|
Delaware
|
| |
8731
|
| |
27-0480143
|
|
|
(State or other jurisdiction of
incorporation or organization) |
| |
(Primary Standard Industrial
Classification Code Number) |
| |
(I.R.S. Employer
Identification Number) |
|
|
Barry I. Grossman
Lijia Sanchez Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 Telephone: (212) 370-1300 |
| |
Brad L. Shiffman
Blank Rome LLP 1271 Avenue of the Americas New York, NY 10020 Telephone: (212) 885-5000 |
|
|
Large accelerated filer
☐
|
| |
Accelerated filer
☐
|
|
|
Non-accelerated filer
☒
|
| |
Smaller reporting company
☒
|
|
| | | |
Emerging growth company
☒
|
|
Title of Each Class of Security Being Registered
|
| |
Proposed Maximum
Aggregate Offering Price(1)(2) |
| |
Amount of
Registration Fee(3) |
| ||||||
Common Stock, $0.0001 par value
|
| | | $ | 22,999,997.70 | | | | | $ | 2,509.30 | | |
Common Stock underlying Representative’s Warrants, $0.0001 par value
|
| | | $ | 1,149,999.89 | | | | | $ | 125.46 | | |
Total
|
| | | $ | 24,149,997.59 | | | | | $ | 2,634.76 | | |
|
PRELIMINARY PROSPECTUS
|
| | SUBJECT TO COMPLETION | | | DATED APRIL 2, 2021 | |
| | |
Per Share
|
| |
Total
|
|
Initial public offering price
|
| |
|
| |
|
|
Underwriting discount(1)
|
| | | | | | |
Proceeds, before expenses, to iSpecimen Inc.
|
| | | | | |
| | |
Page
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| | | | 124 | | | |
| | | | F-1 | | |
| | |
Years Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Statement of Operations Data: | | | | ||||||||||
Revenue
|
| | | $ | 8,184,106 | | | | | $ | 4,298,350 | | |
Total operating expenses
|
| | | | 10,590,486 | | | | | | 8,178,439 | | |
Loss from operations
|
| | | | (2,406,380) | | | | | | (3,880,089) | | |
Other expense, net
|
| | | | (2,245,704) | | | | | | (1,003,961) | | |
Net loss
|
| | | | (4,652,084) | | | | | | (4,727,050) | | |
Net loss per common share – basic and diluted(1)
|
| | | $ | (4.97) | | | | | $ | (5.05) | | |
Weighted average common shares outstanding – basic and diluted(1)
|
| | | | 936,213 | | | | | | 936,096 | | |
Pro forma net loss (unaudited)(2)
|
| | | $ | (6,285,469) | | | | | | | | |
Pro forma net loss per common share – basic and diluted
(unaudited)(2) |
| | | $ | (1.62) | | | | | | | | |
Pro forma weighted average common shares outstanding — basic and
diluted (unaudited)(2) |
| | | | 3,879,603 | | | | | | | | |
| | |
As of December 31, 2020
|
| |||||||||||||||
| | |
Actual
|
| |
Pro Forma
|
| |
Pro Forma
As Adjusted(2) |
| |||||||||
Balance Sheet Data: | | | | | |||||||||||||||
Cash
|
| | | $ | 695,909 | | | | | $ | 695,909 | | | | | $ | 16,316,882 | | |
Working capital(1)
|
| | | | (18,663,321) | | | | | | (5,886,718) | | | | | | 12,013,279 | | |
Total assets
|
| | | | 6,209,696 | | | | | | 6,209,696 | | | | | | 21,830,669 | | |
Total liabilities
|
| | | | 22,314,587 | | | | | | 9,537,985 | | | | | | 7,258,960 | | |
Convertible preferred stock
|
| | | | 11,173,076 | | | | | | — | | | | | | — | | |
Total stockholders’ (deficit) equity
|
| | | | (27,277,967) | | | | | | (3,328,289) | | | | | | 14,571,709 | | |
| | |
As of December 31, 2020
|
| |||||||||||||||
| | |
Actual
|
| |
Pro Forma
|
| |
Pro Forma
As Adjusted(1) |
| |||||||||
Cash
|
| | | $ | 695,909 | | | | | $ | 695,909 | | | | | $ | 16,316,882 | | |
Convertible notes payable, related parties, net of unamortized debt discount and debt issuance costs
|
| | | $ | 5,490,811 | | | | | $ | — | | | | | $ | — | | |
Bridge notes payable, net of debt issuance costs
|
| | | | 4,589,228 | | | | | | 2,669,228 | | | | | | 2,669,228 | | |
Bridge notes payable, related parties
|
| | | | 1,905,000 | | | | | | 325,000 | | | | | | 325,000 | | |
Notes payable (including short-term maturities of $604,109)
|
| | | | 783,008 | | | | | | 783,008 | | | | | | 783,008 | | |
Accrued interest
|
| | | | 3,696,944 | | | | | | 2,284,153 | | | | | | 5,127 | | |
Derivative liability for embedded conversion features
|
| | | | 2,373,000 | | | | | | — | | | | | | — | | |
Total debt
|
| | | | 18,837,991 | | | | | | 6,061,389 | | | | | | 3,782,363 | | |
Series B convertible preferred stock, $0.0001 par value, 3,200,000 shares authorized, 572,465 shares issued and outstanding, actual; no shares outstanding pro forma; and no shares outstanding pro forma as adjusted
|
| | | | 7,999,997 | | | | | | — | | | | | | — | | |
Series A-1 convertible preferred stock, $0.0001 par value, 556,550 shares authorized, 100,365 issued and outstanding, actual; no shares outstanding pro forma; and no shares outstanding pro forma as adjusted
|
| | | | 561,041 | | | | | | — | | | | | | — | | |
| | |
As of December 31, 2020
|
| |||||||||||||||
| | |
Actual
|
| |
Pro Forma
|
| |
Pro Forma
As Adjusted(1) |
| |||||||||
Series A convertible preferred stock, $0.0001 par value, 3,427,871 shares authorized, 618,182 issued and outstanding, actual; no shares outstanding pro forma; and no shares outstanding pro forma as adjusted
|
| | | | 2,612,038 | | | | | | — | | | | | | — | | |
Total convertible preferred stock
|
| | | | 11,173,076 | | | | | | — | | | | | | — | | |
Stockholders’ Deficit: | | | | | | | | | | | | | | | | | | | |
Common stock, $0.0001 par value, 16,000,000 shares authorized; 967,213 issued and 936,213 shares outstanding, actual; 3,851,846 shares outstanding pro forma; and 6,101,825 shares outstanding pro forma as adjusted
|
| | | | 94 | | | | | | 388 | | | | | | 611 | | |
Additional paid-in capital
|
| | | | 1,779,698 | | | | | | 27,362,467 | | | | | | 45,262,243 | | |
Treasury stock, at cost, 171,908 shares
|
| | | | (172) | | | | | | (172) | | | | | | (172) | | |
Accumulated deficit
|
| | | | (29,057,587) | | | | | | (30,690,972) | | | | | | (30,690,972) | | |
Total stockholders’ (deficit) equity:
|
| | | | (27,277,967) | | | | | | (3,328,289) | | | | | | 14,571,709 | | |
Total Capitalization:
|
| | | $ | 2,733,100 | | | | | $ | 2,733,100 | | | | | $ | 18,354,072 | | |
|
|
Assumed initial public offering price per share of common stock
|
| |
|
| | | $ | 9.00 | | | |||
|
Historical net tangible book value (deficit) per share as of December 31, 2020
|
| | | $ | (29.14) | | | | | | | | |
|
Increase per share attributed to the conversion of outstanding preferred stock, Convertible Notes, and Bridge Notes
|
| | | | 28.28 | | | | | | | | |
|
Pro forma net tangible book value per share as of December 31, 2020 before this offering
|
| | | | (0.86) | | | | | | | | |
|
Increase in pro forma as adjusted net tangible book value per share attributable to investors in this offering
|
| | | | 3.25 | | | | | | | | |
|
Pro forma as adjusted net tangible book value per share after this offering
|
| | | | | | | | | | 2.39 | | |
|
Dilution per share to new common stock investors in this offering
|
| | | | | | | | | $ | 6.61 | | |
| | |
Shares purchased
|
| |
Total consideration
|
| |
Average price
per share |
| |||||||||||||||||||||
| | |
Number
|
| |
Percentage
|
| |
Amount
|
| |
Percentage
|
| ||||||||||||||||||
Existing Shareholders
|
| | | | 3,879,603 | | | | | | 64% | | | | | $ | 511,186 | | | | | | 2% | | | | | $ | 0.13 | | |
New Investors
|
| | | | 2,222,222 | | | | | | 36 | | | | | | 19,999,998 | | | | | | 98 | | | | | | 9.00 | | |
Total
|
| | | | 6,101,825 | | | | | | 100% | | | | | $ | 20,511,184 | | | | | | 100% | | | | | $ | 3.36 | | |
| | |
Years Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Statement of Operations Data: | | | | | | | | | | | | | |
Revenue
|
| | | $ | 8,184,106 | | | | | $ | 4,298,350 | | |
Operating expenses: | | | | | | | | | | | | | |
Cost of revenue
|
| | | | 3,585,477 | | | | | | 2,127,900 | | |
Technology
|
| | | | 1,426,473 | | | | | | 993,329 | | |
Sales and marketing
|
| | | | 1,775,347 | | | | | | 1,413,059 | | |
Supply development
|
| | | | 495,967 | | | | | | 792,778 | | |
Fulfillment
|
| | | | 853,450 | | | | | | 914,633 | | |
General and administrative
|
| | | | 2,453,772 | | | | | | 1,936,740 | | |
Total operating expenses
|
| | | | 10,590,486 | | | | | | 8,178,439 | | |
Loss from operations
|
| | | | (2,406,380) | | | | | | (3,880,089) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest expense
|
| | | | (2,096,795) | | | | | | (1,724,450) | | |
Change in fair value of derivative liability
|
| | | | (159,000) | | | | | | 551,000 | | |
Other income
|
| | | | 9,654 | | | | | | 168,859 | | |
Interest income
|
| | | | 437 | | | | | | 630 | | |
Other expense, net
|
| | | | (2,245,704) | | | | | | (1,003,961) | | |
Net loss before benefit from income taxes
|
| | | | (4,652,084) | | | | | | (4,884,050) | | |
Benefit from income taxes
|
| | | | — | | | | | | 157,000 | | |
Net loss
|
| | | $ | (4,652,084) | | | | | $ | (4,727,050) | | |
Net loss per common share – basic and diluted(1)
|
| | | $ | (4.97) | | | | | $ | (5.05) | | |
Weighted average common shares outstanding – basic and diluted(1)
|
| | | | 936,213 | | | | | | 936,096 | | |
Pro forma net loss (unaudited)(2)
|
| | | $ | (6,285,469) | | | | | | | | |
Pro forma net loss per common share – basic and diluted(2) (unaudited)
|
| | | $ | (1.62) | | | | | | | | |
Pro forma weighted average common shares outstanding – basic and
diluted(2) (unaudited) |
| | | | 3,879,603 | | | | | | | | |
| | |
As of December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Balance Sheet Data: | | | | | | | | | | | | | |
Cash
|
| | | $ | 695,909 | | | | | $ | 53,893 | | |
Working capital(1)
|
| | | | (18,663,321) | | | | | | (14,179,599) | | |
Total assets
|
| | | | 6,209,696 | | | | | | 4,214,588 | | |
Accrued interest
|
| | | | 3,696,944 | | | | | | 1,745,515 | | |
Convertible notes payable, related parties, net of unamortized debt discount
and debt issuance costs |
| | | | 5,490,811 | | | | | | 5,350,278 | | |
Derivative liability for embedded conversion features
|
| | | | 2,373,000 | | | | | | 2,214,000 | | |
Bridge notes payable, net of debt issuance costs
|
| | | | 4,589,228 | | | | | | 3,586,326 | | |
Bridge notes payable, related parties
|
| | | | 1,905,000 | | | | | | 1,655,000 | | |
Note payable, current portion
|
| | | | 604,109 | | | | | | — | | |
Note payable, net of current portion
|
| | | | 178,899 | | | | | | — | | |
Convertible preferred stock
|
| | | | 11,173,076 | | | | | | 11,173,076 | | |
Total stockholders’ deficit
|
| | | | (27,277,967) | | | | | | (22,718,749) | | |
| | |
Years Ended December 31,
|
| |
Change
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
Dollars
|
| |
Percentage
|
| ||||||||||||
Revenue
|
| | | $ | 8,184,106 | | | | | $ | 4,298,350 | | | | | $ | 3,885,756 | | | | | | 90 | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | | | 3,585,477 | | | | | | 2,127,900 | | | | | | 1,457,577 | | | | | | 68 | | |
Technology
|
| | | | 1,426,473 | | | | | | 993,329 | | | | | | 433,144 | | | | | | 44 | | |
Sales and marketing
|
| | | | 1,775,347 | | | | | | 1,413,059 | | | | | | 362,288 | | | | | | 26 | | |
Supply development
|
| | | | 495,967 | | | | | | 792,778 | | | | | | (296,811) | | | | | | (37) | | |
Fulfillment
|
| | | | 853,450 | | | | | | 914,633 | | | | | | (61,183) | | | | | | (7) | | |
General and administrative
|
| | | | 2,453,772 | | | | | | 1,936,740 | | | | | | 517,032 | | | | | | 27 | | |
Total operating expenses
|
| | | | 10,590,486 | | | | | | 8,178,439 | | | | | | 2,412,047 | | | | | | 29 | | |
Loss from operations
|
| | | | (2,406,380) | | | | | | (3,880,089) | | | | | | 1,473,709 | | | | | | 38 | | |
Other income (expense), net | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest expense
|
| | | | (2,096,795) | | | | | | (1,724,450) | | | | | | (372,345) | | | | | | (22) | | |
Change in fair value of derivative liability
|
| | | | (159,000) | | | | | | 551,000 | | | | | | (710,000) | | | | | | (129) | | |
Other income
|
| | | | 9,654 | | | | | | 168,859 | | | | | | (159,205) | | | | | | (94) | | |
Interest income
|
| | | | 437 | | | | | | 630 | | | | | | (193) | | | | | | (31) | | |
Other expense, net
|
| | | | (2,245,704) | | | | | | (1,003,961) | | | | | | (1,241,743) | | | | | | (124) | | |
Benefit from income taxes
|
| | | | — | | | | | | 157,000 | | | | | | (157,000) | | | | | | (100) | | |
Net loss
|
| | | $ | (4,652,084) | | | | | $ | (4,727,050) | | | | | $ | 74,966 | | | | | | 2 | | |
| | |
Years Ended December 31,
|
| |
Change
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
Dollars
|
| |
Percentage
|
| ||||||||||||
Net cash flows used in operating activities
|
| | | $ | (288,380) | | | | | $ | (2,679,900) | | | | | $ | 2,391,520 | | | | | | 89% | | |
Net cash flows used in investing activities
|
| | | | (1,102,612) | | | | | | (1,475,245) | | | | | | 372,633 | | | | | | 25% | | |
Net cash flows provided by financing activities
|
| | | | 2,033,008 | | | | | | 3,078,674 | | | | | | (1,045,666) | | | | | | (34)% | | |
Net increase (decrease) in cash and cash equivalents
|
| | | $ | 642,016 | | | | | $ | (1,076,471) | | | | | $ | 1,718,487 | | | | | | | | |
| | |
Years Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Net loss
|
| | | $ | (4,652,084) | | | | | $ | (4,727,050) | | |
Income tax benefit
|
| | | | — | | | | | | (157,000) | | |
Change in fair value of derivative liability
|
| | | | 159,000 | | | | | | (551,000) | | |
Interest expense
|
| | | | 2,096,795 | | | | | | 1,724,450 | | |
Depreciation & amortization
|
| | | | 819,687 | | | | | | 634,965 | | |
Share-based compensation
|
| | | | 92,866 | | | | | | 360,379 | | |
Adjusted EBITDA
|
| | | $ | (1,483,736) | | | | | $ | (2,715,256) | | |
| | |
2020
|
| |
2019
|
| ||||||
Americas
|
| | | | 92.28% | | | | | | 97.7% | | |
Europe, Middle East, and Africa (“EMEA”)
|
| | | | 2.31% | | | | | | 0.2% | | |
Asia Pacific (“APAC”)
|
| | | | 5.41% | | | | | | 2.1% | | |
| | |
2020
|
| |
2019
|
| ||||||
Americas
|
| | | | 94.4% | | | | | | 77.5% | | |
Europe, Middle East, and Africa (EMEA)
|
| | | | 1.8% | | | | | | 22.5% | | |
Asia Pacific (APAC)
|
| | | | 3.8% | | | | | | 0.0% | | |
| | |
As of December 31,
|
| |
CAGR
2016-20 |
| ||||||||||||||||||||||||||||||
Sales Pipeline Stage — Totals (in thousands)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| |||||||||||||||||||||
Inquiries
|
| | | $ | 76,765 | | | | | $ | 54,266 | | | | | $ | 26,530 | | | | | $ | 26,236 | | | | | $ | 11,057 | | | | | | 62% | | |
Quotes
|
| | | $ | 64,333 | | | | | $ | 36,569 | | | | | $ | 17,851 | | | | | $ | 16,464 | | | | | $ | 6,763 | | | | | | 76% | | |
Purchase Orders
|
| | | $ | 14,850 | | | | | $ | 12,065 | | | | | $ | 8,228 | | | | | $ | 5,185 | | | | | $ | 2,109 | | | | | | 63% | | |
Revenue | | | | $ | 8,184 | | | | | $ | 4,298 | | | | | $ | 4,395 | | | | | $ | 3,067 | | | | | $ | 1,448 | | | | | | 53% | | |
| | |
As of December 31,
|
| |
CAGR
2016-20 |
| ||||||||||||||||||||||||||||||
Sales Pipeline Stage — Averages (in thousands)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| |||||||||||||||||||||
Inquiries
|
| | | $ | 56.5 | | | | | $ | 42.1 | | | | | $ | 23.2 | | | | | $ | 17.8 | | | | | $ | 18.8 | | | | | | 32% | | |
Quotes
|
| | | $ | 78.7 | | | | | $ | 47.1 | | | | | $ | 34.1 | | | | | $ | 20.3 | | | | | $ | 16.5 | | | | | | 48% | | |
Purchase Orders
|
| | | $ | 33.8 | | | | | $ | 35.5 | | | | | $ | 26.3 | | | | | $ | 9.8 | | | | | $ | 7.0 | | | | | | 48% | | |
| | |
As of December 31,
|
| |
CAGR
2016-20 |
| ||||||||||||||||||||||||||||||
Average Selling Price
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| |||||||||||||||||||||
Per Specimen Shipped
|
| | | $ | 325.47 | | | | | $ | 329.18 | | | | | $ | 163.98 | | | | | $ | 95.46 | | | | | $ | 35.48 | | | | | | 74% | | |
| | |
As of December 31,
|
| |
CAGR
2016-20 |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| |||||||||||||||||||||
Cumulative Number of Customer Organizations
|
| | | | 330 | | | | | | 230 | | | | | | 172 | | | | | | 135 | | | | | | 69 | | | | | | 48% | | |
Number of Active Customer Organizations
|
| | | | 172 | | | | | | 108 | | | | | | 96 | | | | | | 104 | | | | | | 56 | | | | | | 32% | | |
Name
|
| |
Age
|
| |
Position
|
| |||
Christopher Ianelli
|
| | | | 53 | | | | Chief Executive Officer, President, and Director | |
Jill Mullan
|
| | | | 56 | | | |
Chief Operating Officer, Secretary, Treasurer, and Director
|
|
Benjamin Bielak
|
| | | | 51 | | | | Chief Information Officer | |
Tracy Curley
|
| | | | 59 | | | | Chief Financial Officer | |
Andrew L. Ross
|
| | | | 72 | | | | Chairman of the Board | |
George “Bud” Scholl
|
| | | | 61 | | | | Director | |
Steven Gullans
|
| | | | 67 | | | | Director | |
John L. Brooks III
|
| | | | 69 | | | | Director Nominee | |
Margaret H. Lawrence
|
| | | | 45 | | | | Director Nominee | |
Name and Principal Position
|
| |
Year
|
| |
Salary
($) |
| |
Bonus
($) |
| |
Option
awards ($)(1) |
| |
All other
compensation ($) |
| |
Total
($) |
| ||||||||||||||||||
Christopher Ianelli,
|
| | | | 2020 | | | | | $ | 250,000 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 250,000 | | |
Chief Executive, President and Director
|
| | | | 2019 | | | | | $ | 250,000 | | | | | $ | — | | | | | $ | 297,587 | | | | | $ | — | | | | | $ | 547,587 | | |
Jill Mullan,
|
| | | | 2020 | | | | | $ | 230,000 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 230,000 | | |
Chief Operating Officer, Secretary and Treasurer
|
| | | | 2019 | | | | | $ | 230,000 | | | | | $ | — | | | | | $ | 397,671 | | | | | $ | — | | | | | $ | 627,617 | | |
Benjamin Bielak
|
| | | | 2020 | | | | | $ | 220,000 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 220,000 | | |
Chief Information Officer
|
| | | | 2019 | | | | | $ | 220,000 | | | | | $ | — | | | | | $ | 25,500 | | | | | $ | — | | | | | $ | 245,500 | | |
Tracy Curley(2)
|
| | | | 2020 | | | | | $ | 105,600 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 105,600 | | |
Chief Financial Officer
|
| | | | 2019 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Plan
|
| |
Number of
Shares Issued |
| |
Number of
Shares Reserved for Issuance |
| |
Number of
Shares underlying Outstanding Options or Warrants |
| |
Number of
Shares Remaining Available for Future Issuance |
| ||||||||||||
2010 Stock Incentive Plan
|
| | | | 156,603 | | | | | | 270,513 | | | | | | 113,898 | | | | | | — | | |
2013 Stock Incentive Plan
|
| | | | 59,491 | | | | | | 309,029 | | | | | | 137,949 | | | | | | 111,589 | | |
| | |
Option Awards
|
| ||||||||||||||||||||||||
Name
|
| |
Number of
securities underlying unexercised options (#) exercisable |
| |
Number of
securities underlying unexercised options (#) unexercisable |
| |
Equity incentive
plan awards; Number of securities underlying unexercised unearned options (#) |
| |
Option exercise
price ($) |
| |
Option
expiration date |
| ||||||||||||
Christopher Ianelli
|
| | | | 2,254 | | | | | | 2,254 | | | | | | — | | | | | $ | 1.00 | | | |
January 31, 2029
|
|
Christopher Ianelli
|
| | | | 48,106 | | | | | | — | | | | | | — | | | | | $ | 1.00 | | | |
July 12, 2029
|
|
Jill Mullan
|
| | | | 19,296 | | | | | | — | | | | | | — | | | | | $ | 1.00 | | | |
June 29, 2026
|
|
Jill Mullan
|
| | | | 2,254 | | | | | | 2,254 | | | | | | — | | | | | $ | 1.00 | | | |
January 31, 2029
|
|
Jill Mullan
|
| | | | 65,792 | | | | | | — | | | | | | — | | | | | $ | 1.00 | | | |
July 12, 2029
|
|
Benjamin Bielak
|
| | | | 14,653 | | | | | | 8,791 | | | | | | — | | | | | $ | 1.00 | | | |
June 14, 2028
|
|
Benjamin Bielak
|
| | | | 2,254 | | | | | | 2,254 | | | | | | — | | | | | $ | 1.00 | | | |
January 31, 2029
|
|
Name and Principal Position
|
| |
Year
|
| |
Salary
($) |
| |
Bonus
($) |
| |
Option
awards ($)(1) |
| |
All other
compensation ($) |
| |
Total
($) |
| ||||||||||||||||||
Andrew Ross,
|
| | | | 2020 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Chairman of the Board
|
| | | | 2019 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Bud Scholl
|
| | | | 2020 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Director
|
| | | | 2019 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Steven Gullans
|
| | | | 2020 | | | | | $ | — | | | | | $ | — | | | | | $ | 51,750 | | | | | $ | — | | | | | $ | — | | |
Director
|
| | | | 2019 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
Shares beneficially
owned prior to the offering |
| |
Shares beneficially
owned after the offering |
| ||||||||||||||||||||||||||||||||||||||||||
Name of beneficial
owner |
| |
Common
stock |
| |
Options
exercisable within 60 days |
| |
Aggregate
number of shares beneficially owned |
| |
%
|
| |
Assuming
no exercise of option to purchase additional shares |
| |
%
|
| |
Assuming
exercise of option to purchase additional shares |
| |
%
|
| ||||||||||||||||||||||||
5% or more stockholders:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Anna-Maria &
Stephen Kellen Foundation(1) |
| | | | 196,785(2) | | | | | | — | | | | | | 196,785 | | | | | | 8.7% | | | | | | 521,024(7) | | | | | | 8.5% | | | | | | 521,024(7) | | | | | | 8.1% | | |
OBF Investments
|
| | | | 250,456(3) | | | | | | — | | | | | | 250,456 | | | | | | 11.1% | | | | | | 755,253(8) | | | | | | 12.3% | | | | | | 755,253(8) | | | | | | 11.7% | | |
Named executive officers and directors:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Andrew L. Ross
|
| | | | 854,847(4) | | | | | | — | | | | | | 854,847 | | | | | | 38.0% | | | | | | 1,209,996(9) | | | | | | 19.8% | | | | | | 1,209,996(9) | | | | | | 18.7% | | |
Christopher Ianelli
|
| | | | 343,357(5) | | | | | | 50,361 | | | | | | 393,718 | | | | | | 17.1% | | | | | | 393,718 | | | | | | 6.4% | | | | | | 393,718 | | | | | | 6.0% | | |
Jill Mullan
|
| | | | 49,566(6) | | | | | | 87,343 | | | | | | 136,909 | | | | | | 5.9% | | | | | | 164,679(10) | | | | | | 2.7% | | | | | | 164,679(10) | | | | | | 2.5% | | |
Steven Gullans
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
John L. Brooks III
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Margaret H. Lawrence
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All current directors
and executive officers as a group (6 persons) |
| | | | 1,247,770 | | | | | | 137,704 | | | | | | 1,385,474 | | | | | | 58.0% | | | | | | 1,768,393 | | | | | | 28.2% | | | | | | 1,768,393 | | | | | | 26.8% | | |
Underwriters
|
| |
Number of Shares
|
| |||
ThinkEquity, a division of Fordham Financial Management, Inc.
|
| |
|
| |||
Total
|
| | | | 2,222,222 | | |
| | |
| | | | | | | | |
Total
|
| |||||||||
| | |
Per Share
|
| |
Without Over-Allotment
|
| |
With Over-Allotment
|
| |||||||||
Public offering price
|
| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discount (7.5%)
|
| | | $ | | | | | $ | | | | | $ | | | |||
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | | | | $ | | |
| | | | | F-2 | | | |
| | | | | F-3 | | | |
| | | | | F-4 | | | |
| | | | | F-5 | | | |
| | | | | F-6 | | | |
| | | | | F-7 | | |
| | |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
ASSETS
|
| | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash
|
| | | $ | 695,909 | | | | | $ | 53,893 | | |
Accounts receivable, net of allowance for doubtful accounts of $108,096 and $0 at December 31, 2020 and 2019, respectively
|
| | | | 1,526,392 | | | | | | 833,580 | | |
Accounts receivable-unbilled
|
| | | | 652,761 | | | | | | 454,576 | | |
Prepaid expenses and other current assets
|
| | | | 417,929 | | | | | | 134,135 | | |
Tax credit receivable, current portion
|
| | | | 179,376 | | | | | | 104,478 | | |
Total current assets
|
| | | | 3,472,367 | | | | | | 1,580,662 | | |
Property and equipment, net
|
| | | | 75,589 | | | | | | 119,921 | | |
Internally developed software, net
|
| | | | 2,634,139 | | | | | | 2,306,882 | | |
Tax credit receivable, net of current portion
|
| | | | — | | | | | | 179,522 | | |
Security deposits
|
| | | | 27,601 | | | | | | 27,601 | | |
Total assets
|
| | | $ | 6,209,696 | | | | | $ | 4,214,588 | | |
LIABILITIES, CONVERTIBLE PREFERRED STOCK AND
STOCKHOLDERS’ DEFICIT |
| | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 1,792,432 | | | | | $ | 737,794 | | |
Accrued expenses
|
| | | | 810,910 | | | | | | 471,348 | | |
Accrued interest
|
| | | | 3,696,944 | | | | | | 1,745,515 | | |
Convertible notes payable, related parties, net of unamortized debt discount
and debt issuance costs |
| | | | 5,490,811 | | | | | | 5,350,278 | | |
Derivative liability for embedded conversion features
|
| | | | 2,373,000 | | | | | | 2,214,000 | | |
Bridge notes payable, net of debt issuance costs
|
| | | | 4,589,228 | | | | | | 3,586,326 | | |
Bridge notes payable, related parties
|
| | | | 1,905,000 | | | | | | 1,655,000 | | |
Note payable, current portion
|
| | | | 604,109 | | | | | | — | | |
Deferred revenue
|
| | | | 873,254 | | | | | | — | | |
Total current liabilities
|
| | | | 22,135,688 | | | | | | 15,760,261 | | |
Note payable, net of current portion
|
| | | | 178,899 | | | | | | — | | |
Total liabilities
|
| | | | 22,314,587 | | | | | | 15,760,261 | | |
Commitments and contingencies | | | | | | | | | | | | | |
Series B convertible preferred stock, $0.0001 par value, 3,200,000 shares
authorized, 572,465 shares issued and outstanding at December 31, 2020 and 2019 (preference in liquidation of $10,604,240) |
| | | | 7,999,997 | | | | | | 7,999,997 | | |
Series A-1 convertible preferred stock, $0.0001 par value, 556,550 shares authorized, 100,365 issued and outstanding at December 31, 2020 and 2019 (preference in liquidation of $780,170)
|
| | | | 561,041 | | | | | | 561,041 | | |
Series A convertible preferred stock, $0.0001 par value, 3,427,871 shares authorized, 618,182 issued and outstanding at December 31, 2020 and 2019 (preference in liquidation of $3,935,804)
|
| | | | 2,612,038 | | | | | | 2,612,038 | | |
Total convertible preferred stock
|
| | | | 11,173,076 | | | | | | 11,173,076 | | |
Stockholders’ Deficit: | | | | | | | | | | | | | |
Common stock, $0.0001 par value, 16,000,000 shares authorized, 967,213 issued and 936,213 outstanding at December 31, 2020 and 2019
|
| | | | 94 | | | | | | 94 | | |
Additional paid-in capital
|
| | | | 1,779,698 | | | | | | 1,686,832 | | |
Treasury stock, 31,000 shares at December 31, 2020 and 2019, at cost
|
| | | | (172) | | | | | | (172) | | |
Accumulated deficit
|
| | | | (29,057,587) | | | | | | (24,405,503) | | |
Total stockholders’ deficit
|
| | | | (27,277,967) | | | | | | (22,718,749) | | |
Total liabilities, convertible preferred stock and stockholders’ deficit
|
| | | $ | 6,209,696 | | | | | $ | 4,214,588 | | |
| | |
Years Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Revenue
|
| | | $ | 8,184,106 | | | | | $ | 4,298,350 | | |
Operating expenses: | | | | | | | | | | | | | |
Cost of revenue
|
| | | | 3,585,477 | | | | | | 2,127,900 | | |
Technology
|
| | | | 1,426,473 | | | | | | 993,329 | | |
Sales and marketing
|
| | | | 1,775,347 | | | | | | 1,413,059 | | |
Supply development
|
| | | | 495,967 | | | | | | 792,778 | | |
Fulfillment
|
| | | | 853,450 | | | | | | 914,633 | | |
General and administrative
|
| | | | 2,453,772 | | | | | | 1,936,740 | | |
Total operating expenses
|
| | | | 10,590,486 | | | | | | 8,178,439 | | |
Loss from operations
|
| | | | (2,406,380) | | | | | | (3,880,089) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest expense
|
| | | | (2,096,795) | | | | | | (1,724,450) | | |
Change in fair value of derivative liability
|
| | | | (159,000) | | | | | | 551,000 | | |
Other income
|
| | | | 9,654 | | | | | | 168,859 | | |
Interest income
|
| | | | 437 | | | | | | 630 | | |
Other expense, net
|
| | | | (2,245,704) | | | | | | (1,003,961) | | |
Net loss before benefit from income taxes
|
| | | | (4,652,084) | | | | | | (4,884,050) | | |
Benefit from income taxes
|
| | | | — | | | | | | 157,000 | | |
Net loss
|
| | | $ | (4,652,084) | | | | | $ | (4,727,050) | | |
Net loss per share | | | | | | | | | | | | | |
Basic and diluted
|
| | | $ | (4.97) | | | | | $ | (5.05) | | |
Weighted average common shares outstanding | | | | | | | | | | | | | |
Basic and diluted
|
| | | | 936,213 | | | | | | 936,096 | | |
| | |
Series B
Convertible Preferred Stock |
| |
Series A-1
Convertible Preferred Stock |
| |
Series A
Convertible Preferred Stock |
| | |
Common Stock
|
| |
Treasury Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Deficit |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
Balance at January 1, 2019
|
| | | | 572,465 | | | | | $ | 7,999,997 | | | | | | 100,365 | | | | | $ | 561,041 | | | | | | 618,182 | | | | | $ | 2,612,038 | | | | | | | 935,651 | | | | | $ | 94 | | | | | | 31,000 | | | | | $ | (172) | | | | | $ | 1,322,779 | | | | | $ | (19,746,453) | | | | | $ | (18,423,752) | | |
Cumulative effect from adoption of ASC 606
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 68,000 | | | | | | 68,000 | | |
Issuance of common stock through exercise of stock options
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | 562 | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,674 | | | | | | — | | | | | | 3,674 | | |
Share-based compensation
expense |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 360,379 | | | | | | — | | | | | | 360,379 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,727,050) | | | | | | (4,727,050) | | |
Balance at December 31, 2019
|
| | | | 572,465 | | | | | $ | 7,999,997 | | | | | | 100,365 | | | | | $ | 561,041 | | | | | | 618,182 | | | | | $ | 2,612,038 | | | | | | | 936,213 | | | | | $ | 94 | | | | | | 31,000 | | | | | | (172) | | | | | $ | 1,686,832 | | | | | $ | (24,405,503) | | | | | $ | (22,718,749) | | |
Share-based compensation
expense |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 92,866 | | | | | | — | | | | | | 92,866 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,652,084) | | | | | | (4,652,084) | | |
Balance at December 31, 2020
|
| | | | 572,465 | | | | | $ | 7,999,997 | | | | | | 100,365 | | | | | $ | 561,041 | | | | | | 618,182 | | | | | $ | 2,612,038 | | | | | | | 936,213 | | | | | $ | 94 | | | | | | 31,000 | | | | | $ | (172) | | | | | $ | 1,779,698 | | | | | $ | (29,057,587) | | | | | $ | (27,277,967) | | |
| | |
Years Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
CASH FLOWS FROM OPERATING ACTIVITIES: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (4,652,084) | | | | | $ | (4,727,050) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Share-based compensation
|
| | | | 92,866 | | | | | | 360,379 | | |
Amortization of internally developed software
|
| | | | 774,929 | | | | | | 577,605 | | |
Depreciation and amortization of property and equipment
|
| | | | 44,758 | | | | | | 57,360 | | |
Bad debt expense
|
| | | | 108,096 | | | | | | — | | |
Amortization of discount and debt issuance costs on convertible notes
|
| | | | 143,435 | | | | | | 551,993 | | |
Change in fair value of derivative liability
|
| | | | 159,000 | | | | | | (551,000) | | |
Change in operating assets and liabilities: | | | | | | | | | | | | | |
Accounts receivable
|
| | | | (800,908) | | | | | | 192,253 | | |
Accounts receivable-unbilled
|
| | | | (198,185) | | | | | | (305,576) | | |
Prepaid expenses and other current assets
|
| | | | (226,374) | | | | | | 13,170 | | |
Tax credit receivable
|
| | | | 104,624 | | | | | | (157,000) | | |
Accounts payable
|
| | | | 1,054,638 | | | | | | 40,882 | | |
Accrued expenses
|
| | | | 282,142 | | | | | | 94,725 | | |
Accrued interest
|
| | | | 1,951,429 | | | | | | 1,172,359 | | |
Deferred revenue
|
| | | | 873,254 | | | | | | — | | |
Net cash used in operating activities
|
| | | | (288,380) | | | | | | (2,679,900) | | |
CASH FLOWS FROM INVESTING ACTIVITIES: | | | | | | | | | | | | | |
Purchase of property and equipment
|
| | | | (426) | | | | | | (28,183) | | |
Capitalization of internally developed software
|
| | | | (1,102,186) | | | | | | (1,447,062) | | |
Net cash used in investing activities
|
| | | | (1,102,612) | | | | | | (1,475,245) | | |
CASH FLOWS FROM FINANCING ACTIVITIES: | | | | | | | | | | | | | |
Proceeds from issuance of bridge notes payable
|
| | | | 1,250,000 | | | | | | 3,075,000 | | |
Proceeds from issuance of note payable
|
| | | | 783,008 | | | | | | — | | |
Proceeds from exercise of stock options
|
| | | | — | | | | | | 3,674 | | |
Net cash provided by financing activities
|
| | | | 2,033,008 | | | | | | 3,078,674 | | |
Net increase (decrease) in cash
|
| | | | 642,016 | | | | | | (1,076,471) | | |
Cash at beginning of period
|
| | | | 53,893 | | | | | | 1,130,364 | | |
Cash at end of period
|
| | | $ | 695,909 | | | | | $ | 53,893 | | |
Supplemental disclosure of cash flow information: | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | — | | | | | $ | — | | |
Income taxes paid
|
| | | $ | — | | | | | $ | — | | |
Supplemental disclosure of non-cash investing and financing activities: | | | | | | | | | | | | | |
Debt issuance costs included in accrued expenses
|
| | | $ | — | | | | | $ | (3,862) | | |
Deferred offering costs included in accrued expenses
|
| | | $ | (57,420) | | | | | $ | — | | |
| | |
2020
|
| |
2019
|
| ||||||
Specimens – contracts with customers
|
| | | $ | 8,086,324 | | | | | $ | 4,215,002 | | |
Shipping and other
|
| | | | 97,782 | | | | | | 83,348 | | |
Revenue
|
| | | $ | 8,184,106 | | | | | $ | 4,298,350 | | |
Asset category
|
| |
Estimated Useful Life
|
|
Website
|
| | 3 years | |
Computer equipment and purchased software
|
| | 5 years | |
Equipment
|
| | 5 years | |
Furniture and fixtures
|
| | 5 years | |
Leasehold improvements
|
| |
Shorter of useful life of asset or lease term
|
|
| | |
2020
|
| |
2019
|
| ||||||
Shares issuable upon conversion of preferred stock
|
| | | | 1,291,012 | | | | | | 1,291,012 | | |
Shares issuable upon exercise of stock options
|
| | | | 251,847 | | | | | | 224,884 | | |
Shares issuable upon exercise of warrants to purchase common stock
|
| | | | 23,309 | | | | | | 23,309 | | |
| | |
2020
|
| |
2019
|
| ||||||
Website
|
| | | $ | 105,376 | | | | | $ | 105,376 | | |
Computer equipment and purchased software
|
| | | | 84,589 | | | | | | 84,481 | | |
Equipment
|
| | | | 35,449 | | | | | | 35,134 | | |
Furniture and fixtures
|
| | | | 87,184 | | | | | | 87,184 | | |
Leasehold improvements
|
| | | | 24,935 | | | | | | 24,935 | | |
Total property and equipment
|
| | | | 337,533 | | | | | | 337,110 | | |
Accumulated depreciation
|
| | | | (261,944) | | | | | | (217,189) | | |
Total property and equipment, net
|
| | | $ | 75,589 | | | | | $ | 119,921 | | |
| | |
Fair value at December 31, 2020
|
| |||||||||||||||||||||
| | |
Total
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||
Liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | |
Derivative liability
|
| | | $ | 2,373,000 | | | | | $ | — | | | | | $ | — | | | | | $ | 2,373,000 | | |
Total liabilities
|
| | | $ | 2,373,000 | | | | | $ | — | | | | | $ | — | | | | | $ | 2,373,000 | | |
| | |
Fair value at December 31, 2019
|
| |||||||||||||||||||||
| | |
Total
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||
Liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | |
Derivative liability
|
| | | $ | 2,214,000 | | | | | $ | — | | | | | $ | — | | | | | $ | 2,214,000 | | |
Total liabilities
|
| | | $ | 2,214,000 | | | | | $ | — | | | | | $ | — | | | | | $ | 2,214,000 | | |
| | |
2020
|
| |
2019
|
| ||||||
Balance, beginning of period
|
| | | $ | 2,214,000 | | | | | $ | 2,765,000 | | |
Loss (gain) included in earnings
|
| | | | 159,000 | | | | | | (551,000) | | |
Balance, end of period
|
| | | $ | 2,373,000 | | | | | $ | 2,214,000 | | |
Years Ended December 31,
|
| |
Operating Leases
|
| |||
2021
|
| | | $ | 161,062 | | |
2022
|
| | | | 163,158 | | |
2023
|
| | | | 165,254 | | |
2024
|
| | | | 27,601 | | |
Total
|
| | | $ | 517,075 | | |
| | |
2020
|
| |
2019
|
|
Assumptions: | | | | | | | |
Risk-free interest rate
|
| |
0.30% – 1.41%
|
| |
1.59% – 2.58%
|
|
Expected term (in years)
|
| |
5.32 – 6.14
|
| |
5.00 – 6.14
|
|
Expected volatility
|
| |
43.11% – 50.14%
|
| |
41.00% – 43.92%
|
|
Expected dividend yield
|
| |
—%
|
| |
—%
|
|
| | |
Options
Outstanding |
| |
Weighted Average
Exercise Price |
| |
Weighted Average
Remaining Contractual Term in Years |
| |||||||||
Balance at January 1, 2019
|
| | | | 90,799 | | | | | $ | 2.57 | | | | | | 8.78 | | |
Granted
|
| | | | 162,016 | | | | | $ | 1.13 | | | | | | | | |
Exercised
|
| | | | (562) | | | | | $ | 6.52 | | | | | | | | |
Cancelled/forfeited
|
| | | | (27,369) | | | | | $ | 6.09 | | | | | | | | |
Balance at December 31, 2019
|
| | | | 224,884 | | | | | $ | 1.08 | | | | | | 8.78 | | |
Granted
|
| | | | 43,259 | | | | | $ | 1.00 | | | | | | | | |
Exercised
|
| | | | — | | | | | $ | 1.00 | | | | | | | | |
Cancelled/forfeited
|
| | | | (16,296) | | | | | $ | 4.20 | | | | | | | | |
Balance at December 31, 2020
|
| | | | 251,847 | | | | | $ | 1.00 | | | | | | 8.06 | | |
Options exercisable at December 31, 2020
|
| | | | 180,716 | | | | | $ | 1.00 | | | | | | 7.85 | | |
| | |
2020
|
| |
2019
|
| ||||||
Deferred tax assets: | | | | | | | | | | | | | |
Operating loss carryforwards
|
| | | $ | 6,600,000 | | | | | $ | 5,600,000 | | |
Other
|
| | | | 700,000 | | | | | | 1,000,000 | | |
Total deferred tax assets
|
| | | | 7,300,000 | | | | | | 6,600,000 | | |
Deferred tax liability: | | | | | | | | | | | | | |
Intangibles
|
| | | | (250,000) | | | | | | (150,000) | | |
Total deferred tax liabilities
|
| | | | (250,000) | | | | | | (150,000) | | |
Net deferred tax assets before valuation allowance
|
| | | | 7,050,000 | | | | | | 6,450,000 | | |
Valuation allowance
|
| | | | (7,050,000) | | | | | | (6,450,000) | | |
Net deferred tax asset
|
| | | $ | — | | | | | $ | — | | |
| | |
2020
|
| |
2019
|
| ||||||
Reconciliation to statutory rates
|
| | | | | | | | | | | | |
Expected federal income taxes benefit at statutory rates
|
| | | | (21)% | | | | | | (21)% | | |
Expected state tax benefit at statutory rates, net of federal benefit
|
| | | | (8) | | | | | | (8) | | |
Change in valuation allowance
|
| | | | 29 | | | | | | 29 | | |
Income tax expense (benefit)
|
| | | | —% | | | | | | —% | | |
| | |
Amount to be
paid |
| |||
SEC registration fee
|
| | | $ | 2,635 | | |
FINRA filing fee
|
| | | | 3,500 | | |
Exchange listing fee
|
| | | | 50,000 | | |
Accounting fees and expenses
|
| | | | 50,000 | | |
Legal fees and expenses
|
| | | | 350,000 | | |
Printing expenses
|
| | | | 140,000 | | |
Transfer agent and registrar fees
|
| | | | 4,000 | | |
Miscellaneous expenses
|
| | | | 1,000 | | |
Total
|
| | |
$
|
601,135
|
| |
|
Exhibit
No. |
| |
Description
|
|
| 1.1 | | | | |
| 3.1 | | | | |
| 3.2 | | | | |
| 3.3 | | | | |
| 3.4 | | | | |
| 3.5 | | | | |
| 4.1 | | | Specimen Stock Certificate evidencing the shares of common stock.* | |
| 5.1 | | | Opinion of Ellenoff Grossman & Schole LLP.* | |
| 10.1 | | | | |
| 10.2 | | | | |
| 10.3 | | | | |
| 10.4 | | | | |
| 10.5 | | | | |
| 10.6 | | | | |
| 10.7 | | | | |
| 10.8 | | | |
|
Name
|
| |
Position
|
| |
Date
|
|
|
/s/ Christopher Ianelli
Christopher Ianelli
|
| |
Chief Executive Officer, President and Director
(Principal Executive Officer) |
| |
April 2, 2021
|
|
|
/s/ Jill Mullan
Jill Mullan
|
| | Chief Operating Officer, Secretary, Treasurer and Director | | |
April 2, 2021
|
|
|
/s/ Tracy Curley
Tracy Curley
|
| |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
| |
April 2, 2021
|
|
|
/s/ Andrew L. Ross
Andrew L. Ross
|
| | Chairman of the Board | | |
April 2, 2021
|
|
|
/s/ George “Bud” Scholl
George “Bud” Scholl
|
| | Director | | |
April 2, 2021
|
|
|
/s/ Steven Gullans
Steven Gullans
|
| | Director | | |
April 2, 2021
|
|
Exhibit 3.3
CERTIFICATE OF AMENDMENT
TO THE
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ISPECIMEN INC.
iSpecimen Inc. (the “Corporation”), a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
1. | The name of the Corporation is: iSpecimen Inc. |
2. | The board of directors of the Corporation (the “Board”) duly adopted on the 28th day of March, 2021, in accordance with Section 141(f) of the DGCL, a resolution proposing and declaring advisable an amendment to the Third Amended and Restated Certificate of Incorporation of said Corporation to consummate a reverse stock split of the Corporation’s common stock, par value $0.0001 per share (the “Common Stock”), which such resolution was approved by the stockholders of the Corporation on the 29th day of March, 2021. |
3. | Article Fourth of the Third Amended and Restated Certificate of Incorporation is hereby amended by adding the following paragraph: | |
“Upon effectiveness of this Certificate of Amendment (the “Split Effective Time”), each share of Common Stock issued and outstanding immediately prior to Split Effective Time shall be automatically changed and reclassified into a smaller number of shares such that each 5.545 shares of issued Common Stock immediately prior to the Split Effective Time is reclassified into one share of Common Stock. Notwithstanding the immediately preceding sentence, there shall be no fractional shares issued, and any fraction of a share as a result of the reclassification, following the Split Effective Time, shall be rounded down. No stockholders will receive cash in lieu of fractional shares.” |
4. | The aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 242 of the DGCL. |
5. | This Certificate of Amendment to the Third Amended and Restated Certificate of Incorporation shall be effective as of March 30, 2021. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE FOLLOWS]
IN WITNESS WHEREOF, iSpecimen Inc. has caused this Certificate to be executed by its duly authorized officer on this 30th day of March, 2021.
ISPECIMEN INC. | ||
By: | /s/ Christopher Ianelli | |
Name: Dr. Christopher Ianelli | ||
Title: President & Chief Executive Officer |
Exhibit 10.23
iSpecimen Inc.
Fifth Amendment to Note Subscription Agreements & Secured Promissory Notes
Approved by the Board of Directors on March 15, 2021
This Fifth Amendment to the Note Subscription Agreements and Secured Promissory Notes (this “Amendment”) is made and entered into and effective as of March 15, 2021 (the “Effective Amendment Date”), by and among iSpecimen Inc., a Delaware corporation (the “Company”), and those investors who are holders (the “Note Investors”) of the Company’s Secured Promissory Notes in the aggregate principal amount of $6,500,000 (as described below).
Whereas, the Company and the Note Investors have previously and separately entered into various Note Subscription Agreements executed at various times between August 2018 and September 2020 (the “Note Subscription Agreements”), pursuant to which the Company issued and sold $6,500,000 in aggregate principal amount of Secured Promissory Notes (the “Secured Promissory Notes”);
Whereas, the Note Subscription Agreements and the Secured Promissory Notes may be amended with the consent of the Company and the holders of greater than seventy-five percent (75%) in principal amount of outstanding Secured Promissory Notes (the “Majority Lenders” as defined in the Note Subscription Agreements prior to this Amendment);
Now, Therefore, in consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt of and sufficiency of which are hereby acknowledged, the Company and the undersigned Note Investors agree as follows:
1. Defined Terms. Except as specifically provided herein, capitalized terms not defined herein shall have the meanings ascribed to them in the Note Subscription Agreements and the Secured Promissory Notes.
2. Amendments to the Note Subscription Agreements and the Secured Promissory Notes. The Note Subscription Agreements and the Secured Promissory Notes are hereby amended as follows:
A. | Note Subscription Agreement: Section 1, Subscription for Note |
Delete: | “1. Subscription for Note. Subject to the terms and conditions contained herein, the undersigned Investor hereby subscribes for and agrees to purchase the principal amount of Secured Promissory Notes, in the form attached hereto as Exhibit A (the “Notes”), in the amount set forth on the signature page of this Agreement. The Notes shall bear interest, on a non-compounding basis, at a rate of twenty four percent (24%) per annum prior to October 1, 2020 and at a rate of thirty percent (30%) per annum from and after October 1, 2020, due on maturity on the earlier of (i) the closing of a new permanent equity financing yielding gross proceeds in excess of $10,000,000 (inclusive of existing convertible notes), (ii) the sale of the Company, (iii) prepayment by the Company, or (iv) March 31, 2021 (the “Maturity Date”). The Notes will be repayable upon demand of the Majority Lenders at any time on or after the Maturity Date, provided that the Notes have not been otherwise repaid in accordance with their terms. The Notes will be secured obligations of the Company. The Majority Lenders may, with the approval of the Company, elect to extend the Maturity Date one or more times, at their discretion. The Notes will be issued by the Company solely to “accredited investors” (as defined under Rule 501 of Regulation D of the Securities Act of 1933, as amended, the “Securities Act”).” |
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 1 |
Insert: | “1. Subscription for Note. Subject to the terms and conditions contained herein, the undersigned Investor hereby subscribes for and agrees to purchase the principal amount of Secured Promissory Notes, in the form attached hereto as Exhibit A (the “Notes”), in the amount set forth on the signature page of this Agreement. The Notes shall bear interest, on a non-compounding basis, at a rate of twenty four percent (24%) per annum prior to October 1, 2020 and at a rate of thirty percent (30%) per annum from and after October 1, 2020, due on maturity on the earlier of (i) the closing of an initial public offering yielding gross proceeds in excess of $18,000,000, exclusive of any existing convertible notes (a “Qualified IPO”), (ii) the sale of the Company, (iii) prepayment by the Company, or (iv) April 30, 2021 (the “Maturity Date”). The Notes will be repayable upon demand of the Majority Lenders at any time on or after the Maturity Date, provided that the Notes have not been otherwise repaid or converted in accordance with Sections 1.6 or 1.7. The Notes will be secured obligations of the Company. The Majority Lenders may, with the approval of the Company, elect to extend the Maturity Date one or more times, at their discretion. The Notes will be issued by the Company solely to “accredited investors” (as defined under Rule 501 of Regulation D of the Securities Act of 1933, as amended, the “Securities Act”).” |
B. | Note Subscription Agreement: New Section 1.6, Elective Conversion Upon a Qualified IPO |
Insert: | “1.6 Elective Conversion Upon a Qualified IPO. Notwithstanding anything contained herein to the contrary, the Note Investor may provide notice of their election at any time prior to the Maturity Date and up to the date of March 19, 2021 or such other date as determined at the discretion of the Board of Directors (“Elective Notice”) to convert fifty percent (50%) or more of the outstanding unpaid principal on the Secured Promissory Note issued hereunder (the “Elective Principal Conversion Amount”) plus any amount of outstanding unpaid interest on the Secured Promissory Note issued hereunder (the “Elective Interest Conversion Amount”) at the time of the Qualified IPO, into the same class or series of securities of the Company to be offered and issued in the Qualified IPO (the “IPO Stock”) at a rate equal to the issue price of the IPO Stock less a thirty percent (30%) discount (that is, at a rate of seventy percent (70%) of the issue price of the IPO Stock; such discounted IPO Stock, the “Elective Conversion Stock”). With respect to each Investor, any Elective Principal Conversion Amount elected by such Investor shall be deducted from the amount of principal then outstanding on such Investor’s Note to calculate the Investor’s “Adjusted Principal Repayment Amount” and any Elective Interest Conversion Amount elected by such Investor shall be deducted from the amount of accrued interest due to such Investor to calculate the Investor’s “Adjusted Interest Repayment Amount”. |
Any Elective Notice given by the Note Investor shall be in the form provided in Exhibit B to the Note Subscription Agreement and shall be binding upon its execution and submission to the Company, converting the sum of the amounts specified for such elective conversion first with respect to outstanding principal on the Note and second with respect to outstanding interest. In connection with the provision of any Elective Notice by the Note Investor, such Note Investor agrees to and shall enter into the customary “lock-up” agreement in favor of the underwriter of the Company’s initial public offering for a period of six (6) months from the date of the Qualified IPO, provided in Exhibit C (the “Lock Up Agreement”). An Elective Notice shall only be effective upon execution of the Lock Up Agreement by the Investor. Upon the timely delivery and receipt by the Company of such Elective Notice and Lock Up Agreement, the Company shall take reasonable efforts to obtain all approvals, consents, waivers and make all filings necessary or appropriate to designate and authorize the Elective Conversion Stock, if and as applicable.
The sum of all Elective Interest Conversion Amounts specified in all Elective Notices provided by Investors to the Company shall be deducted from the total amount of interest then outstanding on all Secured Promissory Note to calculate the “Total Adjusted Outstanding Interest”, which shall be repaid in accordance with Section 1.7. The sum of all Elective Principal Conversion Amounts specified in all Elective Notices provided by Investors to the Company shall be deducted from the total amount of principal then outstanding on all Secured Promissory Note to calculate the “Total Adjusted Outstanding Principal”, which shall be repaid in accordance with Section 1.7.
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 2 |
C. | Note Subscription Agreement: New Section 1.7, Repayment of Total Adjusted Outstanding Interest and Total Adjusted Outstanding Principal Upon a Qualified IPO. |
Insert: | “1.7 Repayment of Total Adjusted Outstanding Interest and Total Adjusted Outstanding Principal Upon a Qualified IPO. If a Qualified IPO is consummated, either as a single transaction or a series of related transactions prior to the Maturity Date, the Company shall make a cash payment to the Note Investors equal to the amount of “Note Repayment Proceeds”, which shall be defined as the greater of either the Total Adjusted Outstanding Interest or one and one-half times (1.50X) the Third-Party Loan Proceeds. For the purposes herein, “Third-Party Loan Proceeds” shall mean the net cash proceeds received by the Company from an institutional lender, commercial bank, or other similar lender consummated on or about the time of the Qualified IPO (or contingent upon the closing of the Qualified IPO). |
The Company shall first apply such Note Repayment Proceeds to repay the Total Adjusted Outstanding Interest due on the Notes as of such date by delivering in cash to each Investor an amount equal to such Investor’s Adjusted Interest Repayment Amount. The Company shall second apply the balance of the Note Repayment Proceeds that remains after payment of the Total Adjusted Outstanding Interest, up to the amount equal to the Total Adjusted Outstanding Principal (the “Principal Repayment Proceeds”), to make a repayment in cash to each Investor equal to an amount of principal calculated by multiplying the Principal Repayment Proceeds by a fraction, the numerator of which is equal to the Adjusted Principal Repayment Amount of such Investor and the denominator of which is equal to Total Adjusted Outstanding Principal then outstanding to all Investors. In no event shall any cash payment made to any Investor exceed the sum of the Adjusted Interest Repayment Amount plus the Adjusted Principal Repayment Amount for such Investor.
Any remaining unpaid principal under this Note, calculated by subtracting the Principal Repayment Proceeds from the Total Adjusted Outstanding Principal on the Secured Promissory Notes (the “Automatic Principal Conversion Amount”), shall then automatically convert into IPO Stock at a rate equal to the issue price of the IPO Stock less a ten percent (10%) discount (that is, at a rate of ninety percent (90%) of the issue price of the IPO Stock; such discounted IPO Stock; the “Automatic Conversion Stock”). Notwithstanding the foregoing, if the Company is unable to repay at least twenty-five percent (25%) of the Total Adjusted Outstanding Principal of the Notes (the “Principal Repayment Floor”), then no Automatic Conversion Stock shall be issued and the Total Adjusted Outstanding Principal on the Notes shall remain on the books of the Company under their existing Notes which shall automatically be amended to (i) have their interest rates adjusted to a rate of fifteen percent (15%) per annum and (ii) have their Maturity Date set to a date that is eighteen (18) months from the date of the Qualified IPO.
In connection with the consummation of such Qualified IPO, the full payment of the interest due on the Note in the form of either cash or Elected Conversion Stock and the full repayment of principal on the Note in the form of either cash, Elected Conversion Stock, and/or Automatic Conversion Stock, this Note shall be treated by the Company as surrendered for cancellation on the books of the Company.
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 3 |
D. | Secured Promissory Note: Preamble |
Delete: | “FOR VALUE RECEIVED, iSpecimen Inc., a Delaware corporation (the “Company”), hereby promises to pay, on the written demand of the combined Majority Lenders at any time on or after the earlier of (i) the closing of a new permanent equity financing yielding gross proceeds in excess of $10,000,000 (inclusive of existing convertible notes), (ii) the sale of the Company, (iii) prepayment by the Company, or (iv) March 31, 2021 (the “Maturity Date”),” |
Insert: | “FOR VALUE RECEIVED, iSpecimen Inc., a Delaware corporation (the “Company”), hereby promises to pay, on the written demand of the combined Majority Lenders at any time on or after the earlier of (i) the closing of an initial public offering yielding gross proceeds of or in excess of $18,000,000, exclusive of any existing convertible notes (a “Qualified IPO”), (ii) the sale of the Company, (iii) prepayment by the Company, or (iv) April 30, 2021 (the “Maturity Date”),” |
E. | Secured Promissory Note: Section 1. Interest |
Delete: | “Interest on the principal amount of this Note will accrue from and including the date hereof until and including the date such principal amount is paid, at a rate of twenty four percent (24%) per annum prior to October 1, 2020 and at a rate of thirty percent (30%) per annum from and after October 1, 2020, without compounding.” |
Insert: | “Interest on the principal amount of this Note will accrue from and including the date hereof until and including the date such principal amount is paid, at a rate of twenty four percent (24%) per annum prior to October 1, 2020 and at a rate of thirty percent (30%) per annum from and after October 1, 2020, without compounding, subject to further adjustment in accordance with the terms of the Note Subscription Agreements.” |
F. | Secured Promissory Note: New Section 1A. Conversion of Note |
Insert: | “Conversion of Note. Sections 1.6 and 1.7 of the Note Subscription Agreement provide for the repayment, conversion or amendment (as applicable) of this Note in the event of a Qualified IPO.” |
3. Effect of Amendment. The parties hereby agree and acknowledge that except as provided in this Amendment, the Note Subscription Agreements and the Secured Promissory Notes remain in full force and effect, it being the intention of the parties that this Amendment, the Note Subscription Agreements, and the Secured Promissory Notes, as applicable, be read, construed and interpreted as one and the same integrated instrument. This Amendment shall automatically take effect when executed, signed and delivered by those Note Investors holding greater than seventy-five percent (75%) in principal amount of the outstanding Secured Promissory Notes. The undersigned parties hereby acknowledge and agree that, except as provided in this Amendment, the Note Subscription Agreements, the Secured Promissory Notes, and the respective agreements, covenants and obligations thereunder, are hereby expressly ratified and confirmed as of the date hereof.
4. Counterparts; Facsimile and Electronic Signatures. This Amendment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute a single integrated agreement. For purposes of this Amendment, a document (or signature page thereto) signed and transmitted by facsimile machine, portable document format, or other electronic means is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. No party may raise the use of a facsimile machine or other electronic means, or the fact that any signature was transmitted through the use of a facsimile machine or other electronic means, as a defense to the enforcement of this Amendment.
[REST OF PAGE INTENTIONALLY LEFT BLANK -- SIGNATURE PAGE FOLLOWS]
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 4 |
iSpecimen Inc.
Fifth Amendment TO THE
NOTE SUBSCRIPTION AGREEMENTS and secured promissory notes
Approved by the Board of Directors on March 15, 2021
In Witness Whereof, the parties hereto have executed this Fifth Amendment to the Note Subscription Agreements and Secured Promissory Notes as of the date and year first written above, as an instrument under seal.
Company: | |||
iSpecimen Inc. | |||
By: | /s/ Christopher Ianelli | ||
Name: | Christopher Ianelli, MD, PhD | ||
Title: | Chief Executive Office |
This Amendment shall take effect when executed by the Company and those Note Investors holding greater than seventy-five percent (75%) in principal amount of all outstanding Secured Promissory Notes and shall be binding on all other holders of the Secured Promissory Notes.
Note Investor:
NOTEHOLDER NAME | ||
Principal Amount of Note(s) held as of March 15, 2021: | ||
By: | ||
Address: | ||
Date: |
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 5 |
iSpecimen Inc.
NOTICE OF CONVERSION ELECTION
Reference is made to various Note Subscription Agreements executed at various times between August 2018 and September 2020 (each, as may be amended from time to time, the “Note Subscription Agreements”), pursuant to which the Company issued and sold $6,500,000 in aggregate principal amount of Secured Promissory Notes (each as may be amended from time to time, the “Notes”). Pursuant to the terms of the Note Subscription Agreements and the Notes, the undersigned hereby submits and agrees to the following Elective Principal Conversion Amount and Elective Interest Conversion Amount:
Elective Principal Conversion Amount: | $ of principal outstanding on my Note(s) |
NOTE: Elective Principal Conversion Amount entered above must equal or exceed 50% of outstanding principal ($300,000) to qualify for 30% conversion discount upon Qualified IPO. | |
Elective Interest Conversion Amount: | ¨ DO NOT convert any interest |
¨ Convert EXACT AMOUNT of interest: | |
¨ Convert ALL interest accrued as of Qualified IPO date |
This election notice shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the general laws of the Commonwealth of Massachusetts and the federal securities laws. This election notice may be executed in duplicate counterparts, which, when taken together, shall constitute one instrument and each of which shall be deemed to be an original instrument. Each party hereto acknowledges and agrees that it has not received and is not relying upon tax advice from any other party hereto, and that it has and will continue to consult its own advisors with respect to taxes.
Note Investor:
NOTEHOLDER NAME | ||
Principal Amount of Note(s) held as of March 15, 2021: | ||
Total Accrued Interest on Note(s) as of March 15, 2021: | ||
By: | ||
Address: | ||
Date: |
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 6 |
LOCK-UP AGREEMENT
The undersigned understands that ThinkEquity, a Division of Fordham Financial Management, Inc. (the “Representative”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with iSpecimen Inc., a Delaware corporation (the “Company”), providing for the initial public offering (the “Public Offering”) of shares of common stock, par value $0.0001 per share, of the Company (the “Common Shares”).
To induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, the undersigned will not, during the period commencing on the date hereof and ending six (6) months after the date of the Underwriting Agreement relating to the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; provided that no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of the undersigned or a family member (for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up Securities to a charity or educational institution; (d) if the undersigned is a corporation, partnership, limited liability company or other business entity, (i) any transfers of Lock-Up Securities to another corporation, partnership or other business entity that controls, is controlled by or is under common control with the undersigned or (ii) distributions of Lock-Up Securities to members, partners, stockholders, subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned; (e) if the undersigned is a trust, to a trustee or beneficiary of the trust; provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) (d) or (e), (i) any such transfer shall not involve a disposition for value, (ii) each transferee shall sign and deliver to the Representative a lock-up agreement substantially in the form of this lock-up agreement and (iii) no filing under Section 13 or Section 16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made; (f) the receipt by the undersigned from the Company of Common Shares upon the vesting of restricted stock awards or stock units or upon the exercise of options to purchase the Company’s Common Shares issued under an equity incentive plan of the Company or an employment arrangement described in the Pricing Prospectus (as defined in the Underwriting Agreement) (the “Plan Shares”) or the transfer of Common Shares or any securities convertible into Common Shares to the Company upon a vesting event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with such vesting or exercise, but only to the extent such right expires during the Lock-up Period, provided that no filing under Section 13 or Section 16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made within 90 days after the date of the Underwriting Agreement, and after such 90th day, if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Shares during the Lock-Up Period, the undersigned shall include a statement in such schedule or report to the effect that the purpose of such transfer was to cover tax withholding obligations of the undersigned in connection with such vesting or exercise and, provided further, that the Plan Shares shall be subject to the terms of this lock-up agreement; (g) the transfer of Lock-Up Securities pursuant to agreements described in the Pricing Prospectus under which the Company has the option to repurchase such securities or a right of first refusal with respect to the transfer of such securities, provided that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Shares during the Lock-Up Period, the undersigned shall include a statement in such schedule or report describing the purpose of the transaction; (h) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period; (i) the transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the transferee agrees to sign and deliver a lock-up agreement substantially in the form of this lock-up agreement for the balance of the Lock-Up Period, and provided further, that any filing under Section 13 or Section 16(a) of the Exchange Act that is required to be made during the Lock-Up Period as a result of such transfer shall include a statement that such transfer has occurred by operation of law; and (j) the transfer of Lock-Up Securities pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Shares involving a change of control (as defined below) of the Company after the closing of the Public Offering and approved by the Company’s board of directors; provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities owned by the undersigned shall remain subject to the restrictions contained in this lock-up agreement. For purposes of clause (j) above, “change of control” shall mean the consummation of any bona fide third-party tender offer, merger, amalgamation, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority of total voting power of the voting stock of the Company. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 7 |
The undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date hereof to and including the 34th day following the expiration of the initial Lock-Up Period, the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period has expired.
If the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally applicable to any issuer-directed or “friends and family” Securities that the undersigned may purchase in the Public Offering; (ii) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer.
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 8 |
The undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
The undersigned understands that, if the Underwriting Agreement is not executed by June 30, 2021, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Shares to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
NOTEHOLDER | |||
By: | |||
Address: | |||
Date: |
iSpecimen Inc. | |
Fifth Amendment to Note Subscription Agreements and Secured Promissory Notes, March 2021 | Page 9 |
Exhibit 10.24
iSpecimen INC.
AMENDED AND RESTATED
2021 STOCK INCENTIVE PLAN
1. Purpose. The purpose of this 2021 Stock Incentive Plan, as amended from time to time (the “Plan”) of iSpecimen Inc., a Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing the Company’s ability to attract, retain and motivate persons who are expected to make important contributions to the Company and by providing such persons with equity ownership opportunities and/or performance-based incentives. Except where the context otherwise requires, the term “Company” shall include any present or future subsidiary corporations of the Company, as defined in Section 424(f) or (f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”) (a “Subsidiary” or “Subsidiaries”) and, for purposes of Awards (as hereinafter defined) other than Incentive Stock Options (as hereinafter defined), any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a direct or indirect significant or controlling interest, as determined by the sole discretion of the Board of Directors of the Company (the “Board”).
2. Definitions. The following definitions shall be applicable throughout this Plan:
(a) “Affiliate” means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest as determined by the Committee in its discretion. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) “Award” means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Stock Bonus Award or Performance Compensation Award granted under this Plan.
(c) “Award Agreement” means an agreement made and delivered in accordance with Section 16(a) of this Plan evidencing the grant of an Award hereunder.
(d) “Board” shall have the meaning given in Section 1.
(e)“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in Massachusetts are authorized or obligated by federal law or executive order to be closed.
(f) “Cause” means, in the case of a particular Award, unless the applicable Award Agreement states otherwise, (i) the Company or an Affiliate having “cause” to terminate a Participant’s employment or service, as defined in any employment or consulting agreement or similar document or policy between the Participant and the Company or an Affiliate in effect at the time of such termination or (ii) in the absence of any such employment or consulting agreement, document or policy (or the absence of any definition of “Cause” contained therein), (A) a continuing material breach or material default (including, without limitation, any material dereliction of duty) by Participant of any agreement between the Participant and the Company, except for any such breach or default which is caused by the physical disability of the Participant (as determined by a neutral physician), or a continuing failure by the Participant to follow the direction of a duly authorized representative of the Company; (B) gross negligence, willful misfeasance or breach of fiduciary duty to the Company or Affiliate of the Company by the Participant; (C) the commission by the Participant of an act of fraud, embezzlement or any felony or other crime of dishonesty in connection with the Participant’s duties to the Company or Affiliate of the Company; (D) conviction of the Participant of a felony or any other crime that would materially and adversely affect: (i) the business reputation of the Company or Affiliate of the Company or (ii) the performance of the Participant’s duties to the Company or an Affiliate of the Company; (E) gross misconduct by the Participant which results in loss, damage or injury to the Company or an Affiliate of the Company, their goodwill, business or reputation; (F) the commission of an act which induces any customer or prospective customer of the Company to breach a contract with the Company or an Affiliate of the Company or to decline to do business with the Company or an Affiliate; (G) the violation by the Participant, in any material respect, of a non-competition, non-solicitation, non-disclosure or assignment of inventions covenant between the Participant and the Company or an Affiliate of the Company, which results in harm to the Company, an Affiliate of the Company, or their customers or suppliers; (H) the engagement, whether directly or indirectly, by the Participant, during the period of his or her employment, engagement or relationship with the Company or an Affiliate of the Company for a period of one (1) year after the termination of his or her employment, engagement or relationship (for any reason), in a business or other commercial activity which is or may be competitive with the business being conducted by the Company or an Affiliate of the Company; (I) the solicitation, diversion or taking away by the Participant, or the attempted solicitation, diversion or taking away by the Participant, whether directly or indirectly, during the period of his or her employment, engagement or relationship with the Company or an Affiliate of the Company or for a period of one (1) year after the termination of his or her employment, engagement or relationship (for any reason), of any of the customers, business or prospective customers of the Company or an Affiliate of the Company then in existence and with whom the Participant had contact or about whom the Participant gained confidential information during the Participant’s employment, engagement or relationship with the Company or an Affiliate of the Company on behalf of a competitive enterprise (prospective customer shall mean any person or entity being solicited by the Company or an Affiliate of the Company during the time the Participant was employed or engaged by the Company or an Affiliate of the Company); (J) the solicitation, recruiting or hiring by the Participant, or the attempted solicitation, recruiting, or hiring by the Participant, whether directly or indirectly, during the period of his or her employment or for a period of one (1) year after the termination of his or her employment, engagement or relationship (for any reason), engagement or relationship with the Company or an Affiliate of the Company, of any employee or consultant of the Company or an Affiliate of the Company; (K) the use of controlled substances, illicit drugs, alcohol or other substances or behavior which interferes with the Participant’s ability to perform his or her services for the Company or an Affiliate of the Company or which otherwise results in loss, damage or injury to the Company or an Affiliate of the Company, their goodwill, business or reputation; or (L) the repeated failure of the Participant to adequately perform his or her employment, advisory or consulting services, duties and obligations following a notice of such failure from management or the Board and an inability to cure such failure after thirty (30) days, unless otherwise precluded by disability. Any determination of whether Cause exists shall be made by the Committee in its sole discretion.
(g) “Change in Control” shall, in the case of a particular Award, unless the applicable Award Agreement states otherwise or contains a different definition of “Change in Control,” be deemed to occur upon: (a) any merger, business combination, consolidation or purchase of outstanding capital stock of the Company with or into, or any acquisition by, another entity after which the voting securities of the Company, outstanding immediately prior thereto, represent (either by remaining outstanding or by being converted into voting securities of the surviving or acquiring entity) less than 50% of the combined voting power of the voting securities of the Company or such surviving or acquiring entity outstanding immediately after such event (other than as a result of a financing transaction); (b) any sale or exchange of all or substantially all of the capital stock or assets of the Company (other than in a spin-off or similar transaction) for cash, securities or other property pursuant to a share exchange transaction; (c) any other form of business combination or acquisition of the business of the Company in which the Company is the target of the acquisition, as determined by the Board, whose determination shall be conclusive; or (d) any liquidation or dissolution of the Company. A Change in Control caused by an increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the Company acquires its stock in exchange for property is not treated as a Change in Control for purposes of the Plan.
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(h) “Code” shall have the meaning given in Section 1.
(i) “Committee” means a committee of at least two people as the Board may appoint to administer this Plan or, if no such committee has been appointed by the Board, the Board. Unless altered by an action of the Board, the Committee shall be the Compensation Committee of the Board.
(j) “Common Stocks” means the common stock, par value $0.0001 per share, of the Company (and any stock or other securities into which such Common Stocks may be converted or into which they may be exchanged).
(k) “Company” shall have the meaning given in Section 1.
(l) “Current Board Members” means the individuals who, as of the date hereof, constitute the members of the Board.
(m) “Date of Grant” means the date on which the granting of an Award is authorized, or such other date as may be specified in such authorization.
(n) “Disability” means a “permanent and total” disability incurred by a Participant while in the employ or service of the Company or an Affiliate or as otherwise as determined under procedures established by the Committee for purposes of the Plan. For this purpose, a permanent and total disability shall mean that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months. The determination of whether a Participant has incurred a permanent and total disability shall be made by a physician designated by the Committee, whose determination shall be final and binding.
(o) “Effective Date” means the date as of which this Plan is adopted by the Board, subject to Section 3 of this Plan.
(p) “Eligible Director” means a person who is a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act.
(q) “Eligible Person” means any (i) individual employed by the Company or an Affiliate; provided, however, that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director of the Company or an Affiliate; or (iii) consultant or advisor to the Company or an Affiliate, provided that if the Securities Act applies such persons must be eligible to be offered securities registrable on Form S-8 under the Securities Act.
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(r) “Exchange Act” means the Securities and Exchange Act of 1934, as amended.
(s) “Exercise Price” has the meaning given such term in Section 7(b) of this Plan.
(t) “Fair Market Value”, unless otherwise provided by the Committee in accordance with all applicable laws, rules regulations and standards, means, on a given date, (i) if the Common Stocks are listed on a national securities exchange, the closing sales price on the principal exchange of the Common Stocks on such date or, in the absence of reported sales on such date, the closing sales price on the immediately preceding date on which sales were reported, or (ii) if the Common Stocks are not listed on a national securities exchange, the mean between the bid and offered prices as quoted by any nationally recognized interdealer quotation system for such date, provided that if the Common Stocks are not quoted on an interdealer quotation system or it is determined that the fair market value is not properly reflected by such quotations, Fair Market Value will be determined by such other method as the Committee determines in good faith to be reasonable and in compliance with Code Section 409A.
(u) “Immediate Family Members” shall have the meaning set forth in Section 16(b) of this Plan.
(v) “Incentive Stock Option” means an Option that is designated by the Committee as an incentive stock option as described in Section 422 of the Code and otherwise meets the requirements set forth in this Plan.
(w) “Indemnifiable Person” shall have the meaning set forth in Section 4(e) of this Plan.
(x) “Negative Discretion” shall mean the discretion authorized by this Plan to be applied by the Committee to eliminate or reduce the size of a Performance Compensation Award consistent with Section 162(m) of the Code.
(y) “Nonqualified Stock Option” means an Option that is not designated by the Committee as an Incentive Stock Option.
(z) “Option” means an Award granted under Section 7 of this Plan.
(aa) “Option Period” has the meaning given such term in Section 7(c) of this Plan.
(ab) “Participant” means an Eligible Person who has been selected by the Committee to participate in this Plan and to receive an Award pursuant to Section 6 of this Plan.
(ac) “Performance Compensation Award” shall mean any Award designated by the Committee as a Performance Compensation Award pursuant to Section 11 of this Plan.
(ad) “Performance Criteria” shall mean the criterion or criteria that the Committee shall select for purposes of establishing the Performance Goal(s) for a Performance Period with respect to any Performance Compensation Award under this Plan.
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(ae) “Performance Formula” shall mean, for a Performance Period, the one or more objective formulae applied against the relevant Performance Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance Compensation Award has been earned for the Performance Period.
(af) “Performance Goals” shall mean, for a Performance Period, the one or more goals established by the Committee for the Performance Period based upon the Performance Criteria.
(ag) “Performance Period” shall mean the one or more periods of time, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, a Performance Compensation Award.
(ah) “Permitted Transferee” shall have the meaning set forth in Section 16(b) of this Plan.
(ai) “Person” has the meaning given such term in the definition of “Change in Control.”
(aj) “Plan” means this iSpecimen Inc. 2021 Stock Incentive Plan, as amended from time to time.
(ak) “Repurchase Period” shall have the meaning set forth in Section 15(a) of this Plan.
(al) “Repurchase Option” shall have the meaning set forth in Section 15(a) of this Plan.
(am) “Retirement” means the fulfillment of each of the following conditions: (i) the Participant is in good standing with the Company and/or an Affiliate of the Company as determined by the Committee; (ii) the voluntary termination by a Participant of such Participant’s employment or service to the Company and/or an Affiliate and (iii) that at the time of such voluntary termination, the sum of: (A) the Participant’s age (calculated to the nearest month, with any resulting fraction of a year being calculated as the number of months in the year divided by 12) and (B) the Participant’s years of employment or service with the Company (calculated to the nearest month, with any resulting fraction of a year being calculated as the number of months in the year divided by 12) equals at least 62 (provided that, in any case, the foregoing shall only be applicable if, at the time of such Retirement, the Participant shall be at least 55 years of age and shall have been employed by or served with the Company for no less than five years).
(an) “Restricted Period” means the period of time determined by the Committee during which an Award is subject to restrictions or, as applicable, the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(ao) “Restricted Stock Unit” means an unfunded and unsecured promise to deliver Common Stocks, cash, other securities or other property, subject to certain restrictions (including, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of this Plan.
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(ap) “Restricted Stock” means Common Stocks, subject to certain specified restrictions (including, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of this Plan.
(aq) “SAR Period” has the meaning given such term in Section 8(c) of this Plan.
(ar) “Securities Act” means the Securities Act of 1933, as amended, and any successor thereto. Reference in this Plan to any section of the Securities Act shall be deemed to include any rules, regulations or other official interpretative guidance issued by any governmental authority under such section, and any amendments or successor provisions to such section, rules, regulations or guidance.
(as) “Stock Appreciation Right” or “SAR” means an Award granted under Section 8 of this Plan which meets all of the requirements of Section 1.409A-1(b)(5)(i)(B) of the Treasury Regulations.
(at) “Stock Bonus Award” means an Award granted under Section 10 of this Plan.
(au) “Strike Price” means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in the case of a SAR granted in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent of an Option, the Fair Market Value of Common Stocks on the Date of Grant.
(av) “Subsidiary” shall have the meaning given in Section 1.
(aw) “Substitute Award” has the meaning given such term in Section 5(e).
(ax) “Treasury Regulations” means any regulations, whether proposed, temporary or final, promulgated by the U.S. Department of Treasury under the Code, and any successor provisions.
3. Effective Date; Duration. The Plan shall be effective on [•], 2021, the date on which it is approved by the stockholders of the Company, which date shall be within twelve (12) months before or after the date of the Plan’s adoption by the Board. The expiration date of this Plan, on and after which date no Awards may be granted hereunder, shall be [•], 2031, the tenth anniversary of the date on which the Plan was approved by the stockholders of the Company; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of this Plan shall continue to apply to such Awards.
4. Administration.
(a) The Committee shall administer this Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act (if the Board is not acting as the Committee under this Plan), it is intended that each member of the Committee shall, at the time he takes any action with respect to an Award under this Plan, be an Eligible Director. However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted by the Committee that is otherwise validly granted under this Plan. The acts of a majority of the members present at any meeting at which a quorum is present or acts approved in writing by a majority of the Committee shall be deemed the acts of the Committee. Whether a quorum is present shall be determined based on the Committee’s charter as approved by the Board.
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(b) Subject to the provisions of this Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by this Plan and its charter, to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Common Stocks to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Common Stocks, other securities, other Awards or other property, or canceled, forfeited, or suspended, and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery of cash, Common Stocks, other securities, other Awards or other property and other amounts payable with respect to an Award shall be made; (vii) interpret, administer, reconcile any inconsistency in, settle any controversy regarding, correct any defect in and/or complete any omission in this Plan and any instrument or agreement relating to, or Award granted under, this Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of this Plan; (ix) accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards; (x) to reprice existing Awards or to grant Awards in connection with or in consideration of the cancellation of an outstanding Award with a higher price; and (xi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of this Plan.
(c) The Committee may, by resolution, expressly delegate to a special committee, consisting of one or more directors who may but need not be officers of the Company, the authority, within specified parameters as to the number and types of Awards, to (i) designate officers and/or employees of the Company or any of its Affiliates to be recipients of Awards under this Plan, and (ii) to determine the number of such Awards to be received by any such Participants; provided, however, that such delegation of duties and responsibilities may not be made with respect to grants of Awards to persons (i) subject to Section 16 of the Exchange Act or (ii) who are, or who are reasonably expected to be, “covered employees” for purposes of Section 162(m) of the Code. The acts of such delegates shall be treated as acts of the Committee, and such delegates shall report regularly to the Board and the Committee regarding the delegated duties and responsibilities and any Awards granted.
(d) Unless otherwise expressly provided in this Plan, all designations, determinations, interpretations, and other decisions under or with respect to this Plan or any Award or any documents evidencing Awards granted pursuant to this Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities, including, without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No member of the Board, the Committee, delegate of the Committee or any employee, advisor or agent of the Company or the Board or the Committee (each such person, an “Indemnifiable Person”) shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect to this Plan or any Award hereunder. Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from (and the Company shall pay or reimburse on demand for) any loss, cost, liability, or expense (including court costs and attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken under this Plan or any Award Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s bad faith, fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the Company’s Certificate of Incorporation or Bylaws. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which any such Indemnifiable Person may be entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
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(f) Notwithstanding anything to the contrary contained in this Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer this Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee under this Plan.
5. Grant of Awards; Shares Subject to this Plan; Limitations.
(a) The Committee may, from time to time, grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Bonus Awards and/or Performance Compensation Awards to one or more Eligible Persons.
(b) Subject to Section 12 of this Plan, the Committee is authorized to deliver under this Plan an aggregate of [•] Common Stocks, plus an annual increase on each anniversary of the Effective Date thereafter while this Plan is in effect so that the aggregate amount of shares of Common Stock the Committee is authorized to deliver under this Plan equals to 5% of the total issued and outstanding number of Common Stocks as of such anniversary (or such lesser number of Common Stocks as may be determined by the Committee).
(c) Common Stocks underlying Awards under this Plan that are forfeited, cancelled, expire unexercised, or are settled in cash shall be available again for Awards under this Plan at the same ratio at which they were previously granted. Notwithstanding the foregoing, the following Common Stocks shall not be available again for Awards under the Plan: (i) shares tendered or held back upon the exercise of an Option or settlement of an Award to cover the Exercise Price of an Award; (ii) shares that are used or withheld to satisfy tax withholding obligations of the Participant; and (iii) shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the SAR upon exercise thereof.
(d) Common Stocks delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase, or any combination of the foregoing.
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(e) Subject to compliance with Section 1.409A-3(f) of the Treasury Regulations, Awards may, in the sole discretion of the Committee, be granted under this Plan in assumption of, or in substitution for, outstanding awards previously granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”). The number of Common Stocks underlying any Substitute Awards shall be counted against the aggregate number of Common Stocks available for Awards under this Plan.
(f) Notwithstanding any provision in the Plan to the contrary (but subject to adjustment as provided in Section 12), the Committee shall not grant to any one Eligible Person in any one calendar year Awards (i) for more than 50% of the Available Shares in the aggregate or (ii) payable in cash in an amount exceeding $10,000,000 in the aggregate.
6. Eligibility. Participation shall be limited to Eligible Persons who have entered into an Award Agreement or who have received written notification from the Committee, or from a person designated by the Committee, that they have been selected to participate in this Plan.
7. Options.
(a) Generally. Each Option granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement. All Options granted under this Plan shall be Nonqualified Stock Options unless the applicable Award Agreement expressly states that the Option is intended to be an Incentive Stock Option. Notwithstanding any designation of an Option, to the extent that the aggregate Fair Market Value of Common Stocks with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company or any Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonqualified Stock Options. Incentive Stock Options shall be granted only to Eligible Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless this Plan has been approved by the stockholders of the Company in a manner intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code, provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option appropriately granted under this Plan.
(b) Exercise Price. The exercise price (“Exercise Price”) per Common Stock for each Option shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant; provided, however, that in the case of an Incentive Stock Option granted to an employee who, at the time of the grant of such Option, owns shares representing more than 10% of the voting power of all classes of shares of the Company or any Affiliate, the Exercise Price per share shall not be less than 110% of the Fair Market Value per share on the Date of Grant; and, provided further, that notwithstanding any provision herein to the contrary, the Exercise Price shall not be less than the par value per Common Stock.
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(c) Vesting and Expiration. Options shall vest and become exercisable in such manner and on such date or dates determined by the Committee and as set forth in the applicable Award Agreement, and shall expire after such period, not to exceed ten (10) years from the Date of Grant, as may be determined by the Committee (the “Option Period”); provided, however, that the Option Period shall not exceed five (5) years from the Date of Grant in the case of an Incentive Stock Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the voting power of all classes of shares of the Company or any Affiliate; and, provided, further, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any Option, which acceleration shall not affect the terms and conditions of such Option other than with respect to exercisability. Unless otherwise provided by the Committee in an Award Agreement:
(i) an Option shall vest and become exercisable with respect to 100% of the Common Stocks subject to such Option on each anniversary of the Date of Grant;
(ii) the unvested portion of an Option shall expire upon termination of employment or service of the Participant granted the Option, and the vested portion of such Option shall remain exercisable for:
(A) one year following termination of employment or service by reason of such Participant’s death or Disability (with the determination of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the Option Period;
(B) for directors, officers and employees of the Company only, for ninety (90) days following termination of employment or service by reason of such Participant’s Retirement;
(C) 90 calendar days following termination of employment or service for any reason other than such Participant’s death, Disability or Retirement, and other than such Participant’s termination of employment or service for Cause, but not later than the expiration of the Option Period; and
(iii) both the unvested and the vested portion of an Option shall immediately expire upon the termination of the Participant’s employment or service by the Company for Cause. Notwithstanding the foregoing provisions of Section 7(c) and consistent with the requirements of applicable law, the Committee, in its sole discretion, may extend the post-termination of employment period during which a Participant may exercise vested Options.
(d) Method of Exercise and Form of Payment. No Common Stocks shall be delivered pursuant to the exercise of an Option until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any federal, state, local and/or foreign income and employment taxes required to be withheld. Options that have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award Agreement accompanied by payment of the Exercise Price. The Exercise Price shall be payable (i) in cash, check (subject to collection), cash equivalent and/or vested Common Stocks valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Common Stocks in lieu of actual delivery of such shares to the Company); provided, however, that such Common Stocks are not subject to any pledge or other security interest and; (ii) by such other method as the Committee may permit in accordance with applicable law, in its sole discretion, including without limitation: (A) in other property having a fair market value (as determined by the Committee in its discretion) on the date of exercise equal to the Exercise Price or (B) if there is a public market for the Common Stocks at such time, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Stocks otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Stocks for which the Option was exercised that number of Common Stocks having a Fair Market Value equal to the aggregate Exercise Price for the Common Stocks for which the Option was exercised. Any fractional Common Stocks shall be settled in cash.
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(e) Notification upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under this Plan shall notify the Company in writing immediately after the date he makes a disqualifying disposition of any Common Stocks acquired pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common Stocks before the later of (A) two years after the Date of Grant of the Incentive Stock Option or (B) one year after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession of any Common Stocks acquired pursuant to the exercise of an Incentive Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence.
(f) Compliance with Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a manner that the Committee determines would violate the Sarbanes-Oxley Act of 2002, if applicable, or any other applicable law or the applicable rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or traded.
8. Stock Appreciation Rights.
(a)Generally. Each SAR granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each SAR so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement. Any Option granted under this Plan may include tandem SARs (i.e., SARs granted in conjunction with an Award of Options under this Plan). The Committee also may award SARs to Eligible Persons independent of any Option.
(b) Exercise Price. The Exercise Price per Common Stock for each Option granted in connection with a SAR shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant.
(c) Vesting and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable and shall expire in such manner and on such date or dates determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the “SAR Period”); provided, however, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to exercisability. Unless otherwise provided by the Committee in an Award Agreement:
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(i) a SAR shall vest and become exercisable with respect to 100% of the Common Stocks subject to such SAR on the third anniversary of the Date of Grant;
(ii) the unvested portion of a SAR shall expire upon termination of employment or service of the Participant granted the SAR, and the vested portion of such SAR shall remain exercisable for:
(A) one year following termination of employment or service by reason of such Participant’s death or Disability (with the determination of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the SAR Period;
(B) for directors, officers and employees of the Company only, for the remainder of the SAR Period following termination of employment or service by reason of such Participant’s Retirement;
(C) 90 calendar days following termination of employment or service for any reason other than such Participant’s death, Disability or Retirement, and other than such Participant’s termination of employment or service for Cause, but not later than the expiration of the SAR Period; and
(iii) both the unvested and the vested portion of a SAR shall expire immediately upon the termination of the Participant’s employment or service by the Company for Cause.
(d) Method of Exercise. SARs that have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an Option, the SAR Period), the Fair Market Value exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither the SAR nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have been exercised by the Participant on such last day and the Company shall make the appropriate payment therefor.
(e) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of Common Stocks subject to the SAR that are being exercised multiplied by the excess, if any, of the Fair Market Value of one Common Stock on the exercise date over the Strike Price, less an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld. The Company shall pay such amount in cash, in Common Stocks valued at Fair Market Value, or any combination thereof, as determined by the Committee. Any fractional Common Stock shall be settled in cash.
9. Restricted Stock and Restricted Stock Units.
(a) Generally. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each such grant shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement. Restricted Stock and Restricted Stock Units shall be subject to such restrictions on transferability and other restrictions as the Committee may impose (including, for example, limitations on the right to vote Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions may lapse separately or in combination at such times, under such circumstances, in such installments, upon the satisfaction of Performance Goals or otherwise, as the Committee determines at the time of the grant of an Award or thereafter. Except as otherwise provided in an Award Agreement, a Participant shall have none of the rights of a stockholder with respect to Restricted Stock Units until such time as Common Stocks are paid in settlement of such Awards.
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(b) Restricted Accounts; Escrow or Similar Arrangement. Unless otherwise determined by the Committee, upon the grant of Restricted Stock, a book entry in a restricted account shall be established in the Participant’s name at the Company’s transfer agent and, if the Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than held in such restricted account pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Stock covered by such agreement. If a Participant shall fail to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and blank share power within the amount of time specified by the Committee, the Award shall be null and void ab initio. Subject to the restrictions set forth in this Section 9 and the applicable Award Agreement, the Participant generally shall have the rights and privileges of a stockholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock and the right to receive dividends, if applicable. To the extent shares of Restricted Stock are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned to the Company, and all rights of the Participant to such shares and as a stockholder with respect thereto shall terminate without further obligation on the part of the Company.
(c) Vesting; Acceleration of Lapse of Restrictions. Unless otherwise provided by the Committee in an Award Agreement: (i) the Restricted Period shall lapse with respect to 100% of the Restricted Stock and Restricted Stock Units on the first anniversary of the Date of Grant; and (ii) the unvested portion of Restricted Stock and Restricted Stock Units shall terminate and be forfeited upon the termination of employment or service of the Participant granted the applicable Award.
(d) Delivery of Restricted Stock and Settlement of Restricted Stock Units.
(i) Upon the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his beneficiary, without charge, the share certificate evidencing the shares of Restricted Stock that have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Participant in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends, upon the release of restrictions on such shares of Restricted Stock and, if such shares of Restricted Stock are forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by the Committee in the applicable Award Agreement).
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(ii) Unless otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Stock for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion and subject to the requirements of Section 409A of the Code, elect to (i) pay cash or part cash and part Common Stock in lieu of delivering only Common Stocks in respect of such Restricted Stock Units or (ii) defer the delivery of Common Stocks (or cash or part Common Stocks and part cash, as the case may be) beyond the expiration of the Restricted Period if such delivery would result in a violation of applicable law until such time as is no longer the case. If a cash payment is made in lieu of delivering Common Stocks, the amount of such payment shall be equal to the Fair Market Value of the Common Stocks as of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units, less an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld.
10. Stock Bonus Awards. The Committee may issue unrestricted Common Stocks, or other Awards denominated in Common Stocks, under this Plan to Eligible Persons, either alone or in tandem with other awards, in such amounts as the Committee shall from time to time in its sole discretion determine. Each Stock Bonus Award granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Stock Bonus Award so granted shall be subject to such conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement.
11. Performance Compensation Awards.
(a) Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the Committee shall have sole discretion to select the length of such Performance Period, the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance Goals(s) that is (are) to apply and the Performance Formula. Within the first 90 calendar days of a Performance Period, the Committee shall, with regard to the Performance Compensation Awards to be issued for such Performance Period, exercise its discretion with respect to each of the matters enumerated in the immediately preceding sentence and record the same in writing.
(c) Performance Criteria. The Performance Criteria that will be used to establish the Performance Goal(s) shall be based on the attainment of specific levels of performance of the Company and/or one or more Affiliates, divisions or operational units, or any combination of the foregoing, as determined by the Committee, which criteria may be based on one or more of the following business criteria: (i) revenue; (ii) sales; (iii) profit (net profit, gross profit, operating profit, economic profit, profit margins or other corporate profit measures); (iv) earnings (EBIT, EBITDA, earnings per share, or other corporate earnings measures); (v) net income (before or after taxes, operating income or other income measures); (vi) cash (cash flow, cash generation or other cash measures); (vii) stock price or performance; (viii) total stockholder return (stock price appreciation plus reinvested dividends divided by beginning share price); (ix) economic value added; (x) return measures (including, but not limited to, return on assets, capital, equity, investments or sales, and cash flow return on assets, capital, equity, or sales); (xi) market share; (xii) improvements in capital structure; (xiii) expenses (expense management, expense ratio, expense efficiency ratios or other expense measures); (xiv) business expansion or consolidation (acquisitions and divestitures); (xv) internal rate of return or increase in net present value; (xvi) working capital targets relating to inventory and/or accounts receivable; (xvii) inventory management; (xviii) service or product delivery or quality; (xix) customer satisfaction; (xx) employee retention; (xxi) safety standards; (xxii) productivity measures; (xxiii) cost reduction measures; and/or (xxiv) strategic plan development and implementation. Any one or more of the Performance Criteria adopted by the Committee may be used on an absolute or relative basis to measure the performance of the Company and/or one or more Affiliates as a whole or any business unit(s) of the Company and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Criteria may be compared to the performance of a selected group of comparison companies, or a published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices. The Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this paragraph.
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(d) Modification of Performance Goal(s). In the event that applicable tax and/or securities laws change to permit Committee discretion to alter the governing Performance Criteria without obtaining stockholder approval of such alterations, the Committee shall have sole discretion to make such alterations without obtaining stockholder approval. The Committee is authorized at any time during the first 90 calendar days of a Performance Period in its sole discretion, to adjust or modify the calculation of a Performance Goal for such Performance Period, based on and in order to appropriately reflect the following events: (i) asset write-downs; (ii) litigation or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (iv) any reorganization and restructuring programs; (v) extraordinary nonrecurring items as described in Accounting Principles Board Opinion No. 30 (or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for the applicable year; (vi) acquisitions or divestitures; (vii) any other specific unusual or nonrecurring events, or objectively determinable category thereof; (viii) foreign exchange gains and losses; and (ix) a change in the Company’s fiscal year.
(e) Payment of Performance Compensation Awards.
(f)
(i) Condition to Receipt of Payment. Unless otherwise provided in the applicable Award Agreement, a Participant must be employed by, or in service to, the Company on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance Period.
(ii) Limitation. A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that: (A) the Performance Goals for such period are achieved; and (B) all or some of the portion of such Participant’s Performance Compensation Award has been earned for the Performance Period based on the application of the Performance Formula to such achieved Performance Goals.
(iii) Certification. Following the completion of a Performance Period, the Committee shall review and certify in writing whether, and to what extent, the Performance Goals for the Performance Period have been achieved and, if so, calculate and certify in writing that amount of the Performance Compensation Awards earned for the period based upon the Performance Formula. The Committee shall then determine the amount of each Participant’s Performance Compensation Award actually payable for the Performance Period and, in so doing, may apply Negative Discretion.
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(iv) Use of Negative Discretion. In determining the actual amount of an individual Participant’s Performance Compensation Award for a Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation Award earned under the Performance Formula in the Performance Period through the use of Negative Discretion if, in its sole judgment, such reduction or elimination is appropriate. The Committee shall not have the discretion, except as is otherwise provided in this Plan, to (A) grant or provide payment in respect of Performance Compensation Awards for a Performance Period if the Performance Goals for such Performance Period have not been attained; or (B) increase a Performance Compensation Award above the applicable limitations set forth in Section 5 of this Plan.
(f) Timing of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to Participants as soon as administratively practicable following completion of the certifications required by this Section 11, but in no event later than two-and-one-half months following the end of the fiscal year during which the Performance Period is completed in order to comply with the short-term deferral rules under Section 1.409A-1(b)(4) of the Treasury Regulations. Notwithstanding the foregoing, payment of a Performance Compensation Award may be delayed, as permitted by Section 1.409A-2(b)(7)(i) of the Treasury Regulations, to the extent that the Company reasonably anticipates that if such payment were made as scheduled, the Company’s tax deduction with respect to such payment would not be permitted due to the application of Section 162(m) of the Code.
12. Changes in Capital Structure and Similar Events. In the event of (a) any dividend or other distribution (whether in the form of cash, Common Stocks, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, split-up, split-off, combination, repurchase or exchange of Common Stocks or other securities of the Company, issuance of warrants or other rights to acquire Common Stocks or other securities of the Company, or other similar corporate transaction or event (including, without limitation, a Change in Control) that affects the Common Stocks, or (b) unusual or nonrecurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation system, accounting principles or law, such that in either case an adjustment is determined by the Committee in its sole discretion to be necessary or appropriate in order to prevent dilution or enlargement of rights, then the Committee shall make any such adjustments that are equitable, including without limitation any or all of the following:
(i) adjusting any or all of (A) the number of Common Stocks or other securities of the Company (or number and kind of other securities or other property) that may be delivered in respect of Awards or with respect to which Awards may be granted under this Plan (including, without limitation, adjusting any or all of the limitations under Section 5 of this Plan) and (B) the terms of any outstanding Award, including, without limitation, (1) the number of Common Stocks or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award or (3) any applicable performance measures (including, without limitation, Performance Criteria and Performance Goals);
(ii) subject to the requirements of Section 409A of the Code, providing for a substitution or assumption of Awards, accelerating the exercisability of, lapse of restrictions on, or termination of, Awards or providing for a period of time for exercise prior to the occurrence of such event; and
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(iii) subject to the requirements of Section 409A of the Code, canceling any one or more outstanding Awards and causing to be paid to the holders thereof, in cash, Common Stocks, other securities or other property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the price per Common Stock received or to be received by other stockholders of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the Common Stocks subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value of a Common Stock subject thereto may be canceled and terminated without any payment or consideration therefor); provided, however, that in the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Statement of Financial Accounting Standards No. 123 (revised 2004) or ASC Topic 718, or any successor thereto), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity restructuring. Any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 12 shall be made in a manner that does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.
13. Effect of Change in Control. Except to the extent otherwise provided in an Award Agreement, in the event of a Change in Control, notwithstanding any provision of this Plan to the contrary, with respect to all or any portion of a particular outstanding Award or Awards:
(a) all of the then outstanding Options, SARs and Restricted Stock Units held by an Eligible Director shall immediately vest and become immediately exercisable as of a time prior to the Change in Control by such Eligible Director (unless otherwise specified in any Award Agreement);
(b) the Restricted Period of any Award to an Eligible Director shall expire as of a time prior to the Change in Control (including without limitation a waiver of any applicable Performance Goals); and
(c) Performance Periods in effect on the date the Change in Control occurs shall end on such date, and the Committee shall (i) determine the extent to which Performance Goals with respect to each such Performance Period have been met based upon such audited or unaudited financial information or other information then available as it deems relevant and (ii) cause the Participant to receive partial or full payment of Awards for each such Performance Period based upon the Committee’s determination of the degree of attainment of the Performance Goals, or assuming that the applicable “target” levels of performance have been attained or on such other basis determined by the Committee. To the extent practicable, any actions taken by the Committee under the immediately preceding clauses (a) through (c) shall occur in a manner and at a time which allows affected Participants the ability to participate in the Change in Control transactions with respect to the Common Stocks subject to their Awards.
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14. Amendments and Termination.
(a) Amendment and Termination of this Plan. The Board may amend, alter, suspend, discontinue, or terminate this Plan or any portion thereof at any time; provided, that (i) no amendment to the definition of Eligible Person in Section 2(q), Section 5(b), Section 11(b) or Section 14(b) (to the extent required by the proviso in such Section 14(b)) shall be made without stockholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to this Plan (including, without limitation, as necessary to comply with any rules or requirements of any national securities exchange or inter-dealer quotation system on which the Common Stocks may be listed or quoted or to prevent the Company from being denied a tax deduction under Section 162(m) of the Code); and, provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the prior written consent of the affected Participant, holder or beneficiary.
(b) Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively; provided, however that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant.
15. Right of Repurchase.
(a) Repurchase Option; Termination of Award. Unless otherwise set forth in any applicable Award, if, with respect to a Participant, any of the events specified in Section 15(b) below occur, then, within twelve (12) months after the Company receives actual knowledge of the event (the “Repurchase Period”), the Company shall have the right, but not the obligation, to repurchase from the Participant, or his or her legal representative, as the case may be, all or a portion of the shares of Common Stock acquired pursuant to an Award by the Participant, regardless of whether such Participant is then still employed or engaged by, or otherwise has a relationship with the Company (the "Repurchase Option"). The Repurchase Option shall be exercised by the Company by giving the Participant, or his or her legal representative, written notice of its intention to exercise the Repurchase Option on or before the last day of the Repurchase Period.
The Company may exercise its Repurchase Option by tendering to the Participant, or his or her legal representative, or delivering to an escrow account for the benefit of the Participant, or his or legal representative, an amount equal to the price originally paid by the Participant to the Company, subject to adjustment as provided herein, for each share of Common Stock to be repurchased by the Company hereunder. Upon timely exercise of the Repurchase Option in the manner provided in this Section 15(a), the Participant, or his or her legal representative, shall deliver to the Company the stock certificate or certificates representing the shares purchased by the Participant under this Plan, as set forth in (i) and (ii) above, and to be repurchased by the Company hereunder, duly endorsed and free and clear of any and all liens, charges and encumbrances. If the Participant shall fail to deliver such stock certificate or certificates, the Company shall be entitled to instruct its transfer agent to take such action as may be necessary to remove the requisite number of shares of Common Stock registered in the name of the Participant from the books and records of the Company. The Repurchase Option and any right of the Company to payment pursuant to Section 15 hereof shall be a right of the Company in addition to any and all other rights of the Company and remedies available to the Company, whether at law or in equity. Furthermore, upon the Company receiving actual knowledge of the occurrence of any of the events specified in Section 15(b) below, all Awards to acquire Common Stock granted to such Participant shall immediately terminate and shall thereupon not be exercisable to any extent whatsoever. The Board or, in the case of an employee that is not an executive officer, the President may waive or modify the provisions of this Section with respect to any individual Participant, with regard to the facts and circumstances of any particular situation involving a determination under this Section.
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(b) Triggering Events. The Company shall have the Repurchase Option in the event that any events for Cause shall occur, as determined in good faith by the Board.
(c) Repurchase Price. In the event that at the time the Company wishes to exercise its Repurchase Option, the Participant ceases to own a sufficient number of shares of Common Stock acquired by him or her under the Plan to satisfy the Company’s Repurchase Option, in addition to performing any obligations necessary to satisfy the Company’s exercise of its Repurchase Option of those shares of Common Stock available for repurchase, the Participant shall be required to deliver to the Company, for each share of Common Stock that is the subject of the Repurchase Option and is not available for repurchase as it has been sold or transferred, an aggregate cash amount, if positive, equal to the difference between the Fair Market Value of each share of Common Stock sold or transferred by the Participant and the price originally paid by the Participant to the Company for each such share of Common Stock so sold or transferred by the Participant, as adjusted. The Fair Market Value of each share of Common Stock sold or transferred by the Participant shall be determined as of the date of such sale or transfer.
16. General.
(a) Award Agreements. Each Award under this Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)) and shall specify the terms and conditions of the Award and any rules applicable thereto, including without limitation, the effect on such Award of the death, Disability or termination of employment or service of a Participant, or of such other events as may be determined by the Committee. The Company’s failure to specify any term of any Award in any particular Award Agreement shall not invalidate such term, provided such terms was duly adopted by the Board or the Committee.
(b) Nontransferability; Trading Restrictions.
(i) Each Award shall be exercisable only by a Participant during the Participant’s lifetime, or, if permissible under applicable law, by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
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(ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a Participant, with or without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to preserve the purposes of this Plan, to: (A) any person who is a “family member” of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act (collectively, the “Immediate Family Members”); (B) a trust solely for the benefit of the Participant and his or her Immediate Family Members; or (C) a partnership or limited liability company whose only partners or stockholders are the Participant and his or her Immediate Family Members; or (D) any other transferee as may be approved either (I) by the Board or the Committee in its sole discretion, or (II) as provided in the applicable Award Agreement (each transferee described in clauses (A), (B), (C) and (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of this Plan.
(iii) The terms of any Award transferred in accordance with subparagraph (ii) above shall apply to the Permitted Transferee and any reference in this Plan, or in any applicable Award Agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the Common Stocks to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under this Plan or otherwise; and (D) the consequences of the termination of the Participant’s employment by, or services to, the Company or an Affiliate under the terms of this Plan and the applicable Award Agreement shall continue to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in this Plan and the applicable Award Agreement.
(iv) The Committee shall have the right, either on an Award-by-Award basis or as a matter of policy for all Awards or one or more classes of Awards, to condition the delivery of vested Common Stocks received in connection with such Award on the Participant’s agreement to such restrictions as the Committee may determine.
(c) Tax Withholding.
(i) A Participant shall be required to pay to the Company or any Affiliate, or the Company or any Affiliate shall have the right and is hereby authorized to withhold, from any cash, Common Stocks, other securities or other property deliverable under any Award or from any compensation or other amounts owing to a Participant, the amount (in cash, Common Stocks, other securities or other property) of any required withholding taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under this Plan and to take such other action as may be necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment of such withholding and taxes. In addition, the Committee, in its discretion, may make arrangements mutually agreeable with a Participant who is not an employee of the Company or an Affiliate to facilitate the payment of applicable income and self-employment taxes.
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(ii) Without limiting the generality of clause (i) above, the Committee may, in its sole discretion, permit a Participant to satisfy, in whole or in part, the foregoing withholding liability by (A) the delivery of Common Stocks (which are not subject to any pledge or other security interest) owned by the Participant having a fair market value equal to such withholding liability or (B) having the Company withhold from the number of Common Stocks otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number of shares with a fair market value equal to such withholding liability (but no more than the maximum individual statutory rate for the applicable tax jurisdiction).
(d) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or an Affiliate, or other person, shall have any claim or right to be granted an Award under this Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither this Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an Affiliate, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Company or any of its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under this Plan, unless otherwise expressly provided in this Plan or any Award Agreement. By accepting an Award under this Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under this Plan or any Award Agreement, notwithstanding any provision to the contrary in any written employment contract or other agreement between the Company and its Affiliates and the Participant, whether any such agreement is executed before, on or after the Date of Grant.
(e) International Participants. With respect to Participants who reside or work outside of the United States of America and who are not (and who are not expected to be) “covered employees” within the meaning of Section 162(m) of the Code, the Committee may in its sole discretion amend the terms of this Plan or outstanding Awards (or establish a sub-plan) with respect to such Participants in order to conform such terms with the requirements of local law or to obtain more favorable tax or other treatment for such Participants, the Company or its Affiliates.
(f) Designation and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more persons as the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under this Plan upon his or her death. A Participant may, from time to time, revoke or change his or her beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Committee. The last such designation filed with the Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his or her spouse or, if the Participant is unmarried at the time of death, his or her estate. Upon the occurrence of a Participant’s divorce (as evidenced by a final order or decree of divorce), any spousal designation previously given by such Participant shall automatically terminate.
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(g) Termination of Employment/Service. Unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment or service with the Company to employment or service with an Affiliate (or vice-versa) shall be considered a termination of employment or service with the Company or an Affiliate; and (ii) if a Participant’s employment with the Company and its Affiliates terminates, but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status shall not be considered a termination of employment with the Company or an Affiliate for purposes of this Plan unless the Committee, in its discretion, determines otherwise.
(h) No Rights as a Stockholder. Except as otherwise specifically provided in this Plan or any Award Agreement, no person shall be entitled to the privileges of ownership in respect of Common Stocks that are subject to Awards hereunder until such shares have been issued or delivered to that person.
(i) Government and Other Regulations.
(i) The obligation of the Company to settle Awards in Common Stocks or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Common Stocks pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act any of the Common Stocks to be offered or sold under this Plan. The Committee shall have the authority to provide that all certificates for Common Stocks or other securities of the Company or any Affiliate delivered under this Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under this Plan, the applicable Award Agreement, the federal securities laws, or the rules, regulations and other requirements of the Securities and Exchange Commission, any securities exchange or inter-dealer quotation system upon which such shares or other securities are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, and, without limiting the generality of Section 9 of this Plan, the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. Notwithstanding any provision in this Plan to the contrary, the Committee reserves the right to add any additional terms or provisions to any Award granted under this Plan that it in its sole discretion deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
(ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Common Stocks from the public markets, the Company’s issuance of Common Stocks to the Participant, the Participant’s acquisition of Common Stocks from the Company and/or the Participant’s sale of Common Stocks to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, unless doing so would violate Section 409A of the Code, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate Fair Market Value of the Common Stocks subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of Common Stocks (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof. The Committee shall have the discretion to consider and take action to mitigate the tax consequence to the Participant in cancelling an Award in accordance with this clause.
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(j) Payments to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under this Plan is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(k) Nonexclusivity of this Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options or other equity-based awards otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No Trust or Fund Created. Neither this Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the other hand. No provision of this Plan or any Award shall require the Company, for the purpose of satisfying any obligations under this Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under this Plan other than as general unsecured creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees under general law.
(m) Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of the Company and/or its Affiliates and/or any other information furnished in connection with this Plan by any agent of the Company or the Committee or the Board, other than himself.
(n) Relationship to Other Benefits. No payment under this Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.
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(o) Governing Law. The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to the conflict of laws provisions.
(p) Severability. If any provision of this Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify this Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws in the manner that most closely reflects the original intent of the Award or the Plan, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of this Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder of this Plan and any such Award shall remain in full force and effect.
(q) Obligations Binding on Successors. The obligations of the Company under this Plan shall be binding upon any successor corporation or organization resulting from the merger, amalgamation, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
(r) Expenses; Gender; Titles and Headings. The expenses of administering this Plan shall be borne by the Company and its Affiliates. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in this Plan are for convenience of reference only, and in the event of any conflict, the text of this Plan, rather than such titles or headings shall control.
(s) Other Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of and/or the receipt of Common Stocks under an Award, that the Participant execute lock-up, stockholder or other agreements, as it may determine in its sole and absolute discretion.
(t) Section 409A. The Plan and all Awards granted hereunder are intended to comply with, or otherwise be exempt from, the requirements of Section 409A of the Code. The Plan and all Awards granted under this Plan shall be administered, interpreted, and construed in a manner consistent with Section 409A of the Code to the extent necessary to avoid the imposition of additional taxes under Section 409A(a)(1)(B) of the Code. Notwithstanding anything in this Plan to the contrary, in no event shall the Committee exercise its discretion to accelerate the payment or settlement of an Award where such payment or settlement constitutes deferred compensation within the meaning of Section 409A of the Code unless, and solely to the extent that, such accelerated payment or settlement is permissible under Section 1.409A-3(j)(4) of the Treasury Regulations. If a Participant is a “specified employee” (within the meaning of Section 1.409A-1(i) of the Treasury Regulations) at any time during the twelve (12)-month period ending on the date of his termination of employment, and any Award hereunder subject to the requirements of Section 409A of the Code is to be satisfied on account of the Participant’s termination of employment, satisfaction of such Award shall be suspended until the date that is six (6) months after the date of such termination of employment.
(u) Payments. Participants shall be required to pay, to the extent required by applicable law, any amounts required to receive Common Stocks under any Award made under this Plan.
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Exhibit 10.25
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
Executive Employment Agreement (the “Agreement”) made as of this ____ day of ____, 2021, between Christopher Ianelli, MD, PhD (the “Executive”), and iSpecimen Inc., a Delaware corporation located at 450 Bedford St, Lexington, MA 02420 (the “Company”).
Whereas, the Board of Directors of the Company believes it to be to its advantage to ensure that the Executive render services as a senior executive officer of the Company as hereinafter provided; and
Whereas, the Executive’s position requires that Executive be trusted with extensive confidential information and trade secrets of the Company and that Executive develop a thorough and comprehensive knowledge of all details of the Company’s business to improve and extend the business;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Title, Position & Responsibilities. The Executive shall serve as the President and Chief Executive Officer of the Company. The Executive shall have the powers, duties and responsibilities of the President set forth in the Company’s bylaws and other organizational documents and those typically availed to a chief executive officer of a similar enterprise, at a similar stage of commercial development, and with similar financial and operational resources to the Company. The Executive shall exercise such powers and comply with and perform such directions and duties regarding the business, operations and affairs of the Company as are consistent with such executive position as may from time to time be vested in or given to Executive by the Board of Directors of the Company (the “Board”), and consistent with the roles, responsibilities and duties of such an executive position, and the Executive shall use all commercially reasonable, diligent and faithful efforts to improve, enhance and extend the business of the Company. The Executive shall at all times report to, and Executive’s activities shall at all times be subject to the direction and control of the Board of Directors. The Executive agrees to devote substantially all of Executive’s available business time, attention and services to the discharge of Executive’s duties for the best interests of the Company and its stockholders. The roles, tasks and responsibilities of the Executive are set forth on Exhibit A.
The Executive may engage in outside business and charitable activities (“Outside Activities”) that do not conflict with Executive’s duties to the Company, or otherwise impact the Executive’s services to the Company. In order for the Board to determine in good faith whether Executive’s Outside Activities comply with this paragraph, the Executive shall disclose in advance all Outside Activities to the Company.
The Board shall nominate and appoint the Executive as a member of the Board for so long as Executive serves as Chief Executive Officer of the Company. During the term of this Agreement, the Board shall designate and nominate the Executive as a director of the Company and, if elected by the stockholders of the Company, the Executive shall accept such position and perform Executive’s duties thereunder.
2. Compensation: Salary, Bonuses & Other Benefits. During the term of this Agreement, the Company shall pay the Executive the following compensation, including the following annual salary, bonuses and other fringe benefits:
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
(A) Base Salary. In consideration of the services to be rendered by the Executive to the Company under this Agreement, the Company will pay to the Executive an annual base salary of $350,000 payable on a bi-weekly basis, and otherwise in conformity with the Company’s customary practices and policies for the compensation of other senior officers, as such practices shall be established or modified from time to time. Salary payments shall be subject to all applicable federal and state withholding, payroll and other taxes, in conformity with the Company’s prevailing practices. The annual base salary for subsequent years during the term of this Agreement shall be reviewed annually, and shall be adjusted for each subsequent year during the term of this Agreement; provided, however, the base salary payable hereunder shall at no time be less than the initial base salary set forth herein.
(B) Target Bonus. For 2021, Executive shall be entitled to a Target Bonus of Forty Percent (40%) of Base Salary, 50% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(1), 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(2), and 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(3).
(C) Special Incentives. In addition to any Target Bonus, the Executive shall be eligible for the following special, trigger-based incentive compensation (“Special Incentives”):
(1) | Bonus Upon Consummation of the IPO. Upon the closing of an initial public offering of the Company’s Common Stock (an “IPO”), the Executive shall receive a bonus payout in an amount of $70,000 (the “IPO Bonus”), which IPO Bonus shall be payable in a lump sum, less required taxes and deductions, within thirty (30) days of the IPO. |
(2) | Stock Performance Bonus. If, during the thirty (30) consecutive day period immediately following the 10-month anniversary of the IPO, the Company’s average daily closing share price is at or above 1.25 times the Offering Price (the “SPB Trigger”), the Executive shall receive a bonus payout in an amount of $35,000 (the “Stock Performance Bonus”). If earned, the Stock Performance Bonus shall be paid in a lump sum, less required taxes and deduction, within thirty (30) days of achievement of the SPB Trigger but not earlier than the 12-month anniversary of the IPO. For purposes of calculating the Stock Performance Bonus, the term “Offering Price” shall mean that per-share price at which publicly issued securities of the Company are made available for purchase during the IPO, as set by the lead underwriter. |
(3) | 2021 Financial Performance Bonus. Upon the Company achieving $13.5 million in Gross Revenue, and achieving Cost of Revenue of less than or equal to 50%, during calendar year 2021, Executive shall receive a bonus payout in an amount of $35,000 (the “2021 Financial Performance Bonus”). If earned, Executive shall be paid the 2021 Financial Performance Bonus, in a lump sum, less required taxes and deductions, on or before March 15, 2022. For purposes of calculating the 2021 Financial Performance Bonus, the terms “Gross Revenue” and “Cost of Revenue” shall have the meanings ascribed to such terms by generally accepted accounting principles (“GAAP”) in the United States. |
The purpose of providing Executive with such Special Incentives is to encourage Executive’s continued employment at the Company as a productive employee. Accordingly, and except as otherwise provided herein, any payout of any Special Incentive described herein is contingent on Executive being an employee at the time Executive’s right to such Special Incentive has vested, and the Executive shall not be eligible for a Special Incentive if the Executive’s employment terminates for any reason, before the Special Incentive has vested.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
(D) Reimbursement of Expenses; Fringe Benefits. The Executive will be promptly reimbursed for all of Executive’s business-related travel, lodging and entertainment expenses in accordance with the Company’s prevailing policy for executive officers. The Executive will participate on the same basis with all other officers and employees of the Company in the Company’s standard benefits package made generally available to all other officers and Executives, including 401(k) (if available), group health, long-term and short-term disability and life insurance programs, and other fringe benefits as may be adopted by the Company from time to time. Nothing herein shall restrict the Company from modifying or eliminating any Company benefit program, health plan or other fringe benefit at any time.
(E) Equity Participation. As specific consideration for the non-competition covenants contained in the Restrictive Covenant Agreement discussed below, Executive shall be granted certain equity in the Company (the “Equity Award”), according to the following terms and conditions: As soon as practical following the IPO, the Company shall issue the Executive certain Restricted Stock Units (“RSUs”), pursuant to the form of Restricted Stock Unit Agreement attached hereto as Exhibit B, and certain Performance Share Units (“PSUs”, and together with the RSUs, the “Units”), pursuant to the form of Performance Share Unit agreement attached hereto as Exhibit C. The Company shall issue the Executive an aggregate number of Units equal to 0.275 multiplied by 3.75% of the Net Effective IPO Value, divided by the Offering Price. 80% of the Units shall be issued as RSUs and 20% of the Units shall be issued as PSUs. For purposes hereof, (i) “Net Effective IPO Value” shall mean the pre-money valuation of the Company, plus the Net Proceeds received by the Company from the initial closing of the IPO, (ii) “Net Proceeds” shall mean the aggregate gross proceeds from the IPO, minus the aggregate of all underwriting discounts and commissions and fees and expenses incurred in connection with the IPO, and (iii) the pre-money valuation of the Company shall be equal to the Offering Price, multiplied by the number of shares of Common Stock of the Company outstanding immediately prior to the IPO.
(F) Key Man Insurance. The Company may maintain, at its option and expense, Key Man Life Insurance (the "Policy") on the life of Executive for the benefit of the Company with a benefit of $2,000,000. The Executive’s signature to this Agreement constitutes Executive's written consent to being insured under the Policy. The Executive shall make all necessary applications, submit to physical examinations and otherwise cooperate with the Company with respect to the purchase of the policy.
3. Performance Review. Commencing at least thirty (30) days prior to the first anniversary of this Agreement, and at least thirty (30) days prior to the commencement of any fiscal year thereafter, the Board and the Executive shall in good faith review the performance by, and the compensation payable to, the Executive for the prior year and the proposed performance by, and compensation to, the Executive for the then forthcoming year. The Board and the Executive shall negotiate in good faith the annual salary and bonus (including targets, performance goals and management objectives), stock-based incentives, and other forms of incentive compensation for the forthcoming fiscal year.
4. Term. The term of this Agreement shall commence on the date first above written and shall terminate at 11:59 p.m. on the earlier to occur of (i) the 12-month anniversary of the IPO (ii) the death or disability of the Executive, or (iii) the occurrence of any of the circumstances described in Section 5 hereof (the “Expiration Date”). In the event of death or disability, the Executive or the Executive’s estate, as applicable, shall receive payment of all unpaid or accrued salary, earned or accrued bonuses, and the vesting of the stock or other equity participation then held by the Executive, but pro-rated until the date of termination.
Notwithstanding the above, Executive shall be, at all times, an “at-will” employee of the Company. Accordingly, the employment relationship between the Executive and the Company may be terminated, by either the Company or the Executive, at any time for any reason, subject to the employment termination provisions set forth in Section 5 below.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
5. Termination. The Executive’s term of employment under this Agreement may be terminated as follows:
(A) At the Election of the Company for Just Cause. The Company may, immediately and unilaterally, terminate the Executive’s employment hereunder for just cause at any time during the term of this Agreement, subject in all instances to the terms and conditions of and compliance with the provisions of this Section 5. Termination of the Executive’s employment by the Company shall constitute a termination for “just cause” under this Section if such termination is for one or more of the following causes: (i) the material failure of Executive to render services to the Company in accordance with Executive’s assigned duties and responsibilities and consistent with Executive’s title, roles and responsibilities under this Agreement, as reasonably determined by the Board; (ii) intentional misconduct or gross negligence committed by the Executive in connection with the performance of Executive’s assigned duties or breach of the material terms of this Agreement or the other agreements executed in connection with this Agreement; (iii) the conviction of the Executive (or plea of guilty or nolo contendere to) of a felony either in connection with the performance of Executive’s duties and responsibilities to the Company, or which adversely affects the Executive's ability to perform such duties and responsibilities, or which otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (iv) the commission by Executive of an act of fraud, embezzlement, or the deliberate disregard of the material policies or practices of the Company (including but not limited to employment discrimination or harassment), which results in loss, damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (v) the unauthorized disclosure by Executive of any trade secret or confidential information of the Company or any of its clients or customers, which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its clients or customers; (vi) the willful commission by Executive of an act which constitutes unfair competition with the Company; (vii) the use of illegal drugs or controlled substances that materially interferes with the performance by Executive of the duties or obligations delegated to Executive as a senior executive of the Company, or which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its customers; (viii) the material failure by the Executive to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Executive’s cooperation; or (ix) the repeated or continued absence from the performance of work during normal business hours for reasons other than permitted absence pursuant to applicable law. Furthermore, in all instance under subsections (i), (ii), (viii) and (ix) hereinabove, the Company may not terminate Executive without first providing Executive with written notice of the basis for exercising its rights to terminate for just cause, and an opportunity of not less than thirty (30) days for the Executive to substantially cure such grounds for termination to the Board’s reasonable satisfaction.
In the event of any such termination for just cause above, the Executive shall be entitled to (i) earned but unpaid salary and earned but unpaid bonus through the termination date, (ii) COBRA benefits for up to the applicable statutory period, provided Executive makes the appropriate voluntary contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
(B) Voluntary Termination. The Executive may voluntarily terminate Executive’s employment at any time during the term of this Agreement by providing the Company with thirty (30) days prior notice of termination. In the event of any such voluntary termination, the Executive shall be entitled to (i) earned but unpaid salary and bonuses (including any unpaid portion of the IPO Bonus), (ii) COBRA benefits for the applicable statutory period, with Executive being responsible for the full premium amount for such COBRA coverage, provided Executive makes the appropriate voluntary premium contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
(C) At the Election of the Company for Reasons Other Than Just Cause. The Company may terminate the Executive’s employment hereunder at any time during the term of this Agreement “without cause” by giving not less than thirty (30) days’ prior written notice to the Executive of the Company’s election to terminate. During such notice period, the Executive will be available on a full-time basis for the benefit of the Company to assist the Company in matters relating to a transition of the Executive’s duties and responsibilities. In the event the Company exercises its right to terminate the Executive under this Section, or in the event the Company exercises its right not to renew this Agreement, the Company agrees to pay the Executive (i) salary continuation payments for the period of twelve (12) months (the “Salary Continuation Period”), at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes.
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(C) shall not commence until the later calendar year.
(D) Termination by Executive for Good Reason. The Executive may also resign Executive’s employment with the Company at any time for any reason, including Good Reason. In the case of a resignation without Good Reason, the Executive shall provide written notice to the Board at least thirty (30) days prior to the date of termination. During any notice period provided by the Executive in connection with Executive’s resignation, the Company may, in its discretion, direct the Executive not to perform any work or report to the office for part or all of the notice period, although the Executive’s Base Salary and benefits shall continue during such notice period regardless. “Good Reason” means any one of the following events: (A) a material diminution in the Executive’s duties and responsibilities, or a change in the Executive’s position within the Company which constitutes a demotion, without the Executive’s prior consent; (B) a reduction in the Executive’s Base Salary to an amount below the amount set forth in Section 1(A), except in circumstances when the Executive’s Base Salary is reduced in connection with a pay reduction plan generally applicable to the Company’s management and employees; or (C) a change in the principal workplace of the Executive to a location outside of an 35-mile radius from Lexington, Massachusetts; provided, however, that none of the foregoing events shall constitute Good Reason unless and until the Executive provides the Board with at least thirty (30) days’ prior written notice of Executive’s intent to resign for Good Reason (which notice is provided not later than thirty (30) days following the date upon which the Executive receives notice of the event constituting Good Reason), and the Company has not remedied the event allegedly constituting Good Reason within such 45 day period.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
In the event of any termination for Good Reason, the Executive shall be entitled to (i) salary continuation payments for the aforementioned Salary Continuation Period, at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes.
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(D) shall not commence until the later calendar year.
6. Noncompetition, Nonsolicitation, Confidentiality and Inventions Agreement. In connection with Executive’s employment by the Company pursuant to the terms of this Agreement, and in consideration for the Equity Award provided in paragraph 2(E) of this Agreement, the Executive shall execute or reconfirm the Company’s standard form of Noncompetition, Nonsolicitation, Confidentiality and Invention Assignment Agreement (the “Restrictive Covenant Agreement”) attached as Exhibit D. Such Restrictive Covenant Agreement is an essential part of the subject matter of this Agreement and is incorporated by reference. The Executive hereby confirms, acknowledges the terms of the Restrictive Covenant Agreement, and hereby agrees to the restrictive covenants set forth therein. Any breach by the Executive of the material covenants of the Restrictive Covenant Agreement shall be deemed a material breach by the Executive of this Agreement.
7. Governing Law; Injunctive Relief. This Agreement and the Restrictive Covenant Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts and shall be deemed to be performable in such state. The Executive acknowledges that the breach or threatened breach of any of the provisions of this Agreement or the Restrictive Covenant Agreement would give rise to irreparable injury to either party, which injury would be inadequately compensable in money damages. Accordingly, in the event of any breach, either party may seek and obtain a restraining order and/or injunction prohibiting the breach or threatened breach of any provision, requirement or covenant of this Agreement or the Restrictive Covenant Agreement, in addition to and not in limitation of any other legal remedies which may be available, and without the necessity of posting a bond or other surety.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
8. Severability. In case any one or more of the provisions contained in this Agreement or the Restrictive Covenant Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or the Restrictive Covenant Agreement. In such event this Agreement or the Restrictive Covenant Agreement, as the case may be, shall be construed, revised, modified and reformed to the maximum extent possible to give effect to the purposes set forth herein and in the Restrictive Covenant Agreement.
9. Waivers and Modifications. This Agreement may be modified, and the rights and remedies of any provision hereof may be waived, only in accordance with this Section. No modification or waiver by the Company shall be effective without the consent of the Executive. No waiver by either party of any breach by the other party of any provision hereof shall be deemed to be a waiver of any later or other breach thereof or as a waiver of any other provision of this Agreement. This Agreement and the Restrictive Covenant Agreement set forth all of the terms of the understandings between the parties with reference to the subject matter set forth herein and may not be waived, changed, discharged or terminated orally or by any course of dealing between the parties, but only by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
10. Assignment. The Executive acknowledges that the services to be rendered by Executive are unique and personal in nature. Accordingly, the Executive may not assign any of Executive’s rights or delegate any of Executive’s duties or obligations under this Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company, including any successor to the Company’s capital stock or assets by reason of a change in control, merger or other acquisition of the Company.
11. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement, including claims for injunctive relief, shall be submitted to and resolved by arbitration under the General Commercial Rules of the American Arbitration Association (“AAA”). The Arbitrator shall be appointed by the AAA in accordance with the processes for such appointment established by the AAA. However, the Arbitrator shall be a licensed attorney with not less than fifteen years practice experience. The decision of such Arbitrator shall be final and binding on the parties. Such arbitration shall be held in Boston, Massachusetts, and the judgment upon the award rendered shall be entered by consent in any court having jurisdiction. The Arbitrator shall have the right but not the obligation to assess attorneys’ fees, costs and expenses associated with the arbitration, in the Arbitrator’s sole discretion. In the event of any conflict between the arbitration rules in effect from time to time and the provisions of this Agreement, the provisions of this Agreement shall prevail and be controlling. The Arbitrator shall be required to (i) materially follow the substantive rules of applicable law, (ii) accompany the award with findings of fact and a statement of reasons for the decision. The Arbitrator shall have the authority to permit discovery for no more than sixty days, to the extent deemed appropriate by the Arbitrator, upon reasonable request of a party. One fact witness deposition shall be allowed by each of the Company and the Executive, for one full day; any other depositions shall be allowed only with approval of the Arbitrator. The Arbitrator shall have no power or authority to address or resolve any issue not submitted by the parties. The Arbitrator shall have the power to grant emergency and injunctive relief as provided in the AAA rules (without the necessity of a party posting a bond) in the event a party has violated the terms of this Agreement or the Restrictive Covenant Agreement, but no authority to award punitive and/or exemplary damages. The matter shall be heard within one hundred fifty (150) days of the filing of the demand and the award issued within fourteen (14) days of the closing of the hearing. Notwithstanding the foregoing, at any time prior to the commencement of an arbitration proceeding, a party may resort to the courts of the Commonwealth of Massachusetts to seek injunctive relief only; the parties’ consent to the jurisdiction and venue in the Massachusetts court of competent subject matter jurisdiction in Suffolk County, Massachusetts, for the purpose of pursuing injunctive relief prior to the filing by any party of an arbitration demand.
{Signature Page on Following Page}
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed, as an instrument under seal, this Executive Employment Agreement as of the date first above written.
iSpecimen Inc.
By: | ||
Title: | ||
Executive: Christopher Ianelli, MD, PhD | ||
Signature of Executive | ||
Street |
City | State | Zip |
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit A
Job Description
CEO Responsibilities
Executive Leadership
1. | Create, communicate, and implement the organization's vision, mission, and overall direction |
2. | Develop high quality business strategies and plans ensuring their alignment with short-term and long-term objectives |
3. | Develop overall performance measures that support the company's strategic direction |
4. | Support the development of the annual budget and goals |
5. | Make high-quality investing decisions to advance the business growth and profitability |
6. | Analyze problematic situations and occurrences and provide solutions to ensure company survival and growth |
7. | Oversee, direct, and organize the work of the Chief Operating Officer, Chief Information Officer, Chief Financial Officer, VP of Sales, and VP of Corporate Growth and Development |
8. | Lead and motivate others to advance employee engagement develop a high performing executive team |
9. | Enforce adherence to legal guidelines and in-house policies to maintain the company’s legality and business ethics |
Fundraising and Investors
1. | Drive corporate fundraising activities |
2. | Investigate potential acquisitions and/or the sale of the company under circumstances that will enhance shareholder value |
3. | Communicate with investors as appropriate |
Board
1. | Plan for and participate in regular Board meetings, including reporting quarterly results and soliciting advice and guidance from the Board |
External Relationships and Industry
1. | Maintain a deep knowledge of the markets and industry of the company |
2. | Build trusted relations with key industry partners and stakeholders |
3. | Act as the primary spokesperson for the company |
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit B
Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of ___________, _____ (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Christopher Ianelli, MD, PhD (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which awards of Restricted Stock Units may be granted; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Restricted Stock Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Restricted Stock Units.
1.1 Pursuant to the Plan, the Company hereby grants to the Grantee on the Grant Date an Award consisting of, in the aggregate, [____] Restricted Stock Units (the “Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan.
1.2 The Restricted Stock Units shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
2. Vesting.
2.1 Except as otherwise provided herein, provided that the Grantee remains employed by the Company through the applicable vesting date, the Restricted Stock Units will vest in accordance with the following schedule (the period during which restrictions apply, the “Restricted Period”):
Vesting Date | Number of Restricted Stock Units That Vest | |
As of the date hereof | 20% of the Restricted Stock Units | |
On each one year anniversary of the IPO thereafter (each such year referred to as an “Anniversary Year”) |
An additional 20% of the Restricted Stock Units |
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
All Restricted Stock Units shall be fully vested as of [DATE]1. Once vested, the Restricted Stock Units become “Vested Units” and shall be settled as provided in Section 5 herein.
2.2 Notwithstanding Section 2.1, if the Grantee's employment is terminated (i) by the Company or an Affiliate without Just Cause, (ii) by the Grantee for Good Reason or (iii) by the Company or Affiliate or Grantee on account of a non-renewal by the Company or an Affiliate of any successive term of Grantee’s employment under Grantee’s Employment Agreement, Grantee shall be entitled to immediate forward vesting of an additional twelve (12) months of Restricted Stock Units from and after such date of termination or non-renewal, (as if the vesting period for Grantee’s Restricted Stock Units had been set up for monthly and not annual vesting) and such additional vested Restricted Stock Units shall become Vested Units.
2.3 Notwithstanding Section 2.1 or 2.2, if a Change in Control (as defined in the Plan) occurs and the Grantee's employment is terminated by the Company or an Affiliate without Just Cause or by the Grantee for Good Reason, and the Grantee's date of termination occurs within twelve (12) months following such Change in Control, all unvested Restricted Stock Units shall automatically become 100% vested on the Grantee's date of termination and become Vested Units.
2.4 Notwithstanding Section 2.1, if the Grantee’s employment with the Company or an Affiliate terminates on account of the Grantee’s death or Disability, those Restricted Stock Units scheduled to vest during the Anniversary Year in which Grantee’s employment terminates shall vest proportionately based on the number of days during such Anniversary Year that Grantee was employed divided by three hundred and sixty (360) days and become Vested Units.
2.5 Except as set forth in Sections 2.2, 2.3 and 2.4, if the Grantee's employment with the Company or an Affiliate terminates for any other reason, including as a result of Grantee refusing to remain employed at the Company following any renewal of Grantee’s Employment Agreement, at any time before all of his or her Restricted Stock Units have vested, the Grantee's unvested Restricted Stock Units shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee with respect to such Restricted Stock Units that have been so forfeited under this Agreement.
1 4 year anniversary of IPO.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
3. Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period and until such time as the Restricted Stock Units are settled in accordance with Section 5, the Restricted Stock Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock Units or the rights relating thereto shall be wholly ineffective.
4. Rights as Shareholder; Dividend Equivalents.
4.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the Restricted Stock Units unless and until the Restricted Stock Units vest and are settled by the issuance of such shares of Common Stock.
4.2 Upon and following the settlement of the Restricted Stock Units, the Grantee shall be the record owner of the shares of Common Stock underlying the Restricted Stock Units unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting rights). The Company reserves the right to settle those Restricted Stock Units that are subject to forward vesting under Section 2.2 hereof in cash at its sole discretion.
4.3 The Grantee shall not be entitled to any Dividend Equivalents with respect to the Restricted Stock Units to reflect any dividends payable on shares of Common Stock.
5. Settlement of Restricted Stock Units.
5.1 Subject to Section 8 hereof, within five (5) business days following the vesting date, (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if settlement of the Restricted Stock Units cannot be settled within said five (5) business day period for reasons outside the reasonable control of the Company), the Company shall, except as to any Restricted Stock Units that may be settled in cash as referenced in Section 4.2 above, (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of Vested Units; and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
5.2 If the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his/her “separation from service” within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (a) the date that is six months following the Grantee's separation from service and (b) the Grantee's death.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
5.3 To the extent that the Grantee does not vest in Restricted Stock Units, all interest in such Restricted Stock Units shall be forfeited. The Grantee has no right or interest in any Restricted Stock Units that are forfeited.
6. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
7. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Restricted Stock Units shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
8. Tax Liability and Withholding.
8.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the Restricted Stock Units and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment.
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
8.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Restricted Stock Units or the subsequent sale of any shares; and (b) does not commit to structure the Restricted Stock Units to reduce or eliminate the Grantee's liability for Tax-Related Items.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
9. Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
10. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
11. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
12. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
13. Restricted Stock Units Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
14. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the Restricted Stock Units may be transferred by will or the laws of descent or distribution.
15. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
16. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the Restricted Stock Units in this Agreement does not create any contractual right or other right to receive any Restricted Stock Units or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
17. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the Restricted Stock Units, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
18. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
19. No Impact on Other Benefits. The value of the Grantee's Restricted Stock Units is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
21. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
[signature page follows]
-15-
iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Christopher Ianelli, MD, PhD | ||
By: | ||
Name: |
-16-
iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit C
Performance Share Unit Agreement
This Performance Share Unit Agreement (this “Agreement”) is made and entered into as of [DATE] (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Christopher Ianelli, MD, PhD (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which the Company may grant Performance Compensation Awards; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of , 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Performance Share Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Performance Share Units. Pursuant to the Plan, the Company hereby grants to the Grantee an Award for a maximum of [NUMBER] Performance Share Units. Such Performance Share Units are intended to constitute a Performance Compensation Award under the Plan. Each Performance Share Unit (“PSU”) represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. The number of PSUs that the Grantee actually earns for each Performance Period will be determined by the level of achievement of the applicable Performance Goal in accordance with Exhibit I attached hereto.
2. Definitions. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan. For purposes of this Agreement: “Performance Period” shall mean each of the first four calendar years ending after the date of this Agreement (beginning with the year ended December 31, 2021).
3. Performance Goals.
3.1 The determination of whether the applicable PSUs have been earned by the Grantee for each Performance Period will be based upon whether the applicable Performance Goal for such Performance Period has been achieved in accordance with Exhibit I. All determinations of whether any Performance Goal has been achieved, and all other matters related to this Section 3 shall be made by the Committee in its sole discretion.
3.2 Promptly following completion of the applicable Performance Period (and no later than ninety (90) days following the end of the applicable Performance Period), the Committee will review and certify in writing whether the Performance Goal for the applicable Performance Period has been achieved. Such certification shall be final, conclusive and binding on the Grantee, and on all other persons, to the maximum extent permitted by law.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
4. Vesting of PSUs. The PSUs are subject to forfeiture until they vest. Except as otherwise provided herein or in Section 13 of the Plan, the PSUs relating to any Performance Period will vest and become nonforfeitable on January 1 of the year that immediately follows such Performance Period, subject to (a) the achievement of the applicable Performance Goal for such Performance Period set forth in Exhibit I attached hereto, and (b) the Grantee's Continuous Service from the Grant Date through the such vesting date.
5. Termination of Employment. Except as otherwise expressly provided in this Agreement, if the Grantee's employment with the Company terminates for any reason at any time before all of his or her PSUs have vested, the Grantee's unvested PSUs shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee under this Agreement.
6. Settlement of PSUs. Subject to Section 11 hereof, within five (5) business days following the Committee’s certification that a Performance Goal for a particular Performance Period has been achieved (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if such certification and settlement cannot be made within the applicable periods of time set forth in Section 3.2 and this Section 6 for reasons outside the reasonable control of the Company), the Company shall (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of vested PSUs, and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
7. Transferability. Subject to any exceptions set forth in this Agreement or the Plan, the PSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee, except by will or the laws of descent and distribution, and upon any such transfer by will or the laws of descent and distribution, the transferee shall hold such PSUs subject to all of the terms and conditions that were applicable to the Grantee immediately prior to such transfer.
8. Rights as Shareholder.
8.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the PSUs, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents.
8.2 Upon and following the settlement of the PSUs and the issuance of shares, the Grantee shall be the record owner of the shares of Common Stock underlying the PSUs unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting and dividend rights).
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
9. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
10. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the PSUs shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
11. Tax Liability and Withholding.
11.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the PSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment;
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the PSUs; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law; or
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
11.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the PSUs or the subsequent sale of any shares, and (b) does not commit to structure the PSUs to reduce or eliminate the Grantee's liability for Tax-Related Items.
12. Compliance with Law. The issuance and transfer of shares of Common Stock in connection with the PSUs shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
13. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
14. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
15. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
16. PSUs Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
17. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the PSUs may be transferred by will or the laws of descent or distribution.
18. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
19. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the PSUs in this Agreement does not create any contractual right or other right to receive any PSUs or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
20. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the PSUs, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
21. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
22. No Impact on Other Benefits. The value of the Grantee's PSUs is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
24. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the PSUs subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the PSUs or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Christopher Ianelli, MD, PhD |
-22-
iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit 1
Performance Measures
25% of the PSUs shall be earned for the first Performance Period if the Company exceeds $13.5M in revenue for the year ended December 31, 2021, with a maximum of 50% cost of revenue.
25% of the PSUs shall be earned for the second Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2022.
25% of the PSUs shall be earned for the third Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2023.
25% of the PSUs shall be earned for the fourth Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2024.
The revenue and cost of revenue targets for 2022, 2023 and 2024 will be established by the Board at the last calendar year meeting of the Board preceding such year.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit D
iSpecimen Inc.
NONCOMPETITION, NONSOLICITATION, NONDISCLOSURE AND INVENTIONS AGREEMENT
The undersigned, Christopher Ianelli, MD, PhD, in consideration for and as a condition of employment as a senior executive officer (the “Executive”) of iSpecimen Inc. (the “Company”), or for receiving stock or options, or any other form of compensation, salary, bonus, benefit or fringe benefits from or in the Company, and in connection with executing an Employment Agreement with the Company, hereby agrees with the Company as follows:
1. Noncompetition Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship for Just Cause (as defined in the Executive’s Employment Agreement) or by reason of Executive’s resignation from service, Executive will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of the Company, compete with the Company’s Business, as it is constituted on the date of termination of Executive’s relationship with the Company, in the geographic areas where the Executive provided services to the geographic areas in which the employee provided services or had a material presence or influence during the two (2) year period preceding the end of such Executive’s employment, without the Company’s prior written consent. The parties agree that nature and scope of Executive’s service relationship to the Company requires that the Executive have a material presence and influence in all geographic locations in which the Company conducts business activities and markets its good and services, including, but not limited to, the entirety of the United States. Accordingly, the parties acknowledge that the geographic scope of the non-competition restrictions set forth in this section 1 includes, at least, the entire United States.
For purpose of this Section 1, the “Company’s Business” shall mean: the development, sales, marketing, distribution and commercial exploitation of products or services, including software and web-based applications and products that link electronic medical records and clinical laboratory specimens (the “Proprietary Technology”), for the collection of biospecimens from hospitals, clinical laboratories, and similar institutions (the “Partners”) primarily for distribution and sale to research organizations, academic institutions, government facilities, biopharmaceutical, and diagnostic companies and similar organizations and entities (the “Customers”).
The restrictions set forth in this Section 1 shall not take effect until ten (10) business days after the Effective Date of this Agreement (the “Noncompete Effective Date”). Executive acknowledges and agrees that the Company provided Executive with notice of the restrictions set forth in Section 1 at least ten (10) business days before the Noncompete Effective Date.
Executive also acknowledges that Executive has been informed, pursuant to Mass. Gen. L. c. 149, § 24L (the “Act”), that Executive has the right to consult with an attorney before signing this Agreement.
In exchange for the promises contained in this Section 1: the Company, subject to the approval of its Board of Directors where applicable, shall grant the Executive the Equity Award described in paragraph 2(E) of the Executive Employment Agreement (the “Consideration Payment”), which the parties hereto agree is “mutually-agreed upon consideration” as defined in the Act.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
2. Non-solicitation Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship (for any reason) (the “Restricted Period”), the Executive will not directly or indirectly either for herself or for any other commercial enterprise, solicit, divert or take away or attempt to solicit, divert or take away, any of the Company’s Customers, business or prospective Customers in existence at the time of termination of such employment for the benefit of any enterprise which may be competitive to the Business of the Company, whether directly or indirectly. For purposes of this Agreement, “prospective Customers” shall include those customers being solicited by the Company at the time of the Executive’s termination. During such employment with the Company and for a period of one (1) year thereafter, the Executive will not solicit or discuss with any employee, advisor or consultant of the Company the recruitment, employment or engagement of such Company employee, advisor or consultant by any enterprise, and whether or not such enterprise is competitive to the Business of the Company, nor recruit, or attempt to recruit, any such Company employee, advisor or consultant other than on behalf of the Company.
The Executive agrees that for the Restricted Period, the Executive will not solicit, encourage, or induce, or cause to be solicited, encouraged or induced, directly or indirectly, any Customer, vendor, supplier or contractor who conducted business with the Company at any time during the one-year period preceding the termination of the Executive’s relationship with the Company, to terminate or adversely modify any business relationship with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall the Executive otherwise interfere with any business relationship between the Company and any such entity described herein.
3. Nondisclosure Obligation. The Executive will not at any time, whether during or after the termination of employment, for any reason whatsoever (other than to promote and advance the Company’s Business), reveal to any person or entity (both commercial and non-commercial) any of the trade secrets or confidential business information concerning the Company or the trade secrets or confidential business information of third parties subject to a duty of confidentiality on the part of the Company, including without limitation: development activities; prototypes and technical specifications; show-how and know-how; marketing plans and strategies; pricing and costing policies; Customer, Partner and supplier lists and accounts; or nonpublic financial information so far as they have come or may come to the Executive’s knowledge, except as may be required in the ordinary course of performing her duties as an executive of the Company. This restriction shall not apply to: (i) information that may be disclosed generally or is in the public domain through no fault of the Executive; (ii) information received from a third party outside the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed. The Executive shall keep secret all matters of such nature entrusted to her and shall not use or disclose any such information for the benefit of any third party in any manner which may injure or cause loss to the Company, whether directly or indirectly.
4. Assignment of Inventions. The Executive expressly understands and agrees that any and all right or interest she obtains in any designs, research, copyrights, trade secrets, technical specifications, software programs, software and systems documentation, game designs and prototypes, flowcharts, logic diagrams, software methodologies and algorithms, technical data, know-how and show-how, internal reports and memoranda, Customer, Partner and vendor lists, marketing plans, pricing policies, inventions, concepts, ideas, expressions, discoveries, improvements and patent or patent rights which are authored, conceived, devised, developed, reduced to practice, or otherwise obtained by Executive during the term of this Agreement which relate to or arise out of Executive’s employment with the Company are expressly regarded as “works for hire” (the “Work Product”). The Executive hereby assigns to the Company the sole and exclusive right to such Work Product. The Executive agrees that she will promptly disclose to the Company any and all such Work Product, and that, upon request of the Company, the Executive will execute and deliver any and all documents or instruments and take any other action which the Company shall deem necessary to assign to and vest completely in the Company, to perfect trademark, copyright and patent protection with respect to, or to otherwise protect the Company’s trade secrets and proprietary interest in such Work Product. The obligations of this Section shall continue beyond the termination of the Executive’s employment with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during the term of this Agreement. The Company agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by the Executive for any assistance rendered to the Company pursuant to this Section.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
In the event the Company is unable, after reasonable effort, to secure Executive’s signature on any letters patents, copyright or other analogous protection relating to the Work Product, whether because of Executive’s physical or mental incapacity or for any other reason whatsoever, Executive hereby irrevocably designates and appoints the Company and its duly authorized officer and agent as Executive’s agent and attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and irrevocable and shall survive Executive’s death or incapacity), to act for and in Executive’s behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letter patent, copyright or other analogous protection thereon with the same legal force and effect as if executed by Executive. The obligations of this Section shall continue beyond the termination of the Executive’s employment with the Company with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during Executive’s tenure with the Company. “Work Product” will not include any business knowledge, skills and experience of the Executive that would not otherwise constitute a trade secret of the Company under applicable law. The Executive agrees to keep adequate and current written records of all Work Product made by Executive (solely or jointly with others). The records will be in form of notes, memoranda, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.
5. Remedies Upon Breach. The Executive agrees that any breach of this Agreement by the Executive could cause irreparable damage to the Company. The Company shall have, in addition to any and all remedies of law, the right to an injunction or other equitable relief to prevent any violation of the Executive’s obligations hereunder, and without the necessity of posting a bond. In the event of any enforcement of this Agreement, or of any breach, the party who does not prevail shall reimburse the counterparty for such counterparty’s cost and expenses of enforcement, including attorneys’ fees and expenses. The Executive acknowledges and agrees that the enforcement of this Agreement is necessary to ensure the preservation, protection and continuity of the confidential business information, trade secrets, business reputation and goodwill of the Company.
6. Defend Trade Secrets act Notice. Notwithstanding any provision in this Agreement, the Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (A) files any document containing the trade secret under seal, and (B) does not disclose the trade secret, except pursuant to a court order.
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
7. Miscellaneous. The obligations of the Executive under this Agreement shall survive the termination of the Executive’s relationship with the Company regardless of the manner of such termination. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, and notwithstanding and excepting its conflicts of laws principles. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject matter so as to be unenforceable at law, such provision(s) shall be construed and reformed by the appropriate judicial body by limiting and reducing it (or them), so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. If the Executive violates the provisions of any of Sections 1-4 inclusive, the Executive shall continue to be bound by the restrictions set forth in such sections until a period of the later of one (1) year or for the duration that the restrictive period has run its course without any violation of such provisions. During the term of this Agreement and following any termination, no party shall make or publish any negative or derogatory remarks concerning the other party (or the case of the Company, any remarks concerning its business, operations, Customers, Partners, strategic relationships, products and services, software, or its directors, officers, employees, personnel, stockholders, agents or representatives). The Executive understands that this Agreement does not create an obligation on the part of the Company to continue the Executive’s employment with the Company, and the Executive acknowledges that he or she is employed “at will.” The Agreement may be executed and delivered in counterparts, and by digital signature, facsimile signature or other similar evidence of execution, and this Agreement may be delivered and executed by electronic or facsimile transmission, portable document format, hand delivery, overnight courier service, first class mail (postage prepaid), or any other commercial means.
8. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement shall be submitted for settlement to an arbitrator agreed upon by the parties. The principles of Arbitration set forth in the Executive Employment Agreement shall apply to any controversy, dispute, claim or breach arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the undersigned Executive and the Company have executed this Noncompetition, Nonsolicitation, Nondisclosure and Inventions Agreement as of this _____ day of _________, 2021.
iSpecimen Inc. | Executive: Christopher Ianelli, MD, PhD | ||
By: | |||
Signature of Executive | |||
Title: | |||
Dated: _____, 2021 |
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iSpecimen Inc.
Executive Employment Agreement – C. Ianelli
Exhibit 10.26
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
Executive Employment Agreement (the “Agreement”) made as of this ____ day of ____, 2021, between Jill Mullan (the “Executive”), and iSpecimen Inc., a Delaware corporation located at 450 Bedford St, Lexington, MA 02420 (the “Company”).
Whereas, the Board of Directors of the Company believes it to be to its advantage to ensure that the Executive render services as a senior executive officer of the Company as hereinafter provided; and
Whereas, the Executive’s position requires that Executive be trusted with extensive confidential information and trade secrets of the Company and that Executive develop a thorough and comprehensive knowledge of all details of the Company’s business to improve and extend the business;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Title, Position & Responsibilities. The Executive shall serve as the Chief Operating Officer of the Company. The Executive shall have the powers, duties and responsibilities typically availed to a chief operating officer of a similar enterprise, at a similar stage of commercial development, and with similar financial and operational resources to the Company. The Executive shall exercise such powers and comply with and perform such directions and duties regarding the business, operations and affairs of the Company as are consistent with such executive position as may from time to time be vested in or given to Executive by the Board of Directors of the Company (the “Board”), and consistent with the roles, responsibilities and duties of such an executive position, and the Executive shall use all commercially reasonable, diligent and faithful efforts to improve, enhance and extend the business of the Company. The Executive shall at all times report to, and Executive’s activities shall at all times be subject to the direction and control of the Chief Executive Officer. The Executive agrees to devote substantially all of Executive’s available business time, attention and services to the discharge of Executive’s duties for the best interests of the Company and its stockholders. The roles, tasks and responsibilities of the Executive are set forth on Exhibit A.
The Executive may engage in outside business and charitable activities (“Outside Activities”) that do not conflict with Executive’s duties to the Company, or otherwise impact the Executive’s services to the Company. In order for the Board to determine in good faith whether Executive’s Outside Activities comply with this paragraph, the Executive shall disclose in advance all Outside Activities to the Company.
2. Compensation: Salary, Bonuses & Other Benefits. During the term of this Agreement, the Company shall pay the Executive the following compensation, including the following annual salary, bonuses and other fringe benefits:
(A) Base Salary. In consideration of the services to be rendered by the Executive to the Company under this Agreement, the Company will pay to the Executive an annual base salary of $325,000, payable on a bi-weekly basis, and otherwise in conformity with the Company’s customary practices and policies for the compensation of other senior officers, as such practices shall be established or modified from time to time. Salary payments shall be subject to all applicable federal and state withholding, payroll and other taxes, in conformity with the Company’s prevailing practices. The annual base salary for subsequent years during the term of this Agreement shall be reviewed annually, and shall be adjusted for each subsequent year during the term of this Agreement; provided, however, the base salary payable hereunder shall at no time be less than the initial base salary set forth herein.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
(B) Target Bonus. For 2021, Executive shall be entitled to a Target Bonus of Thirty-Five Percent (35%) of Base Salary, 50% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(1), 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(2), and 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(3).
(C) Special Incentives. In addition to any Target Bonus, the Executive shall be eligible for the following special, trigger-based incentive compensation (“Special Incentives”):
(1) | Bonus Upon Consummation of the IPO. Upon the closing of an initial public offering of the Company’s Common Stock (an “IPO”), the Executive shall receive a bonus payout in an amount of $56,875.00 (the “IPO Bonus”), which IPO Bonus shall be payable in a lump sum, less required taxes and deductions, within thirty (30) days of the IPO. |
(2) | Stock Performance Bonus. If, during the thirty (30) consecutive day period immediately following the 10-month anniversary of the IPO, the Company’s average daily closing share price is at or above 1.25 times the Offering Price (the “SPB Trigger”), the Executive shall receive a bonus payout in an amount of $28,437.50 (the “Stock Performance Bonus”). If earned, the Stock Performance Bonus shall be paid in a lump sum, less required taxes and deduction, within thirty (30) days of achievement of the SPB Trigger but not earlier than the 12-month anniversary of the IPO. For purposes of calculating the Stock Performance Bonus, the term “Offering Price” shall mean that per-share price at which publicly issued securities of the Company are made available for purchase during the IPO, as set by the lead underwriter. |
(3) | 2021 Financial Performance Bonus. Upon the Company achieving $13.5 million in Gross Revenue, and achieving Cost of Revenue of less than or equal to 50%, during calendar year 2021, Executive shall receive a bonus payout in an amount of $28,437.50 (the “2021 Financial Performance Bonus”). If earned, Executive shall be paid the 2021 Financial Performance Bonus, in a lump sum, less required taxes and deductions, on or before March 15, 2022. For purposes of calculating the 2021 Financial Performance Bonus, the terms “Gross Revenue” and “Cost of Revenue” shall have the meanings ascribed to such terms by generally accepted accounting principles (“GAAP”) in the United States. |
The purpose of providing Executive with such Special Incentives is to encourage Executive’s continued employment at the Company as a productive employee. Accordingly, and except as otherwise provided herein, any payout of any Special Incentive described herein is contingent on Executive being an employee at the time Executive’s right to such Special Incentive has vested, and the Executive shall not be eligible for a Special Incentive if the Executive’s employment terminates for any reason, before the Special Incentive has vested. .
(D) Reimbursement of Expenses; Fringe Benefits. The Executive will be promptly reimbursed for all of Executive’s business-related travel, lodging and entertainment expenses in accordance with the Company’s prevailing policy for executive officers. The Executive will participate on the same basis with all other officers and employees of the Company in the Company’s standard benefits package made generally available to all other officers and Executives, including 401(k) (if available), group health, long-term and short-term disability and life insurance programs, and other fringe benefits as may be adopted by the Company from time to time. Nothing herein shall restrict the Company from modifying or eliminating any Company benefit program, health plan or other fringe benefit at any time.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
(E) Equity Participation. As specific consideration for the non-competition covenants contained in the Restrictive Covenant Agreement discussed below, Executive shall be granted certain equity in the Company (the “Equity Award”), according to the following terms and conditions: As soon as practical following the IPO, the Company shall issue the Executive certain Restricted Stock Units (“RSUs”), pursuant to the form of Restricted Stock Unit Agreement attached hereto as Exhibit B, and certain Performance Share Units (“PSUs”, and together with the RSUs, the “Units”), pursuant to the form of Performance Share Unit agreement attached hereto as Exhibit C. The Company shall issue the Executive an aggregate number of Units equal to 0.275 multiplied by 3.75% of the Net Effective IPO Value, divided by the Offering Price. 80% of the Units shall be issued as RSUs and 20% of the Units shall be issued as PSUs. For purposes hereof, (i) “Net Effective IPO Value” shall mean the pre-money valuation of the Company, plus the Net Proceeds received by the Company from the initial closing of the IPO, (ii) “Net Proceeds” shall mean the aggregate gross proceeds from the IPO, minus the aggregate of all underwriting discounts and commissions and fees and expenses incurred in connection with the IPO, and (iii) the pre-money valuation of the Company shall be equal to the Offering Price, multiplied by the number of shares of Common Stock of the Company outstanding immediately prior to the IPO.
(F) Key Man Insurance. The Company may maintain, at its option and expense, Key Man Life Insurance (the "Policy") on the life of Executive for the benefit of the Company with a benefit of $2,000,000. The Executive’s signature to this Agreement constitutes Executive's written consent to being insured under the Policy. The Executive shall make all necessary applications, submit to physical examinations and otherwise cooperate with the Company with respect to the purchase of the policy.
3. Performance Review. Commencing at least thirty (30) days prior to the first anniversary of this Agreement, and at least thirty (30) days prior to the commencement of any fiscal year thereafter, the Board and the Executive shall in good faith review the performance by, and the compensation payable to, the Executive for the prior year and the proposed performance by, and compensation to, the Executive for the then forthcoming year. The Board and the Executive shall negotiate in good faith the annual salary and bonus (including targets, performance goals and management objectives), stock-based incentives, and other forms of incentive compensation for the forthcoming fiscal year.
4. Term. The term of this Agreement shall commence on the date first above written and shall terminate at 11:59 p.m. on the earlier to occur of (i) the 12-month anniversary of the IPO (ii) the death or disability of the Executive, or (iii) the occurrence of any of the circumstances described in Section 5 hereof (the “Expiration Date”). In the event of death or disability, the Executive or the Executive’s estate, as applicable, shall receive payment of all unpaid or accrued salary, earned or accrued bonuses, and the vesting of the stock or other equity participation then held by the Executive, but pro-rated until the date of termination.
Notwithstanding the above, Executive shall be, at all times, an “at-will” employee of the Company. Accordingly, the employment relationship between the Executive and the Company may be terminated, by either the Company or the Executive, at any time for any reason, subject to the employment termination provisions set forth in Section 5 below.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
5. Termination. The Executive’s term of employment under this Agreement may be terminated as follows:
(A) At the Election of the Company for Just Cause. The Company may, immediately and unilaterally, terminate the Executive’s employment hereunder for just cause at any time during the term of this Agreement, subject in all instances to the terms and conditions of and compliance with the provisions of this Section 5. Termination of the Executive’s employment by the Company shall constitute a termination for “just cause” under this Section if such termination is for one or more of the following causes: (i) the material failure of Executive to render services to the Company in accordance with Executive’s assigned duties and responsibilities and consistent with Executive’s title, roles and responsibilities under this Agreement, as reasonably determined by the Board; (ii) intentional misconduct or gross negligence committed by the Executive in connection with the performance of Executive’s assigned duties or breach of the material terms of this Agreement or the other agreements executed in connection with this Agreement; (iii) the conviction of the Executive (or plea of guilty or nolo contendere to) of a felony either in connection with the performance of Executive’s duties and responsibilities to the Company, or which adversely affects the Executive's ability to perform such duties and responsibilities, or which otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (iv) the commission by Executive of an act of fraud, embezzlement, or the deliberate disregard of the material policies or practices of the Company (including but not limited to employment discrimination or harassment), which results in loss, damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (v) the unauthorized disclosure by Executive of any trade secret or confidential information of the Company or any of its clients or customers, which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its clients or customers; (vi) the willful commission by Executive of an act which constitutes unfair competition with the Company; (vii) the use of illegal drugs or controlled substances that materially interferes with the performance by Executive of the duties or obligations delegated to Executive as a senior executive of the Company, or which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its customers; (viii) the material failure by the Executive to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Executive’s cooperation; or (ix) the repeated or continued absence from the performance of work during normal business hours for reasons other than permitted absence pursuant to applicable law. Furthermore, in all instance under subsections (i), (ii), (viii) and (ix) hereinabove, the Company may not terminate Executive without first providing Executive with written notice of the basis for exercising its rights to terminate for just cause, and an opportunity of not less than thirty (30) days for the Executive to substantially cure such grounds for termination to the Board’s reasonable satisfaction.
In the event of any such termination for just cause above, the Executive shall be entitled to (i) earned but unpaid salary and earned but unpaid bonus through the termination date, (ii) COBRA benefits for up to the applicable statutory period, provided Executive makes the appropriate voluntary contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
(B) Voluntary Termination. The Executive may voluntarily terminate Executive’s employment at any time during the term of this Agreement by providing the Company with thirty (30) days prior notice of termination. In the event of any such voluntary termination, the Executive shall be entitled to (i) earned but unpaid salary and bonuses (including any unpaid portion of the IPO Bonus), (ii) COBRA benefits for the applicable statutory period, with Executive being responsible for the full premium amount for such COBRA coverage, provided Executive makes the appropriate voluntary premium contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
(C) At the Election of the Company for Reasons Other Than Just Cause. The Company may terminate the Executive’s employment hereunder at any time during the term of this Agreement “without cause” by giving not less than thirty (30) days’ prior written notice to the Executive of the Company’s election to terminate. During such notice period, the Executive will be available on a full-time basis for the benefit of the Company to assist the Company in matters relating to a transition of the Executive’s duties and responsibilities. In the event the Company exercises its right to terminate the Executive under this Section, or in the event the Company exercises its right not to renew this Agreement, the Company agrees to pay the Executive (i) salary continuation payments for the period of twelve (12) months (the “Salary Continuation Period”), at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes.
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(C) shall not commence until the later calendar year.
(D) Termination by Executive for Good Reason. The Executive may also resign Executive’s employment with the Company at any time for any reason, including Good Reason. In the case of a resignation without Good Reason, the Executive shall provide written notice to the Board at least thirty (30) days prior to the date of termination. During any notice period provided by the Executive in connection with Executive’s resignation, the Company may, in its discretion, direct the Executive not to perform any work or report to the office for part or all of the notice period, although the Executive’s Base Salary and benefits shall continue during such notice period regardless. “Good Reason” means any one of the following events: (A) a material diminution in the Executive’s duties and responsibilities, or a change in the Executive’s position within the Company which constitutes a demotion, without the Executive’s prior consent; (B) a reduction in the Executive’s Base Salary to an amount below the amount set forth in Section 1(A), except in circumstances when the Executive’s Base Salary is reduced in connection with a pay reduction plan generally applicable to the Company’s management and employees; or (C) a change in the principal workplace of the Executive to a location outside of an 35-mile radius from Lexington, Massachusetts; provided, however, that none of the foregoing events shall constitute Good Reason unless and until the Executive provides the Board with at least thirty (30) days’ prior written notice of Executive’s intent to resign for Good Reason (which notice is provided not later than thirty (30) days following the date upon which the Executive receives notice of the event constituting Good Reason), and the Company has not remedied the event allegedly constituting Good Reason within such 45 day period.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
In the event of any termination for Good Reason, the Executive shall be entitled to (i) salary continuation payments for the aforementioned Salary Continuation Period, at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes. .
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(D) shall not commence until the later calendar year.
6. Noncompetition, Nonsolicitation, Confidentiality and Inventions Agreement. In connection with Executive’s employment by the Company pursuant to the terms of this Agreement, and in consideration for the Equity Award provided in paragraph 2(E) of this Agreement, the Executive shall execute or reconfirm the Company’s standard form of Noncompetition, Nonsolicitation, Confidentiality and Invention Assignment Agreement (the “Restrictive Covenant Agreement”) attached as Exhibit D. Such Restrictive Covenant Agreement is an essential part of the subject matter of this Agreement and is incorporated by reference. The Executive hereby confirms, acknowledges the terms of the Restrictive Covenant Agreement, and hereby agrees to the restrictive covenants set forth therein. Any breach by the Executive of the material covenants of the Restrictive Covenant Agreement shall be deemed a material breach by the Executive of this Agreement.
7. Governing Law; Injunctive Relief. This Agreement and the Restrictive Covenant Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts and shall be deemed to be performable in such state. The Executive acknowledges that the breach or threatened breach of any of the provisions of this Agreement or the Restrictive Covenant Agreement would give rise to irreparable injury to either party, which injury would be inadequately compensable in money damages. Accordingly, in the event of any breach, either party may seek and obtain a restraining order and/or injunction prohibiting the breach or threatened breach of any provision, requirement or covenant of this Agreement or the Restrictive Covenant Agreement, in addition to and not in limitation of any other legal remedies which may be available, and without the necessity of posting a bond or other surety.
8. Severability. In case any one or more of the provisions contained in this Agreement or the Restrictive Covenant Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or the Restrictive Covenant Agreement. In such event this Agreement or the Restrictive Covenant Agreement, as the case may be, shall be construed, revised, modified and reformed to the maximum extent possible to give effect to the purposes set forth herein and in the Restrictive Covenant Agreement.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
9. Waivers and Modifications. This Agreement may be modified, and the rights and remedies of any provision hereof may be waived, only in accordance with this Section. No modification or waiver by the Company shall be effective without the consent of the Executive. No waiver by either party of any breach by the other party of any provision hereof shall be deemed to be a waiver of any later or other breach thereof or as a waiver of any other provision of this Agreement. This Agreement and the Restrictive Covenant Agreement set forth all of the terms of the understandings between the parties with reference to the subject matter set forth herein and may not be waived, changed, discharged or terminated orally or by any course of dealing between the parties, but only by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
10. Assignment. The Executive acknowledges that the services to be rendered by Executive are unique and personal in nature. Accordingly, the Executive may not assign any of Executive’s rights or delegate any of Executive’s duties or obligations under this Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company, including any successor to the Company’s capital stock or assets by reason of a change in control, merger or other acquisition of the Company.
11. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement, including claims for injunctive relief, shall be submitted to and resolved by arbitration under the General Commercial Rules of the American Arbitration Association (“AAA”). The Arbitrator shall be appointed by the AAA in accordance with the processes for such appointment established by the AAA. However, the Arbitrator shall be a licensed attorney with not less than fifteen years practice experience. The decision of such Arbitrator shall be final and binding on the parties. Such arbitration shall be held in Boston, Massachusetts, and the judgment upon the award rendered shall be entered by consent in any court having jurisdiction. The Arbitrator shall have the right but not the obligation to assess attorneys’ fees, costs and expenses associated with the arbitration, in the Arbitrator’s sole discretion. In the event of any conflict between the arbitration rules in effect from time to time and the provisions of this Agreement, the provisions of this Agreement shall prevail and be controlling. The Arbitrator shall be required to (i) materially follow the substantive rules of applicable law, (ii) accompany the award with findings of fact and a statement of reasons for the decision. The Arbitrator shall have the authority to permit discovery for no more than sixty days, to the extent deemed appropriate by the Arbitrator, upon reasonable request of a party. One fact witness deposition shall be allowed by each of the Company and the Executive, for one full day; any other depositions shall be allowed only with approval of the Arbitrator. The Arbitrator shall have no power or authority to address or resolve any issue not submitted by the parties. The Arbitrator shall have the power to grant emergency and injunctive relief as provided in the AAA rules (without the necessity of a party posting a bond) in the event a party has violated the terms of this Agreement or the Restrictive Covenant Agreement, but no authority to award punitive and/or exemplary damages. The matter shall be heard within one hundred fifty (150) days of the filing of the demand and the award issued within fourteen (14) days of the closing of the hearing. Notwithstanding the foregoing, at any time prior to the commencement of an arbitration proceeding, a party may resort to the courts of the Commonwealth of Massachusetts to seek injunctive relief only; the parties’ consent to the jurisdiction and venue in the Massachusetts court of competent subject matter jurisdiction in Suffolk County, Massachusetts, for the purpose of pursuing injunctive relief prior to the filing by any party of an arbitration demand.
{Signature Page on Following Page}
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed, as an instrument under seal, this Executive Employment Agreement as of the date first above written.
iSpecimen Inc. | |||
By: | |||
Title: |
Executive: Jill Mullan | ||
Signature of Executive | ||
Street | ||
City State Zip |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit A
Job Description
COO Responsibilities
Executive Leadership
1. | Assist in formulating the company's future direction and supporting tactical initiatives |
2. | Monitor and direct the implementation of strategic business plans |
3. | Support the CFO to develop the annual budget, meet budget goals, review financial performance, and improve program budgeting and reporting practices |
4. | Participate in key decisions as a member of the executive management team |
5. | Develop overall performance measures that support the company's strategic direction |
6. | Plan for and participate in regular Board meetings, including reporting operational results |
7. | Participate in corporate fundraising activities |
Site Development and Management
1. | Oversee, direct, and organize the work of the site development and management team, including iSpecimen as a supply site |
2. | Develop, nurture and manage the pipeline of potential specimen suppliers to support the business objectives |
3. | Negotiate and manage contracts with supply sites |
Operations
1. | Oversee, direct, and organize the work of the operations /fulfilment team |
2. | Upgrade and implement an appropriate system of policies, internal controls, and procedures |
Legal and Compliance
1. | Oversee, direct, and organize the work of the legal/contracts function |
2. | Ensure contracts and templates support business goals |
3. | Ensure that all activities and operations are performed in compliance with local, state, and federal regulations and laws governing business operations |
4. | Develop and manage the company’s HIPAA policies and act as the company’s compliance officer |
Business Intelligence
1. | Provide analytical support to the company’s executive management team including the direction of internal management reporting capabilities in the areas of marketing, sales, fulfilment, and supplier metrics |
Marketing and PR
1. | Oversee, direct, and organize the work of the marketing team |
2. | Provide guidance and leadership to the Marketing / PR team |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Human Resources
1. | Cultivate the values of iSpecimen within the organization |
2. | Oversee, direct, and organize the work of the human resources team including: development, compensation and benefits, employee relations, performance evaluation, and recruiting |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit B
Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of ___________, _____ (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Jill Mullan (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which awards of Restricted Stock Units may be granted; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Restricted Stock Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Restricted Stock Units.
1.1 Pursuant to the Plan, the Company hereby grants to the Grantee on the Grant Date an Award consisting of, in the aggregate, [____] Restricted Stock Units (the “Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan.
1.2 The Restricted Stock Units shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
2. Vesting.
2.1 Except as otherwise provided herein, provided that the Grantee remains employed by the Company through the applicable vesting date, the Restricted Stock Units will vest in accordance with the following schedule (the period during which restrictions apply, the “Restricted Period”):
Vesting Date | Number of Restricted Stock Units That Vest | |
As of the date hereof | 20% of the Restricted Stock Units | |
On each one year anniversary of the IPO thereafter (each such year referred to as an “Anniversary Year”) | An additional 20% of the Restricted Stock Units |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
All Restricted Stock Units shall be fully vested as of [DATE]1. Once vested, the Restricted Stock Units become “Vested Units” and shall be settled as provided in Section 5 herein.
2.2 Notwithstanding Section 2.1, if the Grantee's employment is terminated (i) by the Company or an Affiliate without Just Cause, (ii) by the Grantee for Good Reason or (iii) by the Company or Affiliate or Grantee on account of a non-renewal by the Company or an Affiliate of any successive term of Grantee’s employment under Grantee’s Employment Agreement, Grantee shall be entitled to immediate forward vesting of an additional twelve (12) months of Restricted Stock Units from and after such date of termination or non-renewal, (as if the vesting period for Grantee’s Restricted Stock Units had been set up for monthly and not annual vesting) and such additional vested Restricted Stock Units shall become Vested Units.
2.3 Notwithstanding Section 2.1 or 2.2, if a Change in Control (as defined in the Plan) occurs and the Grantee's employment is terminated by the Company or an Affiliate without Just Cause or by the Grantee for Good Reason, and the Grantee's date of termination occurs within twelve (12) months following such Change in Control, all unvested Restricted Stock Units shall automatically become 100% vested on the Grantee's date of termination and become Vested Units.
2.4 Notwithstanding Section 2.1, if the Grantee’s employment with the Company or an Affiliate terminates on account of the Grantee’s death or Disability, those Restricted Stock Units scheduled to vest during the Anniversary Year in which Grantee’s employment terminates shall vest proportionately based on the number of days during such Anniversary Year that Grantee was employed divided by three hundred and sixty (360) days and become Vested Units.
2.5 Except as set forth in Sections 2.2, 2.3 and 2.4, if the Grantee's employment with the Company or an Affiliate terminates for any other reason, including as a result of Grantee refusing to remain employed at the Company following any renewal of Grantee’s Employment Agreement, at any time before all of his or her Restricted Stock Units have vested, the Grantee's unvested Restricted Stock Units shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee with respect to such Restricted Stock Units that have been so forfeited under this Agreement.
3. Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period and until such time as the Restricted Stock Units are settled in accordance with Section 5, the Restricted Stock Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock Units or the rights relating thereto shall be wholly ineffective.
1 4 year anniversary of IPO.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
4. Rights as Shareholder; Dividend Equivalents.
4.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the Restricted Stock Units unless and until the Restricted Stock Units vest and are settled by the issuance of such shares of Common Stock.
4.2 Upon and following the settlement of the Restricted Stock Units, the Grantee shall be the record owner of the shares of Common Stock underlying the Restricted Stock Units unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting rights). The Company reserves the right to settle those Restricted Stock Units that are subject to forward vesting under Section 2.2 hereof in cash at its sole discretion.
4.3 The Grantee shall not be entitled to any Dividend Equivalents with respect to the Restricted Stock Units to reflect any dividends payable on shares of Common Stock.
5. Settlement of Restricted Stock Units.
5.1 Subject to Section 8 hereof, within five (5) business days following the vesting date, (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if settlement of the Restricted Stock Units cannot be settled within said five (5) business day period for reasons outside the reasonable control of the Company), the Company shall, except as to any Restricted Stock Units that may be settled in cash as referenced in Section 4.2 above, (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of Vested Units; and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
5.2 If the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his/her “separation from service” within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (a) the date that is six months following the Grantee's separation from service and (b) the Grantee's death.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
5.3 To the extent that the Grantee does not vest in Restricted Stock Units, all interest in such Restricted Stock Units shall be forfeited. The Grantee has no right or interest in any Restricted Stock Units that are forfeited.
6. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
7. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Restricted Stock Units shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
8. Tax Liability and Withholding.
8.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the Restricted Stock Units and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment.
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
8.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Restricted Stock Units or the subsequent sale of any shares; and (b) does not commit to structure the Restricted Stock Units to reduce or eliminate the Grantee's liability for Tax-Related Items.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
9. Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
10. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
11. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
12. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
13. Restricted Stock Units Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
14. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the Restricted Stock Units may be transferred by will or the laws of descent or distribution.
15. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
16. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the Restricted Stock Units in this Agreement does not create any contractual right or other right to receive any Restricted Stock Units or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
17. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the Restricted Stock Units, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
18. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
19. No Impact on Other Benefits. The value of the Grantee's Restricted Stock Units is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
21. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
[signature page follows]
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. |
By: |
Name: | |
Title: |
Jill Mullan |
By: |
Name: |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit C
Performance Share Unit Agreement
This Performance Share Unit Agreement (this “Agreement”) is made and entered into as of [DATE] (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Jill Mullan (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which the Company may grant Performance Compensation Awards; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Performance Share Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Performance Share Units. Pursuant to the Plan, the Company hereby grants to the Grantee an Award for a maximum of [NUMBER] Performance Share Units. Such Performance Share Units are intended to constitute a Performance Compensation Award under the Plan. Each Performance Share Unit (“PSU”) represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. The number of PSUs that the Grantee actually earns for each Performance Period will be determined by the level of achievement of the applicable Performance Goal in accordance with Exhibit I attached hereto.
2. Definitions. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan. For purposes of this Agreement: “Performance Period” shall mean each of the first four calendar years ending after the date of this Agreement (beginning with the year ended December 31, 2021).
3. Performance Goals.
3.1 The determination of whether the applicable PSUs have been earned by the Grantee for each Performance Period will be based upon whether the applicable Performance Goal for such Performance Period has been achieved in accordance with Exhibit I. All determinations of whether any Performance Goal has been achieved, and all other matters related to this Section 3 shall be made by the Committee in its sole discretion.
3.2 Promptly following completion of the applicable Performance Period (and no later than ninety (90) days following the end of the applicable Performance Period), the Committee will review and certify in writing whether the Performance Goal for the applicable Performance Period has been achieved. Such certification shall be final, conclusive and binding on the Grantee, and on all other persons, to the maximum extent permitted by law.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
4. Vesting of PSUs. The PSUs are subject to forfeiture until they vest. Except as otherwise provided herein or in Section 13 of the Plan, the PSUs relating to any Performance Period will vest and become nonforfeitable on January 1 of the year that immediately follows such Performance Period, subject to (a) the achievement of the applicable Performance Goal for such Performance Period set forth in Exhibit I attached hereto, and (b) the Grantee's Continuous Service from the Grant Date through the such vesting date.
5. Termination of Employment. Except as otherwise expressly provided in this Agreement, if the Grantee's employment with the Company terminates for any reason at any time before all of his or her PSUs have vested, the Grantee's unvested PSUs shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee under this Agreement.
6. Settlement of PSUs. Subject to Section 11 hereof, within five (5) business days following the Committee’s certification that a Performance Goal for a particular Performance Period has been achieved (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if such certification and settlement cannot be made within the applicable periods of time set forth in Section 3.2 and this Section 6 for reasons outside the reasonable control of the Company), the Company shall (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of vested PSUs, and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
7. Transferability. Subject to any exceptions set forth in this Agreement or the Plan, the PSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee, except by will or the laws of descent and distribution, and upon any such transfer by will or the laws of descent and distribution, the transferee shall hold such PSUs subject to all of the terms and conditions that were applicable to the Grantee immediately prior to such transfer.
8. Rights as Shareholder.
8.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the PSUs, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents.
8.2 Upon and following the settlement of the PSUs and the issuance of shares, the Grantee shall be the record owner of the shares of Common Stock underlying the PSUs unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting and dividend rights).
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
9. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
10. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the PSUs shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
11. Tax Liability and Withholding.
11.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the PSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment;
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the PSUs; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law; or
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
11.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the PSUs or the subsequent sale of any shares, and (b) does not commit to structure the PSUs to reduce or eliminate the Grantee's liability for Tax-Related Items.
12. Compliance with Law. The issuance and transfer of shares of Common Stock in connection with the PSUs shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
13. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
14. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
15. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
16. PSUs Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
17. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the PSUs may be transferred by will or the laws of descent or distribution.
18. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
19. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the PSUs in this Agreement does not create any contractual right or other right to receive any PSUs or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
20. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the PSUs, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
21. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
22. No Impact on Other Benefits. The value of the Grantee's PSUs is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
24. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the PSUs subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the PSUs or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Jill Mullan |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit 1
Performance Measures
25% of the PSUs shall be earned for the first Performance Period if the Company exceeds $13.5M in revenue for the year ended December 31, 2021, with a maximum of 50% cost of revenue.
25% of the PSUs shall be earned for the second Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2022.
25% of the PSUs shall be earned for the third Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2023.
25% of the PSUs shall be earned for the fourth Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2024.
The revenue and cost of revenue targets for 2022, 2023 and 2024 will be established by the Board at the last calendar year meeting of the Board preceding such year.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit D
iSpecimen Inc.
NONCOMPETITION, NONSOLICITATION, NONDISCLOSURE
AND INVENTIONS
AGREEMENT
The undersigned, Jill Mullan, in consideration for and as a condition of employment as a senior executive officer (the “Executive”) of iSpecimen Inc. (the “Company”), or for receiving stock or options, or any other form of compensation, salary, bonus, benefit or fringe benefits from or in the Company, and in connection with executing an Employment Agreement with the Company, hereby agrees with the Company as follows:
1. Noncompetition Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship for Just Cause (as defined in the Executive’s Employment Agreement) or by reason of Executive’s resignation from service, Executive will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of the Company, compete with the Company’s Business, as it is constituted on the date of termination of Executive’s relationship with the Company, in the geographic areas where the Executive provided services to the geographic areas in which the employee provided services or had a material presence or influence during the two (2) year period preceding the end of such Executive’s employment, without the Company’s prior written consent. The parties agree that nature and scope of Executive’s service relationship to the Company requires that the Executive have a material presence and influence in all geographic locations in which the Company conducts business activities and markets its good and services, including, but not limited to, the entirety of the United States. Accordingly, the parties acknowledge that the geographic scope of the non-competition restrictions set forth in this section 1 includes, at least, the entire United States.
For purpose of this Section 1, the “Company’s Business” shall mean: the development, sales, marketing, distribution and commercial exploitation of products or services, including software and web-based applications and products that link electronic medical records and clinical laboratory specimens (the “Proprietary Technology”), for the collection of biospecimens from hospitals, clinical laboratories, and similar institutions (the “Partners”) primarily for distribution and sale to research organizations, academic institutions, government facilities, biopharmaceutical, and diagnostic companies and similar organizations and entities (the “Customers”).
The restrictions set forth in this Section 1 shall not take effect until ten (10) business days after the Effective Date of this Agreement (the “Noncompete Effective Date”). Executive acknowledges and agrees that the Company provided Executive with notice of the restrictions set forth in Section 1 at least ten (10) business days before the Noncompete Effective Date.
Executive also acknowledges that Executive has been informed, pursuant to Mass. Gen. L. c. 149, § 24L (the “Act”), that Executive has the right to consult with an attorney before signing this Agreement.
In exchange for the promises contained in this Section 1: the Company, subject to the approval of its Board of Directors where applicable, shall grant the Executive the Equity Award described in paragraph 2(E) of the Executive Employment Agreement (the “Consideration Payment”), which the parties hereto agree is “mutually-agreed upon consideration” as defined in the Act.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
2. Non-solicitation Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship (for any reason) (the “Restricted Period”), the Executive will not directly or indirectly either for herself or for any other commercial enterprise, solicit, divert or take away or attempt to solicit, divert or take away, any of the Company’s Customers, business or prospective Customers in existence at the time of termination of such employment for the benefit of any enterprise which may be competitive to the Business of the Company, whether directly or indirectly. For purposes of this Agreement, “prospective Customers” shall include those customers being solicited by the Company at the time of the Executive’s termination. During such employment with the Company and for a period of one (1) year thereafter, the Executive will not solicit or discuss with any employee, advisor or consultant of the Company the recruitment, employment or engagement of such Company employee, advisor or consultant by any enterprise, and whether or not such enterprise is competitive to the Business of the Company, nor recruit, or attempt to recruit, any such Company employee, advisor or consultant other than on behalf of the Company.
The Executive agrees that for the Restricted Period, the Executive will not solicit, encourage, or induce, or cause to be solicited, encouraged or induced, directly or indirectly, any Customer, vendor, supplier or contractor who conducted business with the Company at any time during the one-year period preceding the termination of the Executive’s relationship with the Company, to terminate or adversely modify any business relationship with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall the Executive otherwise interfere with any business relationship between the Company and any such entity described herein.
3. Nondisclosure Obligation. The Executive will not at any time, whether during or after the termination of employment, for any reason whatsoever (other than to promote and advance the Company’s Business), reveal to any person or entity (both commercial and non-commercial) any of the trade secrets or confidential business information concerning the Company or the trade secrets or confidential business information of third parties subject to a duty of confidentiality on the part of the Company, including without limitation: development activities; prototypes and technical specifications; show-how and know-how; marketing plans and strategies; pricing and costing policies; Customer, Partner and supplier lists and accounts; or nonpublic financial information so far as they have come or may come to the Executive’s knowledge, except as may be required in the ordinary course of performing her duties as an executive of the Company. This restriction shall not apply to: (i) information that may be disclosed generally or is in the public domain through no fault of the Executive; (ii) information received from a third party outside the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed. The Executive shall keep secret all matters of such nature entrusted to her and shall not use or disclose any such information for the benefit of any third party in any manner which may injure or cause loss to the Company, whether directly or indirectly.
4. Assignment of Inventions. The Executive expressly understands and agrees that any and all right or interest she obtains in any designs, research, copyrights, trade secrets, technical specifications, software programs, software and systems documentation, game designs and prototypes, flowcharts, logic diagrams, software methodologies and algorithms, technical data, know-how and show-how, internal reports and memoranda, Customer, Partner and vendor lists, marketing plans, pricing policies, inventions, concepts, ideas, expressions, discoveries, improvements and patent or patent rights which are authored, conceived, devised, developed, reduced to practice, or otherwise obtained by Executive during the term of this Agreement which relate to or arise out of Executive’s employment with the Company are expressly regarded as “works for hire” (the “Work Product”). The Executive hereby assigns to the Company the sole and exclusive right to such Work Product. The Executive agrees that she will promptly disclose to the Company any and all such Work Product, and that, upon request of the Company, the Executive will execute and deliver any and all documents or instruments and take any other action which the Company shall deem necessary to assign to and vest completely in the Company, to perfect trademark, copyright and patent protection with respect to, or to otherwise protect the Company’s trade secrets and proprietary interest in such Work Product. The obligations of this Section shall continue beyond the termination of the Executive’s employment with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during the term of this Agreement. The Company agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by the Executive for any assistance rendered to the Company pursuant to this Section.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
In the event the Company is unable, after reasonable effort, to secure Executive’s signature on any letters patents, copyright or other analogous protection relating to the Work Product, whether because of Executive’s physical or mental incapacity or for any other reason whatsoever, Executive hereby irrevocably designates and appoints the Company and its duly authorized officer and agent as Executive’s agent and attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and irrevocable and shall survive Executive’s death or incapacity), to act for and in Executive’s behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letter patent, copyright or other analogous protection thereon with the same legal force and effect as if executed by Executive. The obligations of this Section shall continue beyond the termination of the Executive’s employment with the Company with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during Executive’s tenure with the Company. “Work Product” will not include any business knowledge, skills and experience of the Executive that would not otherwise constitute a trade secret of the Company under applicable law. The Executive agrees to keep adequate and current written records of all Work Product made by Executive (solely or jointly with others). The records will be in form of notes, memoranda, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.
5. Remedies Upon Breach. The Executive agrees that any breach of this Agreement by the Executive could cause irreparable damage to the Company. The Company shall have, in addition to any and all remedies of law, the right to an injunction or other equitable relief to prevent any violation of the Executive’s obligations hereunder, and without the necessity of posting a bond. In the event of any enforcement of this Agreement, or of any breach, the party who does not prevail shall reimburse the counterparty for such counterparty’s cost and expenses of enforcement, including attorneys’ fees and expenses. The Executive acknowledges and agrees that the enforcement of this Agreement is necessary to ensure the preservation, protection and continuity of the confidential business information, trade secrets, business reputation and goodwill of the Company.
6. Defend Trade Secrets act Notice. Notwithstanding any provision in this Agreement, the Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (A) files any document containing the trade secret under seal, and (B) does not disclose the trade secret, except pursuant to a court order.
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
7. Miscellaneous. The obligations of the Executive under this Agreement shall survive the termination of the Executive’s relationship with the Company regardless of the manner of such termination. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, and notwithstanding and excepting its conflicts of laws principles. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject matter so as to be unenforceable at law, such provision(s) shall be construed and reformed by the appropriate judicial body by limiting and reducing it (or them), so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. If the Executive violates the provisions of any of Sections 1-4 inclusive, the Executive shall continue to be bound by the restrictions set forth in such sections until a period of the later of one (1) year or for the duration that the restrictive period has run its course without any violation of such provisions. During the term of this Agreement and following any termination, no party shall make or publish any negative or derogatory remarks concerning the other party (or the case of the Company, any remarks concerning its business, operations, Customers, Partners, strategic relationships, products and services, software, or its directors, officers, employees, personnel, stockholders, agents or representatives). The Executive understands that this Agreement does not create an obligation on the part of the Company to continue the Executive’s employment with the Company, and the Executive acknowledges that he or she is employed “at will.” The Agreement may be executed and delivered in counterparts, and by digital signature, facsimile signature or other similar evidence of execution, and this Agreement may be delivered and executed by electronic or facsimile transmission, portable document format, hand delivery, overnight courier service, first class mail (postage prepaid), or any other commercial means.
8. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement shall be submitted for settlement to an arbitrator agreed upon by the parties. The principles of Arbitration set forth in the Executive Employment Agreement shall apply to any controversy, dispute, claim or breach arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the undersigned Executive and the Company have executed this Noncompetition, Nonsolicitation, Nondisclosure and Inventions Agreement as of this _____ day of ___________, 2021.
iSpecimen Inc. | Executive: Jill Mullan | ||
By: | |||
Signature of Executive | |||
Title: | |||
Dated: _____, 2021 |
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iSpecimen Inc.
Executive Employment Agreement – J. Mullan
Exhibit 10.27
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
Executive Employment Agreement (the “Agreement”) made as of this ____ day of ____, 2021 ______________, between Tracy Wilson Curley (the “Executive”), and iSpecimen Inc., a Delaware corporation located at 450 Bedford St, Lexington, MA 02420 (the “Company”).
Whereas, the Board of Directors of the Company believes it to be to its advantage to ensure that the Executive render services as a senior executive officer of the Company as hereinafter provided; and
Whereas, the Executive’s position requires that Executive be trusted with extensive confidential information and trade secrets of the Company and that Executive develop a thorough and comprehensive knowledge of all details of the Company’s business to improve and extend the business;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Title, Position & Responsibilities. The Executive shall serve as the Chief Financial Officer of the Company. The Executive shall have the powers, duties and responsibilities typically availed to a chief financial officer of a similar enterprise, at a similar stage of commercial development, and with similar financial and operational resources to the Company. The Executive shall exercise such powers and comply with and perform such directions and duties regarding the business, operations and affairs of the Company as are consistent with such executive position as may from time to time be vested in or given to Executive by the Board of Directors of the Company (the “Board”), and consistent with the roles, responsibilities and duties of such an executive position, and the Executive shall use all commercially reasonable, diligent and faithful efforts to improve, enhance and extend the business of the Company. The Executive shall at all times report to, and Executive’s activities shall at all times be subject to the direction and control of the Board of Directors Chief Executive Officer. The Executive agrees to devote substantially all of Executive’s available business time, attention and services to the discharge of Executive’s duties for the best interests of the Company and its stockholders. The roles, tasks and responsibilities of the Executive are set forth on Exhibit A.
The Executive may engage in outside business and charitable activities (“Outside Activities”) that do not conflict with Executive’s duties to the Company, or otherwise impact the Executive’s services to the Company. In order for the Board to determine in good faith whether Executive’s Outside Activities comply with this paragraph, the Executive shall disclose in advance all Outside Activities to the Company.
2. Compensation: Salary, Bonuses & Other Benefits. During the term of this Agreement, the Company shall pay the Executive the following compensation, including the following annual salary, bonuses and other fringe benefits:
(A) Base Salary. In consideration of the services to be rendered by the Executive to the Company under this Agreement, the Company will pay to the Executive an annual base salary of $280,000, payable on a bi-weekly basis, and otherwise in conformity with the Company’s customary practices and policies for the compensation of other senior officers, as such practices shall be established or modified from time to time. Salary payments shall be subject to all applicable federal and state withholding, payroll and other taxes, in conformity with the Company’s prevailing practices. The annual base salary for subsequent years during the term of this Agreement shall be reviewed annually, and shall be adjusted for each subsequent year during the term of this Agreement; provided, however, the base salary payable hereunder shall at no time be less than the initial base salary set forth herein.
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(B) Target Bonus. For 2021, Executive shall be entitled to a Target Bonus of Thirty Percent (30%) of Base Salary, 50% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(1), 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(2), and 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(3).
(C) Special Incentives. In addition to any Target Bonus, the Executive shall be eligible for the following special, trigger-based incentive compensation (“Special Incentives”):
(1) | Bonus Upon Consummation of the IPO. Upon the closing of an initial public offering of the Company’s Common Stock (an “IPO”), the Executive shall receive a bonus payout in an amount of $42,000 (the “IPO Bonus”), which IPO Bonus shall be payable in a lump sum, less required taxes and deductions, within thirty (30) days of the IPO. |
(2) | Stock Performance Bonus. If, during the thirty (30) consecutive day period immediately following the 10-month anniversary of the IPO, the Company’s average daily closing share price is at or above 1.25 times the Offering Price (the “SPB Trigger”), the Executive shall receive a bonus payout in an amount of $21,000 (the “Stock Performance Bonus”). If earned, the Stock Performance Bonus shall be paid in a lump sum, less required taxes and deduction, within thirty (30) days of achievement of the SPB Trigger but not earlier than the 12-month anniversary of the IPO. For purposes of calculating the Stock Performance Bonus, the term “Offering Price” shall mean that per-share price at which publicly issued securities of the Company are made available for purchase during the IPO, as set by the lead underwriter. |
(3) | 2021 Financial Performance Bonus. Upon the Company achieving $13.5 million in Gross Revenue, and achieving Cost of Revenue of less than or equal to 50%, during calendar year 2021, Executive shall receive a bonus payout in an amount of $21,000 (the “2021 Financial Performance Bonus”). If earned, Executive shall be paid the 2021 Financial Performance Bonus, in a lump sum, less required taxes and deductions, on or before March 15, 2022. For purposes of calculating the 2021 Financial Performance Bonus, the terms “Gross Revenue” and “Cost of Revenue” shall have the meanings ascribed to such terms by generally accepted accounting principles (“GAAP”) in the United States. |
The purpose of providing Executive with such Special Incentives is to encourage Executive’s continued employment at the Company as a productive employee. Accordingly, and except as otherwise provided herein, any payout of any Special Incentive described herein is contingent on Executive being an employee at the time Executive’s right to such Special Incentive has vested, and the Executive shall not be eligible for a Special Incentive if the Executive’s employment terminates for any reason, before the Special Incentive has vested. .
(D) Reimbursement of Expenses; Fringe Benefits. The Executive will be promptly reimbursed for all of Executive’s business-related travel, lodging and entertainment expenses in accordance with the Company’s prevailing policy for executive officers. The Executive will participate on the same basis with all other officers and employees of the Company in the Company’s standard benefits package made generally available to all other officers and Executives, including 401(k) (if available), group health, long-term and short-term disability and life insurance programs, and other fringe benefits as may be adopted by the Company from time to time. Nothing herein shall restrict the Company from modifying or eliminating any Company benefit program, health plan or other fringe benefit at any time.
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(E) Equity Participation. As specific consideration for the non-competition covenants contained in the Restrictive Covenant Agreement discussed below, Executive shall be granted certain equity in the Company (the “Equity Award”), according to the following terms and conditions: As soon as practical following the IPO, the Company shall issue the Executive certain Restricted Stock Units (“RSUs”), pursuant to the form of Restricted Stock Unit Agreement attached hereto as Exhibit B, and certain Performance Share Units (“PSUs”, and together with the RSUs, the “Units”), pursuant to the form of Performance Share Unit agreement attached hereto as Exhibit C. The Company shall issue the Executive an aggregate number of Units equal to 0.20 multiplied by 3.75% of the Net Effective IPO Value, divided by the Offering Price. 80% of the Units shall be issued as RSUs and 20% of the Units shall be issued as PSUs. For purposes hereof, (i) “Net Effective IPO Value” shall mean the pre-money valuation of the Company, plus the Net Proceeds received by the Company from the initial closing of the IPO, (ii) “Net Proceeds” shall mean the aggregate gross proceeds from the IPO, minus the aggregate of all underwriting discounts and commissions and fees and expenses incurred in connection with the IPO, and (iii) the pre-money valuation of the Company shall be equal to the Offering Price, multiplied by the number of shares of Common Stock of the Company outstanding immediately prior to the IPO.
(F) Key Man Insurance. The Company may maintain, at its option and expense, Key Man Life Insurance (the "Policy") on the life of Executive for the benefit of the Company with a benefit of $2,000,000. The Executive’s signature to this Agreement constitutes Executive's written consent to being insured under the Policy. The Executive shall make all necessary applications, submit to physical examinations and otherwise cooperate with the Company with respect to the purchase of the policy.
3. Performance Review. Commencing at least thirty (30) days prior to the first anniversary of this Agreement, and at least thirty (30) days prior to the commencement of any fiscal year thereafter, the Board and the Executive shall in good faith review the performance by, and the compensation payable to, the Executive for the prior year and the proposed performance by, and compensation to, the Executive for the then forthcoming year. The Board and the Executive shall negotiate in good faith the annual salary and bonus (including targets, performance goals and management objectives), stock-based incentives, and other forms of incentive compensation for the forthcoming fiscal year.
4. Term. The term of this Agreement shall commence on the date first above written and shall terminate at 11:59 p.m. on the earlier to occur of (i) the 12-month anniversary of the IPO (ii) the death or disability of the Executive, or (iii) the occurrence of any of the circumstances described in Section 5 hereof (the “Expiration Date”). In the event of death or disability, the Executive or the Executive’s estate, as applicable, shall receive payment of all unpaid or accrued salary, earned or accrued bonuses, and the vesting of the stock or other equity participation then held by the Executive, but pro-rated until the date of termination.
Notwithstanding the above, Executive shall be, at all times, an “at-will” employee of the Company. Accordingly, the employment relationship between the Executive and the Company may be terminated, by either the Company or the Executive, at any time for any reason, subject to the employment termination provisions set forth in Section 5 below.
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5. Termination. The Executive’s term of employment under this Agreement may be terminated as follows:
(A) At the Election of the Company for Just Cause. The Company may, immediately and unilaterally, terminate the Executive’s employment hereunder for just cause at any time during the term of this Agreement, subject in all instances to the terms and conditions of and compliance with the provisions of this Section 5. Termination of the Executive’s employment by the Company shall constitute a termination for “just cause” under this Section if such termination is for one or more of the following causes: (i) the material failure of Executive to render services to the Company in accordance with Executive’s assigned duties and responsibilities and consistent with Executive’s title, roles and responsibilities under this Agreement, as reasonably determined by the Board; (ii) intentional misconduct or gross negligence committed by the Executive in connection with the performance of Executive’s assigned duties or breach of the material terms of this Agreement or the other agreements executed in connection with this Agreement; (iii) the conviction of the Executive (or plea of guilty or nolo contendere to) of a felony either in connection with the performance of Executive’s duties and responsibilities to the Company, or which adversely affects the Executive's ability to perform such duties and responsibilities, or which otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (iv) the commission by Executive of an act of fraud, embezzlement, or the deliberate disregard of the material policies or practices of the Company (including but not limited to employment discrimination or harassment), which results in loss, damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (v) the unauthorized disclosure by Executive of any trade secret or confidential information of the Company or any of its clients or customers, which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its clients or customers; (vi) the willful commission by Executive of an act which constitutes unfair competition with the Company; (vii) the use of illegal drugs or controlled substances that materially interferes with the performance by Executive of the duties or obligations delegated to Executive as a senior executive of the Company, or which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its customers; (viii) the material failure by the Executive to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Executive’s cooperation; or (ix) the repeated or continued absence from the performance of work during normal business hours for reasons other than permitted absence pursuant to applicable law. Furthermore, in all instance under subsections (i), (ii), (viii) and (ix) hereinabove, the Company may not terminate Executive without first providing Executive with written notice of the basis for exercising its rights to terminate for just cause, and an opportunity of not less than thirty (30) days for the Executive to substantially cure such grounds for termination to the Board’s reasonable satisfaction.
In the event of any such termination for just cause above, the Executive shall be entitled to (i) earned but unpaid salary and earned but unpaid bonus through the termination date, (ii) COBRA benefits for up to the applicable statutory period, provided Executive makes the appropriate voluntary contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
(B) Voluntary Termination. The Executive may voluntarily terminate Executive’s employment at any time during the term of this Agreement by providing the Company with thirty (30) days prior notice of termination. In the event of any such voluntary termination, the Executive shall be entitled to (i) earned but unpaid salary and bonuses (including any unpaid portion of the IPO Bonus), (ii) COBRA benefits for the applicable statutory period, with Executive being responsible for the full premium amount for such COBRA coverage, provided Executive makes the appropriate voluntary premium contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
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(C) At the Election of the Company for Reasons Other Than Just Cause. The Company may terminate the Executive’s employment hereunder at any time during the term of this Agreement “without cause” by giving not less than thirty (30) days’ prior written notice to the Executive of the Company’s election to terminate. During such notice period, the Executive will be available on a full-time basis for the benefit of the Company to assist the Company in matters relating to a transition of the Executive’s duties and responsibilities. In the event the Company exercises its right to terminate the Executive under this Section, or in the event the Company exercises its right not to renew this Agreement, the Company agrees to pay the Executive (i) salary continuation payments for the period of six (6) months (the “Salary Continuation Period”), at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes.
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(C) shall not commence until the later calendar year.
(D) Termination by Executive for Good Reason. The Executive may also resign Executive’s employment with the Company at any time for any reason, including Good Reason. In the case of a resignation without Good Reason, the Executive shall provide written notice to the Board at least thirty (30) days prior to the date of termination. During any notice period provided by the Executive in connection with Executive’s resignation, the Company may, in its discretion, direct the Executive not to perform any work or report to the office for part or all of the notice period, although the Executive’s Base Salary and benefits shall continue during such notice period regardless. “Good Reason” means any one of the following events: (A) a material diminution in the Executive’s duties and responsibilities, or a change in the Executive’s position within the Company which constitutes a demotion, without the Executive’s prior consent; (B) a reduction in the Executive’s Base Salary to an amount below the amount set forth in Section 1(A), except in circumstances when the Executive’s Base Salary is reduced in connection with a pay reduction plan generally applicable to the Company’s management and employees; or (C) a change in the principal workplace of the Executive to a location outside of an 35-mile radius from Lexington, Massachusetts; provided, however, that none of the foregoing events shall constitute Good Reason unless and until the Executive provides the Board with at least thirty (30) days’ prior written notice of Executive’s intent to resign for Good Reason (which notice is provided not later than thirty (30) days following the date upon which the Executive receives notice of the event constituting Good Reason), and the Company has not remedied the event allegedly constituting Good Reason within such 45 day period.
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In the event of any termination for Good Reason, the Executive shall be entitled to (i) salary continuation payments for the aforementioned Salary Continuation Period, at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes. .
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(D) shall not commence until the later calendar year.
6. Noncompetition, Nonsolicitation, Confidentiality and Inventions Agreement. In connection with Executive’s employment by the Company pursuant to the terms of this Agreement, and in consideration for the Equity Award provided in paragraph 2(E) of this Agreement, the Executive shall execute or reconfirm the Company’s standard form of Noncompetition, Nonsolicitation, Confidentiality and Invention Assignment Agreement (the “Restrictive Covenant Agreement”) attached as Exhibit D. Such Restrictive Covenant Agreement is an essential part of the subject matter of this Agreement and is incorporated by reference. The Executive hereby confirms, acknowledges the terms of the Restrictive Covenant Agreement, and hereby agrees to the restrictive covenants set forth therein. Any breach by the Executive of the material covenants of the Restrictive Covenant Agreement shall be deemed a material breach by the Executive of this Agreement.
7. Governing Law; Injunctive Relief. This Agreement and the Restrictive Covenant Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts and shall be deemed to be performable in such state. The Executive acknowledges that the breach or threatened breach of any of the provisions of this Agreement or the Restrictive Covenant Agreement would give rise to irreparable injury to either party, which injury would be inadequately compensable in money damages. Accordingly, in the event of any breach, either party may seek and obtain a restraining order and/or injunction prohibiting the breach or threatened breach of any provision, requirement or covenant of this Agreement or the Restrictive Covenant Agreement, in addition to and not in limitation of any other legal remedies which may be available, and without the necessity of posting a bond or other surety.
8. Severability. In case any one or more of the provisions contained in this Agreement or the Restrictive Covenant Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or the Restrictive Covenant Agreement. In such event this Agreement or the Restrictive Covenant Agreement, as the case may be, shall be construed, revised, modified and reformed to the maximum extent possible to give effect to the purposes set forth herein and in the Restrictive Covenant Agreement.
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9. Waivers and Modifications. This Agreement may be modified, and the rights and remedies of any provision hereof may be waived, only in accordance with this Section. No modification or waiver by the Company shall be effective without the consent of the Executive. No waiver by either party of any breach by the other party of any provision hereof shall be deemed to be a waiver of any later or other breach thereof or as a waiver of any other provision of this Agreement. This Agreement and the Restrictive Covenant Agreement set forth all of the terms of the understandings between the parties with reference to the subject matter set forth herein and may not be waived, changed, discharged or terminated orally or by any course of dealing between the parties, but only by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
10. Assignment. The Executive acknowledges that the services to be rendered by Executive are unique and personal in nature. Accordingly, the Executive may not assign any of Executive’s rights or delegate any of Executive’s duties or obligations under this Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company, including any successor to the Company’s capital stock or assets by reason of a change in control, merger or other acquisition of the Company.
11. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement, including claims for injunctive relief, shall be submitted to and resolved by arbitration under the General Commercial Rules of the American Arbitration Association (“AAA”). The Arbitrator shall be appointed by the AAA in accordance with the processes for such appointment established by the AAA. However, the Arbitrator shall be a licensed attorney with not less than fifteen years practice experience. The decision of such Arbitrator shall be final and binding on the parties. Such arbitration shall be held in Boston, Massachusetts, and the judgment upon the award rendered shall be entered by consent in any court having jurisdiction. The Arbitrator shall have the right but not the obligation to assess attorneys’ fees, costs and expenses associated with the arbitration, in the Arbitrator’s sole discretion. In the event of any conflict between the arbitration rules in effect from time to time and the provisions of this Agreement, the provisions of this Agreement shall prevail and be controlling. The Arbitrator shall be required to (i) materially follow the substantive rules of applicable law, (ii) accompany the award with findings of fact and a statement of reasons for the decision. The Arbitrator shall have the authority to permit discovery for no more than sixty days, to the extent deemed appropriate by the Arbitrator, upon reasonable request of a party. One fact witness deposition shall be allowed by each of the Company and the Executive, for one full day; any other depositions shall be allowed only with approval of the Arbitrator. The Arbitrator shall have no power or authority to address or resolve any issue not submitted by the parties. The Arbitrator shall have the power to grant emergency and injunctive relief as provided in the AAA rules (without the necessity of a party posting a bond) in the event a party has violated the terms of this Agreement or the Restrictive Covenant Agreement, but no authority to award punitive and/or exemplary damages. The matter shall be heard within one hundred fifty (150) days of the filing of the demand and the award issued within fourteen (14) days of the closing of the hearing. Notwithstanding the foregoing, at any time prior to the commencement of an arbitration proceeding, a party may resort to the courts of the Commonwealth of Massachusetts to seek injunctive relief only; the parties’ consent to the jurisdiction and venue in the Massachusetts court of competent subject matter jurisdiction in Suffolk County, Massachusetts, for the purpose of pursuing injunctive relief prior to the filing by any party of an arbitration demand.
{Signature Page on Following Page}
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iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed, as an instrument under seal, this Executive Employment Agreement as of the date first above written.
iSpecimen Inc.
By: | ||||
Title: | ||||
Executive: Tracy Wilson Curley | ||||
Signature of Executive | ||||
Street | ||||
City | State | Zip |
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -8- |
Exhibit A
Job Description
CFO Responsibilities
Executive Leadership
1. | Assist in formulating the Company's future direction and supporting tactical initiatives. |
2. | Lead the finance, accounting, and financial planning and analysis functions. |
3. | Participate in key decisions as a member of the executive management team, playing a leading role in financial and fundraising decisions. |
4. | Drive cross functional team communication and collaboration to help achieve iSpecimen goals. |
Planning
1. | Assist in formulating the Company's future direction and supporting tactical initiatives. |
2. | Develop financial plans (both strategic and operational). Maintain and update as needed. |
3. | Manage the capital request and budgeting processes. |
4. | Develop financial performance measures that support the Company's strategic direction. |
Financial Operations
1. | Manage the accounting and finance functions, including external accounting and auditing firms. |
2. | Produce quarterly financial statements. |
3. | Oversee the company's transaction processing systems. |
4. | Oversee all purchasing and payroll activities for staff and participants. |
5. | Oversee all accounts receivable and revenue recognition activities for staff and participants. |
Financial Information and Reporting
1. | Oversee the management and coordination of all internal and external fiscal reporting activities for the organization including organizational revenue/expense and balance sheet reports, reports to funding agencies, development and monitoring of organizational and contract/grant budgets. |
2. | Report financial results to the board of directors. |
Risk Management
1. | Maintain appropriate insurance coverage. |
2. | Ensure that record keeping meets the requirements of auditors and government agencies. |
3. | Report risk issues to the audit committee of the board of directors. |
4. | Maintain relations with external auditors and investigate their findings and recommendations. |
Funding
1. | Monitor cash balances and cash forecasts to ensure adequate cash flow to meet the organization's needs. |
2. | Arrange for debt and equity financing. |
3. | Invest funds appropriately. |
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Exhibit B
Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of ___________, _____ (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Tracy Wilson Curley (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which awards of Restricted Stock Units may be granted; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Restricted Stock Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Restricted Stock Units.
1.1 Pursuant to the Plan, the Company hereby grants to the Grantee on the Grant Date an Award consisting of, in the aggregate, [____] Restricted Stock Units (the “Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan.
1.2 The Restricted Stock Units shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
2. Vesting.
2.1 Except as otherwise provided herein, provided that the Grantee remains employed by the Company through the applicable vesting date, the Restricted Stock Units will vest in accordance with the following schedule (the period during which restrictions apply, the “Restricted Period”):
Vesting Date | Number of Restricted Stock Units That Vest |
As of the date hereof | 20% of the Restricted Stock Units |
On each one year anniversary of the IPO thereafter (each such year referred to as an “Anniversary Year”) |
An additional 20% of the Restricted Stock Units |
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All Restricted Stock Units shall be fully vested as of [DATE]1. Once vested, the Restricted Stock Units become “Vested Units” and shall be settled as provided in Section 5 herein.
2.2 Notwithstanding Section 2.1, if the Grantee's employment is terminated (i) by the Company or an Affiliate without Just Cause, (ii) by the Grantee for Good Reason or (iii) by the Company or Affiliate or Grantee on account of a non-renewal by the Company or an Affiliate of any successive term of Grantee’s employment under Grantee’s Employment Agreement, Grantee shall be entitled to immediate forward vesting of an additional six (6) months of Restricted Stock Units from and after such date of termination or non-renewal, (as if the vesting period for Grantee’s Restricted Stock Units had been set up for monthly and not annual vesting) and such additional vested Restricted Stock Units shall become Vested Units.
2.3 Notwithstanding Section 2.1 or 2.2, if a Change in Control (as defined in the Plan) occurs and the Grantee's employment is terminated by the Company or an Affiliate without Just Cause or by the Grantee for Good Reason, and the Grantee's date of termination occurs within twelve (12) months following such Change in Control, all unvested Restricted Stock Units shall automatically become 100% vested on the Grantee's date of termination and become Vested Units.
2.4 Notwithstanding Section 2.1, if the Grantee’s employment with the Company or an Affiliate terminates on account of the Grantee’s death or Disability, those Restricted Stock Units scheduled to vest during the Anniversary Year in which Grantee’s employment terminates shall vest proportionately based on the number of days during such Anniversary Year that Grantee was employed divided by three hundred and sixty (360) days and become Vested Units.
2.5 Except as set forth in Sections 2.2, 2.3 and 2.4, if the Grantee's employment with the Company or an Affiliate terminates for any other reason, including as a result of Grantee refusing to remain employed at the Company following any renewal of Grantee’s Employment Agreement, at any time before all of his or her Restricted Stock Units have vested, the Grantee's unvested Restricted Stock Units shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee with respect to such Restricted Stock Units that have been so forfeited under this Agreement.
1 4 year anniversary of IPO.
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3. Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period and until such time as the Restricted Stock Units are settled in accordance with Section 5, the Restricted Stock Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock Units or the rights relating thereto shall be wholly ineffective.
4. Rights as Shareholder; Dividend Equivalents.
4.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the Restricted Stock Units unless and until the Restricted Stock Units vest and are settled by the issuance of such shares of Common Stock.
4.2 Upon and following the settlement of the Restricted Stock Units, the Grantee shall be the record owner of the shares of Common Stock underlying the Restricted Stock Units unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting rights). The Company reserves the right to settle those Restricted Stock Units that are subject to forward vesting under Section 2.2 hereof in cash at its sole discretion.
4.3 The Grantee shall not be entitled to any Dividend Equivalents with respect to the Restricted Stock Units to reflect any dividends payable on shares of Common Stock.
5. Settlement of Restricted Stock Units.
5.1 Subject to Section 8 hereof, within five (5) business days following the vesting date, (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if settlement of the Restricted Stock Units cannot be settled within said five (5) business day period for reasons outside the reasonable control of the Company), the Company shall, except as to any Restricted Stock Units that may be settled in cash as referenced in Section 4.2 above, (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of Vested Units; and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
5.2 If the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his/her “separation from service” within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (a) the date that is six months following the Grantee's separation from service and (b) the Grantee's death.
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5.3 To the extent that the Grantee does not vest in Restricted Stock Units, all interest in such Restricted Stock Units shall be forfeited. The Grantee has no right or interest in any Restricted Stock Units that are forfeited.
6. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
7. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Restricted Stock Units shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
8. Tax Liability and Withholding.
8.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the Restricted Stock Units and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment.
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
8.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Restricted Stock Units or the subsequent sale of any shares; and (b) does not commit to structure the Restricted Stock Units to reduce or eliminate the Grantee's liability for Tax-Related Items.
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9. Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
10. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
11. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
12. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
13. Restricted Stock Units Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
14. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the Restricted Stock Units may be transferred by will or the laws of descent or distribution.
15. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
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16. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the Restricted Stock Units in this Agreement does not create any contractual right or other right to receive any Restricted Stock Units or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
17. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the Restricted Stock Units, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
18. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
19. No Impact on Other Benefits. The value of the Grantee's Restricted Stock Units is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
21. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
[signature page follows]
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -15- |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Tracy Wilson Curley | ||
By: | ||
Name: |
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -16- |
Exhibit C
Performance Share Unit agreement
Performance Share Unit Agreement
This Performance Share Unit Agreement (this “Agreement”) is made and entered into as of [DATE] (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Tracy Wilson Curley (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which the Company may grant Performance Compensation Awards; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Performance Share Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Performance Share Units. Pursuant to the Plan, the Company hereby grants to the Grantee an Award for a maximum of [NUMBER] Performance Share Units. Such Performance Share Units are intended to constitute a Performance Compensation Award under the Plan. Each Performance Share Unit (“PSU”) represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. The number of PSUs that the Grantee actually earns for each Performance Period will be determined by the level of achievement of the applicable Performance Goal in accordance with Exhibit I attached hereto.
2. Definitions. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan. For purposes of this Agreement: “Performance Period” shall mean each of the first four calendar years ending after the date of this Agreement (beginning with the year ended December 31, 2021).
3. Performance Goals.
3.1 The determination of whether the applicable PSUs have been earned by the Grantee for each Performance Period will be based upon whether the applicable Performance Goal for such Performance Period has been achieved in accordance with Exhibit I. All determinations of whether any Performance Goal has been achieved, and all other matters related to this Section 3 shall be made by the Committee in its sole discretion.
3.2 Promptly following completion of the applicable Performance Period (and no later than ninety (90) days following the end of the applicable Performance Period), the Committee will review and certify in writing whether the Performance Goal for the applicable Performance Period has been achieved. Such certification shall be final, conclusive and binding on the Grantee, and on all other persons, to the maximum extent permitted by law.
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4. Vesting of PSUs. The PSUs are subject to forfeiture until they vest. Except as otherwise provided herein or in Section 13 of the Plan, the PSUs relating to any Performance Period will vest and become nonforfeitable on January 1 of the year that immediately follows such Performance Period, subject to (a) the achievement of the applicable Performance Goal for such Performance Period set forth in Exhibit I attached hereto, and (b) the Grantee's Continuous Service from the Grant Date through the such vesting date.
5. Termination of Employment. Except as otherwise expressly provided in this Agreement, if the Grantee's employment with the Company terminates for any reason at any time before all of his or her PSUs have vested, the Grantee's unvested PSUs shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee under this Agreement.
6. Settlement of PSUs. Subject to Section 11 hereof, within five (5) business days following the Committee’s certification that a Performance Goal for a particular Performance Period has been achieved (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if such certification and settlement cannot be made within the applicable periods of time set forth in Section 3.2 and this Section 6 for reasons outside the reasonable control of the Company), the Company shall (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of vested PSUs, and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
7. Transferability. Subject to any exceptions set forth in this Agreement or the Plan, the PSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee, except by will or the laws of descent and distribution, and upon any such transfer by will or the laws of descent and distribution, the transferee shall hold such PSUs subject to all of the terms and conditions that were applicable to the Grantee immediately prior to such transfer.
8. Rights as Shareholder.
8.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the PSUs, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents.
8.2 Upon and following the settlement of the PSUs and the issuance of shares, the Grantee shall be the record owner of the shares of Common Stock underlying the PSUs unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting and dividend rights).
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9. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
10. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the PSUs shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
11. Tax Liability and Withholding.
11.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the PSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment;
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the PSUs; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law; or
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
11.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the PSUs or the subsequent sale of any shares, and (b) does not commit to structure the PSUs to reduce or eliminate the Grantee's liability for Tax-Related Items.
12. Compliance with Law. The issuance and transfer of shares of Common Stock in connection with the PSUs shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
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13. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
14. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
15. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
16. PSUs Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
17. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the PSUs may be transferred by will or the laws of descent or distribution.
18. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
19. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the PSUs in this Agreement does not create any contractual right or other right to receive any PSUs or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
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20. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the PSUs, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
21. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
22. No Impact on Other Benefits. The value of the Grantee's PSUs is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
24. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the PSUs subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the PSUs or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -21- |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Tracy Wilson Curley |
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -22- |
Exhibit 1
Performance Measures
25% of the PSUs shall be earned for the first Performance Period if the Company exceeds $13.5M in revenue for the year ended December 31, 2021, with a maximum of 50% cost of revenue.
25% of the PSUs shall be earned for the second Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2022.
25% of the PSUs shall be earned for the third Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2023.
25% of the PSUs shall be earned for the fourth Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2024.
The revenue and cost of revenue targets for 2022, 2023 and 2024 will be established by the Board at the last calendar year meeting of the Board preceding such year.
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Exhibit D
iSpecimen Inc.
NONCOMPETITION, NONSOLICITATION, NONDISCLOSURE AND INVENTIONS AGREEMENT
The undersigned, Tracy Wilson Curley, in consideration for and as a condition of employment as a senior executive officer (the “Executive”) of iSpecimen Inc. (the “Company”), or for receiving stock or options, or any other form of compensation, salary, bonus, benefit or fringe benefits from or in the Company, and in connection with executing an Employment Agreement with the Company, hereby agrees with the Company as follows:
1. Noncompetition Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship for Just Cause (as defined in the Executive’s Employment Agreement) or by reason of Executive’s resignation from service, Executive will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of the Company, compete with the Company’s Business, as it is constituted on the date of termination of Executive’s relationship with the Company, in the geographic areas where the Executive provided services to the geographic areas in which the employee provided services or had a material presence or influence during the two (2) year period preceding the end of such Executive’s employment, without the Company’s prior written consent. The parties agree that nature and scope of Executive’s service relationship to the Company requires that the Executive have a material presence and influence in all geographic locations in which the Company conducts business activities and markets its good and services, including, but not limited to, the entirety of the United States. Accordingly, the parties acknowledge that the geographic scope of the non-competition restrictions set forth in this section 1 includes, at least, the entire United States.
For purpose of this Section 1, the “Company’s Business” shall mean: the development, sales, marketing, distribution and commercial exploitation of products or services, including software and web-based applications and products that link electronic medical records and clinical laboratory specimens (the “Proprietary Technology”), for the collection of biospecimens from hospitals, clinical laboratories, and similar institutions (the “Partners”) primarily for distribution and sale to research organizations, academic institutions, government facilities, biopharmaceutical, and diagnostic companies and similar organizations and entities (the “Customers”).
The restrictions set forth in this Section 1 shall not take effect until ten (10) business days after the Effective Date of this Agreement (the “Noncompete Effective Date”). Executive acknowledges and agrees that the Company provided Executive with notice of the restrictions set forth in Section 1 at least ten (10) business days before the Noncompete Effective Date.
Executive also acknowledges that Executive has been informed, pursuant to Mass. Gen. L. c. 149, § 24L (the “Act”), that Executive has the right to consult with an attorney before signing this Agreement.
In exchange for the promises contained in this Section 1: the Company, subject to the approval of its Board of Directors where applicable, shall grant the Executive the Equity Award described in paragraph 2(E) of the Executive Employment Agreement (the “Consideration Payment”), which the parties hereto agree is “mutually-agreed upon consideration” as defined in the Act.
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2. Non-solicitation Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship (for any reason) (the “Restricted Period”), the Executive will not directly or indirectly either for herself or for any other commercial enterprise, solicit, divert or take away or attempt to solicit, divert or take away, any of the Company’s Customers, business or prospective Customers in existence at the time of termination of such employment for the benefit of any enterprise which may be competitive to the Business of the Company, whether directly or indirectly. For purposes of this Agreement, “prospective Customers” shall include those customers being solicited by the Company at the time of the Executive’s termination. During such employment with the Company and for a period of one (1) year thereafter, the Executive will not solicit or discuss with any employee, advisor or consultant of the Company the recruitment, employment or engagement of such Company employee, advisor or consultant by any enterprise, and whether or not such enterprise is competitive to the Business of the Company, nor recruit, or attempt to recruit, any such Company employee, advisor or consultant other than on behalf of the Company.
The Executive agrees that for the Restricted Period, the Executive will not solicit, encourage, or induce, or cause to be solicited, encouraged or induced, directly or indirectly, any Customer, vendor, supplier or contractor who conducted business with the Company at any time during the one-year period preceding the termination of the Executive’s relationship with the Company, to terminate or adversely modify any business relationship with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall the Executive otherwise interfere with any business relationship between the Company and any such entity described herein.
3. Nondisclosure Obligation. The Executive will not at any time, whether during or after the termination of employment, for any reason whatsoever (other than to promote and advance the Company’s Business), reveal to any person or entity (both commercial and non-commercial) any of the trade secrets or confidential business information concerning the Company or the trade secrets or confidential business information of third parties subject to a duty of confidentiality on the part of the Company, including without limitation: development activities; prototypes and technical specifications; show-how and know-how; marketing plans and strategies; pricing and costing policies; Customer, Partner and supplier lists and accounts; or nonpublic financial information so far as they have come or may come to the Executive’s knowledge, except as may be required in the ordinary course of performing her duties as an executive of the Company. This restriction shall not apply to: (i) information that may be disclosed generally or is in the public domain through no fault of the Executive; (ii) information received from a third party outside the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed. The Executive shall keep secret all matters of such nature entrusted to her and shall not use or disclose any such information for the benefit of any third party in any manner which may injure or cause loss to the Company, whether directly or indirectly.
4. Assignment of Inventions. The Executive expressly understands and agrees that any and all right or interest she obtains in any designs, research, copyrights, trade secrets, technical specifications, software programs, software and systems documentation, game designs and prototypes, flowcharts, logic diagrams, software methodologies and algorithms, technical data, know-how and show-how, internal reports and memoranda, Customer, Partner and vendor lists, marketing plans, pricing policies, inventions, concepts, ideas, expressions, discoveries, improvements and patent or patent rights which are authored, conceived, devised, developed, reduced to practice, or otherwise obtained by Executive during the term of this Agreement which relate to or arise out of Executive’s employment with the Company are expressly regarded as “works for hire” (the “Work Product”). The Executive hereby assigns to the Company the sole and exclusive right to such Work Product. The Executive agrees that she will promptly disclose to the Company any and all such Work Product, and that, upon request of the Company, the Executive will execute and deliver any and all documents or instruments and take any other action which the Company shall deem necessary to assign to and vest completely in the Company, to perfect trademark, copyright and patent protection with respect to, or to otherwise protect the Company’s trade secrets and proprietary interest in such Work Product. The obligations of this Section shall continue beyond the termination of the Executive’s employment with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during the term of this Agreement. The Company agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by the Executive for any assistance rendered to the Company pursuant to this Section.
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -25- |
In the event the Company is unable, after reasonable effort, to secure Executive’s signature on any letters patents, copyright or other analogous protection relating to the Work Product, whether because of Executive’s physical or mental incapacity or for any other reason whatsoever, Executive hereby irrevocably designates and appoints the Company and its duly authorized officer and agent as Executive’s agent and attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and irrevocable and shall survive Executive’s death or incapacity), to act for and in Executive’s behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letter patent, copyright or other analogous protection thereon with the same legal force and effect as if executed by Executive. The obligations of this Section shall continue beyond the termination of the Executive’s employment with the Company with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during Executive’s tenure with the Company. “Work Product” will not include any business knowledge, skills and experience of the Executive that would not otherwise constitute a trade secret of the Company under applicable law. The Executive agrees to keep adequate and current written records of all Work Product made by Executive (solely or jointly with others). The records will be in form of notes, memoranda, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.
5. Remedies Upon Breach. The Executive agrees that any breach of this Agreement by the Executive could cause irreparable damage to the Company. The Company shall have, in addition to any and all remedies of law, the right to an injunction or other equitable relief to prevent any violation of the Executive’s obligations hereunder, and without the necessity of posting a bond. In the event of any enforcement of this Agreement, or of any breach, the party who does not prevail shall reimburse the counterparty for such counterparty’s cost and expenses of enforcement, including attorneys’ fees and expenses. The Executive acknowledges and agrees that the enforcement of this Agreement is necessary to ensure the preservation, protection and continuity of the confidential business information, trade secrets, business reputation and goodwill of the Company.
6. Defend Trade Secrets act Notice. Notwithstanding any provision in this Agreement, the Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (A) files any document containing the trade secret under seal, and (B) does not disclose the trade secret, except pursuant to a court order.
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -26- |
7. Miscellaneous. The obligations of the Executive under this Agreement shall survive the termination of the Executive’s relationship with the Company regardless of the manner of such termination. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, and notwithstanding and excepting its conflicts of laws principles. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject matter so as to be unenforceable at law, such provision(s) shall be construed and reformed by the appropriate judicial body by limiting and reducing it (or them), so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. If the Executive violates the provisions of any of Sections 1-4 inclusive, the Executive shall continue to be bound by the restrictions set forth in such sections until a period of the later of one (1) year or for the duration that the restrictive period has run its course without any violation of such provisions. During the term of this Agreement and following any termination, no party shall make or publish any negative or derogatory remarks concerning the other party (or the case of the Company, any remarks concerning its business, operations, Customers, Partners, strategic relationships, products and services, software, or its directors, officers, employees, personnel, stockholders, agents or representatives). The Executive understands that this Agreement does not create an obligation on the part of the Company to continue the Executive’s employment with the Company, and the Executive acknowledges that he or she is employed “at will.” The Agreement may be executed and delivered in counterparts, and by digital signature, facsimile signature or other similar evidence of execution, and this Agreement may be delivered and executed by electronic or facsimile transmission, portable document format, hand delivery, overnight courier service, first class mail (postage prepaid), or any other commercial means.
8. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement shall be submitted for settlement to an arbitrator agreed upon by the parties. The principles of Arbitration set forth in the Executive Employment Agreement shall apply to any controversy, dispute, claim or breach arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the undersigned Executive and the Company have executed this Noncompetition, Nonsolicitation, Nondisclosure and Inventions Agreement as of this _____ day of ___________, 2021.
iSpecimen Inc. | Executive: Tracy Wilson Curley | ||
By: | |||
Signature of Executive | |||
Title: | |||
Dated: _____, 2021 |
iSpecimen Inc. Executive Employment Agreement – T. Wilson Curley | -27- |
Exhibit 10.28
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
Executive Employment Agreement (the “Agreement”) made as of this day of , 2021 , between Benjamin Bielak (the “Executive”), and iSpecimen Inc., a Delaware corporation located at 450 Bedford St, Lexington, MA 02420 (the “Company”).
Whereas, the Board of Directors of the Company believes it to be to its advantage to ensure that the Executive render services as a senior executive officer of the Company as hereinafter provided; and
Whereas, the Executive’s position requires that Executive be trusted with extensive confidential information and trade secrets of the Company and that Executive develop a thorough and comprehensive knowledge of all details of the Company’s business to improve and extend the business;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Title, Position & Responsibilities. The Executive shall serve as the Chief Information Officer of the Company. The Executive shall have the powers, duties and responsibilities typically availed to a chief information officer of a similar enterprise, at a similar stage of commercial development, and with similar financial and operational resources to the Company. The Executive shall exercise such powers and comply with and perform such directions and duties regarding the business, operations and affairs of the Company as are consistent with such executive position as may from time to time be vested in or given to Executive by the Board of Directors of the Company (the “Board”), and consistent with the roles, responsibilities and duties of such an executive position, and the Executive shall use all commercially reasonable, diligent and faithful efforts to improve, enhance and extend the business of the Company. The Executive shall at all times report to, and Executive’s activities shall at all times be subject to the direction and control of the Chief Executive Officer. The Executive agrees to devote substantially all of Executive’s available business time, attention and services to the discharge of Executive’s duties for the best interests of the Company and its stockholders. The roles, tasks and responsibilities of the Executive are set forth on Exhibit A.
The Executive may engage in outside business and charitable activities (“Outside Activities”) that do not conflict with Executive’s duties to the Company, or otherwise impact the Executive’s services to the Company. In order for the Board to determine in good faith whether Executive’s Outside Activities comply with this paragraph, the Executive shall disclose in advance all Outside Activities to the Company.
2. Compensation: Salary, Bonuses & Other Benefits. During the term of this Agreement, the Company shall pay the Executive the following compensation, including the following annual salary, bonuses and other fringe benefits:
(A) Base Salary. In consideration of the services to be rendered by the Executive to the Company under this Agreement, the Company will pay to the Executive an annual base salary of $280,000, payable on a bi-weekly basis, and otherwise in conformity with the Company’s customary practices and policies for the compensation of other senior officers, as such practices shall be established or modified from time to time. Salary payments shall be subject to all applicable federal and state withholding, payroll and other taxes, in conformity with the Company’s prevailing practices. The annual base salary for subsequent years during the term of this Agreement shall be reviewed annually, and shall be adjusted for each subsequent year during the term of this Agreement; provided, however, the base salary payable hereunder shall at no time be less than the initial base salary set forth herein.
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Executive Employment Agreement – B. Bielak |
(B) Target Bonus. For 2021, Executive shall be entitled to a Target Bonus of Thirty Percent (30%) of Base Salary, 50% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(1), 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(2), and 25% of which shall be earned and payable upon the same terms and conditions set forth in Section 2(C)(3).
(C) Special Incentives. In addition to any Target Bonus, the Executive shall be eligible for the following special, trigger-based incentive compensation (“Special Incentives”):
(1) | Bonus Upon Consummation of the IPO. Upon the closing of an initial public offering of the Company’s Common Stock (an “IPO”), the Executive shall receive a bonus payout in an amount of $42,000 (the “IPO Bonus”), which IPO Bonus shall be payable in a lump sum, less required taxes and deductions, within thirty (30) days of the IPO. |
(2) | Stock Performance Bonus. If, during the thirty (30) consecutive day period immediately following the 10-month anniversary of the IPO, the Company’s average daily closing share price is at or above 1.25 times the Offering Price (the “SPB Trigger”), the Executive shall receive a bonus payout in an amount of $21,000 (the “Stock Performance Bonus”). If earned, the Stock Performance Bonus shall be paid in a lump sum, less required taxes and deduction, within thirty (30) days of achievement of the SPB Trigger but not earlier than the 12-month anniversary of the IPO. For purposes of calculating the Stock Performance Bonus, the term “Offering Price” shall mean that per-share price at which publicly issued securities of the Company are made available for purchase during the IPO, as set by the lead underwriter. |
(3) | 2021 Financial Performance Bonus. Upon the Company achieving $13.5 million in Gross Revenue, and achieving Cost of Revenue of less than or equal to 50%, during calendar year 2021, Executive shall receive a bonus payout in an amount of $21,000 (the “2021 Financial Performance Bonus”). If earned, Executive shall be paid the 2021 Financial Performance Bonus, in a lump sum, less required taxes and deductions, on or before March 15, 2022. For purposes of calculating the 2021 Financial Performance Bonus, the terms “Gross Revenue” and “Cost of Revenue” shall have the meanings ascribed to such terms by generally accepted accounting principles (“GAAP”) in the United States. |
The purpose of providing Executive with such Special Incentives is to encourage Executive’s continued employment at the Company as a productive employee. Accordingly, and except as otherwise provided herein, any payout of any Special Incentive described herein is contingent on Executive being an employee at the time Executive’s right to such Special Incentive has vested, and the Executive shall not be eligible for a Special Incentive if the Executive’s employment terminates for any reason, before the Special Incentive has vested. .
(D) Reimbursement of Expenses; Fringe Benefits. The Executive will be promptly reimbursed for all of Executive’s business-related travel, lodging and entertainment expenses in accordance with the Company’s prevailing policy for executive officers. The Executive will participate on the same basis with all other officers and employees of the Company in the Company’s standard benefits package made generally available to all other officers and Executives, including 401(k) (if available), group health, long-term and short-term disability and life insurance programs, and other fringe benefits as may be adopted by the Company from time to time. Nothing herein shall restrict the Company from modifying or eliminating any Company benefit program, health plan or other fringe benefit at any time.
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(E) Equity Participation. As specific consideration for the non-competition covenants contained in the Restrictive Covenant Agreement discussed below, Executive shall be granted certain equity in the Company (the “Equity Award”), according to the following terms and conditions: As soon as practical following the IPO, the Company shall issue the Executive certain Restricted Stock Units (“RSUs”), pursuant to the form of Restricted Stock Unit Agreement attached hereto as Exhibit B, and certain Performance Share Units (“PSUs”, and together with the RSUs, the “Units”), pursuant to the form of Performance Share Unit agreement attached hereto as Exhibit C. The Company shall issue the Executive an aggregate number of Units equal to 0.25 multiplied by 3.75% of the Net Effective IPO Value, divided by the Offering Price. 80% of the Units shall be issued as RSUs and 20% of the Units shall be issued as PSUs. For purposes hereof, (i) “Net Effective IPO Value” shall mean the pre-money valuation of the Company, plus the Net Proceeds received by the Company from the initial closing of the IPO, (ii) “Net Proceeds” shall mean the aggregate gross proceeds from the IPO, minus the aggregate of all underwriting discounts and commissions and fees and expenses incurred in connection with the IPO, and (iii) the pre-money valuation of the Company shall be equal to the Offering Price, multiplied by the number of shares of Common Stock of the Company outstanding immediately prior to the IPO.
(F) Key Man Insurance. The Company may maintain, at its option and expense, Key Man Life Insurance (the "Policy") on the life of Executive for the benefit of the Company with a benefit of $2,000,000. The Executive’s signature to this Agreement constitutes Executive's written consent to being insured under the Policy. The Executive shall make all necessary applications, submit to physical examinations and otherwise cooperate with the Company with respect to the purchase of the policy.
3. Performance Review. Commencing at least thirty (30) days prior to the first anniversary of this Agreement, and at least thirty (30) days prior to the commencement of any fiscal year thereafter, the Board and the Executive shall in good faith review the performance by, and the compensation payable to, the Executive for the prior year and the proposed performance by, and compensation to, the Executive for the then forthcoming year. The Board and the Executive shall negotiate in good faith the annual salary and bonus (including targets, performance goals and management objectives), stock-based incentives, and other forms of incentive compensation for the forthcoming fiscal year.
4. Term. The term of this Agreement shall commence on the date first above written and shall terminate at 11:59 p.m. on the earlier to occur of (i) the 12-month anniversary of the IPO (ii) the death or disability of the Executive, or (iii) the occurrence of any of the circumstances described in Section 5 hereof (the “Expiration Date”). In the event of death or disability, the Executive or the Executive’s estate, as applicable, shall receive payment of all unpaid or accrued salary, earned or accrued bonuses, and the vesting of the stock or other equity participation then held by the Executive, but pro-rated until the date of termination.
Notwithstanding the above, Executive shall be, at all times, an “at-will” employee of the Company. Accordingly, the employment relationship between the Executive and the Company may be terminated, by either the Company or the Executive, at any time for any reason, subject to the employment termination provisions set forth in Section 5 below.
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5. Termination. The Executive’s term of employment under this Agreement may be terminated as follows:
(A) At the Election of the Company for Just Cause. The Company may, immediately and unilaterally, terminate the Executive’s employment hereunder for just cause at any time during the term of this Agreement, subject in all instances to the terms and conditions of and compliance with the provisions of this Section 5. Termination of the Executive’s employment by the Company shall constitute a termination for “just cause” under this Section if such termination is for one or more of the following causes: (i) the material failure of Executive to render services to the Company in accordance with Executive’s assigned duties and responsibilities and consistent with Executive’s title, roles and responsibilities under this Agreement, as reasonably determined by the Board; (ii) intentional misconduct or gross negligence committed by the Executive in connection with the performance of Executive’s assigned duties or breach of the material terms of this Agreement or the other agreements executed in connection with this Agreement; (iii) the conviction of the Executive (or plea of guilty or nolo contendere to) of a felony either in connection with the performance of Executive’s duties and responsibilities to the Company, or which adversely affects the Executive's ability to perform such duties and responsibilities, or which otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (iv) the commission by Executive of an act of fraud, embezzlement, or the deliberate disregard of the material policies or practices of the Company (including but not limited to employment discrimination or harassment), which results in loss, damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company; (v) the unauthorized disclosure by Executive of any trade secret or confidential information of the Company or any of its clients or customers, which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its clients or customers; (vi) the willful commission by Executive of an act which constitutes unfair competition with the Company; (vii) the use of illegal drugs or controlled substances that materially interferes with the performance by Executive of the duties or obligations delegated to Executive as a senior executive of the Company, or which results in damage or injury to the Company, or otherwise adversely affects the business activities, reputation, goodwill or image of the Company or its customers; (viii) the material failure by the Executive to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Executive’s cooperation; or (ix) the repeated or continued absence from the performance of work during normal business hours for reasons other than permitted absence pursuant to applicable law. Furthermore, in all instance under subsections (i), (ii), (viii) and (ix) hereinabove, the Company may not terminate Executive without first providing Executive with written notice of the basis for exercising its rights to terminate for just cause, and an opportunity of not less than thirty (30) days for the Executive to substantially cure such grounds for termination to the Board’s reasonable satisfaction.
In the event of any such termination for just cause above, the Executive shall be entitled to (i) earned but unpaid salary and earned but unpaid bonus through the termination date, (ii) COBRA benefits for up to the applicable statutory period, provided Executive makes the appropriate voluntary contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
(B) Voluntary Termination. The Executive may voluntarily terminate Executive’s employment at any time during the term of this Agreement by providing the Company with thirty (30) days prior notice of termination. In the event of any such voluntary termination, the Executive shall be entitled to (i) earned but unpaid salary and bonuses (including any unpaid portion of the IPO Bonus), (ii) COBRA benefits for the applicable statutory period, with Executive being responsible for the full premium amount for such COBRA coverage, provided Executive makes the appropriate voluntary premium contribution payments, and subject to applicable law and the then-prevailing requirements of the Company’s health and insurance plans then in effect, and (iii) no other severance or other compensation benefits, other than payments which are required by law to be provided to all terminated employees.
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(C) At the Election of the Company for Reasons Other Than Just Cause. The Company may terminate the Executive’s employment hereunder at any time during the term of this Agreement “without cause” by giving not less than thirty (30) days’ prior written notice to the Executive of the Company’s election to terminate. During such notice period, the Executive will be available on a full-time basis for the benefit of the Company to assist the Company in matters relating to a transition of the Executive’s duties and responsibilities. In the event the Company exercises its right to terminate the Executive under this Section, or in the event the Company exercises its right not to renew this Agreement, the Company agrees to pay the Executive (i) salary continuation payments for the period of six (6) months (the “Salary Continuation Period”), at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes.
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(C) shall not commence until the later calendar year.
(D) Termination by Executive for Good Reason. The Executive may also resign Executive’s employment with the Company at any time for any reason, including Good Reason. In the case of a resignation without Good Reason, the Executive shall provide written notice to the Board at least thirty (30) days prior to the date of termination. During any notice period provided by the Executive in connection with Executive’s resignation, the Company may, in its discretion, direct the Executive not to perform any work or report to the office for part or all of the notice period, although the Executive’s Base Salary and benefits shall continue during such notice period regardless. “Good Reason” means any one of the following events: (A) a material diminution in the Executive’s duties and responsibilities, or a change in the Executive’s position within the Company which constitutes a demotion, without the Executive’s prior consent; (B) a reduction in the Executive’s Base Salary to an amount below the amount set forth in Section 1(A), except in circumstances when the Executive’s Base Salary is reduced in connection with a pay reduction plan generally applicable to the Company’s management and employees; or (C) a change in the principal workplace of the Executive to a location outside of an 35-mile radius from Lexington, Massachusetts; provided, however, that none of the foregoing events shall constitute Good Reason unless and until the Executive provides the Board with at least thirty (30) days’ prior written notice of Executive’s intent to resign for Good Reason (which notice is provided not later than thirty (30) days following the date upon which the Executive receives notice of the event constituting Good Reason), and the Company has not remedied the event allegedly constituting Good Reason within such 45 day period.
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In the event of any termination for Good Reason, the Executive shall be entitled to (i) salary continuation payments for the aforementioned Salary Continuation Period, at the Executive’s then current base salary rate, (ii) any Special Incentive and Target Bonus tied to such Special Incentive earned but unpaid as of the termination date, and (iii) COBRA benefits for the applicable statutory period, with the Company providing Executive with continuation coverage upon the same terms and conditions as if Executive were still an active employee of the Company. Such salary continuation payments shall be payable on a bi-weekly basis for the duration of the Salary Continuation Period and shall be subject to all applicable taxes. .
Notwithstanding anything herein to the contrary, Executive shall not be entitled to receive any payments pursuant to this Section unless Executive has executed and delivered to the Company a general release with customary, industry-standard terms and conditions, that includes a re-affirmation of Executive’s non-competition covenant set forth in Exhibit D hereto, in favor of the Company in form and substance satisfactory to the Company (and such release is in full force and effect and has not been revoked), which release shall be in full force and effect (and no longer subject to revocation) within sixty (60) calendar days after Executive’s separation from employment with the Company. In the event said sixty (60) day period spans more than one calendar year, any payments made pursuant to this Section 5(D) shall not commence until the later calendar year.
6. Noncompetition, Nonsolicitation, Confidentiality and Inventions Agreement. In connection with Executive’s employment by the Company pursuant to the terms of this Agreement, and in consideration for the Equity Award provided in paragraph 2(E) of this Agreement, the Executive shall execute or reconfirm the Company’s standard form of Noncompetition, Nonsolicitation, Confidentiality and Invention Assignment Agreement (the “Restrictive Covenant Agreement”) attached as Exhibit D. Such Restrictive Covenant Agreement is an essential part of the subject matter of this Agreement and is incorporated by reference. The Executive hereby confirms, acknowledges the terms of the Restrictive Covenant Agreement, and hereby agrees to the restrictive covenants set forth therein. Any breach by the Executive of the material covenants of the Restrictive Covenant Agreement shall be deemed a material breach by the Executive of this Agreement.
7. Governing Law; Injunctive Relief. This Agreement and the Restrictive Covenant Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts and shall be deemed to be performable in such state. The Executive acknowledges that the breach or threatened breach of any of the provisions of this Agreement or the Restrictive Covenant Agreement would give rise to irreparable injury to either party, which injury would be inadequately compensable in money damages. Accordingly, in the event of any breach, either party may seek and obtain a restraining order and/or injunction prohibiting the breach or threatened breach of any provision, requirement or covenant of this Agreement or the Restrictive Covenant Agreement, in addition to and not in limitation of any other legal remedies which may be available, and without the necessity of posting a bond or other surety.
8. Severability. In case any one or more of the provisions contained in this Agreement or the Restrictive Covenant Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or the Restrictive Covenant Agreement. In such event this Agreement or the Restrictive Covenant Agreement, as the case may be, shall be construed, revised, modified and reformed to the maximum extent possible to give effect to the purposes set forth herein and in the Restrictive Covenant Agreement.
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9. Waivers and Modifications. This Agreement may be modified, and the rights and remedies of any provision hereof may be waived, only in accordance with this Section. No modification or waiver by the Company shall be effective without the consent of the Executive. No waiver by either party of any breach by the other party of any provision hereof shall be deemed to be a waiver of any later or other breach thereof or as a waiver of any other provision of this Agreement. This Agreement and the Restrictive Covenant Agreement set forth all of the terms of the understandings between the parties with reference to the subject matter set forth herein and may not be waived, changed, discharged or terminated orally or by any course of dealing between the parties, but only by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
10. Assignment. The Executive acknowledges that the services to be rendered by Executive are unique and personal in nature. Accordingly, the Executive may not assign any of Executive’s rights or delegate any of Executive’s duties or obligations under this Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company, including any successor to the Company’s capital stock or assets by reason of a change in control, merger or other acquisition of the Company.
11. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement, including claims for injunctive relief, shall be submitted to and resolved by arbitration under the General Commercial Rules of the American Arbitration Association (“AAA”). The Arbitrator shall be appointed by the AAA in accordance with the processes for such appointment established by the AAA. However, the Arbitrator shall be a licensed attorney with not less than fifteen years practice experience. The decision of such Arbitrator shall be final and binding on the parties. Such arbitration shall be held in Boston, Massachusetts, and the judgment upon the award rendered shall be entered by consent in any court having jurisdiction. The Arbitrator shall have the right but not the obligation to assess attorneys’ fees, costs and expenses associated with the arbitration, in the Arbitrator’s sole discretion. In the event of any conflict between the arbitration rules in effect from time to time and the provisions of this Agreement, the provisions of this Agreement shall prevail and be controlling. The Arbitrator shall be required to (i) materially follow the substantive rules of applicable law, (ii) accompany the award with findings of fact and a statement of reasons for the decision. The Arbitrator shall have the authority to permit discovery for no more than sixty days, to the extent deemed appropriate by the Arbitrator, upon reasonable request of a party. One fact witness deposition shall be allowed by each of the Company and the Executive, for one full day; any other depositions shall be allowed only with approval of the Arbitrator. The Arbitrator shall have no power or authority to address or resolve any issue not submitted by the parties. The Arbitrator shall have the power to grant emergency and injunctive relief as provided in the AAA rules (without the necessity of a party posting a bond) in the event a party has violated the terms of this Agreement or the Restrictive Covenant Agreement, but no authority to award punitive and/or exemplary damages. The matter shall be heard within one hundred fifty (150) days of the filing of the demand and the award issued within fourteen (14) days of the closing of the hearing. Notwithstanding the foregoing, at any time prior to the commencement of an arbitration proceeding, a party may resort to the courts of the Commonwealth of Massachusetts to seek injunctive relief only; the parties’ consent to the jurisdiction and venue in the Massachusetts court of competent subject matter jurisdiction in Suffolk County, Massachusetts, for the purpose of pursuing injunctive relief prior to the filing by any party of an arbitration demand.
{Signature Page on Following Page}
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Executive Employment Agreement – B. Bielak |
iSpecimen Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed, as an instrument under seal, this Executive Employment Agreement as of the date first above written.
iSpecimen Inc. | ||
By: |
Title: | ||
Executive: Benjamin Bielak |
Signature of Executive | |
Street |
City | State | Zip |
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Executive Employment Agreement – B. Bielak |
Exhibit A
Job Description
Chief Information Officer (CIO) Responsibilities
Executive Leadership
1. | Assist in formulating the company's future direction and supporting tactical initiatives |
2. | Lead the product development, engineering, and data teams from product through engineering, test, and implementation |
3. | Participate in key decisions as a member of the executive management team, playing a leading role in product and technology decisions and implementation, internally and with partners |
4. | Drive cross functional team communication and collaboration - towards iSpecimen goals |
5. | Ensure the ongoing optimization of agile processes and tools - and delivery excellence |
6. | Initiate the resolution of complex operational and technical problems |
Product
1. | Ensure development, maintenance, and communication of product roadmap and strategy in concert with director of product management, with input from the executive team, end-users, customers, suppliers, and team |
2. | Ensure development, delivery, and implementation by product, technology, and implementation team of a simple and elegant product and user experience that brings measurable benefits to customer, supplier and our business, balancing short-term and long-term goals and vision |
Technology & Data
1. | Responsible for planning, management, and direction of the technology and data teams |
2. | Evaluate and identify key technology platforms and partners for achieving iSpecimen’s goals |
3. | Directs the activities necessary to keep the technology infrastructure running efficiently, effectively, and securely while ensuring compliance with established standards and policies |
4. | Ensures the organization has the required capabilities for the technical creation and improvement of products, working within and across departments, as well as with third parties as necessary |
5. | Provide organizational leadership and mentoring to ensure team development |
6. | Establish product development metrics, reports and benchmarks |
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Supplier Implementation
1. | Ensure successful supplier implementations, enhancements, communication, and metrics including optimizing initial and ongoing data mappings |
2. | Help optimize supplier implementation and product development initiatives to maximize efficiency and revenue in sales and lab processes |
Quality and Security
1. | Ensure development of overall strategy, objectives, initiatives, and best practices for QA |
2. | Lead efforts to ensure HIPAA Compliance from a product development to implementation |
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Exhibit B
Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of ___________, _____ (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Benjamin Bielak (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which awards of Restricted Stock Units may be granted; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Restricted Stock Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Restricted Stock Units.
1.1 Pursuant to the Plan, the Company hereby grants to the Grantee on the Grant Date an Award consisting of, in the aggregate, [____] Restricted Stock Units (the “Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan.
1.2 The Restricted Stock Units shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
2. Vesting.
2.1 Except as otherwise provided herein, provided that the Grantee remains employed by the Company through the applicable vesting date, the Restricted Stock Units will vest in accordance with the following schedule (the period during which restrictions apply, the “Restricted Period”):
Vesting Date | Number of Restricted Stock Units That Vest |
As of the date hereof | 20% of the Restricted Stock Units |
On each one year anniversary of the IPO thereafter (each such year referred to as an “Anniversary Year”) |
An additional 20% of the Restricted Stock Units |
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All Restricted Stock Units shall be fully vested as of [DATE]1. Once vested, the Restricted Stock Units become “Vested Units” and shall be settled as provided in Section 5 herein.
2.2 Notwithstanding Section 2.1, if the Grantee's employment is terminated (i) by the Company or an Affiliate without Just Cause, (ii) by the Grantee for Good Reason or (iii) by the Company or Affiliate or Grantee on account of a non-renewal by the Company or an Affiliate of any successive term of Grantee’s employment under Grantee’s Employment Agreement, Grantee shall be entitled to immediate forward vesting of an additional six (6) months of Restricted Stock Units from and after such date of termination or non-renewal, (as if the vesting period for Grantee’s Restricted Stock Units had been set up for monthly and not annual vesting) and such additional vested Restricted Stock Units shall become Vested Units.
2.3 Notwithstanding Section 2.1 or 2.2, if a Change in Control (as defined in the Plan) occurs and the Grantee's employment is terminated by the Company or an Affiliate without Just Cause or by the Grantee for Good Reason, and the Grantee's date of termination occurs within twelve (12) months following such Change in Control, all unvested Restricted Stock Units shall automatically become 100% vested on the Grantee's date of termination and become Vested Units.
2.4 Notwithstanding Section 2.1, if the Grantee’s employment with the Company or an Affiliate terminates on account of the Grantee’s death or Disability, those Restricted Stock Units scheduled to vest during the Anniversary Year in which Grantee’s employment terminates shall vest proportionately based on the number of days during such Anniversary Year that Grantee was employed divided by three hundred and sixty (360) days and become Vested Units.
2.5 Except as set forth in Sections 2.2, 2.3 and 2.4, if the Grantee's employment with the Company or an Affiliate terminates for any other reason, including as a result of Grantee refusing to remain employed at the Company following any renewal of Grantee’s Employment Agreement, at any time before all of his or her Restricted Stock Units have vested, the Grantee's unvested Restricted Stock Units shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee with respect to such Restricted Stock Units that have been so forfeited under this Agreement.
1 4 year anniversary of IPO.
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3. Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period and until such time as the Restricted Stock Units are settled in accordance with Section 5, the Restricted Stock Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock Units or the rights relating thereto shall be wholly ineffective.
4. Rights as Shareholder; Dividend Equivalents.
4.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the Restricted Stock Units unless and until the Restricted Stock Units vest and are settled by the issuance of such shares of Common Stock.
4.2 Upon and following the settlement of the Restricted Stock Units, the Grantee shall be the record owner of the shares of Common Stock underlying the Restricted Stock Units unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting rights). The Company reserves the right to settle those Restricted Stock Units that are subject to forward vesting under Section 2.2 hereof in cash at its sole discretion.
4.3 The Grantee shall not be entitled to any Dividend Equivalents with respect to the Restricted Stock Units to reflect any dividends payable on shares of Common Stock.
5. Settlement of Restricted Stock Units.
5.1 Subject to Section 8 hereof, within five (5) business days following the vesting date, (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if settlement of the Restricted Stock Units cannot be settled within said five (5) business day period for reasons outside the reasonable control of the Company), the Company shall, except as to any Restricted Stock Units that may be settled in cash as referenced in Section 4.2 above, (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of Vested Units; and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
5.2 If the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his/her “separation from service” within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (a) the date that is six months following the Grantee's separation from service and (b) the Grantee's death.
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Executive Employment Agreement – B. Bielak |
5.3 To the extent that the Grantee does not vest in Restricted Stock Units, all interest in such Restricted Stock Units shall be forfeited. The Grantee has no right or interest in any Restricted Stock Units that are forfeited.
6. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
7. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Restricted Stock Units shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
8. Tax Liability and Withholding.
8.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the Restricted Stock Units and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment.
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
8.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Restricted Stock Units or the subsequent sale of any shares; and (b) does not commit to structure the Restricted Stock Units to reduce or eliminate the Grantee's liability for Tax-Related Items.
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Executive Employment Agreement – B. Bielak |
9. Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
10. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
11. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
12. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
13. Restricted Stock Units Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
14. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the Restricted Stock Units may be transferred by will or the laws of descent or distribution.
15. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
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Executive Employment Agreement – B. Bielak |
16 Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the Restricted Stock Units in this Agreement does not create any contractual right or other right to receive any Restricted Stock Units or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
17. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the Restricted Stock Units, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
18. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
19. No Impact on Other Benefits. The value of the Grantee's Restricted Stock Units is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
21. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
[signature page follows]
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Executive Employment Agreement – B. Bielak |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | |||
By: | |||
Name: | |||
Title: | |||
Benjamin Bielak | |||
By: | |||
Name: |
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Executive Employment Agreement – B. Bielak |
Exhibit C
Performance Share Unit Agreement
This Performance Share Unit Agreement (this “Agreement”) is made and entered into as of [DATE] (the “Grant Date”) by and between iSpecimen Inc., a Delaware corporation (the “Company”) and Benjamin Bielak (the “Grantee”).
WHEREAS, the Company has adopted the iSpecimen 2021 Stock Incentive Plan (the “Plan”) pursuant to which the Company may grant Performance Compensation Awards; and
WHEREAS, pursuant to an Executive Employment Agreement, dated as of __________ __, 2021, between the Grantee and the Company (the “Employment Agreement”), the Company has agreed to issue the Grantee certain Performance Share Units on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Grant of Performance Share Units. Pursuant to the Plan, the Company hereby grants to the Grantee an Award for a maximum of [NUMBER] Performance Share Units. Such Performance Share Units are intended to constitute a Performance Compensation Award under the Plan. Each Performance Share Unit (“PSU”) represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. The number of PSUs that the Grantee actually earns for each Performance Period will be determined by the level of achievement of the applicable Performance Goal in accordance with Exhibit I attached hereto.
2. Definitions. Capitalized terms that are used but not defined herein have the meanings ascribed to them in the Employment Agreement, and to the extent not defined therein, shall have the meanings ascribed to them in the Plan. For purposes of this Agreement: “Performance Period” shall mean each of the first four calendar years ending after the date of this Agreement (beginning with the year ended December 31, 2021).
3. Performance Goals.
3.1 The determination of whether the applicable PSUs have been earned by the Grantee for each Performance Period will be based upon whether the applicable Performance Goal for such Performance Period has been achieved in accordance with Exhibit I. All determinations of whether any Performance Goal has been achieved, and all other matters related to this Section 3 shall be made by the Committee in its sole discretion.
3.2 Promptly following completion of the applicable Performance Period (and no later than ninety (90) days following the end of the applicable Performance Period), the Committee will review and certify in writing whether the Performance Goal for the applicable Performance Period has been achieved. Such certification shall be final, conclusive and binding on the Grantee, and on all other persons, to the maximum extent permitted by law.
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Executive Employment Agreement – B. Bielak |
4. Vesting of PSUs. The PSUs are subject to forfeiture until they vest. Except as otherwise provided herein or in Section 13 of the Plan, the PSUs relating to any Performance Period will vest and become nonforfeitable on January 1 of the year that immediately follows such Performance Period, subject to (a) the achievement of the applicable Performance Goal for such Performance Period set forth in Exhibit I attached hereto, and (b) the Grantee's Continuous Service from the Grant Date through the such vesting date.
5. Termination of Employment. Except as otherwise expressly provided in this Agreement, if the Grantee's employment with the Company terminates for any reason at any time before all of his or her PSUs have vested, the Grantee's unvested PSUs shall be automatically forfeited upon such termination of employment and neither the Company nor any Affiliate shall have any further obligations to the Grantee under this Agreement.
6. Settlement of PSUs. Subject to Section 11 hereof, within five (5) business days following the Committee’s certification that a Performance Goal for a particular Performance Period has been achieved (and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs if such certification and settlement cannot be made within the applicable periods of time set forth in Section 3.2 and this Section 6 for reasons outside the reasonable control of the Company), the Company shall (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of vested PSUs, and (b) enter the Grantee's name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.
7. Transferability. Subject to any exceptions set forth in this Agreement or the Plan, the PSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee, except by will or the laws of descent and distribution, and upon any such transfer by will or the laws of descent and distribution, the transferee shall hold such PSUs subject to all of the terms and conditions that were applicable to the Grantee immediately prior to such transfer.
8. Rights as Shareholder.
8.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the PSUs, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents.
8.2 Upon and following the settlement of the PSUs and the issuance of shares, the Grantee shall be the record owner of the shares of Common Stock underlying the PSUs unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting and dividend rights).
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Executive Employment Agreement – B. Bielak |
9. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee's employment at any time, with or without Just Cause.
10. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the PSUs shall be adjusted or terminated in any manner as contemplated by Section 12 of the Plan.
11. Tax Liability and Withholding.
11.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the PSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
(a) tendering a cash payment;
(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the PSUs; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law; or
(c) delivering to the Company previously owned and unencumbered shares of Common Stock.
11.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee's responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the PSUs or the subsequent sale of any shares, and (b) does not commit to structure the PSUs to reduce or eliminate the Grantee's liability for Tax-Related Items.
12. Compliance with Law. The issuance and transfer of shares of Common Stock in connection with the PSUs shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.
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Executive Employment Agreement – B. Bielak |
13. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company's principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee's address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
14. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.
15. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.
16. PSUs Subject to Plan. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
17. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors, administrators and the person(s) to whom the PSUs may be transferred by will or the laws of descent or distribution.
18. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
19. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion as provided in said Plan. The grant of the PSUs in this Agreement does not create any contractual right or other right to receive any PSUs or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee's employment with the Company.
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Executive Employment Agreement – B. Bielak |
20. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel (each, a “Modification”) the PSUs, prospectively or retroactively; provided, that, no such Modification shall materially and adversely affect the Grantee's rights under this Agreement without the Grantee's consent.
21. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
22. No Impact on Other Benefits. The value of the Grantee's PSUs is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
24. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the PSUs subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the PSUs or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
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Executive Employment Agreement – B. Bielak |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
iSpecimen Inc. | ||
By: | ||
Name: | ||
Title: | ||
Benjamin Bielak |
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Executive Employment Agreement – B. Bielak |
Exhibit 1
Performance Measures
25% of the PSUs shall be earned for the first Performance Period if the Company exceeds $13.5M in revenue for the year ended December 31, 2021, with a maximum of 50% cost of revenue.
25% of the PSUs shall be earned for the second Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2022.
25% of the PSUs shall be earned for the third Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2023.
25% of the PSUs shall be earned for the fourth Performance Period if the Company exceeds the revenue and cost of revenue targets to be established by the Board for the year ended December 31, 2024.
The revenue and cost of revenue targets for 2022, 2023 and 2024 will be established by the Board at the last calendar year meeting of the Board preceding such year.
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Executive Employment Agreement – B. Bielak |
Exhibit D
iSpecimen Inc.
NONCOMPETITION, NONSOLICITATION, NONDISCLOSURE AND INVENTIONS AGREEMENT
The undersigned, Benjamin Bielak, in consideration for and as a condition of employment as a senior executive officer (the “Executive”) of iSpecimen Inc. (the “Company”), or for receiving stock or options, or any other form of compensation, salary, bonus, benefit or fringe benefits from or in the Company, and in connection with executing an Employment Agreement with the Company, hereby agrees with the Company as follows:
1. Noncompetition Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship for Just Cause (as defined in the Executive’s Employment Agreement) or by reason of Executive’s resignation from service, Executive will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of the Company, compete with the Company’s Business, as it is constituted on the date of termination of Executive’s relationship with the Company, in the geographic areas where the Executive provided services to the geographic areas in which the employee provided services or had a material presence or influence during the two (2) year period preceding the end of such Executive’s employment, without the Company’s prior written consent. The parties agree that nature and scope of Executive’s service relationship to the Company requires that the Executive have a material presence and influence in all geographic locations in which the Company conducts business activities and markets its good and services, including, but not limited to, the entirety of the United States. Accordingly, the parties acknowledge that the geographic scope of the non-competition restrictions set forth in this section 1 includes, at least, the entire United States.
For purpose of this Section 1, the “Company’s Business” shall mean: the development, sales, marketing, distribution and commercial exploitation of products or services, including software and web-based applications and products that link electronic medical records and clinical laboratory specimens (the “Proprietary Technology”), for the collection of biospecimens from hospitals, clinical laboratories, and similar institutions (the “Partners”) primarily for distribution and sale to research organizations, academic institutions, government facilities, biopharmaceutical, and diagnostic companies and similar organizations and entities (the “Customers”).
The restrictions set forth in this Section 1 shall not take effect until ten (10) business days after the Effective Date of this Agreement (the “Noncompete Effective Date”). Executive acknowledges and agrees that the Company provided Executive with notice of the restrictions set forth in Section 1 at least ten (10) business days before the Noncompete Effective Date.
Executive also acknowledges that Executive has been informed, pursuant to Mass. Gen. L. c. 149, § 24L (the “Act”), that Executive has the right to consult with an attorney before signing this Agreement.
In exchange for the promises contained in this Section 1: the Company, subject to the approval of its Board of Directors where applicable, shall grant the Executive the Equity Award described in paragraph 2(E) of the Executive Employment Agreement (the “Consideration Payment”), which the parties hereto agree is “mutually-agreed upon consideration” as defined in the Act.
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Executive Employment Agreement – B. Bielak |
2. Non-solicitation Covenant. During the period of service relationship with the Company and for the one (1) year period following the termination of such service relationship (for any reason) (the “Restricted Period”), the Executive will not directly or indirectly either for herself or for any other commercial enterprise, solicit, divert or take away or attempt to solicit, divert or take away, any of the Company’s Customers, business or prospective Customers in existence at the time of termination of such employment for the benefit of any enterprise which may be competitive to the Business of the Company, whether directly or indirectly. For purposes of this Agreement, “prospective Customers” shall include those customers being solicited by the Company at the time of the Executive’s termination. During such employment with the Company and for a period of one (1) year thereafter, the Executive will not solicit or discuss with any employee, advisor or consultant of the Company the recruitment, employment or engagement of such Company employee, advisor or consultant by any enterprise, and whether or not such enterprise is competitive to the Business of the Company, nor recruit, or attempt to recruit, any such Company employee, advisor or consultant other than on behalf of the Company.
The Executive agrees that for the Restricted Period, the Executive will not solicit, encourage, or induce, or cause to be solicited, encouraged or induced, directly or indirectly, any Customer, vendor, supplier or contractor who conducted business with the Company at any time during the one-year period preceding the termination of the Executive’s relationship with the Company, to terminate or adversely modify any business relationship with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall the Executive otherwise interfere with any business relationship between the Company and any such entity described herein.
3. Nondisclosure Obligation. The Executive will not at any time, whether during or after the termination of employment, for any reason whatsoever (other than to promote and advance the Company’s Business), reveal to any person or entity (both commercial and non-commercial) any of the trade secrets or confidential business information concerning the Company or the trade secrets or confidential business information of third parties subject to a duty of confidentiality on the part of the Company, including without limitation: development activities; prototypes and technical specifications; show-how and know-how; marketing plans and strategies; pricing and costing policies; Customer, Partner and supplier lists and accounts; or nonpublic financial information so far as they have come or may come to the Executive’s knowledge, except as may be required in the ordinary course of performing her duties as an executive of the Company. This restriction shall not apply to: (i) information that may be disclosed generally or is in the public domain through no fault of the Executive; (ii) information received from a third party outside the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed. The Executive shall keep secret all matters of such nature entrusted to her and shall not use or disclose any such information for the benefit of any third party in any manner which may injure or cause loss to the Company, whether directly or indirectly.
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Executive Employment Agreement – B. Bielak |
4. Assignment of Inventions. The Executive expressly understands and agrees that any and all right or interest she obtains in any designs, research, copyrights, trade secrets, technical specifications, software programs, software and systems documentation, game designs and prototypes, flowcharts, logic diagrams, software methodologies and algorithms, technical data, know-how and show-how, internal reports and memoranda, Customer, Partner and vendor lists, marketing plans, pricing policies, inventions, concepts, ideas, expressions, discoveries, improvements and patent or patent rights which are authored, conceived, devised, developed, reduced to practice, or otherwise obtained by Executive during the term of this Agreement which relate to or arise out of Executive’s employment with the Company are expressly regarded as “works for hire” (the “Work Product”). The Executive hereby assigns to the Company the sole and exclusive right to such Work Product. The Executive agrees that she will promptly disclose to the Company any and all such Work Product, and that, upon request of the Company, the Executive will execute and deliver any and all documents or instruments and take any other action which the Company shall deem necessary to assign to and vest completely in the Company, to perfect trademark, copyright and patent protection with respect to, or to otherwise protect the Company’s trade secrets and proprietary interest in such Work Product. The obligations of this Section shall continue beyond the termination of the Executive’s employment with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during the term of this Agreement. The Company agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by the Executive for any assistance rendered to the Company pursuant to this Section.
In the event the Company is unable, after reasonable effort, to secure Executive’s signature on any letters patents, copyright or other analogous protection relating to the Work Product, whether because of Executive’s physical or mental incapacity or for any other reason whatsoever, Executive hereby irrevocably designates and appoints the Company and its duly authorized officer and agent as Executive’s agent and attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and irrevocable and shall survive Executive’s death or incapacity), to act for and in Executive’s behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letter patent, copyright or other analogous protection thereon with the same legal force and effect as if executed by Executive. The obligations of this Section shall continue beyond the termination of the Executive’s employment with the Company with respect to such Work Product conceived of, reduced to practice, or developed by the Executive during Executive’s tenure with the Company. “Work Product” will not include any business knowledge, skills and experience of the Executive that would not otherwise constitute a trade secret of the Company under applicable law. The Executive agrees to keep adequate and current written records of all Work Product made by Executive (solely or jointly with others). The records will be in form of notes, memoranda, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.
5. Remedies Upon Breach. The Executive agrees that any breach of this Agreement by the Executive could cause irreparable damage to the Company. The Company shall have, in addition to any and all remedies of law, the right to an injunction or other equitable relief to prevent any violation of the Executive’s obligations hereunder, and without the necessity of posting a bond. In the event of any enforcement of this Agreement, or of any breach, the party who does not prevail shall reimburse the counterparty for such counterparty’s cost and expenses of enforcement, including attorneys’ fees and expenses. The Executive acknowledges and agrees that the enforcement of this Agreement is necessary to ensure the preservation, protection and continuity of the confidential business information, trade secrets, business reputation and goodwill of the Company.
6. Defend Trade Secrets act Notice. Notwithstanding any provision in this Agreement, the Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (A) files any document containing the trade secret under seal, and (B) does not disclose the trade secret, except pursuant to a court order.
iSpecimen Inc. | -27- | |
Executive Employment Agreement – B. Bielak |
7. Miscellaneous. The obligations of the Executive under this Agreement shall survive the termination of the Executive’s relationship with the Company regardless of the manner of such termination. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, and notwithstanding and excepting its conflicts of laws principles. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject matter so as to be unenforceable at law, such provision(s) shall be construed and reformed by the appropriate judicial body by limiting and reducing it (or them), so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. If the Executive violates the provisions of any of Sections 1-4 inclusive, the Executive shall continue to be bound by the restrictions set forth in such sections until a period of the later of one (1) year or for the duration that the restrictive period has run its course without any violation of such provisions. During the term of this Agreement and following any termination, no party shall make or publish any negative or derogatory remarks concerning the other party (or the case of the Company, any remarks concerning its business, operations, Customers, Partners, strategic relationships, products and services, software, or its directors, officers, employees, personnel, stockholders, agents or representatives). The Executive understands that this Agreement does not create an obligation on the part of the Company to continue the Executive’s employment with the Company, and the Executive acknowledges that he or she is employed “at will.” The Agreement may be executed and delivered in counterparts, and by digital signature, facsimile signature or other similar evidence of execution, and this Agreement may be delivered and executed by electronic or facsimile transmission, portable document format, hand delivery, overnight courier service, first class mail (postage prepaid), or any other commercial means.
8. Arbitration. Any controversy, dispute, claim or breach arising out of or relating to this Agreement shall be submitted for settlement to an arbitrator agreed upon by the parties. The principles of Arbitration set forth in the Executive Employment Agreement shall apply to any controversy, dispute, claim or breach arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the undersigned Executive and the Company have executed this Noncompetition, Nonsolicitation, Nondisclosure and Inventions Agreement as of this _____ day of ___________, 2021.
iSpecimen Inc. | Executive: Benjamin Bielak | ||
By: | |||
Signature of Executive |
Title: | ||
Dated: _____, 2021 |
iSpecimen Inc. | -28- | |
Executive Employment Agreement – B. Bielak |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Registration Statement on Form S-1 of iSpecimen Inc. of our report dated April 2, 2021 relating to the financial statements of iSpecimen Inc., appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading "Experts" in such Prospectus.
Wolf & Company, P.C.
Boston, Massachusetts
April 2, 2021
Exhibit 99.4
Consent to be Named as a Director Nominee
In connection with the filing by iSpecimen Inc. of the Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of iSpecimen Inc. in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: March 30, 2021
/s/ John L. Brooks III | |
Name: John L. Brooks III |
Exhibit 99.5
Consent to be Named as a Director Nominee
In connection with the filing by iSpecimen Inc. of the Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of iSpecimen Inc. in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: March 30, 2021
/s/ Margaret H. Lawrence | |
Name: Margaret H. Lawrence |
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