accrued Obligations and (ii) any earned but unpaid Annual Bonus for the fiscal year prior to the fiscal year of the Company in which the Termination Date occurs (the “Prior Year Bonus”).
(d) TerminationWithout Cause or For Good Reason (non-Change in Control). If the Executive’s employment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, in each case other than during the CIC Protection Period (as defined below), then the Executive shall be entitled to receive the Accrued Obligations and, subject to the Executive’s execution and non-revocation of the release of claims described in Section 4(f) and continued compliance with Sections 5 through 8 and 11 and any other restrictive covenant agreement with the Company to which the Executive is a party (collectively, the “ContinuingObligations”), the Executive shall be entitled to receive the following (collectively, the “Non- CIC SeveranceBenefits”):
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(i) the Company shall continue to pay the Executive his Base Salary at the rate in effect as of the Termination Date for a period of 12 months following the Termination Date, payable in accordance with the Company’s payroll practices;
(ii) an amount equal to the Executive’s Annual Bonus for the year in which the Termination Date occurs, based on the actual level of achievement of the applicable performance goals and prorated based on the number of days the Executive is employed during such fiscal year through the Termination Date, payable at the same time annual bonuses are otherwise paid in respect of such fiscal year; and
(iii) continued reimbursement (or payment on the Executive’s behalf, as applicable) of monthly premiums for the Health Insurance Coverage for a period of 12 months at the same rate as in effect as of the Termination Date.
(e) Termination Without Cause or For Good Reason (Change in Control). If the Executive’s employment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, in each case during 3 months prior to, or within 12 months following, a Change in Control (as defined in the Omnibus Plan (the “CIC Protection Period”)), then the Executive shall be entitled to receive the Accrued Obligations and, subject to the Executive’s execution and non-revocation of the release of claims described in Section 4(f) and continued compliance with the Continuing Obligations, the Company shall pay the Executive, within 60 days following the Termination Date, a lump sum payment equal to sum of the following (the “CIC Severance Benefits”, together with the Non-CIC Severance Benefits, the “Severance Benefits”):
(i) two times the Executive’s Base Salary as in effect on the Termination Date;
(ii) the Executive’s Target Bonus for the year in which the Termination Date occurs; and
(iii) An amount equal to the product of (x) the monthly premiums for the Health Insurance Coverage as in effect as of the Termination Date multiplied by (y) 24 months.
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(f) Conditionsto Severance Benefits. Notwithstanding anything to the contrary herein, the Severance Benefits shall be provided to the Executive only if (i) the Executive has executed and delivered to the Company a waiver and general release of claims, in a form to be reasonably provided promptly by the Company following the Termination Date (the “Release”), which such Release must be executed, delivered and be irrevocable within 60 days after the Termination Date, (ii) the Executive has not revoked or breached the provisions of such Release and (iii) the Executive has not materially breached the Continuing Obligations (as defined below). Notwithstanding anything to the contrary herein, any payment of the Severance Benefits under Section 4(c)(i) or 4(c)(ii) that is scheduled to occur during the first 60 days following the Termination Date shall not be paid until the first regularly scheduled payroll date following such period and shall include payment of any amount that was otherwise scheduled to be paid prior thereto. If the period during which the Executive may execute or revoke the Release spans 2 taxable years of the Executive, the Severance Benefits shall in all events be paid to the Executive in the second such taxable year, and any Severance Benefits that otherwise would have been payable during the first taxable year shall be paid in a lump sum in the first calendar month of the second taxable year. If, following a termination of employment pursuant to Section 4(c), the Executive materially breaches any of the Continuing Obligations, the Executive shall cease to be eligible for the Severance Benefits, and any and all obligations and agreements of the Company with respect to such payments and benefits shall thereupon cease.
(g) For purposes of this Agreement, “Cause” means the occurrence of any of the following: (i) the Executive’s gross misconduct or violation of law that is materially injurious to the operations, financial condition or business reputation of the Company, (ii) the Executive’s commission of an act of misappropriation, fraud, embezzlement or breach of a fiduciary duty to the Company; (iii) the Executive’s conviction of, or plea of guilty or nolo contendere with respect to, a (x) felony or (y) other crime involving moral turpitude; (iv) the Executive’s material breach of this Agreement or material breach of any of the Continuing Obligations; (v) the Executive’s material violation of any Company written policy or code of conduct; (vi) the Executive’s willful and continued failure or refusal to substantially perform (other than as a result of Disability), or willful misconduct or gross negligence with respect to the performance of, Executives material duties to the Company; or (vii) the Executive engaging in conduct that is or could reasonably be expected to be materially injurious to the operations, financial condition or business reputation of the Company; provided, however that the Executive shall not be deemed to have been terminated for Cause, unless (x) written notice has been delivered to him or her setting forth the Company’s reasons for the termination for Cause and, (y) except in the case of clauses (ii) and (iii), the Executive has not cured (if curable) the breaches or failures set forth in such notice within 30 days after receipt of such notice.
(h) For purposes of this Agreement, “Disability” means the Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in the Executive’s death or which has lasted or can be expected to last for a continuous period of no less than 12 months.
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(i) For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without the Executive’s consent: (a) a reduction in the Executive’s Base Salary by more than 10%; (b) a material reduction in the Executive’s Target Bonus; (c) a material diminution in the Executive’s authority, title, duties or responsibilities under this Agreement or change in reporting such that the Executive no longer directly reports to the Board; (d) a material breach by the Company of this Agreement; (e) the Company requiring the Executive to work principally from a Company office that is more than 25 miles from the Executive’s primary residence; and (f) that this Agreement not being assumed by an acquirer or successor of the Company as a result of a merger or a stock or asset sale. Notwithstanding the foregoing, the Executive will not be deemed to have resigned for Good Reason unless (x) the Executive has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within 30 days following the initial existence or occurrence of such circumstances, (y) the Company has not reasonably cured such circumstances within 30 days from the date on which such notice is received from the Executive and (z) the Executive resigns from his employment effective no later than 30 days after the expiration of such cure period.
5. Confidentiality.
(a) Confidential Information.
(i) Subject to Section 5(b), the Executive agrees that he shall not at any time, except as required in order to perform his services hereunder or with the prior written consent of the Company, or, to the extent permitted pursuant to subsection 5(a)(ii), as required by law, directly or indirectly, (A) use, disseminate, disclose or publish, whether for his benefit or the benefit of any person, firm, corporation or other entity, any Confidential Information or (B)deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any Confidential Information. “Confidential Information” means (A) confidential or proprietary information or trade secrets of or relating to the Company Group including, without limitation, intellectual property in the form of patents, trademarks and copyrights and applications thereof, ideas, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or materials, in each case, that are confidential and/or proprietary and owned, developed or possessed by the Company Group, whether in tangible or intangible form or (B) confidential or proprietary information with respect to the Company Group’s operations, processes, products, inventions, business practices, strategies, business plans, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, prospects and compensation paid to employees or other terms of employment.
(ii) In the event that the Executive becomes legally compelled to disclose any Confidential Information, the Executive shall provide the Company with prompt written notice so that the Company may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of such Confidential Information or take only such action as is legally required by binding order and shall exercise his reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded any such Confidential Information.
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(b) WhistleblowerProvision. The Executive has the right under federal law to certain protections for cooperating with or reporting legal violations to the Securities and Exchange Commission (the “SEC”) and/or its Office of the Whistleblower, as well as certain other governmental entities and self-regulatory organizations. As such, nothing in this Agreement or otherwise prohibits or limits the Executive from disclosing this Agreement to, or from cooperating with or reporting violations to or initiating communications with, the SEC or any other such governmental entity or self-regulatory organization, and the Executive may do so without notifying the Company. Neither the Company nor any of its subsidiaries or affiliates may retaliate against the Executive for any of these activities, and nothing in this Agreement or otherwise requires the Executive to waive any monetary award or other payment that the Executive might become entitled to from the SEC or any other governmental entity or self-regulatory organization. Moreover, nothing in this Agreement or otherwise prohibits the Executive from notifying the Company that the Executive is going to make a report or disclosure to law enforcement. Notwithstanding anything to the contrary in this Agreement or otherwise, as provided for in the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Without limiting the foregoing, if the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding, if the Executive (x) files any document containing the trade secret under seal, and (y) does not disclose the trade secret, except pursuant to court order.
(c) Exclusive Property. The Executive confirms that all Confidential Information is and shall remain the exclusive property of the Company. To the extent that the Executive acquires any right, title or interest in or to any Confidential Information, the Executive hereby assigns, transfers, conveys and delivers to the Company all such right, title and interest in and to such Confidential Information. All business records, papers and documents and electronic files (including emails) kept or made by the Executive relating to the business of the Company shall be and remain the property of the Company. Upon the request and at the expense of the Company, the Executive shall promptly make all disclosures, execute all instruments and papers and perform all acts reasonably necessary to vest and confirm in the Company, fully and completely, all rights created or contemplated by this Section 5. The Executive further agrees that, upon termination of the Executive’s employment with the Company for any reason whatsoever, the Executive shall return to the Company immediately all Confidential Information and all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company.
6. Non-competition. The Executive agrees that, for a period commencing on the Effective Date and ending 12 months after the date of the Executive’s termination of employment with the Company for any reason (the “Restricted Period”), the Executive shall not, without the prior written consent of the Board, directly or indirectly, and whether as principal or investor or as an employee, officer, director, manager, partner, consultant, agent or otherwise, alone or in association with any other person, firm, corporation or other business organization, carry on, own, manage, operate, participate in or be employed or engaged by, a Competing Business (as defined below) in any state within the United States or foreign jurisdiction in which the Company or any of its subsidiaries is then engaged, or at any time during the Term becomes or became engaged, in a Competing Business; provided, however, that nothing herein shall limit the Executive’s right to own not more than 5% of any of the debt or equity securities of any business organization that is then filing reports with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Agreement, “Competing Business” means a business or entity that engages in the research, development, marketing, and/or commercialization of topical therapies for wound care, dermatitis, onychomycosis, and/or thermostable intranasal vaccines.
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7. Non-Solicitation. The Executive agrees that during the Restricted Period, the Executive shall not, directly or indirectly, (i) induce or attempt to induce any employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries, or in any way interfere with the relationship between the Company or any of its subsidiaries and any employee thereof, or (ii) hire directly or through another entity any person who is or was an employee of the Company or any of its subsidiaries at any time during the 6 months prior to the date such person is to be so hired (other than any person who was terminated by the Company or any of its subsidiaries without cause prior to being so hired), or (iii) induce or attempt to induce any customer, client, supplier, vendor, licensee or other business relation of the Company or any of its subsidiaries to cease doing business with the Company or any of its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any of its subsidiaries. As used herein, the term “indirectly” shall include, without limitation, the Executive’s permitting the use of the Executive’s name by any person or entity (other than the Company or any of its subsidiaries) to induce or interfere with any employee, customer, supplier, licensee or other business relation of the Company or any of its subsidiaries.
8. Assignment of Developments.
(a) Assignment. The Executive acknowledges and agrees that any and all Developments (as defined below) are and shall be deemed “works made for hire” under 17 U.S.C. § 101 and any other applicable law and shall be and remain the sole and exclusive property of the Company, free and clear of any reserved or other rights of any kind on the Executive’s part (including any Moral Rights), all of which are hereby waived by the Executive. Without limiting the generality of the foregoing, to the extent any Developments do not qualify as a “work made for hire” under applicable law, the Executive hereby irrevocably assigns, transfers, conveys and delivers to the Company all of his right, title and interest in, to and under all such Developments, together with all of the goodwill associated therewith.
(b) Disclosure. The Executive shall disclose in writing to the Board promptly and fully any and all Developments upon their discovery, conception, creation, development or reduction to practice. The Executive shall not use or incorporate any third-party Intellectual Property Rights into any Developments without the Board’s prior written consent.
(c) FurtherAssurances. The Executive shall, at any time upon request and at the expense of the Company, execute, acknowledge and deliver to the Board all instruments, and take any and all other actions (including, among other things, the execution and delivery under oath of patent or copyright applications and instruments of assignment), that are necessary or desirable in the reasonable opinion of the Board to enable the Company to file and prosecute applications for, and to acquire, maintain, record, register, defend and enforce, any of the Company’s rights in any and all Developments in all countries in which the same are deemed necessary by the Board.
(d) Waiver of Moral Rights. To the extent the Executive may do so under applicable law, the Executive hereby waives and agrees never to assert any Moral Rights that the Executive may have in or with respect to any Developments, even after termination of the Executive’s work on behalf of the Company or any of its subsidiaries.
(e) No Challenges. The Executive also agrees that during and after the Term, (a) the Executive will not, directly or indirectly, initiate an inter partes review, derivation proceeding, a covered business method review, post-grant review or other similar administrative review, or otherwise challenge the validity, enforceability or scope of, or any of the Company’s rights in, to or under, any Development, and (b) the Executive will, at the Company’s request and expense, assist the Company to respond to any challenge to the ownership, validity, enforceability or scope of any such Development.
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(f) Records. All data, memoranda, notes, lists, drawings, records, files, investor and client/customer lists, supplier lists and other documentation (and all copies thereof) made or compiled by the Executive or made available to the Executive concerning the Developments or otherwise concerning the past, present or planned business of the Company and its subsidiaries are the property of the Company, and will be delivered to the Company or destroyed (at the Board’s request) immediately upon the termination of the Executive’s employment with the Company.
(g) Definitions. For purposes of this Section 8:
(i) “Developments” shall mean any and all work product, developments, products, conferences, training/seminars, publications, programs, methods of organizing information, inventions, discoveries, concepts, designs, ideas, improvements and other works, reports, computer software or systems, apparatuses, flow charts, diagrams, procedures, data, documentation and writings and applications thereof, and all Intellectual Property Rights, including any and all Intellectual Property Rights in, to or otherwise relating to any of the foregoing, in each case, (A) relating to the business or future business of the Company or any of its subsidiaries or any of their actual or anticipated research or development, (B) conceived, created or developed using any resources, equipment, supplies, facilities, trade secrets, know-how or other Confidential Information of the Company or any of its subsidiaries, or (C) resulting from any work performed by the Executive for the Company or any of its subsidiaries, in each case of clauses (A) – (C), that the Executive, alone or jointly with others, has discovered, conceived, created, made, developed, reduced to practice, or acquired during the Executive’s employment. For the avoidance of doubt, any Intellectual Property Rights conceived, created, made, developed, reduced to practice or acquired by the Executive as part of any Permitted Project shall not be a “Development” hereunder so long as such Intellectual Property Rights (i) do not relate to the business or future business of the Company or any of its subsidiaries or any of their actual or anticipated research or development, (ii) are not conceived, created or developed using any resources, equipment, supplies, facilities, trade secrets, know-how or other Confidential Information of the Company or any of its subsidiaries and (iii) do not result from any work performed by the Executive for the Company or any of its subsidiaries (it being understood that, if the Executive’s podcast entitled “Breaking Brad” is a Permitted Project hereunder, then any discussion or promotion on such podcast by the Executive of the Company and/or the Company’s founding shall not constitute a “Development” hereunder).
(ii) “Intellectual Property Rights” shall mean any and all patents, trademarks, trade names, copyrights, mask works, trade secrets, designs, know-how and all other intellectual property and proprietary rights recognized by any applicable law of any jurisdiction, and all registrations and applications for registration of, and all goodwill associated with, the foregoing.
(iii) “Moral Rights” shall mean any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, or to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under any applicable law of any jurisdiction, regardless of whether or not such right is denominated or generally referred to as a "moral right."
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9. CertainRemedies. The Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5 through 8 and 11. The Executive agrees without reservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential Information and other legitimate interests of the Company; that each and every one of those restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him from obtaining other suitable employment during the period in which the Executive is bound by these restraints. Without intending to limit the remedies available to the Company, the Executive agrees that a breach of any of the covenants contained in Sections 5 through 8 or 11 may result in material and irreparable injury to the Company Group for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the Company shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining the Executive from engaging in activities prohibited by the covenants contained in Sections 5 through 8 or 11 or such other relief as may be required specifically to enforce any of the covenants contained in this Agreement. Such injunctive relief in any court shall be available to the Company in lieu of, or prior to or pending determination in, any proceeding. The parties further agree that, in the event that any provision of Sections 5 through 8 or 11 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
10. Cooperation. During the Term and thereafter, the Executive shall cooperate in good faith with the Company in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company (including, without limitation, the Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company all pertinent information and turning over to the Company all relevant documents which are or may come into the Executive’s possession, all at times and on schedules that are reasonably consistent with the Executive’s other permitted activities and commitments). The Company will reimburse the Executive for any reasonable, out-of-pocket travel, lodging and meal expenses incurred in connection with the Executive’s performance of obligations pursuant to this Section 10 for which Executive has obtained prior written approval from the Company.
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11. Nondisparagement. During the Executive’s employment with the Company and thereafter, (i) the Executive agrees that he shall not make, or cause or assist any other person or entity to make, any statement or other communication to any third party, reporter, author, producer or similar person or entity or to any general public media (collectively, “Third Parties”) in any form or medium (including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/internet format or any other medium), which disparages, impugns or attacks, or is otherwise critical of, the reputation, business or character (each, a “Disparaging Statement”) of the Company or any of its directors, officers, employees or shareholders, and (ii) the Company agrees that it shall direct its directors and officers not to make any Disparaging Statements about the Executive to any Third Party.
12. Nonassignability; Binding Agreement.
(a) By the Executive. This Agreement and any and all rights, duties, obligations or interests hereunder shall not be assignable or delegable by the Executive.
(b) By the Company. This Agreement and all of the Company’s rights and obligations hereunder shall not be assignable by the Company except as incident to a reorganization, merger or consolidation, or transfer of all or substantially all of the Company’s assets, or to an affiliate of the Company.
(c) Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto, any successors to or assigns of the Company and the Executive’s heirs and the personal representatives of the Executive’s estate.
13. Withholding. Any payments made or benefits provided to the Executive under this Agreement shall be reduced by any applicable withholding taxes or other amounts required to be withheld by law or contract.
14. Amendment; Waiver. This Agreement may not be modified, amended or waived in any manner, except by an instrument in writing signed by both parties hereto. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
15. Governing Law. All matters affecting this Agreement, including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the State of Delaware (other than conflict of laws principles), applicable to contracts executed in and to be performed in that State.
16. Arbitration. Any controversy or claim relating to this Agreement any breach thereof, and any claims the Executive may have against the Company or any officer, director, manager, or employee of the Company or arising from or relating to the Executive’s employment with the Company, will be settled solely and finally by arbitration in Delaware in accordance with the Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association then in effect in the State of Delaware, and judgment upon such award rendered by the arbitrator(s) may be entered in any court having jurisdiction; provided that the arbitrator shall be selected from a list of qualified arbitrators that is mutually agreed upon by the Company and the Executive. Any award made by the arbitrator(s) shall be final, binding and conclusive on the parties for all purposes, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties acknowledge and agree that their obligations to arbitrate under this Section 16 survive the termination of this Agreement and continue after the termination of the employment relationship between the Executive and the Company.
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17. Waiver of Jury Trial. EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
18. Survival of Certain Provisions. The rights and obligations of this Agreement that are intended to survive the termination or expiration of this Agreement (including without limitation those set forth in Sections 5 through 11) shall survive any termination or expiration of this Agreement.
19. EntireAgreement; Supersedes Previous Agreements. This Agreement contains the entire agreement and understanding of the parties hereto with respect to the matters covered herein and supersedes all prior or contemporaneous negotiations, commitments, agreements and writings with respect to the subject matter hereof, and all such other negotiations, commitments, agreements and writings shall have no further force or effect, and the parties to any such other negotiation, commitment, agreement or writing shall have no further rights or obligations thereunder, including, without limitation, the Employment Agreement dated as of August 9, 2017, by and between the Executive and the Company.
20. Notices. Any notices or other communications provided for in this Agreement shall be sufficient if in writing. In the case of the Executive, such notices or communications shall be effectively delivered if hand-delivered to the Executive at his principal place of employment or if sent by registered or certified mail to the Executive at the last address on file with the Company. In the case of the Company, such notices or communications shall be effectively delivered if sent by registered or certified mail to the Company at its principal executive offices.
21. Section 409A.
(a) It is intended that the provisions of this Agreement comply with or are exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (together with the regulations and other interpretive guidance issued thereunder, “Section409A”), and all provisions of this Agreement will be construed and interpreted in a manner consistent with such intent. In no event shall the Company or any of its affiliates be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A. For purposes of Section 409A, each right to a payment hereunder will be deemed a “separate payment” within the meaning of Treas. Reg. Section 1.409A-2(b)(iii). With respect to the timing of payments of any deferred compensation payable upon a termination of employment hereunder, references in this Agreement to “termination of employment” (and substantially similar phrases) mean “separation from service” within the meaning of Section 409A.
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(b) To the extent that Executive is a “specified employee” within the meaning of Section 409A as of the date of Executive’s separation from service (as determined by the Company), no amounts payable under this Agreement that constitute “deferred compensation” within the meaning of Section 409A that are payable on account of Executive’s separation from service shall be paid to Executive until the expiration of the 6-month period measured from the date of such separation from service (or, if earlier, the date of Executive’s death following such separation from service). Upon the first business day following the expiration of such delay period, all such amounts deferred pursuant to the preceding sentence will be paid to Executive (without interest).
(c) Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A, (x) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (y) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
22. Section 280G. If the Executive would be entitled to payments or benefits under this Agreement or under any other plan, program, agreement or arrangement that would constitute “parachute payments” as defined in Section 280G of the Code and could result in any such payment or benefit being subject to an excise tax under Section 4999 of the Code, the present value of the Executive’s payments and benefits will be reduced by the minimum amount necessary such that the aggregate present value of such payments and benefits do not trigger the excise tax; provided, however, no such reductions shall be given effect if Executive would be entitled to greater payments and benefits on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes) than if such reductions were to be implemented. If payments or benefits are to be reduced, any such reduction in payments and/or benefits shall be made in accordance with Section 409A and shall occur in the manner that results in the greatest economic benefit to the Executive as determined by the Company’s independent accountant. All determinations in applying the foregoing provisions for purposes of the “golden parachute” rules under Sections 280G and 4999 of the Code will be made by the Company’s independent accountant and shall be final and binding on the parties.
23. Executive Representation. The Executive hereby represents to the Company that the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which the Executive is a party or otherwise bound.
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24. Severability. The parties have carefully reviewed the provisions of this Agreement and agree that they are fair and equitable. However, in light of the possibility of differing interpretations of law and changes in circumstances, the parties agree that if any one or more of the provisions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall, to the extent permitted by law, remain in full force and effect and shall in no way be affected, impaired or invalidated. Moreover, if any of the provisions contained in this Agreement are determined by a court of competent jurisdiction to be excessively broad as to duration, activity, geographic application or subject, it shall be construed, by limiting or reducing it to the extent legally permitted, so as to be enforceable to the extent compatible with then applicable law.
25. Captions and Headings. The descriptive captions and headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
26. Counterparts. This Agreement may be executed by either of the parties hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.
| TURN THERAPEUTICS, Inc. | ||
|---|---|---|
| By: | /s/ Zuraiz Chaudhary | |
| Name: | Zuraiz Chaudhary | |
| Title: | Interim Chief Financial Officer, Vice President of Finance and Chief Accounting Officer | |
| Bradley E. Burnam | ||
| --- | --- | |
| /s/ Bradley Burnam | ||
| Name: | Bradley Burnam |
Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”), dated as of September 15, 2025, is by and between Turn Therapeutics, Inc., a Delaware limited liability company (the “Company”), and Zuraiz Chaudhary (the “Executive”).
WHEREAS, the Company desires to employ the Executive, and the Executive desires to accept such employment, in each case on the terms and conditions set forth in this Agreement;
WHEREAS, this Agreement is intended to supersede any and all prior agreements, arrangements and understandings between the Company and the Executive relating to the provision of services by the Executive to the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, terms and conditions set forth herein, and intending to be legally bound hereby, the Company and the Executive hereby agree as follows:
1. Effectiveness of Agreement; Term of Employment. This Agreement shall become effective as of the date on which the Company’s registration statement on the Form S-1 in connection with the direct listing of its common stock is declared effective by the U.S. Securities and Exchange Commission (the “Effective Date”) and shall remain in effect until terminated in accordance with the provisions set forth herein (the “Term”).
2. Employment and Duties.
(a) General. For the period of the Executive’s employment during the Term, the Executive shall serve as the Interim Chief Financial Officer, Vice President of Finance and Chief Accounting Officer of the Company. The Executive shall have such duties and responsibilities as are commensurate with the Executive’s position, as may be assigned to the Executive from time to time by the Company. During the Term, the Executive shall directly report to the Chief Executive Officer of the Company.
(b) Services. During the period of the Executive’s employment during the Term, the Executive shall devote his full-time working time and attention to the Executive’s duties hereunder, shall faithfully serve the Company and shall use his best efforts to promote and serve the interests of the Company. During the Term, the Executive shall not engage in any other business, profession or occupation, whether paid or unpaid, or serve on any board of directors or any other company; provided, however, that, with the prior written consent of the Company’s board of directors (the “Board”), which consent shall not be unreasonably withheld, the Executive may (i) serve as a member of the board of directors or advisory boards (or their equivalents in the case of a non-corporate entity) of no more than two non-competing business or charitable organizations, (ii) engage in charitable activities and community affairs and (iii) manage the Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii) and (iii) shall not materially interfere, individually or in the aggregate, with the performance of the Executive’s duties and responsibilities hereunder or otherwise create a conflict of interest with the interests of the Company and its subsidiaries. Notwithstanding the foregoing, the Executive may engage in the activities listed on Annex A if and to the extent they do not materially interfere, individually or in the aggregate, with the performance of the Executive’s duties and responsibilities hereunder or otherwise create a conflict of interest with the interests of the Company and its subsidiaries.
(c) Company Policies. The Executive shall be subject to and shall abide by each of the Company’s personnel policies applicable to the Executive to the extent applicable to similarly situated employees of the Company or as otherwise required by law or applicable stock exchange listing rules, including but not limited to, any code of conduct, any insider trading policy, any policy restricting pledging and hedging investments in equity securities of the Company, any share ownership policy or commitment and any policy regarding the recoupment of compensation that the Company may adopt from time to time or that may otherwise be required under any applicable law or applicable listing rules. This Section 2(c) shall survive the termination of the Term.
(d) Location. The Executive shall perform his duties remotely; provided that the Executive shall travel to other locations as may be reasonably required from time to time to fulfill the Executive’s duties.
3. Compensation and Other Benefits. Subject to the provisions of this Agreement, the Company shall pay and provide the following compensation and other benefits to the Executive during the Term as compensation for services rendered hereunder:
(a) Base Salary. The Company shall pay to the Executive an annual salary (the “Base Salary”) at the rate of $275,000, payable in accordance with the Company’s ordinary payroll practices as established from time to time. During the Term, the Base Salary will be reviewed annually by, and is subject to adjustment at the sole discretion of, the Board (or the compensation committee thereof).
(b) Annual Bonus. For each fiscal year of the Company during the Term, the Executive shall be eligible to participate in, and receive an annual cash bonus under, the Company's annual cash performance bonus program, as established by the Board (or the compensation committee thereof) from time to time (the “Annual Bonus”). The Executive’s target Annual Bonus shall be equal to 25% of the Executive’s Base Salary in effect for the applicable fiscal year (the “Target Bonus”). The actual amount of the Annual Bonus for any fiscal year, if any, shall be subject to an assessment, in the sole discretion of Board (or the compensation committee thereof), of Company and individual performance in accordance with the terms of the annual cash bonus program established by the Board (or the compensation committee) in respect of such fiscal year. The actual amount of the Executive’s Annual Bonus earned in respect of any fiscal year shall be paid no later than March 15 of the year following the fiscal year to which such Annual Bonus relates. Except as provided in Section 4 below, in order to receive payment of the Annual Bonus for any fiscal year, the Executive must remain employed by the Company through the applicable payment date of such Annual Bonus.
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(c) Equity Compensation. Upon the first trading date on or following the Effective Date on which shares of the Company’s common stock are listed on a nationally recognized stock exchange, subject to approval by the Board (or the compensation committee thereof), the Executive shall receive an award of stock options to purchase 240,000 shares of the Company’s common stock (after giving effect to the stock split of the Company’s common stock that is expected to occur in connection with the direct listing of its common stock) (the “Initial Equity Award”) under the Company’s 2025 Omnibus Incentive Plan (as may be amended from time to time, the “Omnibus Plan”). The Initial Equity Award shall have an exercise price determined by the Board (or the compensation committee thereof) in accordance with the terms of the Omnibus Plan. The Initial Equity Award will be subject to the terms and conditions of the Omnibus Plan and the applicable award agreement thereunder. In addition, commencing with the Company’s 2026 fiscal year, for each year during the Term, the Executive shall be eligible to receive annual equity awards under the Omnibus Plan or any other equity incentive plan as in effect from time to time. The targeted grant date fair value of such annual equity awards shall be equal to 25% of Base Salary in effect for the applicable fiscal year, which will be reviewed annually by the Board (or the compensation committee thereof); provided that the actual amount of any annual equity awards granted to the Executive by the Board (or the compensation committee thereof) with respect to any fiscal year shall be determined in the sole discretion of the Board (or the compensation committee thereof). The terms of such annual equity awards shall be determined by the Board (or the compensation committee thereof) in its sole discretion in accordance with the terms of the applicable equity incentive plan.
(d) Other Benefits. During the Term, the Executive shall be eligible to participate in the employee benefit plans and programs applicable generally to other similarly situated executives of the Company, in accordance with the terms of such plans, as they may be amended from time to time.
(e) Expenses. The Company shall reimburse the Executive for reasonable travel and other business-related expenses incurred by the Executive in the fulfillment of his duties hereunder; provided, in each case, that such expenses are incurred and accounted for in accordance with the policies and procedures established by the Company. Any such reimbursement of expenses shall be made by the Company upon or as soon as practicable following receipt of supporting documentation reasonably satisfactory to the Company (but in any event not later than the close of the Executive’s taxable year following the taxable year in which the expense is incurred).
(f) Vacation. During the Term, the Executive shall be entitled to vacation in accordance with the Company’s policies to the same extent applicable generally to other similarly situated employees of the Company, as they may be amended from time to time.
(g) Indemnification. During the Term, the Executive shall be covered by the Company’s Directors and Officers (D&O) liability insurance policy and indemnified to the maximum extent permitted by the Company’s Amended and Restated Operating Agreement (as may be amended from time to time) and appliable law.
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4. Termination of Employment.
(a) Generally. The Term and the Executive’s employment under this Agreement shall be terminated in accordance with this Section 4: (i) immediately upon the Executive’s death or Disability (as defined below); (ii) by the Company at any time for Cause (as defined below) or, upon at least 30 days’ prior written notice, without Cause; (iii) voluntarily by Executive without Good Reason (as defined below) upon at least 60 days’ prior written notice (provided that, at any time after the Executive has provided such written notice to the Company, the Company may, in its sole discretion, elect to terminate the Executive’s employment hereunder at any time prior to the end of such 60-day period, in which case, and notwithstanding anything to the contrary in this Agreement or otherwise, the Executive shall thereupon only be entitled to receive the Accrued Obligations (as defined below), and such termination of employment will not constitute a termination of employment without Cause, result in Good Reason or otherwise entitle Executive to any Severance Benefits (as defined below)); or (iv) by the Executive for Good Reason. The effective date of the termination of the Executive’s employment hereunder is referred to herein as the “Termination Date”.
(b) Termination for Cause or Resignation Without Good Reason. If the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive without Good Reason, the Executive shall be entitled to receive:
(i) any accrued but unpaid Base Salary through Termination Date;
(ii) reimbursement for any unreimbursed business expenses properly incurred by the Executive in accordance with Company policy prior to Termination Date; and
(iii) such accrued and vested employee benefits, if any, as to which the Executive may be entitled under the employee benefit plans of the Company.
The amounts described in clauses (i) through (iii) above shall hereinafter be referred to as the “Accrued Obligations.”
(c) Death or Disability. If the Executive’s employment with the Company terminates due to the Executive’s death or Disability (as defined below), the Executive (or his or her estate, executor, administrator or trustee, as the case may be) shall be entitled to receive (i) the Accrued Obligations and (ii) any earned but unpaid Annual Bonus for the fiscal year prior to the fiscal year of the Company in which the Termination Date occurs (the “Prior Year Bonus”).
(d) TerminationWithout Cause or For Good Reason (non-Change in Control). If the Executive’s employment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, in each case other than during the CIC Protection Period (as defined below), then the Executive shall be entitled to receive the Accrued Obligations and, subject to the Executive’s execution and non-revocation of the release of claims described in Section 4(f) and continued compliance with Sections 5 through 8 and 11 and any other restrictive covenant agreement with the Company to which the Executive is a party (collectively, the “Continuing Obligations”), the Executive shall be entitled to receive the following (collectively, the “Non- CIC Severance Benefits”):
(i) the Company shall continue to pay the Executive his Base Salary at the rate in effect as of the Termination Date for a period of 9 months following the Termination Date (such period, the “Severance Period”), payable in accordance with the Company’s payroll practices;
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(ii) an amount equal to the Executive’s Annual Bonus for the year in which the Termination Date occurs, based on the actual level of achievement of the applicable performance goals and prorated based on the number of days the Executive is employed during such fiscal year through the Termination Date, payable at the same time annual bonuses are otherwise paid in respect of such fiscal year; and
(iii) to the extent the Executive timely elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (together with the regulations and other interpretive guidance issued thereunder, “COBRA”), monthly reimbursement of the COBRA premiums for continued group health and dental plan coverage in which the Executive was enrolled as of immediately prior to the Termination Date, less active employee rates (which will be payable by the Executive), until the end of the Severance Period (or, earlier, if the Executive becomes eligible to be covered under a subsequent employer’s group health insurance plan (provided that the Executive agrees to provide the Company with written notice of the Executive’s eligibility to be covered under a subsequent employer’s group health insurance plan no later than five business days after Executive becomes eligible for such coverage); provided that, notwithstanding the foregoing, if the Company determines, in its sole discretion, that its payment of the premiums on the Executive’s behalf would result in a violation of the nondiscrimination rules of Code Section 105(h)(2) or any statute or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), the Company may instead provide a monthly taxable cash payment to the Executive in lieu of any such reimbursement.
(e) Termination Without Cause or For Good Reason (Change in Control). If the Executive’s employment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, in each case during 3 months prior to, or within 12 months following, a Change in Control (as defined in the Omnibus Plan (the “CIC Protection Period”)), then the Executive shall be entitled to receive the Accrued Obligations and, subject to the Executive’s execution and non-revocation of the release of claims described in Section 4(f) and continued compliance with the Continuing Obligations, Executive shall be entitled to the following payments and benefits (the “CIC Severance Benefits”, together with the Non-CIC Severance Benefits, the “Severance Benefits”):
(i) the Company shall pay the Executive, within 60 days following the Termination Date, a lump sum cash payment equal to sum of the following:
(A) 1.5 times the Executive’s Base Salary as in effect on the Termination Date;
(B) the Executive’s Target Bonus for the year in which the Termination Date occurs; and
(C) an amount equal to 18 times the monthly cost of the COBRA premiums for continued group health and dental plan coverage in which the Executive was enrolled as of immediately prior to the Termination Date, less active employee rates as in effect as of the Termination Date.
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(f) Conditions to Severance Benefits. Notwithstanding anything to the contrary herein, the Severance Benefits shall be provided to the Executive only if (i) the Executive has executed and delivered to the Company a waiver and general release of claims, in a form to be reasonably provided promptly by the Company following the Termination Date (the “Release”), which such Release must be executed, delivered and be irrevocable within 60 days after the Termination Date, (ii) the Executive has not revoked or breached the provisions of such Release and (iii) the Executive has not materially breached the Continuing Obligations (as defined below). Notwithstanding anything to the contrary herein, any payment of the Severance Benefits under Section 4(c)(i) or 4(c)(ii) that is scheduled to occur during the first 60 days following the Termination Date shall not be paid until the first regularly scheduled payroll date following such period and shall include payment of any amount that was otherwise scheduled to be paid prior thereto. If the period during which the Executive may execute or revoke the Release spans 2 taxable years of the Executive, the Severance Benefits shall in all events be paid to the Executive in the second such taxable year, and any Severance Benefits that otherwise would have been payable during the first taxable year shall be paid in a lump sum in the first calendar month of the second taxable year. If, following a termination of employment pursuant to Section 4(c), the Executive materially breaches any of the Continuing Obligations, the Executive shall cease to be eligible for the Severance Benefits, and any and all obligations and agreements of the Company with respect to such payments and benefits shall thereupon cease.
(g) For purposes of this Agreement, “Cause” means the occurrence of any of the following: (i) the Executive’s gross misconduct or violation of law that is materially injurious to the operations, financial condition or business reputation of the Company, (ii) the Executive’s commission of an act of misappropriation, fraud, embezzlement or breach of a fiduciary duty to the Company; (iii) the Executive’s conviction of, or plea of guilty or nolo contendere with respect to, a (x) felony or (y) other crime involving moral turpitude; (iv) the Executive’s material breach of this Agreement or material breach of any of the Continuing Obligations; (v) the Executive’s material violation of any Company written policy or code of conduct; (vi) the Executive’s willful and continued failure or refusal to substantially perform (other than as a result of Disability), or willful misconduct or gross negligence with respect to the performance of, Executives material duties to the Company; or (vii) the Executive engaging in conduct that is or could reasonably be expected to be materially injurious to the operations, financial condition or business reputation of the Company; provided, however, that the Executive shall not be deemed to have been terminated for Cause, unless (x) written notice has been delivered to him or her setting forth the Company’s reasons for the termination for Cause and, (y) except in the case of clauses (ii) and (iii), the Executive has not cured (if curable) the breaches or failures set forth in such notice within 30 days after receipt of such notice.
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(h) For purposes of this Agreement, “Disability” means the Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in the Executive’s death or which has lasted or can be expected to last for a continuous period of no less than 12 months.
(i) For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without the Executive’s consent: (a) a reduction in the Executive’s Base Salary by more than 10%; (b) a material reduction in the Executive’s Target Bonus; (c) a material diminution in the Executive’s authority, title, duties or responsibilities under this Agreement or change in reporting such that the Executive no longer directly reports to the Chief Executive Officer of the Company; (d) a material breach by the Company of this Agreement; (e) the Company requiring the Executive to work principally from a Company office that is more than 25 miles from the Executive’s primary residence; and (f) that this Agreement not being assumed by an acquirer or successor of the Company as a result of a merger or a stock or asset sale. Notwithstanding the foregoing, the Executive will not be deemed to have resigned for Good Reason unless (x) the Executive has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within 30 days following the initial existence or occurrence of such circumstances, (y) the Company has not reasonably cured such circumstances within 30 days from the date on which such notice is received from the Executive and (z) the Executive resigns from his employment effective no later than 30 days after the expiration of such cure period. Notwithstanding anything to the contrary herein, the Executive ceasing to serve as the Interim Chief Financial Officer or failure to be appointed permanently as Chief Financial Officer of the Company (and changes in the Executive’s authority, duties and responsibilities related thereto) shall in no event result in Good Reason for purposes of this Agreement.
5. Confidentiality.
(a) Confidential Information.
(i) Subject to Section 5(b), the Executive agrees that he shall not at any time, except as required in order to perform his services hereunder or with the prior written consent of the Company, or, to the extent permitted pursuant to subsection 5(a)(ii), as required by law, directly or indirectly, (A) use, disseminate, disclose or publish, whether for his benefit or the benefit of any person, firm, corporation or other entity, any Confidential Information or (B) deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any Confidential Information. “Confidential Information” means (A) confidential or proprietary information or trade secrets of or relating to the Company Group including, without limitation, intellectual property in the form of patents, trademarks and copyrights and applications thereof, ideas, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or materials, in each case, that are confidential and/or proprietary and owned, developed or possessed by the Company Group, whether in tangible or intangible form or (B) confidential or proprietary information with respect to the Company Group’s operations, processes, products, inventions, business practices, strategies, business plans, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, prospects and compensation paid to employees or other terms of employment.
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(ii) In the event that the Executive becomes legally compelled to disclose any Confidential Information, the Executive shall provide the Company with prompt written notice so that the Company may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of such Confidential Information or take only such action as is legally required by binding order and shall exercise his reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded any such Confidential Information.
(b) Whistleblower Provision. The Executive has the right under federal law to certain protections for cooperating with or reporting legal violations to the Securities and Exchange Commission (the “SEC”) and/or its Office of the Whistleblower, as well as certain other governmental entities and self-regulatory organizations. As such, nothing in this Agreement or otherwise prohibits or limits the Executive from disclosing this Agreement to, or from cooperating with or reporting violations to or initiating communications with, the SEC or any other such governmental entity or self-regulatory organization, and the Executive may do so without notifying the Company. Neither the Company nor any of its subsidiaries or affiliates may retaliate against the Executive for any of these activities, and nothing in this Agreement or otherwise requires the Executive to waive any monetary award or other payment that the Executive might become entitled to from the SEC or any other governmental entity or self-regulatory organization. Moreover, nothing in this Agreement or otherwise prohibits the Executive from notifying the Company that the Executive is going to make a report or disclosure to law enforcement. Notwithstanding anything to the contrary in this Agreement or otherwise, as provided for in the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Without limiting the foregoing, if the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding, if the Executive (x) files any document containing the trade secret under seal, and (y) does not disclose the trade secret, except pursuant to court order.
(c) ExclusiveProperty. The Executive confirms that all Confidential Information is and shall remain the exclusive property of the Company. To the extent that the Executive acquires any right, title or interest in or to any Confidential Information, the Executive hereby assigns, transfers, conveys and delivers to the Company all such right, title and interest in and to such Confidential Information. All business records, papers and documents and electronic files (including emails) kept or made by the Executive relating to the business of the Company shall be and remain the property of the Company. Upon the request and at the expense of the Company, the Executive shall promptly make all disclosures, execute all instruments and papers and perform all acts reasonably necessary to vest and confirm in the Company, fully and completely, all rights created or contemplated by this Section 5. The Executive further agrees that, upon termination of the Executive’s employment with the Company for any reason whatsoever, the Executive shall return to the Company immediately all Confidential Information and all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company.
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6. Non-competition. The Executive agrees that, for a period commencing on the Effective Date and ending 12 months after the date of the Executive’s termination of employment with the Company for any reason (the “Restricted Period”), the Executive shall not, without the prior written consent of the Board, directly or indirectly, and whether as principal or investor or as an employee, officer, director, manager, partner, consultant, agent or otherwise, alone or in association with any other person, firm, corporation or other business organization, carry on, own, manage, operate, participate in or be employed or engaged by, a Competing Business (as defined below) in any state within the United States or foreign jurisdiction in which the Company or any of its subsidiaries is then engaged, or at any time during the Term becomes or became engaged, in a Competing Business; provided, however, that nothing herein shall limit the Executive’s right to own not more than 5% of any of the debt or equity securities of any business organization that is then filing reports with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Agreement, “Competing Business” means a business or entity that engages in the business of research, development, marketing, and/or commercialization of topical therapies for wound care, dermatitis, onychomycosis, and/or thermostable intranasal vaccines.
7. Non-Solicitation. The Executive agrees that during the Restricted Period, the Executive shall not, directly or indirectly, (i) induce or attempt to induce any employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries, or in any way interfere with the relationship between the Company or any of its subsidiaries and any employee thereof, or (ii) hire directly or through another entity any person who is or was an employee of the Company or any of its subsidiaries at any time during the 6 months prior to the date such person is to be so hired (other than any person who was terminated by the Company or any of its subsidiaries without cause prior to being so hired), or (iii) induce or attempt to induce any customer, client, supplier, vendor, licensee or other business relation of the Company or any of its subsidiaries to cease doing business with the Company or any of its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any of its subsidiaries. As used herein, the term “indirectly” shall include, without limitation, the Executive’s permitting the use of the Executive’s name by any person or entity (other than the Company or any of its subsidiaries) to induce or interfere with any employee, customer, supplier, licensee or other business relation of the Company or any of its subsidiaries.
8. Assignment of Developments.
(a) Assignment. The Executive acknowledges and agrees that any and all Developments (as defined below) are and shall be deemed “works made for hire” under 17 U.S.C. § 101 and any other applicable law and shall be and remain the sole and exclusive property of the Company, free and clear of any reserved or other rights of any kind on the Executive’s part (including any Moral Rights), all of which are hereby waived by the Executive. Without limiting the generality of the foregoing, to the extent any Developments do not qualify as a “work made for hire” under applicable law, the Executive hereby irrevocably assigns, transfers, conveys and delivers to the Company all of his right, title and interest in, to and under all such Developments, together with all of the goodwill associated therewith.
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(b) Disclosure. The Executive shall disclose in writing to the Board promptly and fully any and all Developments upon their discovery, conception, creation, development or reduction to practice. The Executive shall not use or incorporate any third-party Intellectual Property Rights into any Developments without the Board’s prior written consent.
(c) Further Assurances. The Executive shall, at any time upon request and at the expense of the Company, execute, acknowledge and deliver to the Board all instruments, and take any and all other actions (including, among other things, the execution and delivery under oath of patent or copyright applications and instruments of assignment), that are necessary or desirable in the reasonable opinion of the Board to enable the Company to file and prosecute applications for, and to acquire, maintain, record, register, defend and enforce, any of the Company’s rights in any and all Developments in all countries in which the same are deemed necessary by the Board.
(d) Waiver of Moral Rights. To the extent the Executive may do so under applicable law, the Executive hereby waives and agrees never to assert any Moral Rights that the Executive may have in or with respect to any Developments, even after termination of the Executive’s work on behalf of the Company or any of its subsidiaries.
(e) No Challenges. The Executive also agrees that during and after the Term, (a) the Executive will not, directly or indirectly, initiate an inter partes review, derivation proceeding, a covered business method review, post-grant review or other similar administrative review, or otherwise challenge the validity, enforceability or scope of, or any of the Company’s rights in, to or under, any Development, and (b) the Executive will, at the Company’s request and expense, assist the Company to respond to any challenge to the ownership, validity, enforceability or scope of any such Development.
(f) Records. All data, memoranda, notes, lists, drawings, records, files, investor and client/customer lists, supplier lists and other documentation (and all copies thereof) made or compiled by the Executive or made available to the Executive concerning the Developments or otherwise concerning the past, present or planned business of the Company and its subsidiaries are the property of the Company, and will be delivered to the Company or destroyed (at the Board’s request) immediately upon the termination of the Executive’s employment with the Company.
(g) Definitions. For purposes of this Section 8:
(i) “Developments” shall mean any and all work product, developments, products, conferences, training/seminars, publications, programs, methods of organizing information, inventions, discoveries, concepts, designs, ideas, improvements and other works, reports, computer software or systems, apparatuses, flow charts, diagrams, procedures, data, documentation and writings and applications thereof, and all Intellectual Property Rights, including any and all Intellectual Property Rights in, to or otherwise relating to any of the foregoing, in each case, (A) relating to the business or future business of the Company or any of its subsidiaries or any of their actual or anticipated research or development, (B) conceived, created or developed using any resources, equipment, supplies, facilities, trade secrets, know-how or other Confidential Information of the Company or any of its subsidiaries, or (C) resulting from any work performed by the Executive for the Company or any of its subsidiaries, in each case of clauses (A) – (C), that the Executive, alone or jointly with others, has discovered, conceived, created, made, developed, reduced to practice, or acquired during the Executive’s employment.
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(ii) “Intellectual Property Rights” shall mean any and all patents, trademarks, trade names, copyrights, mask works, trade secrets, designs, know-how and all other intellectual property and proprietary rights recognized by any applicable law of any jurisdiction, and all registrations and applications for registration of, and all goodwill associated with, the foregoing.
(iii) “Moral Rights” shall mean any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, or to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under any applicable law of any jurisdiction, regardless of whether or not such right is denominated or generally referred to as a "moral right."
9. CertainRemedies. The Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5 through 8 and 11. The Executive agrees without reservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential Information and other legitimate interests of the Company; that each and every one of those restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him from obtaining other suitable employment during the period in which the Executive is bound by these restraints. Without intending to limit the remedies available to the Company, the Executive agrees that a breach of any of the covenants contained in Sections 5 through 8 or 11 may result in material and irreparable injury to the Company Group for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the Company shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining the Executive from engaging in activities prohibited by the covenants contained in Sections 5 through 8 or 11 or such other relief as may be required specifically to enforce any of the covenants contained in this Agreement. Such injunctive relief in any court shall be available to the Company in lieu of, or prior to or pending determination in, any proceeding. The parties further agree that, in the event that any provision of Sections 5 through 8 or 11 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
10. Cooperation. During the Term and thereafter, the Executive shall cooperate in good faith with the Company in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company (including, without limitation, the Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company all pertinent information and turning over to the Company all relevant documents which are or may come into the Executive’s possession, all at times and on schedules that are reasonably consistent with the Executive’s other permitted activities and commitments). The Company will reimburse the Executive for any reasonable, out-of-pocket travel, lodging and meal expenses incurred in connection with the Executive’s performance of obligations pursuant to this Section 10 for which Executive has obtained prior written approval from the Company.
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11. Nondisparagement. During the Executive’s employment with the Company and thereafter, (i) the Executive agrees that he shall not make, or cause or assist any other person or entity to make, any statement or other communication to any third party, reporter, author, producer or similar person or entity or to any general public media (collectively, “Third Parties”) in any form or medium (including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/internet format or any other medium), which disparages, impugns or attacks, or is otherwise critical of, the reputation, business or character (each, a “Disparaging Statement”) of the Company or any of its directors, officers, employees or shareholders, and (ii) the Company agrees that it shall direct its directors and officers not to make any Disparaging Statements about the Executive to any Third Party.
12. Nonassignability; Binding Agreement.
(a) By the Executive. This Agreement and any and all rights, duties, obligations or interests hereunder shall not be assignable or delegable by the Executive.
(b) By the Company. This Agreement and all of the Company’s rights and obligations hereunder shall not be assignable by the Company except as incident to a reorganization, merger or consolidation, or transfer of all or substantially all of the Company’s assets, or to an affiliate of the Company.
(c) Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto, any successors to or assigns of the Company and the Executive’s heirs and the personal representatives of the Executive’s estate.
13. Withholding. Any payments made or benefits provided to the Executive under this Agreement shall be reduced by any applicable withholding taxes or other amounts required to be withheld by law or contract.
14. Amendment; Waiver. This Agreement may not be modified, amended or waived in any manner, except by an instrument in writing signed by both parties hereto. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
15. Governing Law. All matters affecting this Agreement, including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the State of Delaware (other than conflict of laws principles), applicable to contracts executed in and to be performed in that State.
16. Arbitration. Any controversy or claim relating to this Agreement any breach thereof, and any claims the Executive may have against the Company or any officer, director, manager, or employee of the Company or arising from or relating to the Executive’s employment with the Company, will be settled solely and finally by arbitration in Delaware by in accordance with the Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association then in effect in the State of Delaware, and judgment upon such award rendered by the arbitrator(s) may be entered in any court having jurisdiction; provided that the arbitrator shall be selected from a list of qualified arbitrators that is mutually agreed upon by the Company and the Executive. Any award made by the arbitrator(s) shall be final, binding and conclusive on the parties for all purposes, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties acknowledge and agree that their obligations to arbitrate under this Section 16 survive the termination of this Agreement and continue after the termination of the employment relationship between the Executive and the Company.
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17. Waiver of Jury Trial. EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
18. Survival of Certain Provisions. The rights and obligations of this Agreement that are intended to survive the termination or expiration of this Agreement (including without limitation those set forth in Sections 5 through 11) shall survive any termination or expiration of this Agreement.
19. EntireAgreement; Supersedes Previous Agreements. This Agreement contains the entire agreement and understanding of the parties hereto with respect to the matters covered herein and supersedes all prior or contemporaneous negotiations, commitments, agreements and writings with respect to the subject matter hereof, and all such other negotiations, commitments, agreements and writings shall have no further force or effect, and the parties to any such other negotiation, commitment, agreement or writing shall have no further rights or obligations thereunder, including, without limitation, the Employment Agreement dated as of August 9, 2017, by and between the Executive and the Company.
20. Notices. Any notices or other communications provided for in this Agreement shall be sufficient if in writing. In the case of the Executive, such notices or communications shall be effectively delivered if hand-delivered to the Executive at his principal place of employment or if sent by registered or certified mail to the Executive at the last address on file with the Company. In the case of the Company, such notices or communications shall be effectively delivered if sent by registered or certified mail to the Company at its principal executive offices.
21. Section 409A.
(a) It is intended that the provisions of this Agreement comply with or are exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (together with the regulations and other interpretive guidance issued thereunder, “Section409A”), and all provisions of this Agreement will be construed and interpreted in a manner consistent with such intent. In no event shall the Company or any of its affiliates be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A. For purposes of Section 409A, each right to a payment hereunder will be deemed a “separate payment” within the meaning of Treas. Reg. Section 1.409A-2(b)(iii). With respect to the timing of payments of any deferred compensation payable upon a termination of employment hereunder, references in this Agreement to “termination of employment” (and substantially similar phrases) mean “separation from service” within the meaning of Section 409A.
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(b) To the extent that Executive is a “specified employee” within the meaning of Section 409A as of the date of Executive’s separation from service (as determined by the Company), no amounts payable under this Agreement that constitute “deferred compensation” within the meaning of Section 409A that are payable on account of Executive’s separation from service shall be paid to Executive until the expiration of the 6-month period measured from the date of such separation from service (or, if earlier, the date of Executive’s death following such separation from service). Upon the first business day following the expiration of such delay period, all such amounts deferred pursuant to the preceding sentence will be paid to Executive (without interest).
(c) Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A, (x) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (y) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
22. Section 280G. If the Executive would be entitled to payments or benefits under this Agreement or under any other plan, program, agreement or arrangement that would constitute “parachute payments” as defined in Section 280G of the Code and could result in any such payment or benefit being subject to an excise tax under Section 4999 of the Code, the present value of the Executive’s payments and benefits will be reduced by the minimum amount necessary such that the aggregate present value of such payments and benefits do not trigger the excise tax; provided, however, no such reductions shall be given effect if Executive would be entitled to greater payments and benefits on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes) than if such reductions were to be implemented. If payments or benefits are to be reduced, any such reduction in payments and/or benefits shall be made in accordance with Section 409A and shall occur in the manner that results in the greatest economic benefit to the Executive as determined by the Company’s independent accountant. All determinations in applying the foregoing provisions for purposes of the “golden parachute” rules under Sections 280G and 4999 of the Code will be made by the Company’s independent accountant and shall be final and binding on the parties.
23. Executive Representation. The Executive hereby represents to the Company that the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which the Executive is a party or otherwise bound.
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24. Severability. The parties have carefully reviewed the provisions of this Agreement and agree that they are fair and equitable. However, in light of the possibility of differing interpretations of law and changes in circumstances, the parties agree that if any one or more of the provisions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall, to the extent permitted by law, remain in full force and effect and shall in no way be affected, impaired or invalidated. Moreover, if any of the provisions contained in this Agreement are determined by a court of competent jurisdiction to be excessively broad as to duration, activity, geographic application or subject, it shall be construed, by limiting or reducing it to the extent legally permitted, so as to be enforceable to the extent compatible with then applicable law.
25. Captions and Headings. The descriptive captions and headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
26. Counterparts. This Agreement may be executed by either of the parties hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.
| TURN THERAPEUTICS, Inc. | ||
|---|---|---|
| By: | /s/ Bradley Burnam | |
| Name: | Bradley Burnam | |
| Title: | Chief Executive Officer | |
| ZURAIZ<br> CHAUDHARY | ||
| --- | --- | |
| /s/ Zuraiz Chaudhary | ||
| Name: | Zuraiz Chaudhary |