Delaware
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3841
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11-3713499
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
|
David S. Rosenthal, Esq.
Dechert LLP
1095 Avenue of Americas
New York, New York 10036
(212) 698-3616
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| |
Kristopher D. Brown, Esq.
Thomas S. Levato, Esq.
Goodwin Procter LLP
620 Eighth Avenue
New York, New York 10018
(212) 813-8800
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☒
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Title of Each Class of Securities
To Be Registered
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Proposed Maximum
Aggregate Offering Price
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| |
Amount of
Registration Fee(1)(2)
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Common Stock, $0.001 par value per share
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| |
$40,250,000
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| |
$4,391.28
|
(1)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
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(2)
|
Includes the offering price of shares that the underwriters have an option to purchase.
|
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Per Share
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| |
Total
|
Public offering price
|
| |
$
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| |
$
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Underwriting discount(1)
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$
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$
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Proceeds, before expenses, to us
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$
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$
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(1)
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See “Underwriting” for additional information regarding underwriting discounts and commissions and estimated offering expenses
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Chardan
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JonesTrading
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Page
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•
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Address unmet clinical needs in multiple large markets for women.
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•
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Execute on our clinical program to achieve FDA approval to advance our FemBloc system for use together with our FemChec occlusion confirmation device as the preferred option for permanent birth control for women.
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•
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Execute on our clinical program to achieve FDA grant of a de novo classification request to advance our FemaSeed system for use together with our FemVue saline-air device as the preferred option for artificial insemination.
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•
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Continuously innovate to introduce additional product offerings for women.
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•
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Penetrate the addressable markets by promoting patient and practice awareness.
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•
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Build a commercialization infrastructure with a specialized direct sales and marketing team.
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•
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Expand gynecologists’ practice capabilities by diversifying products and services to include artificial insemination with FemaSeed.
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•
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We have incurred significant operating losses since inception, we expect to incur operating losses in the future and we may not be able to achieve or sustain profitability. We have limited history operating as a commercial company.
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•
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The FDA may not allow us to continue the pivotal trial for FemBloc due to safety concerns.
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•
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Our current product candidates are in various stages of development. Our product candidates may fail in development or suffer delays that adversely affect their commercial viability. If we fail to obtain or maintain U.S. Food and Drug Administration approval to market and sell our FemBloc or a granted de novo classification of FemaSeed, or if such approval or de novo classification is delayed, our business will be materially harmed.
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•
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The process to conduct clinical trials that may be necessary to obtain regulatory approval, grant of a de novo classification, or 510(k) clearance is lengthy and expensive with uncertain outcomes, and our data developed in those clinical trials is subject to interpretation by FDA and foreign regulatory authorities. If clinical trials of our current FemBloc system, FemaSeed system and future products do not produce results necessary to support regulatory approval, de novo classification, or clearance in the United States or, with respect to our current or future products, elsewhere, we will be unable to commercialize these products and may incur additional costs or experience delays in completing, or ultimately be unable to complete, the commercialization of those products.
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•
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We will require substantial additional capital to finance our planned operations, which may not be available to us on acceptable terms or at all. As a result, we may not be able to implement our planned sales and marketing program to commercialize our products.
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•
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We have derived minimal revenue from our operations and incurred significant operating losses since inception, we expect to incur operating losses in the future, and we may not be able to achieve or sustain profitability.
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•
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There is a substantial doubt about our ability to continue as a going concern.
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•
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We have limited experience marketing and selling our devices, and if we are unable to establish, manage and maintain sales and marketing capabilities, we will be unable to successfully commercialize our FemBloc system or our FemaSeed system, or generate product revenue.
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•
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We will need to grow the size of our organization, and we may experience difficulties in managing this growth.
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•
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We face risks related to health epidemics and outbreaks, including the COVID-19 pandemic which has impacted our ability to enroll trial patients and conduct our clinical trials, and therefore our receipt of necessary regulatory approvals, clearances or grants could be delayed or prevented.
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•
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Our products and operations are subject to extensive government regulation and oversight both in the United States and internationally, and our failure to comply with applicable requirements could harm our business.
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•
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If we are unable to achieve and maintain adequate levels of coverage or reimbursement for our FemBloc system, or any current or future products we seek to commercialize, our commercial success may be severely hindered.
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•
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If we are unable to maintain, obtain or adequately protect our intellectual property rights, we may not be able to compete effectively in our market or we could be required to incur significant expenses to enforce or defend our rights or attempt to do the same.
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•
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Our operating results may fluctuate significantly, which makes our future operating results difficult to predict and could cause our operating results to fall below expectations or our guidance.
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•
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being permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations in this prospectus;
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•
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not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
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•
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reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
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•
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exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
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•
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6,663,750 shares of our common stock issuable upon the exercise of options outstanding as of March 31, 2021, at a weighted-average exercise price of $0.39 per share;
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•
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10,000,000 shares of our common stock that are available for future issuance under our 2021 Equity Incentive Plan, or our 2021 Plan, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as any shares of our common stock that become available pursuant to provisions in the 2021 Plan pursuant to which additional shares may become available for issuance under the 2021 Plan;
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•
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2,201,116 shares of our common stock issuable upon the exercise of warrants to purchase shares of our convertible preferred stock outstanding as of March 31, 2021, which will convert into warrants to purchase shares of our common stock immediately prior to the closing of this offering, at a weighted average exercise price of $1.41 per share; and
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•
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1,500,000 shares of our common stock reserved for future issuance under our 2021 Employee Stock Purchase Plan, or ESPP, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as shares of our common stock that become available pursuant to provisions in our ESPP that automatically increase the common stock reserve under the ESPP.
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•
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assumes a for - reverse stock split effected on ;
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•
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assumes no exercise by the underwriters of their option to purchase up to an additional shares of our common stock;
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•
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gives effect to the automatic conversion upon the completion of this offering of all of our warrants to purchase convertible preferred stock into warrants to purchase shares of common stock;
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•
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gives effect to the automatic conversion upon the completion of this offering of all of our convertible preferred stock into an aggregate of 73,046,442 shares of common stock; and
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•
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gives effect to the filing and effectiveness of our amended and restated certificate of incorporation and the adoption of our amended and restated bylaws immediately prior to the completion of this offering.
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Years Ended December 31
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Three Months Ended March 31
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||||||
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2020
|
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2019
|
| |
2021
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2020
|
|
| |
|
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|
| |
(unaudited)
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|||
Statement of Comprehensive Loss Data:
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| |
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|
| |
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| |
|
Sales
|
| |
$1,037,918
|
| |
$929,064
|
| |
$329,775
|
| |
$260,512
|
Cost of sales
|
| |
306,533
|
| |
223,678
|
| |
93,042
|
| |
73,188
|
Gross margin
|
| |
731,385
|
| |
705,386
|
| |
236,733
|
| |
187,324
|
Operating expenses:
|
| |
|
| |
|
| |
|
| |
|
Research and development
|
| |
4,130,613
|
| |
6,914,179
|
| |
995,022
|
| |
1,350,701
|
Sales and marketing
|
| |
310,219
|
| |
1,503,784
|
| |
22,819
|
| |
237,189
|
General and administrative
|
| |
2,544,043
|
| |
3,298,829
|
| |
891,987
|
| |
650,192
|
Depreciation and amortization
|
| |
679,653
|
| |
625,778
|
| |
153,453
|
| |
169.410
|
Total operating expenses
|
| |
7,664,528
|
| |
12,342,570
|
| |
2,063,281
|
| |
2,407,492
|
Loss from operations
|
| |
(6,933,143)
|
| |
(11,637,184)
|
| |
(1,826,548)
|
| |
(2,220,168)
|
Other income (expense):
|
| |
|
| |
|
| |
|
| |
|
Interest income, net
|
| |
22,504
|
| |
287,537
|
| |
164
|
| |
20,336
|
Other income
|
| |
10,000
|
| |
93,000
|
| |
—
|
| |
—
|
Other expense
|
| |
—
|
| |
(2,323)
|
| |
—
|
| |
—
|
Interest expense
|
| |
(12,553)
|
| |
(9,972)
|
| |
(3,848)
|
| |
(1,895)
|
Total other income (expense)
|
| |
19,951
|
| |
368,242
|
| |
(3,684)
|
| |
18,441
|
Loss before income taxes
|
| |
(6,913,192)
|
| |
(11,268,942)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Income tax expense
|
| |
1,800
|
| |
3,006
|
| |
—
|
| |
—
|
Net loss
|
| |
$(6,914,992)
|
| |
$(11,271,948)
|
| |
$(1,830,232)
|
| |
$(2,201,727)
|
Comprehensive loss:
|
| |
|
| |
|
| |
|
| |
|
Net loss
|
| |
$(6,914,992)
|
| |
$(11,271,948)
|
| |
$(1,830,232)
|
| |
$(2,201,727)
|
Change in fair value of available for sale investments
|
| |
(20)
|
| |
4,783
|
| |
—
|
| |
(20)
|
Total comprehensive loss
|
| |
$(6,915,012)
|
| |
$(11,267,165)
|
| |
$(1,830,232)
|
| |
$(2,201,747)
|
Net loss attributable to common stockholders, basic and diluted
|
| |
$(6,914,992)
|
| |
$(11,271,948)
|
| |
$(1,830,232)
|
| |
$(2,201,727)
|
Net loss per share attributable to common stockholders, basic and diluted
|
| |
$(0.80)
|
| |
$(1.33)
|
| |
$(0.20)
|
| |
$(0.26)
|
Weighted-average shares used in computing net loss per share attributable to common stockholders, basic and diluted
|
| |
8,638,755
|
| |
8,459,588
|
| |
8,956,255
|
| |
8,597,505
|
|
| |
|
| |
|
| |
|
| |
|
|
| |
Years Ended December 31
|
| |
Three Months Ended March 31
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Pro forma net loss per share, basic and diluted (unaudited)(1)
|
| |
$
|
| |
$
|
| |
$
|
| |
$
|
Weighted average shares of common stock outstanding used to compute pro forma net loss per share, basic and diluted (unaudited)(1)
|
| |
|
| |
|
|
(1)
|
See note 12 to our audited financial statements included elsewhere in this prospectus for an explanation of the method used to calculate our historical basic and diluted net loss per share.
|
|
| |
As of March 31, 2021
(unaudited)
|
||||||
|
| |
Actual
|
| |
Pro Forma(1)
|
| |
Pro Forma
As Adjusted(2)
|
Balance Sheet Data:
|
| |
|
| |
|
| |
|
Cash and cash equivalents
|
| |
$2,016,553
|
| |
$2,016,553
|
| |
|
Working capital(3)
|
| |
(1,409,730)
|
| |
(1,409,730)
|
| |
|
Total assets
|
| |
6,686,186
|
| |
6,686,186
|
| |
|
Total liabilities
|
| |
4,905,920
|
| |
4,905,920
|
| |
|
Total redeemable convertible preferred stock
|
| |
55,343,686
|
| |
—
|
| |
|
Total stockholders' deficit
|
| |
(53,563,420)
|
| |
1,780,226
|
| |
|
(1)
|
Pro forma amounts reflect the automatic conversion of all outstanding convertible preferred stock into 73,046,442 shares of our common stock immediately prior to the closing of this offering.
|
(2)
|
The pro forma as adjusted amounts give effect to (i) the pro forma adjustments set forth in footnote (1) and (ii) the issuance and sale by us of shares of our common stock in this offering at an initial public offering price of $ per share, after deducting the underwriting discounts and commissions and estimated expenses payable by us.
|
(3)
|
We define working capital as current assets less current liabilities. See our financial statements and the related notes included elsewhere in this prospectus for further details regarding our current assets and current liabilities.
|
•
|
the initiation, scope, rate of enrollment, progress, success and cost of our current or future clinical trials;
|
•
|
the cost of our research and development activities;
|
•
|
the acceptance of our clinical trial data by the FDA or foreign regulatory authorities;
|
•
|
patient, physician and market acceptance of our permanent birth control system, intrauterine insemination system and women-specific medical products;
|
•
|
the cost of filing and prosecuting patent applications and defending and enforcing our patent or other intellectual property rights;
|
•
|
the cost of defending, in litigation or otherwise, any claims that we infringe third-party patents or other intellectual property rights;
|
•
|
the cost and timing of additional regulatory clearances, de novo grants or approvals;
|
•
|
the cost and timing of establishing additional sales and marketing capabilities;
|
•
|
costs associated with any product recall that may occur;
|
•
|
the effect of competing technological and market developments;
|
•
|
the extent to which we acquire or invest in products, technologies and businesses, although we currently have no commitments or agreements relating to any of these types of transactions; and
|
•
|
the costs of operating as a public company.
|
•
|
patient and physician adoption of our FemBloc system, if approved to market;
|
•
|
patient and physician adoption of our FemaSeed system, if granted de novo classification;
|
•
|
changes in coverage policies by third-party payors that affect the reimbursement of procedures using our products;
|
•
|
unanticipated pricing pressure;
|
•
|
the hiring, retention and continued productivity of our sales representatives;
|
•
|
our ability to expand the geographic reach of our sales and marketing efforts;
|
•
|
our ability to obtain regulatory clearance or approval for any products in development or for our current products for additional indications or in additional countries outside the United States;
|
•
|
results of clinical research and trials on our existing products and products in development;
|
•
|
delays in receipt of anticipated purchase orders;
|
•
|
delays in, or failure of, component and raw material deliveries by our suppliers; and
|
•
|
positive or negative coverage in the media or clinical publications of our products or products of our competitors or our industry.
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•
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we may not be able to demonstrate to the FDA's satisfaction that our product is safe and effective for its intended use;
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•
|
the FDA may disagree that our clinical data supports the label and use that we are seeking;
|
•
|
the FDA may disagree that the data from our preclinical studies and clinical trials is sufficient to support marketing authorization; and
|
•
|
the manufacturing process and facilities we use may not meet applicable requirements.
|
•
|
we are required to submit an IDE application to FDA, which must become effective prior to commencing human clinical trials, and FDA may reject our IDE application and notify us that we may not begin investigational trials;
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•
|
regulators and other comparable foreign regulatory authorities may disagree as to the design or implementation of our clinical trials;
|
•
|
regulators and/or IRBs or other reviewing bodies may not authorize us or our investigators to commence a clinical trial, or to conduct or continue a clinical trial at a prospective or specific trial site;
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•
|
we may not reach agreement on acceptable terms with prospective contract research organizations, or CROs, and clinical trial sites, the terms of which can be subject to extensive negotiation and may vary significantly among different CROs and trial sites;
|
•
|
clinical trials may produce negative or inconclusive results, or we may not agree with regulatory authorities on the interpretation of our clinical trial results, and we may decide, or regulators may require us, to conduct additional clinical trials or abandon product development programs;
|
•
|
the number of subjects or patients required for clinical trials may be larger than we anticipate, enrollment in these clinical trials may be insufficient or slower than we anticipate, and the number of clinical trials being conducted at any given time may be high and result in fewer available patients for any given clinical trial, or patients may drop out of these clinical trials at a higher rate than we anticipate;
|
•
|
our third-party contractors, may fail to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at all;
|
•
|
we might have to suspend or terminate clinical trials for various reasons, including a finding that the subjects are being exposed to unacceptable health risks;
|
•
|
we may have to amend clinical trial protocols or conduct additional studies to reflect changes in regulatory requirements or guidance, which we may be required to submit to an IRB and/or regulatory authorities for re-examination;
|
•
|
regulators, IRBs, or other parties may require or recommend that we or our investigators suspend or terminate clinical research for various reasons, including safety signals or noncompliance with regulatory requirements;
|
•
|
the cost of clinical trials may be greater than we anticipate;
|
•
|
clinical sites may not adhere to the clinical protocol or may drop out of a clinical trial;
|
•
|
we may be unable to recruit a sufficient number of clinical trial sites or trial subjects;
|
•
|
regulators, IRBs, or other reviewing bodies may fail to approve or subsequently find fault with our manufacturing processes for clinical and commercial supplies, the supply of devices or other materials necessary to conduct clinical trials may be insufficient, inadequate or not available at an acceptable cost, or we may experience interruptions in supply;
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•
|
approval policies or regulations of FDA or applicable foreign regulatory authorities may change in a manner rendering our clinical data insufficient for approval; and
|
•
|
our current or future products may have undesirable side effects or other unexpected characteristics.
|
•
|
lack of availability of adequate third-party payor coverage or reimbursement;
|
•
|
lack of experience with our products and with permanent birth control and sonography as treatment alternatives;
|
•
|
our inability to convince key opinion leaders to provide recommendations regarding our permanent birth control solution, or to convince physicians, patients and healthcare payors that our permanent birth control solution is an attractive alternative to surgical tubal ligation or other contraception options;
|
•
|
perceived inadequacy of evidence supporting clinical benefits, safety or cost-effectiveness of our permanent birth control solution over existing alternatives;
|
•
|
liability risks generally associated with the use of new products and procedures; and
|
•
|
the training required to use new products.
|
•
|
we may not be able to demonstrate to the FDA's satisfaction that general controls, or general and special controls, are sufficient to provide reasonable assurance of safety and effectiveness of our product for its intended use;
|
•
|
the FDA may disagree that the probable benefits of the device outweigh the probable risks; and
|
•
|
the FDA may disagree that the data from our manufacturing activities, preclinical studies and clinical trial are sufficient to support de novo classification.
|
•
|
lack of experience with our products and with intrauterine insemination and sonography as treatment alternatives;
|
•
|
our inability to convince key opinion leaders to provide recommendations regarding our artificial insemination solution, or to convince physicians and patients that our localized intrauterine insemination product is an attractive alternative to other intrauterine insemination options;
|
•
|
perceived inadequacy of evidence supporting clinical benefits, safety or cost effectiveness of our intrauterine insemination product over existing alternatives;
|
•
|
liability risks generally associated with the use of new products and procedures; and
|
•
|
the training required to use new products.
|
•
|
greater company, product and brand recognition;
|
•
|
superior product safety, reliability and durability;
|
•
|
better quality and larger volume of clinical data;
|
•
|
more effective marketing to and education of patients and physicians;
|
•
|
more sales force experience and greater market access;
|
•
|
better product support and service;
|
•
|
more advanced technological innovation, product enhancements and speed of innovation;
|
•
|
more effective pricing and revenue strategies;
|
•
|
lower procedure costs to patients;
|
•
|
more effective reimbursement teams and strategies;
|
•
|
dedicated practice development; and
|
•
|
more effective clinical training teams.
|
•
|
properly identify and anticipate physician and patient needs;
|
•
|
develop and introduce new products and product enhancements in a timely manner;
|
•
|
avoid infringing upon the intellectual property rights of third-parties;
|
•
|
demonstrate, if required, the safety and effectiveness of new products with data from preclinical studies and clinical trials;
|
•
|
obtain the necessary regulatory clearances, grants or approvals for expanded indications, new products or product modifications;
|
•
|
be fully FDA-compliant with marketing of new products or modified products;
|
•
|
provide adequate training to potential users of our products;
|
•
|
receive adequate coverage and reimbursement for procedures performed with our products; and
|
•
|
develop an effective and dedicated sales and marketing team.
|
•
|
difficulties in securing distribution partnerships and managing our international relationships;
|
•
|
increased competition as a result of more products and procedures receiving regulatory approval or otherwise free to market in international markets;
|
•
|
longer accounts receivable payment cycles and difficulties in collecting accounts receivable;
|
•
|
reduced or varied protection for intellectual property rights in some countries;
|
•
|
export restrictions, trade regulations, and foreign tax laws;
|
•
|
fluctuations in currency exchange rates;
|
•
|
foreign certification and regulatory clearance or approval requirements;
|
•
|
customs clearance and shipping delays;
|
•
|
political, social, and economic instability abroad, terrorist attacks, and security concerns in general;
|
•
|
preference for locally produced products;
|
•
|
potentially adverse tax consequences, including the complexities of foreign value-added tax systems;
|
•
|
the burdens of complying with a wide variety of foreign laws and different legal standards; and
|
•
|
increased financial accounting and reporting burdens and complexities.
|
•
|
costs of litigation;
|
•
|
distraction of management's attention from our primary business;
|
•
|
the inability to commercialize our current and future products;
|
•
|
decreased demand for our current and future products;
|
•
|
damage to our business reputation;
|
•
|
product recalls or withdrawals from the market;
|
•
|
withdrawal of clinical trial participants;
|
•
|
substantial monetary awards to patients or other claimants; or
|
•
|
loss of sales.
|
•
|
identifying, recruiting, integrating, maintaining and motivating additional employees;
|
•
|
managing our internal development efforts effectively, including the clinical and FDA application preparation for our product candidates, while complying with our contractual obligations to contractors and other third parties; and
|
•
|
improving our operational, financial and management controls, reporting systems and procedures.
|
•
|
our inability to demonstrate to the satisfaction of the FDA or the applicable regulatory entity or notified body that our products are safe or effective for their intended uses or, for a 510(k) device, that they are substantially equivalent to the predicate;
|
•
|
the disagreement of the FDA or the applicable foreign regulatory body with the design or implementation of our clinical trials or the interpretation of data from preclinical studies or clinical trials;
|
•
|
serious and unexpected adverse device effects experienced by participants in our clinical trials;
|
•
|
the data from our preclinical studies and clinical trials may be insufficient to support approval, de novo classification or clearance where required;
|
•
|
our inability to demonstrate that the clinical and other benefits of the device outweigh the risks;
|
•
|
the manufacturing process or facilities we use may not meet applicable requirements; and
|
•
|
the potential for approval policies or regulations of the FDA or applicable foreign regulatory bodies to change significantly in a manner rendering our clinical data or regulatory filings insufficient for approval, de novo classification or clearance.
|
•
|
untitled letters or warning letters;
|
•
|
fines, injunctions, consent decrees and civil penalties;
|
•
|
recalls, termination of distribution, administrative detention, or seizure of our products;
|
•
|
customer notifications or repair, replacement or refunds;
|
•
|
operating restrictions or partial suspension or total shutdown of production;
|
•
|
delays in or refusal to grant our requests for future PMA approvals or foreign regulatory approvals of new products, new intended uses, or modifications to existing products;
|
•
|
withdrawals or suspensions of our current PMA or foreign regulatory approvals, resulting in prohibitions on sales of our products;
|
•
|
FDA refusal to issue certificates to foreign governments needed to export products for sale in other countries; and
|
•
|
criminal prosecution.
|
•
|
strengthen the rules on placing devices on the market and reinforce surveillance once they are available;
|
•
|
establish explicit provisions on manufacturers' responsibilities for the follow-up of the quality, performance and safety of devices placed on the market;
|
•
|
improve the traceability of medical devices throughout the supply chain to the end-user or patient through a unique identification number;
|
•
|
set up a central database to provide patients, healthcare professionals and the public with comprehensive information on products available in the EU;
|
•
|
strengthen rules for the assessment of certain high-risk devices, such as implants, which may have to undergo an additional check by experts before they are placed on the market.
|
•
|
the federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce either the referral of an individual or furnishing or arranging for a good or service, for which payment may be made, in whole or in part, under federal healthcare programs, such as Medicare and Medicaid. A person or entity does not need to have actual knowledge of the statute or specific intent to violate it to have committed a violation. The U.S. government has interpreted this law broadly to apply to the marketing and sales activities of manufacturers. Moreover, the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal civil False Claims Act. Violations of the federal Anti-Kickback Statute may result in civil monetary penalties. Civil penalties
|
•
|
the federal civil and criminal false claims laws and civil monetary penalties laws, including the federal civil False Claims Act, which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid or other federal healthcare programs that are false or fraudulent. These laws can apply to manufacturers who provide information on coverage, coding, and reimbursement of their products to persons who bill third-party payers. Private individuals can bring False Claims Act “qui tam” actions, on behalf of the government and such individuals, commonly known as “whistleblowers,” may share in amounts paid by the entity to the government in fines or settlement. When an entity is determined to have violated the federal civil False Claims Act, the government may impose civil fines and penalties, and exclude the entity from participation in Medicare, Medicaid and other federal healthcare programs;
|
•
|
the federal Civil Monetary Penalties Law, which prohibits, among other things, offering or transferring remuneration to a federal healthcare beneficiary that a person knows or should know is likely to influence the beneficiary's decision to order or receive items or services reimbursable by the government from a particular provider or supplier;
|
•
|
the Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created additional federal criminal statutes that prohibit, among other things, executing a scheme to defraud any healthcare benefit program and making false statements relating to healthcare matters. Similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of the statute or specific intent to violate it to have committed a violation;
|
•
|
the federal Physician Sunshine Act under the ACA, which require certain applicable manufacturers of drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid or the Children's Health Insurance Program, or CHIP, to report annually to the DHHS Centers for Medicare and Medicaid Services, or CMS, information related to payments and other transfers of value to physicians, which is defined broadly to include other healthcare providers and teaching hospitals, and applicable manufacturers and group purchasing organizations, to report annually ownership and investment interests held by physicians and their immediate family members. Applicable manufacturers are required to submit annual reports to CMS. Failure to submit required information may result in civil monetary penalties for all payments, transfers of value or ownership or investment interests that are not timely, accurately, and completely reported in an annual submission, and may result in liability under other federal laws or regulations. We have not, to date, submitted reports under the Physician Sunshine Act under the ACA;
|
•
|
HIPAA, as amended by the HITECH Act, and their respective implementing regulations, which impose requirements on certain covered healthcare providers, health plans and healthcare clearinghouses as well as their business associates that perform services for them that involve individually identifiable health information, relating to the privacy, security and transmission of individually identifiable health information without appropriate authorization, including mandatory contractual terms as well as directly applicable privacy and security standards and requirements. Failure to comply with the HIPAA privacy and security standards can result in civil monetary penalties, and, in certain circumstances, criminal penalties. State attorneys general can also bring a civil action to enjoin a HIPAA violation or to obtain statutory damages on behalf of residents of his or her state;
|
•
|
analogous state and foreign law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or services reimbursed by any third-party payor, including commercial insurers or patients; state laws that require device companies to comply with the industry's voluntary compliance guidelines and the applicable compliance guidance promulgated by the
|
•
|
California recently enacted the California Consumer Privacy Act, or CCPA, which creates new individual privacy rights for California consumers (as defined in the law) and places increased privacy and security obligations on entities handling personal data of consumers or households. The CCPA will require covered companies to provide certain disclosures to consumers about its data collection, use and sharing practices, and to provide affected California residents with ways to opt-out of certain sales or transfers of personal information. The CCPA went into effect on January 1, 2020, and the California State Attorney General submitted final regulations for review on June 2, 2020, which were finalized and are now effective. The California State Attorney General has commenced enforcement actions against violators as of July 1, 2020. Further, a new California privacy law, the California Privacy Rights Act, or CPRA, was passed by California voters on November 3, 2020. The CPRA will create additional obligations with respect to processing and storing personal information that are scheduled to take effect on January 1, 2023 (with certain provisions having retroactive effect to January 1, 2022). We will continue to monitor developments related to the CPRA and anticipate additional costs and expenses associated with CPRA compliance. Other U.S. states also are considering omnibus privacy legislation and industry organizations regularly adopt and advocate for new standards in these areas. While the CCPA and CPRA contain an exception for certain activities involving PHI under HIPAA, we cannot yet determine the impact the CCPA, CPRA or other such future laws, regulations and standards may have on our business.
|
•
|
imposed an annual excise tax of 2.3% on any entity that manufactures or imports medical devices offered for sale in the United States, with limited exceptions (described in more detail below), although the effective rate paid may be lower. Through a series of legislative amendments, the tax was suspended for 2016 through 2019. Absent further legislative action, the device excise tax was to be reinstated on medical device sales starting January 1, 2020. The Further Consolidated Appropriations Act, 2020 H.R. 1865 (Pub.L.116-94), signed into law on December 20, 2019, has repealed the medical device excise tax previously imposed by Internal Revenue Code section 4191. Prior to the repeal, the
|
•
|
established a new Patient-Centered Outcomes Research Institute to oversee and identify priorities in comparative clinical efficacy research in an effort to coordinate and develop such research;
|
•
|
implemented payment system reforms including a national pilot program on payment bundling to encourage hospitals, physicians and other providers to improve the coordination, quality and efficiency of certain healthcare services through bundled payment models; and
|
•
|
expanded the eligibility criteria for Medicaid programs.
|
•
|
any of our patents, or any of our pending patent applications, if issued, will include claims having a scope sufficient to protect our FemBloc system and FemaSeed system;
|
•
|
any of our pending patent applications will issue as patents;
|
•
|
we will be able to successfully commercialize our products on a substantial scale, if approved, before our relevant patents we may have expire;
|
•
|
we were the first to make the inventions covered by each of our patents and pending patent applications;
|
•
|
we were the first to file patent applications for these inventions;
|
•
|
others will not develop similar or alternative technologies that do not infringe our patents; any of our patents will be found to ultimately be valid and enforceable;
|
•
|
any patents issued to us will provide a basis for an exclusive market for our commercially viable products, will provide us with any competitive advantages or will not be challenged by third parties;
|
•
|
we will develop additional proprietary technologies or products that are separately patentable; or
|
•
|
our commercial activities or products will not infringe upon the patents of others.
|
•
|
stop making, selling or using products or technologies that allegedly infringe the asserted intellectual property;
|
•
|
lose the opportunity to license our technology to others or to collect royalty payments based upon successful protection and assertion of our intellectual property rights against others; incur significant legal expenses;
|
•
|
pay substantial damages or royalties to the party whose intellectual property rights we may be found to be infringing;
|
•
|
pay the attorney's fees and costs of litigation to the party whose intellectual property rights we may be found to be infringing;
|
•
|
redesign those products that contain the allegedly infringing intellectual property, which could be costly, disruptive and infeasible; and
|
•
|
attempt to obtain a license to the relevant intellectual property from third parties, which may not be available on reasonable terms or at all, or from third parties who may attempt to license rights that they do not have.
|
•
|
being permitted to present only two years of audited financial statements and only two years of related Management’s discussion and analysis of financial condition and results of operations in this prospectus;
|
•
|
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act;
|
•
|
an exemption from compliance with any new requirements adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotations;
|
•
|
reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
|
•
|
exemptions from the requirement to hold a nonbinding advisory vote on executive compensation and to obtain stockholder approval of any golden parachute payments not previously approved.
|
•
|
a prohibition on actions by our stockholders by written consent;
|
•
|
advance notice requirements for election to our board of directors and for proposing matters that can be acted upon at stockholder meetings;
|
•
|
a requirement that directors may only be removed “for cause”;
|
•
|
a requirement that only the board of directors may change the number of directors and fill vacancies on the board;
|
•
|
division of our board of directors into three classes, serving staggered terms of three years each; and
|
•
|
the authority of the board of directors to issue preferred stock with such terms as the board of directors may determine.
|
•
|
announcements of regulatory approval or disapproval of our FemBloc system or the FDA’s decision to grant or decline the de novo request for our FemaSeed system and any future approvals or clearances for enhancements to our products;
|
•
|
adverse results from or delays in clinical trials of our FemBloc system and/ or FemaSeed system;
|
•
|
unanticipated safety concerns related to the use of our FemBloc system and/ or FemaSeed system;
|
•
|
FDA or other U.S. or foreign regulatory or legal actions or changes affecting us or our industry;
|
•
|
our ability to develop, obtain regulatory clearance or approval for, and market new and enhanced medical products on a timely basis;
|
•
|
any voluntary or mandated product recalls;
|
•
|
adverse developments concerning our suppliers or any future strategic partnerships;
|
•
|
the volume and timing of sales of our products;
|
•
|
the introduction of new products or product enhancements by us or others in our industry;
|
•
|
disputes or other developments with respect to our or others' intellectual property rights;
|
•
|
product liability claims or other litigation;
|
•
|
quarterly variations in our results of operations or those of others in our industry;
|
•
|
media exposure of our products or of those of others in our industry;
|
•
|
changes in governmental regulations or in reimbursement;
|
•
|
changes in earnings estimates or recommendations by securities analysts;
|
•
|
changes in financial estimates or guidance, including our ability to meet our future revenue and operating profit or loss estimates or guidance;
|
•
|
the public’s reaction to our earnings releases, other public announcements and filings with the SEC;
|
•
|
sales of substantial amounts of our stock by directors, officers or significant stockholders, or the expectation that such sales might occur;
|
•
|
operating and stock performance of other companies that investors deem comparable to us and overall performance of the equity markets;
|
•
|
additions or departures of key personnel;
|
•
|
changes in our capital structure, such as future issuances of securities and the incurrence of debt;
|
•
|
general market conditions and other factors, including factors unrelated to our operating performance or the operating performance of our competitors; and
|
•
|
other factors described in this “Risk Factors” section.
|
•
|
our ability to develop and advance our current product candidates and programs into, and successfully initiate and complete, clinical trials;
|
•
|
the ability of our clinical trials to demonstrate safety and effectiveness of our product candidates and other positive results;
|
•
|
estimates regarding the total addressable market for our product candidates;
|
•
|
competitive companies and technologies in our industry;
|
•
|
our ability to obtain FDA approval for our permanent birth control system, ability to gain FDA grant of a de novo classification request for our intrauterine insemination system, expand sales of our women-specific medical products and develop and commercialize additional products;
|
•
|
our ability to commercialize or obtain regulatory approvals, grants of de novo classification requests or 510(k) clearance for our product candidates, or the effect of delays in commercializing or obtaining regulatory authorizations;
|
•
|
our business model and strategic plans for our products, technologies and business, including our implementation thereof;
|
•
|
commercial success and market acceptance of our product candidates;
|
•
|
our ability to achieve and maintain adequate levels of coverage or reimbursement for our FemBloc system or any future products we may seek to commercialize;
|
•
|
our ability to manufacture our products and product candidates in compliance with applicable laws, regulations and requirements and to oversee third-party suppliers, service providers and vendors in the performance of any contracted activities in accordance with applicable laws, regulations and requirements;
|
•
|
the impact of the COVID-19 pandemic on our business, financial condition, results of operations, and prospects;
|
•
|
our ability to accurately forecast customer demand for our product candidates, and manage our inventory;
|
•
|
our ability to build, manage and maintain our direct sales and marketing organization, and to market and sell our permanent birth control system, artificial insemination system and women-specific medical products in markets in and outside of the United States;
|
•
|
our ability to hire and retain our senior management and other highly qualified personnel;
|
•
|
our ability to obtain additional financing in this or future offerings;
|
•
|
FDA or other U.S. or foreign regulatory actions affecting us or the healthcare industry generally, including healthcare reform measures in the United States and international markets;
|
•
|
the timing or likelihood of regulatory filings and approvals or clearances;
|
•
|
our ability to establish and maintain intellectual property protection for our product candidates and our ability to avoid claims of infringement;
|
•
|
the volatility of the trading price of our common stock;
|
•
|
our expectations regarding the use of proceeds from this offering; and
|
•
|
our expectations about market trends.
|
•
|
approximately $ million to fund the clinical development program for the FemBloc system through the stage of development;
|
•
|
approximately $ million to fund the clinical development program for the FemaSeed system through the stage of development;
|
•
|
approximately $ million to fund product development and research and development activities;
|
•
|
approximately $ million to hire additional personnel; and
|
•
|
the remainder for working capital and general corporate purposes.
|
•
|
on an actual basis;
|
•
|
on a pro forma basis to give effect to: (i) the automatic conversion of all outstanding shares of our convertible preferred stock into 73,046,442 shares of our common stock immediately prior to the closing of this offering and (ii) the effectiveness of our amended and restated certificate of incorporation; and
|
•
|
on a pro forma as adjusted basis to give further effect to our issuance and sale of shares of common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
|
|
| |
As of March 31, 2021
(unaudited)
|
||||||
|
| |
Actual
|
| |
Pro Forma(1)
|
| |
Pro Forma
As Adjusted(2)
|
Cash and cash equivalents
|
| |
$2,016,553
|
| |
$2,016,553
|
| |
$
|
Notes payable(3)
|
| |
$853,699
|
| |
$853,699
|
| |
$
|
Redeemable convertible preferred stock, Series B, par value $0.001 per share; 13,344,349 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted
|
| |
10,748,873
|
| |
—
|
| |
|
Redeemable convertible preferred stock, Series C, par value $0.001 per share; 42,491,484 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted
|
| |
44,594,813
|
| |
—
|
| |
|
Stockholders' equity:
|
| |
|
| |
|
| |
|
Common stock, par value $0.001 per share; 95,853,558 shares authorized, 10,011,255 shares issued and 8,956,255 shares outstanding, actual; 95,853,558 shares authorized, 83,057,697 shares issued and 82,002,697 shares outstanding, pro forma; shares authorized, shares issued and outstanding, pro forma as adjusted
|
| |
10,012
|
| |
83,058
|
| |
|
Treasury stock, 1,055,000 shares
|
| |
(60,000)
|
| |
(60,000)
|
| |
|
Preferred stock, Series A, par value $0.001 per share; 17,310,609 shares authorized, and 17,210,609 shares issued and outstanding, actual; no shares authorized, issued and outstanding, pro forma and pro forma as adjusted
|
| |
17,211
|
| |
—
|
| |
|
Warrants
|
| |
702,492
|
| |
702,492
|
| |
|
Additional paid-in capital
|
| |
22,799,587
|
| |
78,087,438
|
| |
|
Accumulated deficit
|
| |
(77,032,722)
|
| |
(77,032,722)
|
| |
|
Total stockholders' (deficit) equity
|
| |
(53,563,420)
|
| |
1,780,266
|
| |
|
Total capitalization
|
| |
$2,633,965
|
| |
$ 2,633,965
|
| |
$
|
(1)
|
Does not reflect the issuance of warrants to purchase shares of our convertible preferred stock, which will convert into warrants to purchase 2,201,116 shares of our common stock immediately prior to the closing of this offering at a weighted average exercise price of $1.41 per share, on March 31, 2021.
|
(2)
|
Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) the pro forma as adjusted amount of each of cash and cash equivalents, additional paid-in capital, total stockholders' equity and total capitalization by approximately $ million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. Similarly, each increase (decrease) of 1.0 million shares in the number of shares offered by us at the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) the pro forma as adjusted amount of each of cash, cash equivalents and short-term investments, additional paid-in capital, total stockholders' equity and total capitalization by approximately $ million, assuming the shares of our common stock offered by this prospectus are sold at the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
|
(3)
|
Includes Paycheck Protection Program loan payable of $812,500. See “Management's Discussion and Analysis of Financial Conditions and Results of Operations—Liquidity and Capital Resources—Indebtedness.”
|
•
|
6,663,750 shares of our common stock issuable upon the exercise of options outstanding as of March 31, 2021, at a weighted-average exercise price of $0.39 per share;
|
•
|
10,000,000 shares of our common stock that are available for future issuance under our 2021 Plan, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as any shares of our common stock that become available pursuant to provisions in the 2021 Plan pursuant to which additional shares may become available for issuance under the 2021 Plan;
|
•
|
2,201,116 shares of our common stock issuable upon the exercise of warrants to purchase shares of our convertible preferred stock outstanding as of March 31, 2021, which will convert into warrants to purchase shares of our common stock immediately prior to the closing of this offering, at a weighted average exercise price of $1.41 per share; and
|
•
|
1,500,000 shares of our common stock reserved for future issuance under our ESPP, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as shares of our common stock that become available pursuant to provisions in our ESPP that automatically increase the common stock reserve under the ESPP.
|
Assumed initial public offering price per share
|
| |
|
| |
$
|
Historical net tangible book value per share as of March 31, 2021
|
| |
$
|
| |
|
Decrease in pro forma net tangible book value per share
|
| |
|
| |
|
Pro forma net tangible book value per share as of March 31, 2021
|
| |
|
| |
|
Increase in pro forma net tangible book value per share attributable to new investors participating in this offering
|
| |
|
| |
|
Pro forma as adjusted net tangible book value per share after this offering
|
| |
|
| |
$
|
Dilution per share to new investors in this offering
|
| |
|
| |
$
|
|
| |
Shares Purchased
|
| |
Total Consideration
|
| |
Average Price
|
||||||
|
| |
Number
|
| |
Percent
|
| |
Amount
|
| |
Percent
|
| |
Per Share
|
Existing stockholders
|
| |
|
| |
%
|
| |
$
|
| |
%
|
| |
$
|
New investors
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
Total
|
| |
|
| |
%
|
| |
$
|
| |
%
|
| |
|
•
|
6,663,750 shares of our common stock issuable upon exercise of options outstanding as of March 31, 2021, at a weighted-average exercise price of $0.39 per share;
|
•
|
10,000,000 shares of our common stock that are available for future issuance under our 2021 Plan, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as any shares of our common stock that become available pursuant to provisions in the 2021 Plan pursuant to which additional shares may become available for issuance under the 2021 Plan;
|
•
|
2,201,116 shares of our common stock issuable upon the exercise of warrants to purchase shares of our convertible preferred stock outstanding as of March 31, 2021, which will convert into warrants to purchase shares of our common stock immediately prior to the closing of this offering, at a weighted average exercise price of $1.41 per share; and
|
•
|
1,500,000 shares of our common stock reserved for future issuance under our ESPP, which will become effective on the day immediately prior to the date the registration statement of which this prospectus forms a part is declared effective, as well as shares of our common stock that become available pursuant to provisions in our ESPP that automatically increase the common stock reserve under the ESPP.
|
•
|
Commencement and conduct of clinical trials for our product candidates. We must successfully obtain timely IDE approval to be able to commence clinical trials for FemBloc, as well as our future products. We must successfully recruit and enroll clinical trial participants in our clinical trials for FemBloc and FemaSeed, which is further complicated by the restrictions and public health concerns of the COVID-19 pandemic, in order to have the requisite data for regulatory submissions, both to the FDA and to international regulatory bodies, for marketing authorization.
|
•
|
Regulatory approval of our product candidates. We must successfully obtain timely approvals, de novo classifications or clearances for our product candidates. For our sales to grow, we will need to receive FDA approval for the FemBloc system for permanent birth control and FDA grant of a de novo classification request for the FemaSeed system for artificial insemination in the United States, and will need to obtain regulatory approval, grant, clearance or marketing authorization of our other pipeline products in the United States and in international markets.
|
•
|
Clinical results. Publications of clinical results by us, our competitors and other third parties can have a significant influence on whether, and the degree to which, our products are used by physicians and the procedures and treatments those physicians choose to provide.
|
•
|
Market acceptance. The success of our business will ultimately depend on our ability to gain broad acceptance of our products, which will require an extensive education process for both physicians and patients of the benefits of our products.
|
•
|
Competition. Our industry has a number of large, well-capitalized companies. We must continue to successfully compete in light of our competitors’ existing and future products and related pricing and their resources to successfully market to the physicians who use our products.
|
•
|
cost of clinical trials to support our product candidates and product enhancements, including expenses for activities conducted by third-party services providers, primarily clinical research organizations, or CROs, and site payments;
|
•
|
certain personnel-related expenses, including salaries, benefits and stock-based compensation;
|
•
|
materials and supplies used for internal R&D and clinical activities;
|
•
|
allocated overhead information technology expenses; and
|
•
|
cost of outside consultants, who assist with technology development, regulatory affairs, clinical affairs and quality assurance, and testing fees.
|
|
| |
Year Ended December 31,
|
| ||||||||
|
| |
2020
|
| |
2019
|
| |
Change
$
|
| |
Change
%
|
Sales
|
| |
$1,037,918
|
| |
$929,064
|
| |
$108,854
|
| |
11.7
|
Cost of sales
|
| |
306,533
|
| |
223,678
|
| |
82,855
|
| |
37.0
|
Gross margin
|
| |
731,385
|
| |
705,386
|
| |
25,999
|
| |
3.7
|
Operating expenses:
|
| |
|
| ||||||||
Research and development
|
| |
4,130,613
|
| |
6,914,179
|
| |
(2,783,566)
|
| |
(40.3)
|
Sales and marketing
|
| |
310,219
|
| |
1,503,784
|
| |
(1,193,565)
|
| |
(79.4)
|
General and administrative
|
| |
2,544,043
|
| |
3,298,829
|
| |
(754,786)
|
| |
(22.9)
|
Depreciation and amortization
|
| |
679,653
|
| |
625,778
|
| |
53,875
|
| |
8.6
|
Total operating expenses
|
| |
7,664,528
|
| |
12,342,570
|
| |
(4,678,042)
|
| |
(37.9)
|
Loss from operations
|
| |
(6,933,143)
|
| |
(11,637,184)
|
| |
4,704,041
|
| |
(40.4)
|
Other income (expense):
|
| |
|
| |
|
| |
|
| |
|
Interest income, net
|
| |
22,504
|
| |
287,537
|
| |
(265,033)
|
| |
(92.2)
|
Other income
|
| |
10,000
|
| |
93,000
|
| |
(83,000)
|
| |
(89.2)
|
Other expense
|
| |
—
|
| |
(2,323)
|
| |
2,323
|
| |
(100.0)
|
Interest expense
|
| |
(12,553)
|
| |
(9,972)
|
| |
(2,581)
|
| |
25.9
|
Total other income
|
| |
19,951
|
| |
368,242
|
| |
(348,291)
|
| |
(94.6)
|
Loss before income taxes
|
| |
(6,913,192)
|
| |
(11,268,942)
|
| |
4,355,750
|
| |
(38.7)
|
Income tax expense
|
| |
1,800
|
| |
3,006
|
| |
(1,206)
|
| |
(40.1)
|
Net loss
|
| |
$(6,914,992)
|
| |
$(11,271,948)
|
| |
$4,356,956
|
| |
(38.7)
|
|
| |
Year Ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
|
| |
|
| |
|
Compensation and related personnel costs
|
| |
$2,610,615
|
| |
$4,164,394
|
Clinical-related costs
|
| |
966,026
|
| |
1,420,430
|
Materials and development costs
|
| |
426,986
|
| |
890,564
|
Professional and outside consultant costs
|
| |
86,779
|
| |
321,955
|
Other costs
|
| |
40,207
|
| |
116,836
|
Total research and development expenses
|
| |
$4,130,613
|
| |
$6,914,179
|
|
| |
Three Months Ended March 31,
|
| |
|
| |
|
|||
|
| |
2021
|
| |
2020
|
| |
Change $
|
| |
Change%
|
Sales
|
| |
$329,775
|
| |
$260,512
|
| |
$69,263
|
| |
26.6
|
Cost of sales
|
| |
93,042
|
| |
73,188
|
| |
19,854
|
| |
27.1
|
Gross margin
|
| |
236,733
|
| |
187,324
|
| |
49,409
|
| |
26.4
|
Operating expenses:
|
| |
|
| |
|
| |
|
| |
|
Research and development
|
| |
995,022
|
| |
1,350,701
|
| |
(355,679)
|
| |
(26.3)
|
Sales and marketing
|
| |
22,819
|
| |
237,189
|
| |
(214,370)
|
| |
(90.4)
|
General and administrative
|
| |
891,987
|
| |
650,192
|
| |
241,795
|
| |
37.2
|
Depreciation and amortization
|
| |
153,453
|
| |
169,410
|
| |
(15,957)
|
| |
(9.4)
|
Total operating expenses
|
| |
2,063,281
|
| |
2,407,492
|
| |
(344,211 )
|
| |
(14.3)
|
Loss from operations
|
| |
(1,826,548)
|
| |
(2,220,168)
|
| |
393,620
|
| |
(17.7)
|
Other income (expense):
|
| |
|
| |
|
| |
|
| |
|
Interest income, net
|
| |
164
|
| |
20,336
|
| |
(20,172)
|
| |
(99.2)
|
Other income
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
Other expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
Interest expense
|
| |
(3,848)
|
| |
(1,895)
|
| |
(1,953)
|
| |
103.1
|
Total other (expense) income
|
| |
(3,684)
|
| |
18,441
|
| |
(22,125)
|
| |
(120.0)
|
Loss before income taxes
|
| |
(1,830,232)
|
| |
(2,201,727)
|
| |
371,495
|
| |
(16.9)
|
Income tax expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
Net loss
|
| |
$ (1,830,232)
|
| |
$ (2,201,727)
|
| |
$371,495
|
| |
(16.9)
|
|
| |
Three Months Ended
March 31,
|
|||
|
| |
2021
|
| |
2020
|
Compensation and related personnel costs
|
| |
$676,547
|
| |
$876,135
|
Clinical-related costs
|
| |
173,473
|
| |
247,887
|
Materials and development costs
|
| |
114,118
|
| |
208,338
|
Professional and outside consultant costs
|
| |
17,957
|
| |
17,128
|
Other costs
|
| |
12,927
|
| |
1,213
|
Total research and development expenses
|
| |
$995,022
|
| |
$1,350,701
|
•
|
the cost, timing and results of our clinical trials and regulatory reviews;
|
•
|
the cost and timing of establishing sales, marketing and distribution capabilities;
|
•
|
the timing, receipt and amount of sales from our current and potential products;
|
•
|
our ability to continue manufacturing our products and product candidates and to secure the components, services and supplies needed in their production;
|
•
|
the degree of success we experience in commercializing our products;
|
•
|
the emergence of competing or complementary technologies;
|
•
|
the cost of preparing, filing, prosecuting, maintaining, defending and enforcing any patent claims and other intellectual property rights; and
|
•
|
the extent to which we acquire or invest in businesses, products or technologies, although we currently have no commitments or agreements relating to any of these types of transactions.
|
|
| |
Year Ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
Net cash used in operating activities
|
| |
$(4,933,015)
|
| |
$(11,005,996)
|
Net cash provided by investing activities
|
| |
968,319
|
| |
12,317,506
|
Net cash provided by (used in) financing activities
|
| |
871,648
|
| |
(127,782)
|
Net change in cash and cash equivalents
|
| |
$(3,093,048)
|
| |
$1,183,728
|
|
| |
Three Months Ended March 31,
|
|||
|
| |
2021
|
| |
2020
|
Net cash used in operating activities
|
| |
$(1,160,682)
|
| |
$(1,803,116)
|
Net cash provided by investing activities
|
| |
—
|
| |
984,039
|
Net cash (used in) provided by financing activities
|
| |
(144,991)
|
| |
48,376
|
Net change in cash and cash equivalents
|
| |
$(1,305,673)
|
| |
$(770,701)
|
|
| |
Payments Due by Period
|
||||||||||||
|
| |
Total
|
| |
Less than
1 Year
|
| |
1-3 Years
|
| |
3-5 Years
|
| |
More than
5 Years
|
Operating lease obligations
|
| |
$1,673,575
|
| |
$527,739
|
| |
$1,098,807
|
| |
$47,029
|
| |
$—
|
Debt, principal and interest(1)
|
| |
823,306
|
| |
640,436
|
| |
182,870
|
| |
—
|
| |
—
|
Total
|
| |
$ 2,496,881
|
| |
$ 1,168,175
|
| |
$ 1,281,677
|
| |
$47,029
|
| |
$—
|
(1)
|
In addition, we enter into agreements in the normal course of business with contract research organizations for clinical trials and with vendors for preclinical studies and other services and products for operating purposes which are cancelable at any time by us, generally upon 30 days prior written notice. These payments are not included in this table of contractual obligations.
|
•
|
Expected Term—The expected term represents the period that stock-based awards are expected to be outstanding. Our historical share option exercise information is limited due to a lack of sufficient data points and does not provide a reasonable basis upon which to estimate an expected term. The expected term for option grants is therefore determined using the simplified method. The simplified method deems the expected term to be the midpoint between the vesting date and the contractual life of the stock-based awards.
|
•
|
Expected Volatility—The expected volatility was derived from the historical stock volatilities of comparable peer public companies within our industry that are considered to be comparable to our business over a period equivalent to the expected term of the stock-based awards, since there has been no trading history of our common stock.
|
•
|
Risk-Free Interest Rate—The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the date of grant for zero-coupon U.S. Treasury notes with maturities approximately equal to the stock-based awards’ expected term.
|
•
|
Expected Dividend Yield—The expected dividend yield is zero as we have not paid nor do we anticipate paying any dividends on our common stock in the foreseeable future.
|
•
|
Address unmet clinical needs in multiple large markets for women. We believe we are the non-surgical biomedical option in development for reproductive women. Our initial focus is on critical areas of unmet need in reproductive health, which is a growing challenge for women that is not optimally addressed with existing therapies. Two ends of the spectrum (permanent birth control and infertility with artificial insemination) represent large, growing total addressable market opportunities. Patients who wish to control their risk of pregnancy are often utilizing temporary or reversible options or are choosing the only permanent option that bears surgical risk and expense. We expect our FemBloc system has the potential to offer the first non-surgical, non-implant option performed
|
•
|
Execute on our clinical program to achieve FDA approval to advance our FemBloc system for use together with our FemChec occlusion confirmation device as the preferred option for permanent birth control for women. We have studied FemBloc in two clinical trials pursuant to an FDA-approved IDE evaluating safety in 183 patients. We plan to continue safety follow-up for the 183 patients that were studied in two clinical trials pursuant to an FDA-approved IDE. We plan to complete the on-going small IDE study, which began In June 2020, and submit the results of the trial to demonstrate adequacy of proposed mitigations to reduce the risk of pregnancy and improve reliance rate, and to support selection of the final confirmation test. Along with the trial results, we plan to submit the study design that we expect to serve as the clinical support for a future PMA approval for FemBloc and FemChec to the FDA in the first half of 2022. If FDA approves the IDE for the pivotal trial, we will initiate a new pivotal trial.
|
•
|
Execute on our clinical program to achieve FDA grant of a de novo classification request to advance our FemaSeed system for use together with our FemVue saline-air device as the preferred option for artificial insemination. The safety profile of FemaSeed is supported by data from our FemBloc clinical trials and a post-market study of an identical single intrauterine directional delivery device design, which received FDA clearance for another indication. In April 2021 we received an IDE approval from FDA that allows us to initiate a pivotal study for the FemaSeed device. We plan on submitting the results from the trial in support of a future de novo classification request for FemaSeed. We anticipate initiating the clinical trial in the third quarter of 2021.
|
•
|
Continuously innovate to introduce additional product offerings for women. We intend to continue to invest in research and development activities focused on additional women-specific medical products and improvements and enhancements to our FemBloc system and FemaSeed system. In addition, we are building on our FDA-cleared sterile, single-use endocervical tissue sampling product, FemCerv, to develop FemEMB, a product candidate for endometrial sampling in support of uterine cancer detection testing. We have designed and developed proprietary methods utilized in our women’s health solutions and have protected these internally conceived advancements by patents, know-how, and trade secrets. Our team has demonstrated the ability to achieve marketing authorizations and clearances in the U.S., Europe, Canada, and Japan and to manufacture in accordance with U.S. Food and Drug Administration (FDA) and other international governing bodies. Availability of the additional product offerings will expand our suite of solutions for reproductive health and women’s health in general over time.
|
•
|
Penetrate the addressable markets by promoting patient and practice awareness. Currently it is estimated in the U.S. alone, annually, approximately 800,000 women elect surgical tubal ligation and 500,000 men elect vasectomy for permanent birth control. There are another 12 million women who utilize a non-permanent birth control option, many of whom we believe may prefer a permanent option if it were non-surgical. We believe the major factor that influences this light penetration of the market is the limitations of the existing technology despite the likely familiarity of tubal ligation as an option. In addition, with respect to the problem of infertility, it is currently estimated that in the United States alone, over nine million women are infertile and only a little over half proceed with some form of intervention, and only a very small proportion undergo more advanced technologies. We believe the major factor that influences this light penetration of the market is the cost and burden of the existing technologies despite the familiarity of intrauterine insemination as a first-line option. We intend to increase physician awareness through engagement and continued publication of scientific data in peer reviewed journals. Further, we intend to engage women who are candidates for permanent birth control or who suffer from infertility through direct patient outreach.
|
•
|
Build a commercialization infrastructure with a specialized direct sales and marketing team. From the outset, we spent significant time understanding the unmet needs of patients and physicians through
|
•
|
Expand gynecologists’ practice capabilities by diversifying products and services to include artificial insemination with FemaSeed. There are a limited number of gynecologists performing infertility services and treatment today, but we believe this has the potential to grow over time, in particular with the introduction of FemaSeed. FemaSeed is designed to be an in-office infertility procedure that can be done by a gynecologist using his or her existing skillset, expanding the number of gynecologists that can offer effective fertility services to their patients without needing to refer them to an infertility specialist. We plan to use our gynecologic sales force for FemBloc, if approved, to introduce those doctors to FemaSeed and broaden our sales force reach for our infertility treatment beyond our initial focus on reproductive endocrinologists.
|
•
|
establishment registration and device listing;
|
•
|
the Quality System Regulation, or QSR, which requires manufacturers, including third-party contract manufacturers, to follow stringent design, testing, control, documentation and other quality assurance procedures during all aspects of the manufacturing process;
|
•
|
labeling regulations and the FDA prohibitions against the promotion of products for uncleared or unapproved uses ( “off-label” uses) and other requirements related to promotional activities, including the advertising of restricted devices;
|
•
|
medical device reporting regulations, which require that manufacturers report to the FDA if their device may have caused or contributed to a death or serious injury, or if their device malfunctioned and the device or a similar device marketed by the manufacturer would be likely to cause or contribute to a death or serious injury if the malfunction were to recur;
|
•
|
corrections and removal reporting regulations, which require that manufacturers report to the FDA field corrections or removals if undertaken to reduce a risk to health posed by a device or to remedy a violation of the FDCA that may present a risk to health; and
|
•
|
post market surveillance regulations, which apply to certain Class II or III devices when necessary to protect the public health or to provide additional safety and efficacy data for the device.
|
•
|
warning or untitled letters, fines, injunctions, consent decrees and civil penalties;
|
•
|
customer notifications, voluntary or mandatory recall or seizure of our products;
|
•
|
operating restrictions, partial suspension or total shutdown of production;
|
•
|
delay in processing submissions or applications for new products or modifications to existing products;
|
•
|
withdrawing PMA approvals that have already been granted; and
|
•
|
criminal prosecution.
|
Name
|
| |
Age
|
| |
Position
|
Executive Officers
|
| |
|
| |
|
Kathy Lee-Sepsick
|
| |
54
|
| |
Chairman, Chief Executive Officer and President
|
Daniel Currie
|
| |
57
|
| |
Senior Vice President, Operations
|
Lexy Kelley, MD
|
| |
49
|
| |
Vice President, Clinical & Medical Affairs
|
Gary Thompson
|
| |
64
|
| |
Vice President, Finance & Administration
|
|
| |
|
| |
|
Non-Employee Directors
|
| |
|
| |
|
John Adams(2)
|
| |
59
|
| |
Director
|
John Dyett(1)(2)(3)
|
| |
51
|
| |
Director
|
Charles Larsen(1)(3)
|
| |
69
|
| |
Director
|
Anne Morrissey(1)
|
| |
55
|
| |
Director
|
Edward Uzialko(2)
|
| |
70
|
| |
Director
|
William Witte(3)
|
| |
58
|
| |
Director
|
(1)
|
Member of the audit committee.
|
(2)
|
Member of the compensation committee.
|
(3)
|
Member of the nominating and corporate governance committee.
|
•
|
appointing, compensating, retaining and overseeing the work of our independent auditor and any other registered public accounting firm engaged for the purpose of preparing or issuing an audit report or related work or performing other audit, review or attest services for us;
|
•
|
discussing with our independent auditor any audit problems or difficulties and management's response;
|
•
|
pre-approving all audit and non-audit services provided to us by our independent auditor (other than those provided pursuant to appropriate preapproval policies established by the committee or exempt from such requirement under SEC rules);
|
•
|
reviewing and discussing our annual and quarterly financial statements with management and our independent auditor;
|
•
|
discussing and overseeing our policies with respect to risk assessment and risk management; and
|
•
|
establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or auditing matters, and for the confidential and anonymous submission by our employees of concerns regarding questionable accounting or auditing matters.
|
•
|
reviewing and approving corporate goals and objectives with respect to the compensation of our Chief Executive Officer, evaluating our Chief Executive Officer's performance in light of these goals and objectives and setting compensation;
|
•
|
reviewing and setting or making recommendations to our board of directors regarding the compensation of our other executive officers;
|
•
|
reviewing and making recommendations to our board of directors regarding director compensation;
|
•
|
reviewing and approving or making recommendations to our board of directors regarding our incentive compensation and equity-based plans and arrangements; and
|
•
|
appointing and overseeing any compensation consultants.
|
•
|
identifying individuals qualified to become members of our board of directors, consistent with criteria approved by our board of directors;
|
•
|
recommending to our board of directors the nominees for election to our board of directors at annual meetings of our stockholders;
|
•
|
overseeing the annual self-evaluations of our board of directors and management; and
|
•
|
developing and recommending to our board of directors a set of corporate governance guidelines and principles.
|
•
|
Ms. Lee-Sepsick is intimately involved our day-to-day operations and is best positioned to elevate the most critical business issues for consideration by the board of directors.
|
•
|
The board of directors believes that having Ms. Lee-Sepsick serve in both capacities allows her to more effectively execute our strategic initiatives and business plans and confront its challenges. A combined chairman and chief executive officer structure provides us with decisive and effective leadership with clearer accountability to our shareholders.
|
•
|
Kathy Lee-Sepsick, President and Chief Executive Officer;
|
•
|
Daniel Currie, Senior Vice President of Operations; and
|
•
|
Lexy Kelley, MD, Vice President, Clinical & Medical Affairs.
|
Name and Principal Position
|
| |
Year
|
| |
Salary
($)(1)
|
| |
Bonus
($)
|
| |
All other
compensation
($)
|
| |
Total
($)
|
Kathy Lee-Sepsick
President and Chief Executive Officer
|
| |
2020
|
| |
280,000
|
| |
—
|
| |
26,536(2)
|
| |
306,536
|
Daniel Currie
Senior Vice President of Operations
|
| |
2020
|
| |
199,500
|
| |
—
|
| |
26,133(2)
|
| |
225,633
|
Lexy Kelley, MD
Vice President, Clinical & Medical Affairs
|
| |
2020
|
| |
187,500
|
| |
—
|
| |
938 (3)
|
| |
188,438
|
(1)
|
Represents salaries paid during the year and does not include salaries accrued in connection with retention plan in place effective November 1, 2019.
|
(2)
|
Consists of paid family health benefits of $25,135 and our partial 401(k) matching contribution.
|
(3)
|
Consists of our partial 401(k) matching contribution.
|
•
|
medical, dental and vision benefits;
|
•
|
medical and dependent care flexible spending accounts;
|
•
|
short-term and long-term disability insurance; and
|
•
|
life insurance.
|
Name
|
| |
Grant Date
|
| |
Vesting
Commencement
Date
|
| |
Number of Securities
Underlying
Unexercised
Options (#)
Exercisable
|
| |
Number of Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
| |
Number of Securities
Underlying
Unexercised
Unearned
Options (#)
|
| |
Option
Exercise
Price
($)
|
| |
Option
Expiration
Date
|
Kathy Lee-Sepsick
|
| |
03/18/2016
|
| |
—(1)
|
| |
500,000
|
| |
—
|
| |
1,000,000
|
| |
0.19
|
| |
3/18/2026
|
|
| |
06/30/2017
|
| |
6/1/2017(2)
|
| |
1,125,000
|
| |
375,000(3)
|
| |
—
|
| |
0.36
|
| |
6/30/2027
|
|
| |
12/13/2019
|
| |
11/1/2019(2)
|
| |
12,500
|
| |
37,500(3)
|
| |
—
|
| |
0.68
|
| |
12/13/2029
|
Daniel Currie
|
| |
03/18/2016
|
| |
9/11/2015(2)
|
| |
50,000
|
| |
—
|
| |
—
|
| |
0.19
|
| |
3/18/2026
|
|
| |
06/30/2017
|
| |
6/01/2017(2)
|
| |
187,500
|
| |
62,500(3)
|
| |
—
|
| |
0.36
|
| |
6/30/2027
|
|
| |
12/13/2019
|
| |
11/1/2019(2)
|
| |
12,500
|
| |
37,500(3)
|
| |
—
|
| |
0.68
|
| |
12/13/2029
|
Lexy Kelley
|
| |
03/28/2019
|
| |
3/7/2019(2)
|
| |
100,000
|
| |
300,000
|
| |
—
|
| |
0.55
|
| |
3/28/2029
|
|
| |
12/13/2019
|
| |
11/1/2019(2)
|
| |
10,000
|
| |
30,000
|
| |
—
|
| |
0.68
|
| |
12/13/2029
|
(1)
|
The stock option award provides for 500,000 awards to vest on the approval of an IDE application and 1,000,000 awards to vest on the PMA approval for FemBloc.
|
(2)
|
The stock option award provides for 25% of the award to vest on each anniversary of the vesting commencement date (such that the award would fully vest on the fourth anniversary of the vesting commencement date), subject to the recipient's continuous employment with us through the relevant vesting dates.
|
(3)
|
Provides that a stock option award will fully accelerate in vesting in the event of a termination of the recipient's employment by us without “Just Cause” (as defined in the named executive officer's employment agreement) within one year following a “Change in Control”. For additional details, please refer to the section titled “Narrative to Summary Compensation Table—Equity Compensation” above.
|
•
|
Options. Options give a participant the right to purchase a specified number of shares of common stock from us for a specified time period at a fixed exercise price. Options granted under the 2021 Plan may be either incentive stock options, or ISOs, or nonqualified stock options. The price at which shares of common stock may be purchased upon exercise shall be determined by the compensation committee, but shall not be less than the fair market value of one share of common stock on the date of grant, or, in the case of an ISO granted to a ten-percent stockholder, less than 110% of the fair market value of a share of common stock on the date of grant. The compensation committee may grant options that have a term of up to 10 years, or, in the case of an ISO granted to a ten-percent stockholder, five years. The award agreement shall specify the exercise price, term, vesting requirements, including any performance goals, and any other terms and conditions applicable to the granted option.
|
•
|
SARs. A grant of a SAR entitles a participant to receive, upon exercise of the SAR, the excess of (i) the fair market value of one share of common stock on the date of exercise, over (ii) the grant price of the SAR as determined by the compensation committee, but which may never be less than the fair market value of one share of common stock on the grant date. The compensation committee shall determine and specify in each award agreement the number of SARs granted, the grant price of the SAR (which shall not be less than 100% of the fair market value of a share of common stock on the date of grant),
|
•
|
Restricted Stock. An award of restricted stock is a grant of a specified number of shares of common stock, which shares are subject to forfeiture upon the happening of certain events during a specified restriction period. Each award of restricted stock shall specify the duration of the restriction period, the conditions under which the shares of common stock may be forfeited, and the amount, if any, the participant must pay to receive the shares of common stock. During the restriction period, the participant shall have all of the rights of a stockholder with respect to the restricted stock, including to vote the shares of restricted stock and to receive dividends. However, dividends may, at the discretion of the compensation committee, be paid currently or subject to the same restrictions as the underlying stock (and the compensation committee may withhold cash dividends paid on restricted stock until the applicable restrictions have lapsed), provided that, dividends paid on unvested restricted stock that is subject to performance goals shall not be paid or released until the applicable performance goals have been achieved.
|
•
|
RSUs. An RSU award is a grant of the right to receive a payment in shares of common stock or cash, or a combination thereof, equal to the fair market value of a share of common stock on the settlement date of the award. RSUs are solely a device for determining amounts to be paid to a participant, do not constitute shares and will not be treated as a trust fund of any kind. During the restriction period, the participant will have no rights as a stockholder with respect to any such shares underlying the RSU award. Notwithstanding the previous sentence, the compensation committee may provide in an award agreement that amounts equal to dividends declared during the restriction period on the shares of common stock covered by the award will be credited to the participant’s account and settled in shares of common stock at the same time as the RSUs to which such dividend equivalents relate. Awards of RSUs will be settled in shares of common stock, unless otherwise provided in an award agreement. Provided that the restrictions, including any applicable performance goals, on such award have lapsed, the participant shall receive shares of common stock covered by the award at the end of the restriction period.
|
•
|
Performance Stock. An award of performance stock is a grant of a specified number of shares of common stock to a participant, which shares vest (in whole or in part) based on the achievement of performance goals during a performance period and subject to forfeiture upon the occurrence of certain events during a restriction period. Each award agreement shall specify the duration of the performance period and restriction period (if any), performance goals applicable to the performance stock, the conditions under which the performance stock may be forfeited and the amount (if any) that the participant must pay to receive the performance stock. Unless otherwise provided in an award agreement, during the restriction period, the participant will have all the rights of a stockholder with respect to the performance stock, including, without limitation, the right to receive dividends and to vote with respect to the underlying shares of common stock, provided that dividends shall be subject to
|
•
|
PSUs. A PSU award is a grant of the right to receive a payment in common stock or cash, or a combination thereof, equal to the fair market value of a share of common stock on the settlement date of the award, conditioned on the achievement of performance goals. PSUs are solely a device for determining amounts to be paid to a participant, do not constitute shares, and will not be treated as a trust fund of any kind. During such period, the participant will have no rights as a stockholder with respect to any such shares of common stock underlying the PSU award. Notwithstanding the previous sentence, the compensation committee may provide in an award agreement that amounts equal to dividends declared during the restriction period on the common stock covered by the award will be credited to the participant’s account and settled in cash or shares of common stock at the same time or a different time (and subject to the same forfeiture restrictions and performance goals) as the PSUs to which such dividend equivalents relate. Awards of PSUs will be settled in shares of common stock, unless otherwise provided in an award agreement.
|
•
|
Other Stock-Based Awards. The compensation committee may grant, subject to applicable law, any other type of award under the 2021 Plan that is payable in, or valued in whole or in part by reference to, shares of common stock, and that is deemed by the compensation committee to be consistent with the purposes of the 2021 Plan, including, without limitation, fully vested shares of common stock and dividend equivalents.
|
|
| |
Annual
Retainer
|
Board of Directors:
|
| |
|
Members
|
| |
$40,000
|
Additional retainer for non-executive chair, if any
|
| |
$35,000
|
Audit Committee:
|
| |
|
Members (other than chair)
|
| |
$9,000
|
Retainer for chair
|
| |
$20,000
|
Compensation Committee:
|
| |
|
Members (other than chair)
|
| |
$6,000
|
Retainer for chair
|
| |
$15,000
|
Nominating and Corporate Governance Committee:
|
| |
|
Members (other than chair)
|
| |
$5,000
|
Retainer for chair
|
| |
$10,000
|
•
|
each person or group of affiliated persons known by us to beneficially own more than 5% of our common stock;
|
•
|
each of our named executive officers;
|
•
|
each of our directors; and
|
•
|
all of our executive officers and directors as a group.
|
|
| |
Shares of common stock
beneficially owned
|
| |
Percentage of common stock
beneficially owned
|
||||||
|
| |
Before this
offering
|
| |
After this
offering
|
| |
Before
this offering
|
| |
After
this offering
|
Name of beneficial owner
|
| |
|
| |
|
| |
|
| |
|
5% stockholders:
|
| |
|
| |
|
| |
|
| |
|
Entities affiliated with John Dyett(1)
|
| |
29,551,513
|
| |
|
| |
36.04%
|
| |
|
CFIC-2015 NV Kim Woo Investments II, LLC(2)
|
| |
4,764,173
|
| |
|
| |
5.81%
|
| |
|
SPK Femasys LLC(3)
|
| |
4,144,831
|
| |
|
| |
5.05%
|
| |
|
|
| |
|
| |
|
| |
|
| |
|
|
| |
Shares of common stock
beneficially owned
|
| |
Percentage of common stock
beneficially owned
|
||||||
|
| |
Before this
offering
|
| |
After this
offering
|
| |
Before
this offering
|
| |
After
this offering
|
Named executive officers and directors:
|
| |
|
| |
|
| |
|
| |
|
Kathy Lee-Sepsick(4)
|
| |
4,787,500
|
| |
|
| |
5.72%
|
| |
|
Daniel Currie(5)
|
| |
1,056,675
|
| |
|
| |
1.28%
|
| |
|
Lexy Kelley(6)
|
| |
210,000
|
| |
|
| |
*
|
| |
|
John Adams, Jr.
|
| |
1,870,895
|
| |
|
| |
2.28%
|
| |
|
John Dyett(1)
|
| |
29,551,513
|
| |
|
| |
36.04%
|
| |
|
Charles Larsen(7)
|
| |
220,283
|
| |
|
| |
*
|
| |
|
Anne Morrissey
|
| |
—
|
| |
|
| |
—
|
| |
|
Edward Uzialko, Jr.(8)
|
| |
10,270,926
|
| |
|
| |
12.49%
|
| |
|
William Witte(9)
|
| |
22,500
|
| |
|
| |
*
|
| |
|
Gary Thompson(10)
|
| |
272,500
|
| |
|
| |
*
|
| |
|
All executive officers and directors as a group (10 individuals)
|
| |
48,262,792
|
| |
|
| |
57.15%
|
| |
|
*
|
Less than 1%.
|
(1)
|
Consists of 573,373 shares of common stock held by The Dyett Family Trust, of which John Dyett is the Trustee and 28,978,140 shares of common stock held by Salem Femasys Investors LLC. Mr. Dyett is the sole manager of Salem Femasys Investors LLC. Salem Femasys Investors LLC is a limited liability company consisting of 95 members, as of December 31, 2020. Mr. Dyett, acting as manager for Femasys Investors LLC, has sole voting power over the shares held by Salem Femasys Investors LLC, subject to the vote of members holding more than 50% of the outstanding interests in Salem Femasys Investors LLC, and shares dispositive power over such shares, which powers may be exercised by members holding more than 50% of the outstanding interests in Salem Femasys Investors LLC, with each of the other members. Mr. Dyett disclaims beneficial ownership over the shares held by Salem Femasys Investors LLC, except to the extent of his pecuniary interest therein. It is anticipated that upon the expiration of the lock-up agreement, as described in “Underwriting”, Salem Femasys Investors LLC will distribute the shares held by it to its members in accordance with its organizational documents. The address of Salem Femasys Investors LLC is 11111 Santa Monica Blvd., Suite 2250, Los Angeles, CA 90025. Excludes 1,771,330 shares available for exercise in connection with warrants held by Salem Capital Partners. LLC, which John Dyett is co-founder and managing director.
|
(2)
|
The address of CFIC-2015 NV Kim Woo Investments II, LLC is 1370 Jet Stream Dr. #140, Henderson, NV 89052. The natural person with voting and dispositive power over the shares is Peggy Tsiang as manager.
|
(3)
|
The address of SPK Femasys LLC is 10877 Wilshire Blvd., Suite 1605, Los Angeles, CA 90024. The natural person with voting and dispositive power over the shares is Elliot Karathanasis as manager.
|
(4)
|
Consists of 2,500,000 shares owned, 650,000 shares held by the Lee-Sepsick Family Trust, and 1,637,500 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021, all of which are vested as of such date. Ms. Lee-Sepsick is the Trustee of the Lee-Sepsick Family Trust.
|
(5)
|
Consists of 600,000 shares owned, 200,000 shares held by the Currie Family Trust, 6,675 shares held by his spouse, and 250,000 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021, all of which are vested as of such date. Mr. Currie is the Trustee of the Currie Family Trust.
|
(6)
|
Consists of 210,000 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021 of which 110,000 shares are vested as of such date.
|
(7)
|
Consists of 95,283 shares owned and 125,000 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021, all of which are vested as of such date.
|
(8)
|
Consists of 9,785,070 shares owned, 271,570 shares owned by his spouse, and 214,286 shares issuable upon exercise of an outstanding warrant exercisable within 60 days of April 1, 2021, all of which are vested as of such date.
|
(9)
|
Consists of 22,500 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021, all of which are vested as of such date. Does not include 62,073 shares held by Salem Femasys Investors LLC on behalf Mr. Witte.
|
(10)
|
Consists of 30,000 shares owned and 242,500 shares issuable upon exercise of outstanding stock options exercisable within 60 days of April 1, 2021, all of which are vested as of such date.
|
•
|
200,000,000 shares are designated as common stock; and
|
•
|
10,000,000 shares are designated as preferred stock.
|
•
|
before such date, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
|
•
|
upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (1) persons who are directors and also officers and (2) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
•
|
on or after such date, the business combination is approved by our board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder.
|
•
|
any merger or consolidation involving the corporation and the interested stockholder;
|
•
|
any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
|
•
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
|
•
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
|
•
|
the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation.
|
•
|
1% of the number of shares of our common stock then outstanding, which will equal approximately shares (or shares if the underwriters exercise their option to purchase additional shares in full) of our common stock immediately after this offering; or
|
•
|
the average weekly trading volume in shares of our common stock on Nasdaq during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.
|
•
|
U.S. expatriates and former citizens or long-term residents of the United States;
|
•
|
persons holding our common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
|
•
|
banks, insurance companies, and other financial institutions;
|
•
|
brokers, dealers or traders in securities;
|
•
|
“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
|
•
|
partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
|
•
|
tax-exempt organizations or governmental organizations;
|
•
|
persons deemed to sell our common stock under the constructive sale provisions of the Code;
|
•
|
persons who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation;
|
•
|
tax-qualified retirement plans; and
|
•
|
“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held by qualified foreign pension funds.
|
•
|
an individual who is a citizen or resident of the United States;
|
•
|
a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
|
•
|
an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
|
•
|
a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.
|
•
|
the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable);
|
•
|
the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or
|
•
|
our common stock constitutes a U.S. real property interest, or USRPI, by reason of our status as a U.S. real property holding corporation, or USRPHC, for U.S. federal income tax purposes.
|
Underwriter
|
| |
Number of
Shares
|
Chardan Capital Markets, LLC
|
| |
|
JonesTrading Institutional Services LLC
|
| |
|
|
| |
|
Total
|
| |
|
|
| |
Per Share
|
| |
Without Option
|
| |
With Option
|
Public offering price
|
| |
$
|
| |
$
|
| |
$
|
Underwriting discount
|
| |
$
|
| |
$
|
| |
$
|
Proceeds, before expenses, to us
|
| |
$
|
| |
$
|
| |
$
|
•
|
offer, pledge, sell or contract to sell any common stock;
|
•
|
sell any option or contract to purchase any common stock;
|
•
|
purchase any option or contract to sell any common stock;
|
•
|
grant any option, right or warrant for the sale of any common stock;
|
•
|
lend or otherwise dispose of or transfer any common stock;
|
•
|
request or demand that we file a registration statement or make a confidential submission related to the common stock; or
|
•
|
enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any common stock whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise.
|
•
|
the valuation multiples of publicly traded companies that the representative believes to be comparable to us;
|
•
|
our financial information;
|
•
|
the history of, and the prospects for, our company and the industry in which we compete;
|
•
|
an assessment of our management, its past and present operations, and the prospects for, and timing of, our future revenues;
|
•
|
the present state of our development; and
|
•
|
the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours.
|
(i)
|
to any legal entity which is a qualified investor as defined under the Prospectus Regulation;
|
(ii)
|
to fewer than 150 natural or legal persons (other than qualified investors as defined under the Prospectus Regulation), subject to obtaining the prior consent of the underwriters; or
|
(iii)
|
in any other circumstances falling within Article 1(4) of the Prospectus Regulation;
|
(a)
|
a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or
|
(b)
|
a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,
|
(a)
|
to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA;
|
(b)
|
where no consideration is or will be given for the transfer;
|
(c)
|
where the transfer is by operation of law;
|
(d)
|
as specified in Section 276(7) of the SFA; or
|
(e)
|
as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
|
Assets
|
| |
December 31,
2020
|
| |
December 31,
2019
|
| |
March 31,
2021
|
|
| |
|
| |
|
| |
(unaudited)
|
Current assets:
|
| |
|
| |
|
| |
|
Cash and cash equivalents
|
| |
$3,322,226
|
| |
6,415,274
|
| |
2,016,553
|
Short-term investments
|
| |
—
|
| |
998,831
|
| |
—
|
Accounts receivable, net
|
| |
125,790
|
| |
83,554
|
| |
95,747
|
Inventory, net
|
| |
131,378
|
| |
172,497
|
| |
144,057
|
Other current assets
|
| |
284,115
|
| |
370,018
|
| |
285,876
|
Total current assets
|
| |
3,863,509
|
| |
8,040,174
|
| |
2,542,233
|
Property and equipment, at cost:
|
| |
|
| |
|
| |
|
Leasehold improvements
|
| |
1,155,332
|
| |
1,155,332
|
| |
1,155,332
|
Office equipment
|
| |
64,145
|
| |
64,145
|
| |
64,145
|
Furniture and fixtures
|
| |
424,947
|
| |
424,947
|
| |
424,947
|
Machinery and equipment
|
| |
2,242,088
|
| |
2,228,176
|
| |
2,242,088
|
Construction in progress
|
| |
139,150
|
| |
166,210
|
| |
139,150
|
|
| |
4,025,662
|
| |
4,038,810
|
| |
4,025,662
|
Less accumulated depreciation
|
| |
(2,197,868)
|
| |
(1,676,849)
|
| |
(2,334,242)
|
Net property and equipment
|
| |
1,827,794
|
| |
2,361,961
|
| |
1,691,420
|
Long-term assets:
|
| |
|
| |
|
| |
|
Lease right-of-use assets, net
|
| |
1,057,506
|
| |
1,499,990
|
| |
954,422
|
Intangible assets, net of accumulated amortization
|
| |
65,069
|
| |
160,592
|
| |
52,818
|
Other long-term assets
|
| |
792,440
|
| |
583,500
|
| |
1,445,293
|
Total long-term assets
|
| |
1,915,015
|
| |
2,244,082
|
| |
2,452,533
|
Total assets
|
| |
$7,606,318
|
| |
12,646,217
|
| |
6,686,186
|
Liabilities, Redeemable Preferred Stock and Stockholders’ Deficit
|
| |
December 31,
2020
|
| |
December 31,
2019
|
| |
March 31,
2021
|
|
| |
|
| |
|
| |
(unaudited)
|
Current liabilities:
|
| |
|
| |
|
| |
|
Accounts payable
|
| |
$674,333
|
| |
481,099
|
| |
1,370,474
|
Accrued expenses
|
| |
1,117,601
|
| |
337,181
|
| |
1,314,107
|
Notes payable – current portion
|
| |
630,010
|
| |
—
|
| |
808,020
|
Lease liabilities – current portion
|
| |
434,072
|
| |
467,697
|
| |
426,467
|
Other – current
|
| |
32,895
|
| |
—
|
| |
32,895
|
Total current liabilities
|
| |
2,888,911
|
| |
1,285,977
|
| |
3,951,963
|
Long-term liabilities:
|
| |
|
| |
|
| |
|
Clinical holdback
|
| |
164,972
|
| |
145,768
|
| |
169,693
|
Note payable – long-term portion
|
| |
182,490
|
| |
—
|
| |
45,679
|
Lease liabilities – long-term portion
|
| |
809,092
|
| |
1,243,342
|
| |
705,690
|
Other – long-term
|
| |
32,895
|
| |
—
|
| |
32,895
|
Total long-term liabilities
|
| |
1,189,449
|
| |
1,389,110
|
| |
953,957
|
Total liabilities
|
| |
4,078,360
|
| |
2,675,087
|
| |
4,905,920
|
Commitments and contingencies (Note 5)
|
| |
|
| |
|
| |
|
Redeemable convertible preferred stock:
|
| |
|
| |
|
| |
|
Preferred stock, Series B, $.001 par, 13,344,349 shares authorized, issued and outstanding
|
| |
10,748,873
|
| |
10,748,873
|
| |
10,748,873
|
Preferred stock, Series C, $.001 par, 42,491,484 shares authorized, issued and outstanding
|
| |
44,594,813
|
| |
44,594,813
|
| |
44,594,813
|
|
| |
|
| |
|
| |
|
Stockholders’ equity:
|
| ||||||||
Common stock, $.001 par, 95,853,558 authorized, 9,992,505 shares issued and 8,937,505 outstanding as of December 31, 2020, 9,515,005 shares issued and 8,460,005 outstanding as of December 31, 2019, and 10,011,255 shares issued and 8,956,255 outstanding as of March 31, 2021 (unaudited)
|
| |
9,993
|
| |
9,515
|
| |
10,012
|
Treasury stock, 1,055,000 shares
|
| |
(60,000)
|
| |
(60,000)
|
| |
(60,000)
|
Preferred stock, Series A, $.001 par, 17,310,609 shares authorized, and 17,210,609 shares issued and outstanding
|
| |
17,211
|
| |
17,211
|
| |
17,211
|
Warrants
|
| |
702,492
|
| |
702,492
|
| |
702,492
|
Additional paid-in-capital
|
| |
22,717,066
|
| |
22,245,704
|
| |
22,799,587
|
Accumulated other comprehensive loss, net of tax
|
| |
—
|
| |
20
|
| |
—
|
Accumulated deficit
|
| |
(75,202,490)
|
| |
(68,287,498)
|
| |
(77,032,722)
|
Total stockholders’ deficit
|
| |
(51,815,728)
|
| |
(45,372,556)
|
| |
(53,563,420)
|
Total liabilities, redeemable convertible preferred stock
|
| |
|
| |
|
| |
|
and stockholders' deficit
|
| |
$7,606,318
|
| |
12,646,217
|
| |
6,686,186
|
|
| |
Years Ended December 31
|
| |
Three Months Ended March 31
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Sales
|
| |
$1,037,918
|
| |
929,064
|
| |
329,775
|
| |
260,512
|
Cost of sales
|
| |
306,533
|
| |
223,678
|
| |
93,042
|
| |
73,188
|
Gross margin
|
| |
731,385
|
| |
705,386
|
| |
236,733
|
| |
187,324
|
Operating expenses:
|
| |
|
| |
|
| |
|
| |
|
Research and development
|
| |
4,130,613
|
| |
6,914,179
|
| |
995,022
|
| |
1,350,701
|
Sales and marketing
|
| |
310,219
|
| |
1,503,784
|
| |
22,819
|
| |
237,189
|
General and administrative
|
| |
2,544,043
|
| |
3,298,829
|
| |
891,987
|
| |
650,192
|
Depreciation and amortization
|
| |
679,653
|
| |
625,778
|
| |
153,453
|
| |
169,410
|
Total operating expenses
|
| |
7,664,528
|
| |
12,342,570
|
| |
2,063,281
|
| |
2,407,492
|
Loss from operations
|
| |
(6,933,143)
|
| |
(11,637,184)
|
| |
(1,826,548)
|
| |
(2,220,168)
|
Other income (expense):
|
| |
|
| |
|
| |
|
| |
|
Interest income, net
|
| |
22,504
|
| |
287,537
|
| |
164
|
| |
20,336
|
Other income
|
| |
10,000
|
| |
93,000
|
| |
—
|
| |
—
|
Other expense
|
| |
—
|
| |
(2,323)
|
| |
—
|
| |
—
|
Interest expense
|
| |
(12,553)
|
| |
(9,972)
|
| |
(3,848)
|
| |
(1,895)
|
Total other income (expense)
|
| |
19,951
|
| |
368,242
|
| |
(3,684)
|
| |
18,441
|
Loss before income taxes
|
| |
(6,913,192)
|
| |
(11,268,942)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Income tax expense
|
| |
1,800
|
| |
3,006
|
| |
—
|
| |
—
|
Net loss
|
| |
$(6,914,992)
|
| |
(11,271,948)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Comprehensive loss:
|
| |
|
| |
|
| |
|
| |
|
Net loss
|
| |
$(6,914,992)
|
| |
(11,271,948)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Change in fair value of available for sale investments
|
| |
(20)
|
| |
4,783
|
| |
—
|
| |
(20)
|
Total comprehensive loss
|
| |
$(6,915,012)
|
| |
(11,267,165)
|
| |
(1,830,232)
|
| |
(2,201,747)
|
Net loss attributable to common stockholders, basic and diluted
|
| |
$(6,914,992)
|
| |
(11,271,948)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Net loss per share attributable to common stockholders, basic and diluted
|
| |
$(0.80)
|
| |
(1.33)
|
| |
(0.20)
|
| |
(0.26)
|
Weighted-average shares used in computing net loss per share attributable to common stockholders, basic and diluted
|
| |
8,638,755
|
| |
8,459,588
|
| |
8,956,255
|
| |
8,597,505
|
|
| |
Series B and Series C
Redeemable Convertible
Preferred stock
|
| |
Common stock
|
| |
Treasury stock
|
| |
Preferred stock
|
| |
Warrants
|
| |
Additional
paid-in capital
|
| |
Accumulated
other
comprehensive
loss, net of tax
|
| |
Accumulated
deficit
|
| |
Total
stockholders’
Deficit
|
||||||||||||
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||
Balance at December 31, 2018
|
| |
55,835,833
|
| |
$55,343,686
|
| |
9,507,505
|
| |
$9,508
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$21,884,244
|
| |
$(4,763)
|
| |
$(57,015,550)
|
| |
$(34,466,858)
|
Issuance of common stock in 2019 for cash upon exercise of options
|
| |
—
|
| |
—
|
| |
7,500
|
| |
7
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
2,619
|
| |
—
|
| |
—
|
| |
2,626
|
Share-based compensation expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
358,841
|
| |
—
|
| |
—
|
| |
358,841
|
Net loss for 2019
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(11,271,948)
|
| |
(11,271,948)
|
Other comprehensive income
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
4,783
|
| |
—
|
| |
4,783
|
Balance at December 31, 2019
|
| |
55,835,833
|
| |
55,343,686
|
| |
9,515,005
|
| |
9,515
|
| |
1,055,000
|
| |
(60,000)
|
| |
17,210,609
|
| |
17,211
|
| |
702,492
|
| |
22,245,704
|
| |
20
|
| |
(68,287,498)
|
| |
(45,372,556)
|
Issuance of common stock in 2020 for cash upon exercise of options
|
| |
—
|
| |
—
|
| |
477,500
|
| |
478
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
152,722
|
| |
—
|
| |
—
|
| |
153,200
|
Share-based compensation expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
318,640
|
| |
—
|
| |
—
|
| |
318,640
|
Net loss for 2020
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(6,914,992)
|
| |
(6,914,992)
|
Other comprehensive income
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(20)
|
| |
—
|
| |
(20)
|
Balance at December 31, 2020
|
| |
55,835,833
|
| |
$55,343,686
|
| |
9,992,505
|
| |
$9,993
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$22,717,066
|
| |
$—
|
| |
$(75,202,490)
|
| |
$(51,815,728)
|
|
| |
Series B and Series C
Redeemable Convertible
Preferred stock
|
| |
Common stock
|
| |
Treasury stock
|
| |
Preferred stock
|
| |
Warrants
|
| |
Additional
paid-in capital
|
| |
Accumulated
other
comprehensive
loss, net of tax
|
| |
Accumulated
deficit
|
| |
Total
stockholders’
Deficit
|
||||||||||||
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||
Balance at December 31, 2019
|
| |
55,835,833
|
| |
$55,343,686
|
| |
9,515,005
|
| |
$9,515
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$22,245,704
|
| |
$20
|
| |
$(68,287,498)
|
| |
$(45,372,556)
|
Issuance of common stock in 2020 for cash upon exercise of options
|
| |
—
|
| |
—
|
| |
137,500
|
| |
138
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
52,662
|
| |
—
|
| |
—
|
| |
52,800
|
Share-based compensation expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
78,824
|
| |
—
|
| |
—
|
| |
78,824
|
Net loss for 2020
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(2,201,727)
|
| |
(2,201,727)
|
Other comprehensive income
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(20)
|
| |
—
|
| |
(20)
|
Balance at March 31, 2020 (unaudited)
|
| |
55,835,833
|
| |
$55,343,686
|
| |
9,652,505
|
| |
$9,653
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$22,377,190
|
| |
$—
|
| |
$(70,489,225)
|
| |
$(47,442,679)
|
Balance at December 31, 2020
|
| |
55,835,833
|
| |
$55,343,686
|
| |
9,992,505
|
| |
$9,993
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$22,717,066
|
| |
$—
|
| |
$(75,202,490)
|
| |
$(51,815,728)
|
Issuance of common stock in 2021 for cash upon exercise of options
|
| |
—
|
| |
—
|
| |
18,750
|
| |
19
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
10,031
|
| |
—
|
| |
—
|
| |
10,050
|
Share-based compensation expense
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
72,490
|
| |
—
|
| |
—
|
| |
72,490
|
Net loss for 2021
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
(1,830,232)
|
| |
(1,830,232)
|
Other comprehensive income
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
Balance at March 31, 2021 (unaudited)
|
| |
55,835,833
|
| |
$55,343,686
|
| |
10,011,255
|
| |
$10,012
|
| |
1,055,000
|
| |
$(60,000)
|
| |
17,210,609
|
| |
$17,211
|
| |
$702,492
|
| |
$22,799,587
|
| |
$—
|
| |
$(77,032,722)
|
| |
$(53,563,420)
|
|
| |
Years Ended December 31
|
| |
Three Months Ended March 31
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Cash flows from operating activities:
|
| |
|
| |
|
| |
|
| |
|
Net loss
|
| |
$(6,914,992)
|
| |
(11,271,948)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
| |
|
| |
|
| |
|
| |
|
Depreciation
|
| |
560,801
|
| |
501,540
|
| |
141,202
|
| |
139,220
|
Amortization
|
| |
118,852
|
| |
124,238
|
| |
12,251
|
| |
30,190
|
Amortization of discount on investments
|
| |
(1,189)
|
| |
(110,497)
|
| |
—
|
| |
(1,189)
|
Amortization of right-of-use assets
|
| |
421,111
|
| |
468,846
|
| |
98,256
|
| |
109,740
|
Inventory reserve
|
| |
5,800
|
| |
—
|
| |
—
|
| |
—
|
Accounts receivable reserve
|
| |
—
|
| |
1,000
|
| |
—
|
| |
—
|
Share-based compensation expense
|
| |
318,640
|
| |
358,841
|
| |
72,490
|
| |
78,824
|
Gain on sale of investment
|
| |
—
|
| |
(570)
|
| |
—
|
| |
—
|
Loss on fixed asset disposition
|
| |
—
|
| |
2,893
|
| |
—
|
| |
—
|
Changes in operating assets and liabilities:
|
| |
|
| |
|
| |
|
| |
|
Accounts receivable
|
| |
(42,236)
|
| |
3,264
|
| |
30,043
|
| |
(3,635)
|
Inventory
|
| |
35,319
|
| |
(34,726)
|
| |
(12,679)
|
| |
29,277
|
Other assets
|
| |
79,442
|
| |
(111,106)
|
| |
63,081
|
| |
15,164
|
Accounts payable
|
| |
80,755
|
| |
(13,926)
|
| |
171,665
|
| |
(98,563)
|
Accrued expenses and other
|
| |
850,415
|
| |
(469,364)
|
| |
194,506
|
| |
209,902
|
Lease liabilities
|
| |
(445,733)
|
| |
(454,481)
|
| |
(105,986)
|
| |
(113,690)
|
Other liabilities
|
| |
—
|
| |
—
|
| |
4,721
|
| |
3,371
|
Net cash used in operating activities
|
| |
(4,933,015)
|
| |
(11,005,996)
|
| |
(1,160,682)
|
| |
(1,803,116)
|
Cash flows from investing activities:
|
| |
|
| |
|
| |
|
| |
|
Purchases of short-term investments
|
| |
—
|
| |
(9,120,995)
|
| |
—
|
| |
—
|
Maturities of short-term investments
|
| |
1,000,000
|
| |
22,135,000
|
| |
—
|
| |
1,000,000
|
Purchases of furniture and equipment
|
| |
(8,352)
|
| |
(593,358)
|
| |
—
|
| |
—
|
Payments for patents and other intangible assets
|
| |
(23,329)
|
| |
(103,141)
|
| |
—
|
| |
(15,961)
|
Net cash provided by investing activities
|
| |
968,319
|
| |
12,317,506
|
| |
—
|
| |
984,039
|
Cash flows from financing activities:
|
| |
|
| |
|
| |
|
| |
|
Payments of deferred offering costs
|
| |
(75,000)
|
| |
—
|
| |
(126,377)
|
| |
—
|
Proceeds from issuance of common stock
|
| |
153,200
|
| |
2,626
|
| |
10,050
|
| |
52,800
|
Proceeds from note payable
|
| |
812,500
|
| |
—
|
| |
—
|
| |
—
|
Repayment of note payable
|
| |
—
|
| |
(113,333)
|
| |
(23,643)
|
| |
—
|
Payments under lease obligations
|
| |
(19,052)
|
| |
(17,075)
|
| |
(5,021)
|
| |
(4,424)
|
Net cash provided by (used in) financing activities
|
| |
871,648
|
| |
(127,782)
|
| |
(144,991)
|
| |
48,376
|
Net change in cash and cash equivalents
|
| |
(3,093,048)
|
| |
1,183,728
|
| |
(1,305,673)
|
| |
(770,701)
|
Cash and cash equivalents:
|
| |
|
| |
|
| |
|
| |
|
Beginning of period
|
| |
6,415,274
|
| |
5,231,546
|
| |
3,322,226
|
| |
6,415,274
|
End of period
|
| |
$3,322,226
|
| |
6,415,274
|
| |
2,016,553
|
| |
5,644,573
|
Supplemental cash flow information
|
| |
|
| |
|
| |
|
| |
|
Cash paid for:
|
| |
|
| |
|
| |
|
| |
|
Interest
|
| |
$6,900
|
| |
9,972
|
| |
1,845
|
| |
1,895
|
Income taxes
|
| |
2,000
|
| |
—
|
| |
—
|
| |
2,800
|
Non-cash investing and financing activities:
|
| |
|
| |
|
| |
|
| |
|
Operating lease liabilities arising from right-of-use assets
|
| |
$—
|
| |
2,083,265
|
| |
—
|
| |
—
|
Deferred offering costs included in accounts payable and accrued expenses
|
| |
127,479
|
| |
—
|
| |
526,476
|
| |
—
|
Prepaid insurance financed with promissory note
|
| |
—
|
| |
—
|
| |
41,199
|
| |
—
|
(a)
|
Use of Estimates in Preparation of Financial Statements
|
(b)
|
Certain Risk and Uncertainties
|
(c)
|
Comprehensive Loss
|
(d)
|
Fair Value of Financial Instruments
|
(e)
|
Cash and Cash Equivalents
|
(f)
|
Investments
|
(g)
|
Accounts Receivable
|
(h)
|
Inventories
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Materials
|
| |
$61,270
|
| |
80,389
|
| |
75,790
|
Work in progress
|
| |
49,650
|
| |
37,576
|
| |
58,384
|
Finished goods
|
| |
20,458
|
| |
54,532
|
| |
9,883
|
Inventory, net
|
| |
$131,378
|
| |
172,497
|
| |
144,057
|
(i)
|
Other Assets
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Other current assets
|
| |
$163,829
|
| |
216,663
|
| |
131,772
|
Other long-term assets
|
| |
543,461
|
| |
537,000
|
| |
543,461
|
Research tax credits available to the Company
|
| |
$707,290
|
| |
753,663
|
| |
675,233
|
(j)
|
Property and Equipment
|
Leasehold improvements
|
| |
Shorter of lease terms(s) or useful life
|
Office equipment
|
| |
5 years
|
Furniture and fixtures
|
| |
7 years
|
Machinery and equipment
|
| |
5 to 7 years
|
(k)
|
Impairment of Long-Lived Assets
|
(l)
|
Leases
|
(m)
|
Intangible Assets
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Cost
|
| |
$1,668,951
|
| |
1,645,622
|
| |
1,668,951
|
Accumulated amortization
|
| |
(1,603,882)
|
| |
(1,485,030)
|
| |
(1,616,133)
|
Net book value
|
| |
$65,069
|
| |
160,592
|
| |
52,818
|
|
| |
|
| |
|
| |
|
(n)
|
Deferred Offering Costs
|
(o)
|
Accrued Expenses
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Clinical trial costs
|
| |
$289,180
|
| |
125,659
|
| |
283,058
|
Compensation costs
|
| |
796,864
|
| |
203,276
|
| |
984,642
|
Other
|
| |
31,557
|
| |
8,246
|
| |
46,407
|
Accrued expenses
|
| |
$1,117,601
|
| |
337,181
|
| |
1,314,107
|
(p)
|
Clinical Holdback
|
Balance at December 31, 2018
|
| |
$63,887
|
Clinical holdback retained
|
| |
81,881
|
Clinical holdback paid
|
| |
—
|
|
| |
|
Balance at December 31, 2019
|
| |
145,768
|
Clinical holdback retained
|
| |
19,630
|
Clinical holdback paid
|
| |
(426)
|
Balance at December 31, 2020
|
| |
164,972
|
Less: clinical holdback - current portion
|
| |
—
|
Clinical holdback - long-term portion
|
| |
$164,972
|
Balance at December 31, 2020
|
| |
$164,972
|
Clinical holdback retained
|
| |
8,417
|
Clinical holdback paid
|
| |
(3,696)
|
Balance at March 31, 2021
|
| |
169,693
|
Less: clinical holdback - current portion
|
| |
—
|
Clinical holdback - long-term portion
|
| |
$169,693
|
(q)
|
Revenue Recognition
|
|
| |
December 31,
|
| |
March 31,
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
Primary geographical markets
|
| |
|
| |
|
| |
(unaudited)
|
|||
U.S.
|
| |
$900,751
|
| |
743,492
|
| |
271,730
|
| |
200,275
|
International
|
| |
137,167
|
| |
185,572
|
| |
58,045
|
| |
60,237
|
Total
|
| |
$1,037,918
|
| |
929,064
|
| |
329,775
|
| |
260,512
|
|
| |
|
| |
|
| |
|
| |
|
(r)
|
License, Manufacturing, and Supply Agreement - Bayer Yakuhin
|
(s)
|
Concentration of Credit Risk
|
(t)
|
Research and Development
|
(u)
|
Sales and Marketing
|
(v)
|
General and Administrative
|
(w)
|
Advertising Expense
|
(x)
|
Stock-Based Compensation
|
(y)
|
Income Taxes
|
(z)
|
Other Income
|
(aa)
|
Net Loss per Share Attributable to Common Stockholders
|
(bb)
|
Recently Issued Accounting Pronouncements – Recently Adopted
|
(cc)
|
Recently Issued Accounting Pronouncements – Not Yet Adopted
|
•
|
Level 1 – Valuation is based upon quoted prices for identical instruments traded in active markets.
|
•
|
Level 2 – Valuation is based upon quoted prices for similar instruments in active markets, quoted prices for Identical or similar instruments in markets that are not active, and model-based valuation techniques for which all significant assumptions are observable in the market.
|
•
|
Level 3 – Valuation is generated from model-based techniques that use significant assumptions not observable in the market. These unobservable assumptions reflect our own estimates of assumptions market participants would use in pricing the asset or liability.
|
December 31, 2020
|
| |
Total
|
| |
Quoted prices
in active
markets for
identical assets
(Level 1)
|
| |
Significant
other
observable
inputs
(Level 2)
|
| |
Significant
unobservable
inputs
(Level 3)
|
Money market funds(1)
|
| |
$3,038,612
|
| |
3,038,612
|
| |
—
|
| |
—
|
Total
|
| |
$3,038,612
|
| |
3,038,612
|
| |
—
|
| |
—
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
December 31, 2019
|
| |
Total
|
| |
Quoted prices
in active
markets for
identical assets
(Level 1)
|
| |
Significant
other
observable
inputs
(Level 2)
|
| |
Significant
unobservable
inputs
(Level 3)
|
Commercial paper
|
| |
$698,822
|
| |
—
|
| |
698,822
|
| |
—
|
Corporate notes
|
| |
300,009
|
| |
—
|
| |
300,009
|
| |
—
|
Money market funds(1)
|
| |
5,916,143
|
| |
5,916,143
|
| |
—
|
| |
—
|
Total
|
| |
$6,914,974
|
| |
5,916,143
|
| |
998,831
|
| |
—
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
March 31, 2021 (unaudited)
|
| |
Total
|
| |
Quoted prices
in active
markets for
identical assets
(Level 1)
|
| |
Significant
other
observable
inputs
(Level 2)
|
| |
Significant
unobservable
inputs
(Level 3)
|
Money market funds(1)
|
| |
$1,838,651
|
| |
1,838,651
|
| |
—
|
| |
—
|
Total
|
| |
$1,838,651
|
| |
1,838,651
|
| |
—
|
| |
—
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
December 31, 2020
|
| |
At cost
|
| |
Unrealized
gains
|
| |
Unrealized
losses
|
| |
At fair value
|
Money market funds(1)
|
| |
$3,038,612
|
| |
—
|
| |
—
|
| |
3,038,612
|
Total
|
| |
$3,038,612
|
| |
—
|
| |
—
|
| |
3,038,612
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
December 31, 2019
|
| |
At cost
|
| |
Unrealized
gains
|
| |
Unrealized
losses
|
| |
At fair value
|
Commercial paper
|
| |
$698,822
|
| |
—
|
| |
—
|
| |
698,822
|
Corporate notes
|
| |
299,989
|
| |
20
|
| |
—
|
| |
300,009
|
Money market funds(1)
|
| |
5,916,143
|
| |
—
|
| |
—
|
| |
5,916,143
|
Total
|
| |
$6,914,954
|
| |
20
|
| |
—
|
| |
6,914,974
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
March 31, 2021 (unaudited)
|
| |
At cost
|
| |
Unrealized
gains
|
| |
Unrealized
losses
|
| |
At fair value
|
Money market funds(1)
|
| |
$1,838,651
|
| |
—
|
| |
—
|
| |
1,838,651
|
Total
|
| |
$1,838,651
|
| |
—
|
| |
—
|
| |
1,838,651
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
March 31, 2020 (unaudited)
|
| |
At cost
|
| |
Unrealized
gains
|
| |
Unrealized
losses
|
| |
At fair value
|
Money market funds(1)
|
| |
$5,236,945
|
| |
—
|
| |
—
|
| |
5,236,945
|
Total
|
| |
$5,236,945
|
| |
—
|
| |
—
|
| |
5,236,945
|
(1)
|
Included in cash and cash equivalents on the balance sheet.
|
(5)
|
Commitments and Contingencies
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Lease right-of-use assets
|
| |
$ 1,008,887
|
| |
1,429,997
|
| |
910,630
|
Total
|
| |
$ 1,008,887
|
| |
1,429,997
|
| |
910,630
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Lease liabilities – current portion
|
| |
$413,211
|
| |
445,733
|
| |
405,077
|
Lease liabilities – long-term portion
|
| |
769,840
|
| |
1,183,051
|
| |
671,989
|
Total
|
| |
$ 1,183,051
|
| |
1,628,784
|
| |
1,077,066
|
|
| |
Years Ended December 31,
|
| |
Three Months Ended March 31,
|
||||||
Lease cost:
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Operating lease cost
|
| |
$490,754
|
| |
490,754
|
| |
122,689
|
| |
122,689
|
Short-term lease cost
|
| |
—
|
| |
1,810
|
| |
—
|
| |
—
|
Variable lease cost
|
| |
14,326
|
| |
10,544
|
| |
3,789
|
| |
2,843
|
Total
|
| |
$505,080
|
| |
503,108
|
| |
126,478
|
| |
125,532
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Lease right-of-use assets
|
| |
$150,122
|
| |
150,122
|
| |
150,122
|
Accumulated depreciation
|
| |
(101,503)
|
| |
(80,129)
|
| |
(106,330)
|
Net
|
| |
$48,619
|
| |
69,993
|
| |
43,792
|
|
| |
December 31,
|
| |
March 31,
2021
|
|||
Lease liabilities - right of use
|
| |
2020
|
| |
2019
|
| ||
|
| |
|
| |
|
| |
(unaudited)
|
Lease liabilities – current portion
|
| |
$20,861
|
| |
21,964
|
| |
21,390
|
Lease liabilities – long-term portion
|
| |
39,252
|
| |
60,291
|
| |
33,701
|
Total
|
| |
$60,113
|
| |
82,255
|
| |
55,091
|
Operating leases:
|
| |
|
2021
|
| |
$527,739
|
2022
|
| |
541,307
|
2023
|
| |
557,500
|
2024
|
| |
47,029
|
Total undiscounted lease payments - operating leases
|
| |
1,673,575
|
Financing leases:
|
| |
|
2021
|
| |
25,951
|
2022
|
| |
25,951
|
2023
|
| |
16,792
|
Total undiscounted lease payments - finance leases
|
| |
68,694
|
Total undiscounted lease payments
|
| |
1,742,269
|
Less: imputed interest
|
| |
(499,105)
|
Lease liability
|
| |
1,243,164
|
Less: current portion of lease liability
|
| |
(434,072)
|
Lease liability, less current portion
|
| |
$809,092
|
|
| |
December 31
|
|||
|
| |
2020
|
| |
2019
|
Federal income tax at statutory federal rate
|
| |
21 %
|
| |
21 %
|
Permanent differences
|
| |
(1)
|
| |
(1)
|
Research and development credit
|
| |
3
|
| |
3
|
Other deferred adjustments
|
| |
(5)
|
| |
—
|
State income tax expense (net of federal benefit)
|
| |
1
|
| |
1
|
Valuation allowance
|
| |
(19)
|
| |
(24)
|
Effective tax rate
|
| |
— %
|
| |
— %
|
|
| |
December 31
|
|||
|
| |
2020
|
| |
2019
|
Deferred tax asset arising from:
|
| |
|
| |
|
Net operating loss carry forwards
|
| |
$14,975,253
|
| |
13,994,363
|
Accrued expenses (vacation)
|
| |
171,662
|
| |
40,308
|
Intangibles
|
| |
67,109
|
| |
62,557
|
Research and development tax credits
|
| |
2,952,047
|
| |
2,757,554
|
Share-based compensation expense
|
| |
20,035
|
| |
12,778
|
Lease liabilities
|
| |
271,231
|
| |
374,984
|
Other
|
| |
15,281
|
| |
1,243
|
Deferred tax asset
|
| |
18,472,618
|
| |
17,243,787
|
Deferred tax liability arising from:
|
| |
|
| |
|
UNICAP
|
| |
(10,470)
|
| |
(10,492)
|
Right-of-use assets
|
| |
(231,283)
|
| |
(328,731)
|
Property and equipment
|
| |
(27,898)
|
| |
(39,121)
|
Deferred tax liability
|
| |
(269,651)
|
| |
(378,344)
|
Valuation allowance
|
| |
$18,202,967
|
| |
16,865,443
|
Net deferred tax asset
|
| |
$—
|
| |
—
|
2024
|
| |
$430,332
|
2025
|
| |
865,274
|
2026
|
| |
1,213,130
|
2027
|
| |
2,082,043
|
2028
|
| |
2,536,605
|
2029
|
| |
2,235,045
|
2030
|
| |
4,132,949
|
2031
|
| |
3,160,709
|
2032
|
| |
3,533,521
|
2033
|
| |
2,987,848
|
2034
|
| |
2,516,728
|
2035
|
| |
4,777,558
|
2036
|
| |
4,503,474
|
2037
|
| |
6,869,819
|
Indefinitely
|
| |
27,883,827
|
Total
|
| |
$69,728,862
|
(a)
|
Common Stock
|
(b)
|
Convertible Preferred Stock
|
|
| |
Shares
authorized
|
| |
Issued and
outstanding
|
Series A Preferred:
|
| |
|
| |
|
Series A-1 Convertible Preferred
|
| |
4,580,000
|
| |
4,580,000
|
Series A-2 Preferred
|
| |
1,342,509
|
| |
1,342,509
|
Series A-3 Preferred
|
| |
1,060,697
|
| |
1,060,697
|
Series A-4 Preferred
|
| |
2,242,403
|
| |
2,242,403
|
Series A-5 Preferred (formerly, Preferred Stock B-1)
|
| |
3,000,000
|
| |
3,000,000
|
Series A-6 Preferred (formerly, Preferred Stock C-1)
|
| |
2,800,000
|
| |
2,800,000
|
Series A-7 Preferred (formerly, Preferred Stock D-1)
|
| |
2,285,000
|
| |
2,185,000
|
Total
|
| |
17,310,609
|
| |
17,210,609
|
(c)
|
Redeemable Convertible Preferred Stock
|
|
| |
Shares
authorized
|
| |
Issued and
outstanding
|
| |
Original
Issuance
Price
|
| |
Initial
Carrying
Value
|
| |
Redemption
Value
|
Series B Preferred
|
| |
13,344,349
|
| |
13,344,349
|
| |
$0.8055
|
| |
$10,748,873
|
| |
$10,748,873
|
Series C Preferred
|
| |
42,491,484
|
| |
42,491,484
|
| |
1.0495
|
| |
44,594,813
|
| |
44,594,813
|
Total
|
| |
55,835,833
|
| |
55,835,833
|
| |
|
| |
$55,343,686
|
| |
$55,343,686
|
(d)
|
Dividends
|
(i)
|
Series C Preferred Dividend Rights
|
(ii)
|
Series B Preferred Dividend Rights
|
(iii)
|
Series A Preferred Dividend Rights
|
(e)
|
Other Provisions
|
|
| |
Number of
options
|
| |
Weighted
average
exercise
price
|
Balances at December 31, 2018
|
| |
9,910,000
|
| |
0.39
|
Granted
|
| |
1,315,000
|
| |
0.64
|
Exercised
|
| |
(7,500)
|
| |
0.35
|
Expired
|
| |
(75,000)
|
| |
0.42
|
Forfeited
|
| |
(2,287,500)
|
| |
0.46
|
Balances at December 31, 2019
|
| |
8,855,000
|
| |
0.41
|
Granted
|
| |
—
|
| |
—
|
Exercised
|
| |
(477,500)
|
| |
0.32
|
Expired
|
| |
—
|
| |
—
|
Forfeited
|
| |
(1,685,000)
|
| |
0.47
|
Balances at December 31, 2020
|
| |
6,692,500
|
| |
0.40
|
Granted
|
| |
—
|
| |
—
|
Exercised
|
| |
(18,750)
|
| |
0.54
|
Forfeited
|
| |
(10,000)
|
| |
1.78
|
Balances at March 31, 2021 (unaudited)
|
| |
6,663,750
|
| |
0.39
|
Option outstanding
|
| |
Options vested and exercisable
|
||||||||||||
Exercise
price
|
| |
Outstanding
(in shares)
|
| |
Weighted
average
remaining
life years
|
| |
Number of
options
vested
|
| |
Exercise
price
|
| |
Weighted
average
remaining
life years
|
$0.19
|
| |
2,242,500
|
| |
5.21
|
| |
1,242,500
|
| |
$0.19
|
| |
5.21
|
0.36
|
| |
2,570,000
|
| |
6.50
|
| |
1,877,500
|
| |
0.36
|
| |
6.50
|
0.44
|
| |
750,000
|
| |
7.19
|
| |
457,500
|
| |
0.44
|
| |
7.17
|
Option outstanding
|
| |
Options vested and exercisable
|
||||||||||||
Exercise
price
|
| |
Outstanding
(in shares)
|
| |
Weighted
average
remaining
life years
|
| |
Number of
options
vested
|
| |
Exercise
price
|
| |
Weighted
average
remaining
life years
|
0.50
|
| |
30,000
|
| |
7.87
|
| |
15,000
|
| |
0.50
|
| |
7.87
|
0.55
|
| |
430,000
|
| |
8.24
|
| |
112,500
|
| |
0.55
|
| |
8.24
|
0.68
|
| |
555,000
|
| |
8.95
|
| |
138,750
|
| |
0.68
|
| |
8.95
|
3.00
|
| |
115,000
|
| |
1.51
|
| |
115,000
|
| |
3.00
|
| |
1.51
|
|
| |
6,692,500
|
| |
6.38
|
| |
3,958,750
|
| |
|
| |
6.17
|
Option outstanding
|
| |
Options vested and exercisable
|
||||||||||||
Exercise
Price
|
| |
Outstanding
(in shares)
|
| |
Weighted
average
remaining
life years
|
| |
Number of
options
vested
|
| |
Exercise
price
|
| |
Weighted
average
remaining
life years
|
$0.19
|
| |
2,242,500
|
| |
4.96
|
| |
1,242,500
|
| |
$0.19
|
| |
4.96
|
0.36
|
| |
2,570,000
|
| |
6.25
|
| |
1,987,500
|
| |
0.36
|
| |
6.25
|
0.44
|
| |
750,000
|
| |
6.94
|
| |
513,750
|
| |
0.44
|
| |
6.90
|
0.50
|
| |
15,000
|
| |
7.62
|
| |
—
|
| |
—
|
| |
—
|
0.55
|
| |
425,000
|
| |
7.99
|
| |
212,500
|
| |
0.55
|
| |
7.99
|
0.68
|
| |
551,250
|
| |
8.70
|
| |
135,000
|
| |
0.68
|
| |
8.70
|
3.00
|
| |
110,000
|
| |
1.32
|
| |
110,000
|
| |
3.00
|
| |
1.32
|
|
| |
6,663,750
|
| |
6.13
|
| |
4,201,250
|
| |
|
| |
5.99
|
(a)
|
Stock-Based Compensation for Nonemployees
|
(b)
|
Stock-Based Compensation Associated with Awards to Employees
|
(c)
|
Valuation
|
|
| |
2019
|
|||
|
| |
Employee
|
| |
Nonemployee
|
Expected term (in years)
|
| |
5.69 - 6.69
|
| |
—
|
Risk free interest rate
|
| |
1.69% - 2.24%
|
| |
— %
|
Dividend yield
|
| |
— %
|
| |
— %
|
Expected volatility
|
| |
63%
|
| |
— %
|
(i)
|
Expected Term
|
(ii)
|
Risk-Free Interest Rate
|
(iii)
|
Dividend Yield
|
(iv)
|
Expected Volatility
|
(v)
|
Forfeitures
|
|
| |
Year ended December 31,
|
| |
Three Months Ended March 31,
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Net loss attributable to common stockholders, basic & diluted
|
| |
$(6,914,992)
|
| |
(11,271,948)
|
| |
(1,830,232)
|
| |
(2,201,727)
|
Weighted average number of shares used in computing net loss per share attributable to common stockholders, basic and diluted
|
| |
8,638,755
|
| |
8,459,588
|
| |
8,956,255
|
| |
8,597,505
|
Net loss per share attributable to common stockholders, basic and diluted
|
| |
$(0.80)
|
| |
(1.33)
|
| |
(0.20)
|
| |
(0.26)
|
|
| |
December 31,
|
| |
March 31,
|
||||||
|
| |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
|
| |
|
| |
|
| |
(unaudited)
|
|||
Convertible preferred stock outstanding
|
| |
73,046,442
|
| |
73,046,442
|
| |
73,046,442
|
| |
73,046,442
|
Options to purchase common stock
|
| |
6,692,500
|
| |
8,855,000
|
| |
6,663,750
|
| |
7,846,250
|
Warrants to purchase to common stock
|
| |
2,201,116
|
| |
2,201,116
|
| |
2,201,116
|
| |
2,201,116
|
Total potential shares
|
| |
81,940,058
|
| |
84,102,558
|
| |
81,911,308
|
| |
83,093,808
|
Chardan
|
| |
JonesTrading
|
Item 13.
|
Other Expenses of Issuance and Distribution.
|
|
| |
Amount
|
Securities and Exchange Commission registration fee
|
| |
$4,391.28
|
FINRA filing fee
|
| |
5,850
|
Initial Nasdaq listing fee
|
| |
*
|
Accountants' fees and expenses
|
| |
*
|
Legal fees and expenses
|
| |
*
|
Transfer Agent's fees and expenses
|
| |
*
|
Printing and engraving expenses
|
| |
*
|
Miscellaneous
|
| |
*
|
|
| |
|
Total expenses
|
| |
$*
|
*
|
To be provided by amendment.
|
Item 14.
|
Indemnification of Directors and Officers.
|
Item 15.
|
Recent Sales of Unregistered Securities.
|
Item 16.
|
Exhibits and Financial Statement Schedules.
|
(a)
|
Exhibits.
|
Exhibit
Number
|
| |
Description of Exhibit
|
1.1*
|
| |
Form of Underwriting Agreement
|
| |
Tenth Amended and Restated Certificate of Incorporation of Femasys Inc. (currently in effect)
|
|
| |
Bylaws of Femasys Inc. (currently in effect)
|
|
| |
Form of Eleventh Amended and Restated Certificate of Incorporation of Femasys Inc. (to be effective upon the closing of this offering)
|
|
| |
Form of Amended and Restated Bylaws of Femasys Inc. (to be effective upon the closing of this offering)
|
|
| |
Form of Certificate of Common Stock
|
|
| |
Third Amended and Restated Investor Rights Agreement, dated January 6, 2017, among Femasys Inc. and the Investors party thereto
|
|
| |
Amendment No. 1 to Third Amended and Restated Investor Rights Agreement, dated April 2, 2021, among Femasys Inc. and the Investors party thereto
|
|
| |
Form of Warrant to Purchase Series B Preferred Stock or Series C Preferred Stock, dated April 16, 2015, December 14, 2016 or January 6, 2017, issued by Femasys Inc. to Salem Partners, LLC
|
|
5.1*
|
| |
Opinion of Dechert LLP
|
| |
2004 Stock Incentive Plan, as amended
|
|
| |
2015 Stock-Based Incentive Compensation Plan, as amended
|
Exhibit
Number
|
| |
Description of Exhibit
|
| |
Femasys Inc. 2021 Equity Incentive Plan, and forms of agreements thereunder
|
|
| |
Femasys Inc. 2021 Employee Stock Purchase Plan
|
|
| |
Employment Agreement, dated March 17, 2004 and amended August 31, 2005, by and between Femasys Inc. and Kathy Lee-Sepsick
|
|
10.6#*
|
| |
Amended and Restated Employment Agreement, by and between Femasys Inc. and Kathy Lee-Sepsick
|
| |
Employment Agreement, dated March 17, 2004 and amended August 31, 2005, by and between Femasys Inc. and Daniel Currie
|
|
10.8#*
|
| |
Amended and Restated Employment Agreement, by and between Femasys Inc. and Daniel Currie
|
10.9#*
|
| |
Employment Agreement, by and between Femasys Inc. and Gary Thompson
|
10.10#*
|
| |
Employment Agreement, by and between Femasys Inc. and Lexy Kelley
|
10.11#*
|
| |
Femasys Inc. Non-Employee Director Compensation Policy
|
| |
Form of Indemnification Agreement between Femasys Inc. and its directors and officers
|
|
| |
Consent of KPMG LLP
|
|
23.2*
|
| |
Consent of Dechert LLP (included in Exhibit 5.1)
|
| |
Power of Attorney (included on signature page)
|
*
|
To be filed by amendment.
|
#
|
Indicates management contract or compensatory plan.
|
(b)
|
Financial statement schedules.
|
Item 17.
|
Undertakings.
|
(1)
|
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
(2)
|
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
| |
FEMASYS INC.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Kathy Lee-Sepsick
|
|
| |
|
| |
Kathy Lee-Sepsick
Chief Executive Officer and President
|
Signature
|
| |
Title
|
| |
Date
|
|
| |
|
| |
|
/s/ Kathy Lee-Sepsick
|
| |
Chair of the Board of Directors, President and
Chief Executive Officer (principal executive officer)
|
| |
May 14, 2021
|
Kathy Lee-Sepsick
|
| |||||
|
| |
|
| |
|
/s/ Gary Thompson
|
| |
Vice President, Finance & Administration (principal financial and accounting officer)
|
| |
May 14, 2021
|
Gary Thompson
|
| |||||
|
| |
|
| |
|
/s/ John Adams
|
| |
Director
|
| |
May 14, 2021
|
John Adams
|
| |||||
|
| |
|
| |
|
/s/ John Dyett
|
| |
Director
|
| |
May 14, 2021
|
John Dyett
|
| |||||
|
| |
|
| |
|
/s/ Charles Larsen
|
| |
Director
|
| |
May 14, 2021
|
Charles Larsen
|
| |||||
|
| |
|
| |
|
/s/ Anne Morrissey
|
| |
Director
|
| |
May 14, 2021
|
Anne Morrissey
|
| |||||
|
| |
|
| |
|
/s/ Edward Uzialko, Jr.
|
| |
Director
|
| |
May 14, 2021
|
Edward Uzialko, Jr.
|
| |||||
|
| |
|
| |
|
/s/ William Witte
|
| |
Director
|
| |
May 14, 2021
|
William Witte
|
|
TENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FEMASYS INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Femasys Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”),
DOES HEREBY CERTIFY:
1. That the name of this corporation is Femasys Inc., and that this corporation was originally incorporated pursuant to the General Corporation Law on February 19, 2004.
2. That an Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on August 31, 2005, a Second Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on September 29, 2006, a Third Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on March 20, 2008, a Fourth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on May 29, 2009, a Fifth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on January 22, 2010, a Sixth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on August 31, 2011, a Seventh Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on April 16, 2015, an Eighth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on June 6, 2016 and a Ninth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on December 14, 2016.
3. That the Board of Directors (the “Board”) duly adopted resolutions proposing to amend and restate the Ninth Amended and Restated Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Ninth Amended and Restated Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:
FIRST: The name of this corporation is Femasys Inc. (the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, 19904. The name of the registered agent of the Corporation in the State of Delaware at such address is National Corporate Research, Ltd.
THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 169,000,000 $0.001 par value per share, of which 95,853,558 are designated common stock (“Common Stock”) and 73,146,442 are designated preferred stock (“Preferred Stock”). The Preferred Stock is composed of (i) 4,580,000 shares of Series A-1 Preferred Stock (“Series A-1 Preferred Stock”), (ii) 1,342,509 shares of Series A-2 Preferred Stock (“Series A-2 Preferred Stock”), (iii) 1,060,697 shares of Series A-3 Preferred Stock (the “Series A-3 Preferred Stock”), (iv) 2,242,403 shares of Series A-4 Preferred Stock (the “Series A-4 Preferred Stock”), (v) 3,000,000 shares of Series A-5 Preferred Stock (the “Series A-5 Preferred Stock”), (vi) 2,800,000 shares of Series A-6 Preferred Stock (the “Series A-6 Preferred Stock”), (vii) 2,285,000 shares of Series A-7 Preferred Stock, $0.001 par value per share (the “Series A-7 Preferred Stock”, and together with the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock and Series A-6 Preferred Stock, the “Series A Preferred Stock”), (viii) 13,344,349 shares of Series B Preferred Stock (the “Series B Preferred Stock”) and (ix) 42,491,484 shares of Series C Preferred Stock (the “Series C Preferred Stock”).
The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation. Unless otherwise indicated, references to “Sections” in this Article refer to sections of this Article Fourth.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock (together, the “Preferred Stock”) set forth herein and as may be designated by resolution of the Board with respect to any series of Preferred Stock as authorized herein.
2. Voting. The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the General Corporation Law. There shall be no cumulative voting. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding or reserved for issuance hereunder) by the affirmative vote of the holders of shares of stock of the Corporation representing a majority of the votes represented by all outstanding shares of stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such series to consist of such number of shares and to have such terms, rights, powers and preferences, and the qualifications and limitations with respect thereto, as stated or expressed herein. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law or by the terms of any series of Preferred Stock.
C. SERIES A, SERIES B AND SERIES C PREFERRED STOCK.
Four million five hundred eighty thousand (4,580,000) shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-1 Preferred Stock,” all of which are issued and outstanding; 1,342,509 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-2 Preferred Stock,” all of which are issued and outstanding; 1,060,697 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-3 Preferred Stock,” all of which are issued and outstanding; 2,242,403 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-4 Preferred Stock,” all of which are issued and outstanding; 3,000,000 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-5 Preferred Stock,” all of which are issued and outstanding; 2,800,000 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-6 Preferred Stock,” all of which are issued and outstanding; 2,285,000 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A-7 Preferred Stock,” 2,185,000 of which are issued and outstanding; 13,344,349 shares of the authorized Preferred Stock of the Corporation are hereby designated “Series B Preferred Stock,” all of which are issued and outstanding; and 42,491,484 shares of authorized Preferred Stock of the Corporation are hereby designated “Series C Preferred Stock, 38,680,145 of which are issued and outstanding, in each case with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. The Series B Preferred Stock and the Series C Preferred Stock are hereinafter referred to together as the “Senior Preferred Stock.”
1. Dividends.
(a) Series C Preferred Dividend Rights. Holders of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board, but only out of funds that are legally available therefor, cash dividends at the rate of 8% of the Series C Original Issue Price (as defined below) per annum (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (the “Preferred C Dividends”). Such dividends shall be payable only when, as and if declared by the Board and shall be non-cumulative. The “Series C Original Issue Price” shall mean $1.0495 per share, as adjusted for any stock dividend, stock split, combination or other similar recapitalization affecting such shares. So long as any shares of the Series C Preferred Stock are outstanding, the Corporation shall not declare, pay or set aside any dividends on any shares of Series B Preferred Stock, Series A Preferred Stock, Common Stock or any other shares of capital stock of the Corporation unless the holders of the Series C Preferred Stock then outstanding shall first receive a dividend on each outstanding share of Series C Preferred Stock in accordance with this Section 1(a). The Series C Preferred Stock also shall be entitled to receive any non-cash dividends declared by the Board based on the number of shares of Common Stock into which the Series C Preferred Stock is then convertible (other than dividends payable in Common Stock for which adjustment is otherwise made to the then-applicable conversion rate of the Series C Preferred Stock).
(b) Series B Preferred Dividend Rights. Holders of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board, but only out of funds that are legally available therefor, cash dividends at the rate of 8% of the Series B Original Issue Price (as defined below) per annum (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (the “Preferred B Dividends” and, together with the Preferred C Dividends, the “Senior Dividends”). Such dividends shall be payable only when, as and if declared by the Board and shall be non-cumulative. The “Series B Original Issue Price” shall mean $0.8055 per share, as adjusted for any stock dividend, stock split, combination or other similar recapitalization affecting such shares. So long as any shares of the Series B Preferred Stock are outstanding, the Corporation shall not declare, pay or set aside any dividends on any shares of Series A Preferred Stock, Common Stock or any other shares of capital stock of the Corporation other than as described in Section 1(a) above unless the holders of the Series B Preferred Stock then outstanding shall first receive a dividend on each outstanding share of Series B Preferred Stock in accordance with this Section 1(b). The Series B Preferred Stock also shall be entitled to receive any non-cash dividends declared by the Board based on the number of shares of Common Stock into which the Series B Preferred Stock is then convertible (other than dividends payable in Common Stock for which adjustment is otherwise made to the then-applicable conversion rate of the Series B Preferred Stock).
(c) Series A Preferred Dividend Rights. Holders of Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, Series A-6 Preferred Stock and Series A-7 Preferred Stock (the “Junior Preferred Stock”), shall be entitled to receive, when, as and if declared by the Board, but only out of funds that are legally available therefor, cash dividends at the rate of $.025 per share, $.050 per share, $.050 per share, $.050 per share, and $.050 per share respectively, per annum (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (the “Series A Dividends”). Such dividends shall be payable only when, as and if declared by the Board and shall be non-cumulative. So long as any shares of the Series C Preferred Stock and Series B Preferred Stock are outstanding, the Corporation shall not declare, pay or set aside any dividends on the Junior Preferred Stock unless (i) all Senior Dividends have first been paid or declared and set apart and (ii) such dividends have been approved by the holders of a majority of the outstanding shares of the Series C Preferred Stock and Series B Preferred Stock voting together as a single class (the “Required Senior Preferred Stockholder Vote”).
(d) Other Dividends. The Corporation shall not declare, pay or set aside any dividends on the Common Stock of the Corporation unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) (i) all Senior Dividends have first been paid or declared and set apart, and (ii) the Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, and Series A-6 Preferred Stock then outstanding shall first receive (and then after such payments have been fully received, the holders of the Series A-7 Preferred Stock shall receive), a dividend on each outstanding share of Junior Preferred Stock in accordance with Section 1(c) above and (iii) such dividends have been approved by the Required Senior Preferred Stockholder Vote.
2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.
(a) Preferential Payments to Holders of Series C Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or any Deemed Liquidation Event (as defined below), the holders of shares of the Series C Preferred Stock then outstanding shall be entitled to be paid out of the assets legally available for distribution to its stockholders before any payment shall be made to the holders of shares of Series B Preferred Stock, Series A Preferred Stock or Common Stock by reason of their ownership thereof, an amount per share equal to the Series C Original Issue Price, plus all declared but unpaid dividends thereon (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (the “Series C Preference”). If upon any such liquidation, dissolution or winding up of the Corporation, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series C Preferred Stock the full amount to which they shall be entitled under this Section 2(a), the holders of shares of Series C Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
(b) Preferential Payments to Holders of Series B Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or any Deemed Liquidation Event, after the payment in full of the Series C Preference as set forth in Section 2(a), the holders of shares of the Series B Preferred Stock then outstanding shall be entitled to be paid out of the assets legally available for distribution to its stockholders before any payment shall be made to the holders of shares of Series A Preferred Stock or Common Stock by reason of their ownership thereof, an amount per share equal to the Series B Original Issue Price, plus all declared but unpaid dividends thereon (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (the “Series B Preference” and, together with the Series C Preference, the “Senior Preference”). If upon any such liquidation, dissolution or winding up of the Corporation, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under this Section 2(b), the holders of shares of Series B Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
(c) Preferential Payments to Holders of Series A Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or any Deemed Liquidation Event, after the payment in full of the Senior Preference as set forth in Sections 2(a) and 2(b) above, the holders of shares of the Junior Preferred Stock then outstanding shall be entitled to be paid out of the assets legally available for distribution to its stockholders (with the holders of the Series A-7 Preferred Stock being paid only after the holders of shares of the Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, and Series A-6 Preferred Stock have received the full preference provided for herein), before any payment shall be made to the holders of the Series A-2 Preferred Stock, Series A-3 Preferred Stock, or Common Stock or any other class or series of stock ranking on liquidation junior to the Junior Preferred Stock by reason of their ownership thereof, and the holders of shares of the Series A-2 Preferred Stock, Series A-3 Preferred Stock then outstanding shall be entitled to be paid out of the assets legally available for distribution to its stockholders, before any payment shall be made to the holders of the Common Stock or any other class or series of stock ranking on liquidation junior to the Series A-2 Preferred Stock or Series A-3 Preferred Stock by reason of their ownership thereof: (i) in the case of the Series A-1 Preferred Stock, an amount equal to $0.50 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares); (ii) in the case of the Series A-2 Preferred Stock, an amount equal to $0.40 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares); (iii) in the case of the Series A-3 Preferred Stock, an amount equal to $0.45 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares); (iv) in the case of the Series A-4 Preferred Stock, an amount equal to $1.00 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares); (v) in the case of the Series A-5 Preferred Stock, an amount equal to $1.00 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares); (vi) in the case of the Series A-6 Preferred Stock, an amount equal to $1.25 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) and (vii) in the case of the Series A-7 Preferred Stock, an amount equal to $2.00 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (together, the “Series A Preference”). If upon any such liquidation, dissolution or winding up of the Corporation, the remaining assets available for distribution to its stockholders shall be insufficient to pay the Series A Preference in full, the holders of shares of Junior Preferred Stock shall share ratably in any distribution of the remaining assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full (with the holders of the Series A-7 Preferred Stock being paid only after the holders of shares of the Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, and Series A-6 Preferred Stock have received the full preference provided for herein), and once all such preferences of the Junior Preferred Stock have been paid, if assets are remaining, the holders of shares of the Series A-2 Preferred Stock and Series A-3 Preferred Stock shall receive a distribution of the remaining assets available for distribution up to the full amount to which they shall be entitled. Notwithstanding anything in this Section 2(c) or any other provision in this Certificate of Incorporation to the contrary, the aggregate amount of Series A Preference shall not exceed $15,402,403.
(d) Distribution of Remaining Assets. After the payment of all preferential amounts required to be paid as set forth in Section 2(a), Section 2(b) and Section 2(c) above, the remaining assets available for distribution to the Corporation’s stockholders shall be distributed among the holders of the shares of Common Stock, pro rata based on the number of shares held by each such holder.
(e) Deemed Liquidation Events.
(i) The following events shall be deemed to be a liquidation of the Corporation for purposes of this Section 2 (a “Deemed Liquidation Event”), unless the majority of the Preferred Stock, voting together as a single class (the “Required Preferred Stockholder Vote”) elect otherwise, by written notice given to the Corporation at least 30 days prior to the effective date of any such event:
(A) a merger or consolidation in which
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(I) |
the Corporation is a constituent party, or |
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(II) |
a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, |
except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted or exchanged for shares of capital stock which represent, immediately following such merger or consolidation at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation (provided that, for the purpose of this Section 2(e)(i), all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such merger or consolidation or upon conversion of Convertible Securities outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of Common Stock are converted or exchanged);
(B) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation, of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer or other disposition is to a wholly owned subsidiary of the Corporation; or
(C) the exclusive licensing of substantially all of the Corporation’s intellectual property, except where such licensing is to a wholly owned subsidiary of the Corporation.
(ii) The Corporation shall not have the power to effect any transaction constituting a Deemed Liquidation Event pursuant to Section 2(e)(i)(A)(I) above unless the agreement or plan of merger or consolidation provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 2(a)-(d) above.
(iii) In the event of a Deemed Liquidation Event pursuant to Sections 2(e)(i)(A)(II) or (B) above, if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within 60 days after such Deemed Liquidation Event, then (X) the Corporation shall deliver a written notice to the holders of the Preferred Stock no later than the 60th day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (Y) to require the redemption of such shares of Preferred Stock (the “Liquidation Notice”), and (Y) if the Required Senior Preferred Stockholder Vote so requests in a written instrument delivered to the Corporation not later than 75 days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board) (the “Net Proceeds”) to redeem, to the extent legally available therefor, on the 90th day after such Deemed Liquidation Event (the “Liquidation Redemption Date”), all outstanding shares of the Preferred Stock in accordance with Sections 2(a)-(c) above. In the event of a redemption pursuant to the preceding sentence, if the Net Proceeds are not sufficient to redeem all outstanding shares of Series C Preferred Stock, or if the Corporation does not have sufficient lawfully available funds to effect such redemption, the Corporation shall redeem a pro rata portion of each holder’s shares of Series C Preferred Stock on a pari passu basis, to the fullest extent of the lesser of such Net Proceeds or such lawfully available funds, as the case may be. In the event that there are funds remaining after payment in full of the Series C Preference, but such funds are not sufficient to redeem all outstanding shares of Series B Preferred Stock, or if the Corporation does not have sufficient lawfully available funds to effect such redemption of the Series B Preferred Stock, in each case after giving effect to the Series C Preference, the Corporation shall redeem, a pro rata portion of each holder’s shares of Series B Preferred Stock, on a pari passu basis, to the fullest extent of such Net Proceeds or such lawfully available funds, as the case may be, and, where such redemption is limited by the amount of lawfully available funds, the Corporation shall redeem the remaining shares of Series B Preferred Stock. In the event that there are funds remaining after payment in full of the Senior Preference, but such funds are not sufficient to redeem all outstanding shares of Series A Preferred Stock, or if the Corporation does not have sufficient lawfully available funds to effect such redemption of the Series A Preferred Stock, in each case after giving effect to the Senior Preference, the Corporation shall redeem, a pro rata portion of each holder’s shares of Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, and Series A-6 Preferred Stock, on a pari passu basis, to the fullest extent of such Net Proceeds or such lawfully available funds, as the case may be, and, where such redemption is limited by the amount of lawfully available funds, the Corporation shall redeem the remaining shares of Series A-1 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, Series A-6 Preferred Stock, and, after such shares of Series A Preferred Stock have been redeemed in full, the shares of Series A-7 Preferred Stock, to have been redeemed as soon as practicable after the Corporation has funds legally available therefor. Prior to the distribution or redemption provided for in this Section 2(e)(iii), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in the ordinary course of business.
(A) Liquidation Notice. Each Liquidation Notice shall state:
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(I) |
the number of shares of Preferred Stock held by the holder that the Corporation shall redeem on the Liquidation Redemption Date; |
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the Liquidation Redemption Date and the Liquidation Price; |
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(III) |
that the holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed. |
(B) Surrender of Certificates; Payment. If the Corporation receives the written instruments described in Section 2(e)(iii)(Y) above, on or before the Liquidation Redemption Date, each holder of shares of Preferred Stock to be redeemed, unless such holder has exercised his, her or its right to convert such shares as provided in Section 4 hereof, shall surrender the certificate or certificates representing such shares to the Corporation, in the manner and at the place designated in the Liquidation Notice, and thereupon the Liquidation Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof, and each surrendered certificate shall be canceled and retired. In the event less than all of the shares of Preferred Stock represented by a certificate are redeemed, a new certificate representing the unredeemed shares of Preferred Stock shall promptly be issued to such holder.
(C) Rights Subsequent to Liquidation. If the Liquidation Notice shall have been duly given, and if on the Liquidation Redemption Date the Liquidation Price payable upon redemption of the shares of Preferred Stock to be redeemed on such Liquidation Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Preferred Stock so called for redemption shall not have been surrendered, all rights with respect to such shares shall forthwith after the Liquidation Redemption Date terminate, except only the right of the holders to receive the Liquidation Price without interest upon surrender of their certificate or certificates therefor.
(D) Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock which are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately canceled and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Preferred Stock following redemption.
(iv) The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be determined in good faith by the Board.
3. Voting.
(a) On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by other provisions hereof, holders of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall vote together with the holders of Common Stock as a single class.
(b) The Board shall consist of a maximum of seven (7) directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect one director of the Corporation (the “Series A Director”). The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect one director of the Corporation (the “Series B Director”). The holders of record of the shares of Series C Preferred Stock, exclusively and as a separate class, shall be entitled to elect two directors of the Corporation (the “Series C Directors”). The holders of record of the shares of Common Stock, exclusively and as a separate class and not on an as converted basis, shall be entitled to elect one director of the Corporation (the “Common Director”), which individual shall be the chief executive officer of the Company. The remaining two directors of the Corporation shall be designated by the majority vote of the remaining directors elected pursuant to this Certificate of Incorporation, and elected by the Preferred Stock, and Common Stock, voting together exclusively and as a separate class. Any director elected as provided in this Section 3(b) may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of the stockholders. If the holders of shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill the directorships for which they are entitled to elect directors, voting exclusively and as a separate class, then any directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. A vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Section 3(b). The rights of the holders of the Series A Preferred Stock under the second sentence of this Section 3(b) shall terminate on the first date on which there are issued and outstanding less than 3,442,122 shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares). The rights of the holders of the Series B Preferred Stock under the third sentence of this Section 3(b) shall terminate on the first date on which there are issued and outstanding less than 2,668,870 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares). The rights of the holders of the Series C Preferred Stock under the fourth sentence of this Section 3(b) shall terminate on the first date on which there are issued and outstanding less than 8,498,297 shares of Series C Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares), The rights of the holders of the Common Stock under the fifth sentence of this Section 3(b) shall terminate when the rights of the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock terminate as provided herein.
(c) In addition to any other vote required by law or the Certificate of Incorporation, without the written consent or affirmative vote of the Board and of the Required Preferred Stockholder Vote, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise take any action set forth below:
(i) increase or decrease the number of authorized shares of any series of Preferred Stock;
(ii) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock unless the same ranks junior to the Series C Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption;
(iii) liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any Deemed Liquidation Event, or consent to any of the foregoing;
(iv) amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation in a manner that adversely affects the powers, preferences or rights of the Preferred Stock, or alter, change or take any other action to affect adversely the priorities of, or amounts payable in request of, the Preferred Stock upon a liquidation, dissolution or winding up of the Corporation or any Deemed Liquidation Event;
(v) purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Preferred Stock as expressly authorized herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock; (iii) acquisitions of Preferred Stock or Common Stock in exercise of the Corporation’s right of first refusal or other contractual rights to repurchase such shares and (iv) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at the lower of the original purchase price or the then-current fair market value thereof;
(d) So long as (i) 2,668,870 or more shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares) remain outstanding and (ii) 8,498,297 or more shares of Series C Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares) remain outstanding, in addition to any other vote required by law or the Certificate of Incorporation, without the written consent or affirmative vote of the Board and of the Required Senior Preferred Stockholder Vote, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise take any action set forth below:
(i) amend or change the rights, preferences, privileges, powers or restrictions applicable to either series of Senior Preferred Stock;
(ii) (A) reclassify, alter or amend any existing security of the Corporation that is pari passu with either series of Senior Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to either series of the Senior Preferred Stock in respect of any such right, preference or privilege, or (B) reclassify, alter or amend any existing security of the Corporation that is junior to the Senior Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with either series of the Senior Preferred Stock in respect of any such right, preference or privilege; or
(iii) amend, alter or repeal any provision of this Certificate of Incorporation or the Bylaws of the Corporation in a manner that adversely affects the powers, preferences or rights of either series of Senior Preferred Stock different from the manner in which it affects any other series of Preferred Stock; or
(iv) purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Preferred Stock as expressly authorized herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock; (iii) acquisitions of Preferred Stock or Common Stock in exercise of the Corporation’s right of first refusal or other contractual rights to repurchase such shares and (iv) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at the lower of the original purchase price or the then-current fair market value thereof;
(e) Notwithstanding the foregoing, so long as 8,498,297 or more shares of Series C Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares) remain outstanding, in addition to any other vote required by law or the Certificate of Incorporation, without the written consent or affirmative vote of the majority of the Board, including the affirmative vote of the holders of the majority of the Series C Preferred Stock, given in writing or by vote at a meeting, the Corporation shall not amend or change the rights, preferences, privileges, powers or restrictions applicable to the Series C Preferred Stock in a manner adverse to the holders of the Series C Preferred Stock.
(f) Notwithstanding the foregoing, so long as 2,668,870 or more shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares) remain outstanding, in addition to any other vote required by law or the Certificate of Incorporation, without the written consent or affirmative vote of the majority of the Board, including the affirmative vote of the holders of the majority of the Series B Preferred Stock, given in writing or by vote at a meeting, the Corporation shall not amend or change the rights, preferences, privileges, powers or restrictions applicable to the Series B Preferred Stock in a manner adverse to the holders of the Series B Preferred Stock.
(g) Notwithstanding the foregoing, so long as 3,442,122 or more shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or other similar recapitalization affecting such shares) remain outstanding, in addition to any other vote required by law or the Certificate of Incorporation, without the written consent or affirmative vote of the majority of the Board, including the affirmative vote of the holders of the majority of the Series A Preferred Stock, given in writing or by vote at a meeting, the Corporation shall not amend or change the rights, preferences, privileges, powers or restrictions applicable to the Series A Preferred Stock in a manner adverse to the holders of the Series A Preferred Stock.
4. Optional Conversion.
The holders of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):
(a) Right to Convert. Each share of Series C Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series C Original Issue Price plus declared and unpaid Preferred C Dividends by the Preferred Series C Conversion Price (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares). The “Preferred Series C Conversion Price” shall initially be equal to $1.0495.
Each share of Series B Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series B Original Issue Price plus declared and unpaid Preferred B Dividends by the Preferred Series B Conversion Price (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares). The “Preferred Series B Conversion Price” shall initially be equal to $0.8055.
Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A Original Issue Price (as defined below) plus declared and unpaid Series A Dividends, by the Preferred Series A Conversion Price (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares). The “Series A Original Issue Price” shall mean, $0.50, with respect to the Series A-1 Preferred Stock, $0.40, with respect to the Series A-2 Preferred Stock, $0.45, with respect to the Series A-3 Preferred Stock, $0.8055 with respect to the Series A-4 Preferred Stock, $0.8055 with respect to the Series A-5 Preferred Stock, $0.8055 with respect to the Series A-6 Preferred Stock or $0.8055 with respect to the Series A-7 Preferred Stock. The “Preferred Series A Conversion Price” shall initially be equal to $0.50, with respect to the Series A-1 Preferred Stock, $0.40, with respect to the Series A-2 Preferred Stock, $0.45, with respect to the Series A-3 Preferred Stock, $0.8055 with respect to the Series A-4 Preferred Stock, $0.8055 with respect to the Series A-5 Preferred Stock, $0.8055 with respect to the Series A-6 Preferred Stock, or $0.8055 with respect to the Series A-7 Preferred Stock.
In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the holders of Preferred Stock.
(b) Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board.
(c) Mechanics of Conversion.
(i) In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Preferred Stock represented by such certificate or certificates and, if applicable, any event on which such conversion is contingent. Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent of such certificates (or lost certificate affidavit and agreement) and notice (or by the Corporation if the Corporation serves as its own transfer agent) shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the shares represented by such certificate shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time, issue and deliver at such office to such holder of Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share.
(ii) The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation. Before taking any action which would cause an adjustment reducing the Preferred Series A Conversion Price, the Preferred Series B Conversion Price or the Preferred Series C Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such affected adjusted Preferred Series A Conversion Price, Preferred Series B Conversion Price or Preferred Series C Conversion Price.
(iii) All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and to receive payment of any dividends declared but unpaid thereon. Any shares of Preferred Stock so converted shall be retired and cancelled and shall not be reissued as shares of such series, and the Corporation (without the need for stockholder action) may from time to time take such appropriate action as may be necessary to reduce the authorized number of shares of Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock accordingly.
(iv) The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
(d) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this Section 4, the following definitions shall apply:
(A) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(B) “Original Issue Date” shall mean the date on which the first share of Series C Preferred Stock was issued.
(C) “Conversion Price” shall mean, in the case of the Series A Preferred Stock, the applicable Preferred Series A Conversion Price, (ii) in the case of the Series B Preferred Stock, the Preferred Series B Conversion Price, and (iii) in the case of the Series C Preferred Stock, the Preferred Series C Conversion Price.
(D) “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.
(E) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 4(d)(iii) below, deemed to be issued) by the Corporation after Original Issue Date; other than the following (“Exempted Securities”):
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(I) |
securities issued or issuable upon the conversion of any Preferred Stock or as a dividend or distribution on the Preferred Stock; |
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(II) |
shares of Common Stock (or options to purchase such Common Stock) issued or issuable to employees or directors of, or consultants to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board; |
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(III) |
shares of Common Stock issued or issuable to banks or other financial institutions, or to equipment lessors or real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board; |
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(IV) |
shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security. |
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(V) |
securities issued in connection with the acquisition by the Company of another business entity or majority ownership thereof approved by the Board. |
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shares of Common Stock or Preferred Stock issuable upon exercise of warrants outstanding as of the date hereof; |
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shares of Common Stock or Preferred Stock issued or issuable by reason of a stock split, dividend, distribution, recapitalization or similar event covered by Section 4(e) or 4(f) below; |
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(VIII) |
securities issued in connection with a strategic partnering or investment arrangement and/or the acquisition or licensing of technology or intellectual property by the Corporation approved by the Board; or |
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shares of Common Stock issued in connection with a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended. |
(ii) No Adjustment of Conversion Price. No adjustment in a Conversion Price shall be made as the result of the issuance of Additional Shares of Common Stock if: (a) the consideration per share (determined pursuant to Section 4(d)(v)) for such Additional Shares of Common Stock issued or deemed to be issued by the Corporation is equal to or greater than the applicable Preferred Series A Conversion Price, Preferred Series B Conversion Price or Preferred Series C Conversion Price, as the case may be, in effect immediately prior to the issuance or deemed issuance of such Additional Shares of Common Stock, or (b) prior to such issuance or deemed issuance, the Corporation receives written notice, in the case of a potential adjustment to any class of Series A Preferred Stock from the holders of at least 50% of the then outstanding shares of Series A Preferred Stock, in the case of a potential adjustment to any class of Series B Preferred Stock from the holders of at least 50% of the then outstanding shares of Series B Preferred Stock or in the case of a potential adjustment to any class of Series C Preferred Stock from the holders of at least 50% of the then outstanding shares of Series C Preferred Stock or, agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(iii) Deemed Issue of Additional Shares of Common Stock.
(A) If the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(B) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to a Conversion Price pursuant to the terms of Section 4(d)(iv) below, are revised (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then, effective upon such increase or decrease becoming effective, the Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no adjustment pursuant to this clause (B) shall have the effect of increasing a Conversion Price to an amount which exceeds the lower of (i) the Conversion Price on the original adjustment date, or (ii) the Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock between the original adjustment date and such readjustment date.
(C) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to a Conversion Price pursuant to the terms of Section 4(d)(iv) below (either because the consideration per share (determined pursuant to Section 4(d)(v) below) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Preferred Series C Conversion Price then in effect, or because such Option or Convertible Security was issued before the Original Issue Date), are revised after the Original Issue Date (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Section 4(d)(iii)(A) above) shall be deemed to have been issued effective upon such increase or decrease becoming effective. If the change in such Option or Convertible Security causes an adjustment pursuant to this provision and such Option or Convertible Security is then further changed as a result of the adjustments made pursuant to this provision, no further adjustment shall be made hereunder as a result of the further automatic change in such Option or Convertible Security.
(D) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Section 4(d)(iv) below, such Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Security never been issued.
(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation shall at any time after the Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 4(d)(iii) above), without consideration or for a consideration per share less than the applicable Preferred Series A Conversion Price, Preferred Series B Conversion Price or Preferred Series C Conversion Price in effect immediately prior to such issue, then each Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:
CP2 = CP1 * (A + B) ÷ (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(A) “CP2” shall mean the applicable Preferred Series A Conversion Price, Preferred Series B Conversion Price or Preferred Series C Conversion Price in effect immediately after such issue of Additional Shares of Common Stock;
(B) “CP1” shall mean the applicable Preferred Series A Conversion Price, Preferred Series B Conversion Price or Preferred Series C Conversion Price in effect immediately prior to such issue of Additional Shares of Common Stock;
(C) “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issue of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(D) “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued at a price per share equal to CPI (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CPI); and
(E) “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.
(v) Determination of Consideration. For purposes of this Section 4(d), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property: Such consideration shall:
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(I) |
insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest; |
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(II) |
insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board; and |
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(III) |
in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (I) and (II) above, as determined in good faith by the Board. |
(B) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 4(d)(iii) above, relating to Options and Convertible Securities, shall be determined by dividing
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(I) |
the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by |
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(II) |
the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities. |
(vi) Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to a Conversion Price pursuant to the terms of Section 4(d)(iv) above, then, upon the final such issuance, the applicable Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without additional giving effect to any adjustments as a result of any subsequent issuances within such period).
(e) Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Original Issue Date effect a subdivision of the outstanding Common Stock without a comparable subdivision of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock or combine the outstanding shares of the Series A Preferred Stock, the Series B Preferred Stock or the Series C Preferred Stock without a comparable combination of the Common Stock, the applicable Conversion Price in effect immediately before that subdivision or combination shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Original Issue Date combine the outstanding shares of Common Stock without a comparable combination of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock or effect a subdivision of the outstanding shares of Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock without a comparable subdivision of the Common Stock, the affected Conversion Price in effect immediately before the combination or subdivision shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this Section 4(e) shall become effective at the close of business on the date the subdivision or combination becomes effective.
(f) Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after the Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event each Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying each Conversion Price then in effect by a fraction:
(i) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and
(ii) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, each Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter each Conversion Price shall be adjusted pursuant to this Section 4(f)(ii) as of the time of actual payment of such dividends or distributions; and provided further, however, that no such adjustment shall be made if the holders of Preferred Stock simultaneously receive (i) a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event, or (ii) a dividend or other distribution of shares of Preferred Stock which are convertible, as of the date of such event, into such number of shares of Common Stock as is equal to the number of additional shares of Common Stock being issued with respect to each share of Common Stock in such dividend or distribution.
(g) Adjustments for Other Dividends and Distributions. In the event the Corporation at any time or from time to time after the Original Issue Date shall make or issue, or fix a record date for the determination of holders of capital stock of the Corporation entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section C.1 do not apply to such dividend or distribution, then and in each such event the holders of Senior Preferred Stock shall receive, simultaneously with the distribution to the holders of such capital stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Senior Preferred Stock had been converted into Common Stock on the date of such event.
(h) Adjustment for Merger or Reorganization, etc. Subject to the provisions of Section 2(d), if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series A Preferred Stock, Series B Preferred Stock and the Series C Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Sections 4(e), (f) or (g)), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, to the end that the provisions set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the Preferred Series A Conversion Price, Preferred Series B Conversion Price and Preferred Series C Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock.
(i) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of a Conversion Price pursuant to this Section 4, the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each affected holder of Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any holder of Preferred Stock (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) Conversion Price then in effect, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Preferred Stock.
(j) Notice of Record Date. In the event:
(i) the Corporation shall take a record of the holders of its Common Stock (or other stock or securities at the time issuable upon conversion of the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any other right; or
(ii) of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event; or
(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the holders of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other stock or securities at the time issuable upon the conversion of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and the Common Stock. Such notice shall be sent at least ten (10) days prior to the record date or effective date for the event specified in such notice. Any notice required by the provisions hereof to be given to a holder of shares of Preferred Stock shall be deemed sent to such holder if deposited in the United States mail, postage prepaid, and addressed to such holder at his, her or its address appearing on the books of the Corporation.
5. Mandatory Conversion.
(a) Upon the earliest of (A) the closing of the sale of shares of Common Stock to the public at a price per share of at least $2.096 (subject to appropriate adjustment for stock splits, stock dividends, combinations and other similar recapitalizations affecting such shares), in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, on the Nasdaq National Market or the New York Stock Exchange resulting in at least $50,000,000 of gross proceeds, net of the underwriting discount and commissions, to the Corporation (a “Qualifying Public Offering”), (B) a reverse merger of the Corporation pursuant to which the surviving corporation’s common stock is registered under the Securities Act of 1934, as amended, or (C) receipt of the Required Preferred Stockholder Vote (the “Mandatory Conversion Date”), then (i) all outstanding shares of Preferred Stock shall automatically be converted into shares of Common Stock at the then effective Conversion Price applicable to such series of Preferred Stock and (ii) such shares may not be reissued by the Corporation as shares of such series.
(b) All holders of record of shares of Preferred Stock shall be given written notice of the Mandatory Conversion Date and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to this Section 5. Such notice need not be given in advance of the occurrence of the Mandatory Conversion Date. Such notice shall be sent by first class or registered mail, postage prepaid, or given by electronic communication in compliance with the provisions of the General Corporation Law, to each record holder of Preferred Stock. Upon receipt of such notice, each holder of shares of Preferred Stock shall surrender his, her or its certificate or certificates for all such shares to the Corporation at the place designated in such notice, and shall thereafter receive certificates for the number of shares of Common Stock to which such holder is entitled pursuant to this Section 5. On the Mandatory Conversion Date, all outstanding shares of Preferred Stock shall be deemed to have been converted into shares of Common Stock, which shall be deemed to be outstanding of record, and all rights with respect to the Preferred Stock so converted, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate, except only the rights of the holders thereof, upon surrender of their certificate or certificates therefor, to receive certificates for the number of shares of Common Stock into which such Preferred Stock has been converted, and payment of any declared but unpaid dividends thereon. If so required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. As soon as practicable after the Mandatory Conversion Date and the surrender of the certificate or certificates for Preferred Stock, the Corporation shall cause to be issued and delivered to such holder, or on his, her or its written order, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and cash as provided in Section 4(b) in respect of any fraction of a share of Common Stock otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Preferred Stock, which are required to be surrendered for conversion in accordance with the provisions hereof, shall, from and after the Mandatory Conversion Date, be deemed to have been retired and cancelled and the shares of Preferred Stock represented thereby converted into Common Stock for all purposes, notwithstanding the failure of the holder or holders thereof to surrender such certificates on or prior to such date. Such converted Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock may not be reissued as shares of such Series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock accordingly.
6. Redemption. The Series A Preferred Stock is not redeemable. Subject to the foregoing, the Series B Preferred Stock and Series C Preferred Stock are redeemable under the following provisions:
(a) Unless prohibited by Delaware law governing distributions to stockholders, shares of Senior Preferred Stock shall be redeemed by the Corporation at a price equal to the applicable Original Issue Price per share, plus all declared but unpaid dividends thereon (the “Redemption Price”), in four (4) semi-annual installments commencing not more than sixty (60) days after receipt by the Corporation at any time on or after December 14, 2021, from any holder of outstanding shares of Senior Preferred Stock, of written notice requesting redemption of all of such holder’s shares of Senior Preferred Stock (the “Redemption Request”). The date of each such installment shall be referred to as a “Redemption Date.” On each Redemption Date, the Corporation shall redeem, that number of outstanding shares of Senior Preferred Stock determined by dividing (i) the total number of shares of Senior Preferred Stock held by the holder and outstanding immediately prior to such Redemption Date by (ii) the number of remaining Redemption Dates (including the Redemption Date to which such calculation applies). If on any Redemption Date, Delaware law governing distributions to stockholders prevents the Corporation from redeeming all shares of Senior Preferred Stock to be redeemed, the Corporation shall ratably redeem the maximum number of shares that it may redeem consistent with such law, and shall redeem the remaining shares as soon as it may lawfully do so under such law.
(b) The Corporation shall send written confirmation of the redemption (the “Redemption Notice”) to each applicable holder of record of Senior Preferred Stock not less than thirty (30) days prior to each Redemption Date. Each Redemption Notice shall state:
(i) the number of shares of Senior Preferred Stock held by the holder that the Corporation shall redeem on the Redemption Date specified in the Redemption Notice;
(ii) the Redemption Date and the Redemption Price; and
(iii) for holders of shares in certificated form, that the holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Senior Preferred Stock to be redeemed.
(c) On or before the applicable Redemption Date, each applicable holder of shares of Senior Preferred Stock to be redeemed on such Redemption Date, shall, if a holder of shares in certificated form, surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof. In the event less than all of the shares of Senior Preferred Stock represented by a certificate are redeemed, a new certificate, instrument, or book entry representing the unredeemed shares of Senior Preferred Stock shall promptly be issued to such holder.
(d) If the funds of the Corporation legally available for redemption of shares of Senior Preferred Stock on a redemption date are insufficient to redeem the total number of shares of Senior Preferred Stock submitted for redemption, those funds which are legally available will be used: (i) first to redeem the maximum possible number of whole shares of Series C Preferred Stock ratably among the holders of such shares and (ii) next to redeem the maximum possible number of whole shares of Series B Preferred Stock ratably among the holders of such shares. The shares of Preferred Stock not redeemed shall remain outstanding and entitled to all rights and preferences provided herein. At any time thereafter when additional funds of the Corporation are legally available for the redemption of shares of Preferred Stock, such funds will be used, at the end of the next succeeding fiscal quarter, to redeem the balance of such shares which the Corporation has become obliged to redeem but which it has not yet redeemed, or such portion thereof for which funds are then legally available, in each case based on the order of preferences set forth in this Section 6(d).
(e) Any shares of Senior Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of its subsidiaries under this Section 6 shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Senior Preferred Stock following redemption.
7. Waiver. Any of the rights, powers or preferences of the holders of Series A Preferred Stock set forth herein may be defeased by the affirmative consent or vote of the holders of at least 50% of the shares of Series A Preferred Stock then outstanding. Any of the rights, powers or preferences of the holders of Series B Preferred Stock set forth herein may be defeased by the affirmative consent or vote of the holders of at least 50% of the shares of Series B Preferred Stock then outstanding. Any of the rights, powers or preferences of the holders of Series C Preferred Stock set forth herein may be defeased by the affirmative consent or vote of the holders of at least 50% of the shares of Series C Preferred Stock then outstanding.
FIFTH: Subject to any additional vote required by this Certificate of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the holders of a majority of stock issued and outstanding and entitled to vote or the Board are expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation.
SIXTH: Subject to any additional vote required by this Certificate of Incorporation, the affirmative vote of the majority of the holders of each of (i) the Series A Preferred Stock, (ii) the Series B Preferred Stock, (iii) the Series C Preferred Stock and (iv) the Common Stock, voting separately, shall be required to change the authorized size of or vote requirements for approval by the Board.
SEVENTH: Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board or in the Bylaws of the Corporation.
NINTH: To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article Ninth to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article Ninth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.
TENTH: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law.
Any amendment, repeal or modification of the foregoing provisions of this Article Tenth shall not adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director, officer or other agent occurring prior to, such amendment, repeal or modification.
ELEVENTH: Subject to any additional vote required by this Certificate of Incorporation, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
TWELFTH: The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of, (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or (ii) any holder of Preferred Stock, or any partner, member, director, stockholder, employee or agent of any such holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Corporation.
The foregoing amendment and restatement was approved by the holders of the requisite number of shares of said corporation in accordance with Section 228 of the General Corporation Law.
That said Tenth Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of the Corporation’s Ninth Amended and Restated Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Tenth Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of the Corporation on this 6th day of January 2017.
FEMASYS INC. |
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By: |
/s/ Kathy Lee-Sepsick |
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Name: | Kathy Lee-Sepsick | |
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Title: |
President and Chief Executive Officer |
Exhibit 3.2
BY-LAWS
OF
FEMASYS INC.
(a Delaware corporation)
Effective: February 19, 2004
FEMASYS INC.
BY-LAWS
ARTICLE 1.
Section 1.1 Contents. The name, location of principal office and purposes of Femasys Inc. (the “Corporation”) shall be as set forth in its Certificate of Incorporation. These By-Laws, the powers of the Corporation and of its Directors and stockholders, and all matters concerning the conduct and regulation of the business of the Corporation shall be subject to such provisions in regard thereto, if any, as are set forth in said Certificate of Incorporation. The Certificate of Incorporation is hereby made a part of these By-Laws. In the event of any conflict between the provisions of these By-Laws and the provisions of the Certificate of Incorporation, the Certificate of Incorporation shall at all times govern.
Section 1.2 Certificate in Effect. All references in these By-Laws to the Certificate of Incorporation shall be construed to mean the Certificate of Incorporation of the Corporation as from time to time amended, including (unless the context shall otherwise require) all certificates and any agreement of consolidation or merger filed pursuant to the Delaware General Corporation Law, as amended.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS
Section 2.1 Place. All meetings of the stockholders may be held at such place either within or without the State of Delaware or by remote communication, as shall be designated from time to time by the Board of Directors, the Chairman of the Board of Directors or the President and Chief Executive Officer and stated in the notice of the meeting or in any duly executed waiver of notice thereof.
Section 2.2 Annual Meeting. Annual meetings of stockholders shall be held on the second Tuesday of April in each year, if not a legal holiday, and, if a legal holiday, then on the next secular day following, at 10:00 A.M., or at such other date and time as shall be designated from time to time by the Board of Directors, the Chairman of the Board of Directors or the President and Chief Executive Officer and stated in the notice of the meeting. If such annual meeting has not been held on the day herein provided therefor, a special meeting of the stockholders in lieu of the annual meeting may be held, and any business transacted or elections held at such special meeting shall have the same effect as if transacted or held at the annual meeting, and in such case all references in these By-Laws, except in this Section 2.2, to the annual meeting of the stockholders shall be deemed to refer to such special meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the President and Chief Executive Officer, the Chairman of the Board, or by the Board of Directors and shall be called by the Secretary at the request in writing of a majority of the Directors then in office, or at the request in writing of stockholders owning a majority of the voting power of all issued and outstanding stock (treated as a single class) and entitled to vote thereat. Such request shall state the purpose or purposes of the proposed meeting, which need not be the exclusive purposes for which the meeting is called.
Section 2.4 Notice of Meetings. A written notice or, if consented to by such stockholder, electronic transmission notice, of all meetings of stockholders stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the special meeting is called, shall be given to each stockholder entitled to vote at such meeting. Except as otherwise provided by law, such notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.5 Affidavit of Notice. An affidavit of the Secretary or an Assistant Secretary or the transfer agent of the Corporation, if any, that notice of a stockholders meeting has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Section 2.6 Quorum. The holders of shares representing a majority of the voting power of all issued and outstanding stock (treated as a single class) and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation and in no event shall a quorum consist of less than one-half (1/2) of the shares entitled to vote thereat. If, however, such quorum shall not be present or represented by proxy at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, except as hereinafter provided, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.7 Voting Requirements. When a quorum is present at any meeting, the vote of the holders of shares representing a majority of the voting power of all issued and outstanding stock (treated as a single class) present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of any applicable statute or of the Certificate of Incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question.
Section 2.8 Proxies and Voting. Except as provided in the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three (3) years from its date, unless the proxy provides for a longer period. Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held, and persons whose stock is pledged shall be entitled to vote the pledged shares, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the pledgee to vote said shares, in which case only the pledgee, or his proxy, may represent and vote such shares. Shares of the capital stock of the Corporation owned by the Corporation shall not be voted, directly or indirectly.
Section 2.9 Remote Communications. Subject to compliance with the Delaware General Corporation Law, if authorized by the Board of Directors, and subject to such guidelines as the Board of Directors may adopt, stockholders and proxyholders may participate by means of remote communication in any meeting of stockholders and may be deemed present in person and vote at a meeting by remote communication. Any reference to a stockholder being present or acting “in person” shall include participation by such remote communication for all purposes.
Section 2.10 Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the Corporation or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing or a consent by electronic transmission, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written or electronic transmission consent shall be given to those stockholders who have not consented in writing or, if consented to by such stockholder, by electronic transmission.
Section 2.11 Stockholder List. The Officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The original or duplicate stock ledger shall be the only evidence as to who are the stockholders entitled to examine such list, the stock ledger or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.12 Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing or by electronic transmission without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
If no record date is fixed by the Board of Directors:
(a) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
(b) The record date for determining stockholders entitled to express consent to corporate action in writing or by electronic transmission without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent or electronic transmission consent is expressed.
(c) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 2.13 Stockholder Meeting Procedures. All meetings of the stockholders shall be presided over by a person designated by the Board of Directors or the President and Chief Executive Officer or in the absence of such person, the person chosen by stockholders owning a majority of the voting power of all issued and outstanding stock (treated as a single class) and entitled to vote thereat. Such person shall determine the order of business and the procedure of such meeting.
ARTICLE 3.
DIRECTORS
Section 3.1 Number; Election and Term of Office. There shall be a Board of Directors of the Corporation consisting of not less than one (1) member, the number of members to be determined by resolution of the Board of Directors or by the stockholders at the annual or any special meeting, unless the Certificate of Incorporation fixes the number of Directors, in which case a change in the number of Directors shall be made only by amendment of the Certificate. Subject to any limitation which may be contained within the Certificate of Incorporation, the number of members of the Board of Directors may be increased or decreased, as the case may be, at any time by vote of a majority of the Directors then in office. The Directors shall be elected at the annual meeting of the stockholders, except as provided in paragraph (c) of Section 8.1, and each Director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders.
Section 3.2 Duties. The business of the Corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
Section 3.3 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors, whether in equity securities of the Corporation or cash, if any. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Directors. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
Section 3.4 Reliance on Books. A member of the Board of Directors or a member of any committee designated by the Board of Directors shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or reports made to the Corporation by any of its Officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any committee, or in relying in good faith upon other records of the Corporation.
Section 3.5 Interested Directors. No contract or transaction between the Corporation and one (1) or more of its Directors or Officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one (1) or more of its Directors or Officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or Officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to the Director’s or Officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or (ii) the material facts as to the Director’s or Officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE 4.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Place. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or outside the State of Delaware.
Section 4.2 Annual Meeting. Except as otherwise determined by the Board of Directors, the first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of stockholders or any special meeting held in lieu thereof, and no notice of such meeting shall be necessary to the newly elected Directors in order legally to constitute the meeting.
Section 4.3 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.
Section 4.4 Special Meetings. Special meetings of the Board may be called by the President and Chief Executive Officer or the Chairman of the Board on two (2) days’ notice to each Director either personally or by mail or by telegram or by electronic transmission to the extent permitted by Delaware law; special meetings shall be called by the Secretary in like manner and on like notice on the written request of two (2) Directors unless the Board consists of only one (1) Director, in which case special meetings shall be called by the Secretary in like manner and on like notice on the written request of the sole Director.
Section 4.5 Quorum. At all meetings of the Board a majority of the Directors then in office shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 4.6 Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee. Such filing of electronic transmissions shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 4.7 Telephone Meetings. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
ARTICLE 5.
COMMITTEES OF DIRECTORS
Section 5.1 Designation.
(a) The Board of Directors may, by resolution passed by a majority of the whole Board, designate one (1) or more committees, each committee to consist of one (1) or more of the Directors of the Corporation. The Board may designate one (1) or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
(b) In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution of the Board of Directors designating the committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws of the Corporation; and, unless the resolution or the Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.
Section 5.2 Records of Meetings. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
ARTICLE 6.
NOTICES
Section 6.1 Method of Giving Notice. Whenever, under any provision of the law or of the Certificate of Incorporation or of these By-Laws, notice is required to be given to any Director or stockholder, such notice shall be given in writing or by electronic transmission (if consented to by stockholder receiving any such notice by electronic transmission), by the Secretary or the person or persons calling the meeting by leaving such written notice with such Director or stockholder at his residence or usual place of business or by mailing it addressed to such Director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such written notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice is deemed to be given if by electronic transmission: (1) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (3) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission permitted by applicable law, when directed to the stockholder. Notice to Directors may also be given by telegram.
Section 6.2 Waiver. Whenever any notice is required to be given under any provision of law or of the Certificate of Incorporation or of these By-Laws, a waiver thereof, either in writing, signed by the person entitled to notice, or by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE 7.
OFFICERS
Section 7.1 In General. The Officers of the Corporation shall be appointed by the Board of Directors and shall include a President and Chief Executive Officer, one or more Vice Presidents, a Secretary, and a Treasurer and Chief Financial Officer. The Board of Directors may also appoint a Chairman of the Board. The President and Chief Executive Officer shall be empowered by the Board of Directors to appoint Officers in addition to those Officers listed above, which may include a Chief Operating Officer and Chief Medical Officer. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these By-Laws otherwise provide.
Section 7.2 Election of President and Chief Executive Officer, Secretary, and Treasurer and Chief Financial Officer. The Board of Directors at its first meeting after each annual meeting of stockholders shall appoint a President and Chief Executive Officer, one or more Vice Presidents, a Secretary and a Treasurer and Chief Financial Officer.
Section 7.3 Election of Other Officers. The Board of Directors or the President and Chief Executive Officer as empowered by the Board of Directors may appoint such other Officers and agents as it shall deem appropriate who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 7.4 Salaries. The salaries of all Officers and agents of the Corporation may be fixed by the President and Chief Executive Officer within the parameters established by the Board of Directors.
Section 7.5 Term of Office. The Officers of the Corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any Officer elected or appointed by the Board of Directors may be removed at any time in the manner specified in Section 8.2.
Section 7.6 Duties of President and Chief Executive Officer, Chairman of the Board and Vice President, if any. The President and Chief Executive Officer shall be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and, if he is a Director, at all meetings of the Board of Directors if there shall be no Chairman of the Board or in the absence of the Chairman of the Board, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. In the absence of the President and Chief Executive Officer or in the event of his inability or refusal to act, the Vice President, and if more than one than in the order so designated by the President and Chief Executive Officer, shall have all powers and perform such duties as are otherwise vested in the President and Chief Executive Officer. In the absence of the Vice President, the Board of Directors shall determine which such other Officer shall have all powers and perform such duties as are otherwise vested in the President and Chief Executive Officer. The President and Chief Executive Officer and the Vice President, if any, shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other Officer or agent of the Corporation. The Chairman of the Board, if any, shall make his counsel available to the other Officers of the Corporation, shall preside at all meetings of the Directors at which he is present, and, in the absence of the President and Chief Executive Officer and the Vice President, if any, at all meetings of the stockholders, and shall have such other duties and powers as may from time to time be conferred upon him by the Directors.
Section 7.7 Duties of Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, except as otherwise provided in these By-Laws, and shall perform such other duties as may be prescribed by the Board of Directors, President and Chief Executive Officer or Vice President, if any, under whose supervision he shall be. He shall have charge of the stock ledger (which may, however, be kept by any transfer agent or agents of the Corporation under his direction) and of the corporate seal of the Corporation.
Section 7.8 Duties of Treasurer and Chief Financial Officer. The Treasurer and Chief Financial Officer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer and Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and Chief Executive Officer, the Board of Directors and the Vice President, if any, at its regular meetings, or when the Board of Directors so requires, an account of all of his transactions as Treasurer and Chief Financial Officer and of the financial condition of the Corporation. If required by the Board of Directors, he shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of this office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 7.9 Duties of Other Officers. The other Officers, which may include a Chief Operating Officer, Chief Medical Officer, General Counsel and/or Chief Information Officer, shall perform such duties and have such powers as the Board of Directors may from time to time prescribe for each such Officer.
ARTICLE 8.
RESIGNATIONS, REMOVALS AND VACANCIES
Section 8.1 Directors.
(a) Resignations. Any Director may resign at any time by giving written notice or by electronic transmission notice to the Board of Directors, the President and Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
(b) Removals. Subject to any provisions of the Certificate of Incorporation, the holders of stock entitled to vote for the election of Directors may, at any meeting called for the purpose, by vote of the holders of shares representing a majority of voting power of all issued and outstanding stock (treated as a single class), remove any Director or the entire Board of Directors with or without cause and fill any vacancies thereby created. This Section 8.1(b) may not be altered, amended or repealed except by the vote of those holders representing a majority of voting power of all issued and outstanding stock (treated as a single class) and who are entitled to vote for the election of the Directors.
(c) Vacancies. Vacancies occurring in the office of Director and newly created Directorships resulting from any increase in the authorized number of Directors shall be filled by a vote of a majority of the Directors then in office, though less than a quorum, unless previously filled by the stockholders entitled to vote for the election of Directors, and the Directors so chosen shall hold office subject to the By-Laws until the next annual election and until their successors are duly elected and qualify or until their earlier resignation or removal. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute.
Section 8.2 Officers. Any Officer may resign at any time by giving written notice to the Board of Directors, the President and Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. The Board of Directors may, at any meeting called for the purpose, by vote of a majority of their entire number, remove from office any Officer of the Corporation or any member of a committee, with or without cause. Any vacancy occurring in the office of President and Chief Executive Officer, Secretary, or Treasurer and Chief Financial Officer shall be filled by the Board of Directors and the Officers so chosen shall hold office subject to the By-Laws for the unexpired term in respect of which the vacancy occurred and until their successors shall be elected and qualify or until their earlier resignation or removal.
ARTICLE 9.
CERTIFICATES OF STOCK
Section 9.1 Issuance of Stock. The Directors may, at any time and from time to time, if all of the shares of capital stock which the Corporation is authorized by its Certificate of Incorporation to issue have not been issued, subscribed for, or otherwise committed to be issued, issue or take subscriptions for additional shares of its capital stock up to the amount authorized in its Certificate of Incorporation. Such stock shall be issued and the consideration paid therefor in the manner prescribed by law.
Section 9.2 Right to Certificate; Form. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by, the Chairman of the Board, the President and Chief Executive Officer or the Treasurer and Chief Financial Officer or the Secretary of the Corporation, certifying the number of shares owned by him in the Corporation; provided that the Directors may provide by one (1) or more resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified.
Section 9.3 Facsimile Signature. Any of or all the signatures on the certificate may be facsimile. In case any Officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such Officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such Officer, transfer agent or registrar at the date of issue.
Section 9.4 Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 9.5 Transfer of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 9.6 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE 10.
INDEMNIFICATION
Section 10.1 Third Party Actions. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a Director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 10.2 Derivative Actions. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 10.3 Expenses. To the extent that a Director, Officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
Section 10.4 Authorization. Any indemnification under Sections 10.1 and 10.2 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, Officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 10.1 and 10.2. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders.
Section 10.5 Advance Payment of Expenses. Expenses incurred by an Officer or Director in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Officer or Director to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article 10 and provided that the Corporation shall not be required to advance any expenses to such Officer or Director against whom the Corporation directly brings a claim, alleging a breach of the duty of loyalty to the Corporation, or the commission of an act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 10.6 Non-Exclusiveness. The indemnification provided by this Article 10 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under the Certificate of Incorporation, any by-law, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director, Officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 10.7 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article 10.
Section 10.8 Constituent Corporations. The Corporation shall have power to indemnify any person who is or was a Director, Officer, employee or agent of a constituent corporation absorbed in a consolidation or merger with this Corporation or is or was serving at the request of such constituent corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in the same manner as hereinabove provided for any person who is or was a Director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 10.9 Additional Indemnification. In addition to the foregoing provisions of this Article 10, the Corporation shall have the power, to the full extent provided by law, to indemnify any person for any act or omission of such person against all loss, cost, damage and expense (including attorney’s fees) if such person is determined (in the manner prescribed in Section 10.4 hereof) to have acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interest of the Corporation.
Section 10.10 Contract. The indemnification provided by this Article 10 shall be deemed to be a contract between the Corporation and each Director, Officer, employee and agent who serves in such capacity at any time while this Article 10 is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state or statement of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state or statement of facts.
ARTICLE 11.
EXECUTION OF PAPERS
Except as otherwise provided in these By-Laws or as the Board of Directors may generally or in particular cases otherwise determine, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other instruments authorized to be executed on behalf of the Corporation shall be executed by the President and Chief Executive Officer or the Treasurer and Chief Financial Officer.
ARTICLE 12.
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
ARTICLE 13.
SEAL
The Corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the word “Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE 14.
OFFICES
In addition to its principal office, the Corporation may have offices at such other places both within and outside the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 15.
AMENDMENTS
Except as otherwise provided herein, these By-Laws may be altered, amended or repealed or new By-Laws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation, at any regular meeting of the stockholders or of the Board of Directors, or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new By-Laws is contained in the notice of such special meeting, or by the written consent of the holders of shares representing a majority of the voting power of all issued and outstanding stock of the Corporation (treated as a single class) or by the unanimous written consent of the Directors. If the power to adopt, amend or repeal by-laws is conferred upon the Board of Directors by the Certificate of Incorporation, it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
14
Exhibit 3.3
ELEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FEMASYS INC.
Femasys Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
1. The name of the Corporation is Femasys Inc. The date of the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was February 19, 2004. An Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on August 31, 2005. A Second Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on September 29, 2006. A Third Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on March 20, 2008. A Fourth Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on May 29, 2009. A Fifth Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on January 22, 2010. A Sixth Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on August 31, 2011. A Seventh Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on April 16, 2015. An Eighth Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on June 6, 2016. A Ninth Amended and Restated Certificate of Incorporation of Femasys Inc. was filed with the Secretary of State of the State of Delaware on December 14, 2016. A Tenth Amended and Restated Certificate of Incorporation of Femasys Inc. (the “Tenth Amended and Restated Certificate of Incorporation”) was filed with the Secretary of State of the State of Delaware on January 6, 2017.
2. This Eleventh Amended and Restated Certificate of Incorporation (the “Certificate”) amends, restates and integrates the provisions of the Tenth Amended and Restated Certificate of Incorporation, and was duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).
3. The text of the Tenth Amended and Restated Certificate is hereby amended and restated in its entirety to provide as herein set forth in full.
ARTICLE I
The name of the Corporation is Femasys Inc.
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, 19904. The name of its registered agent at such address is National Corporate Research, Ltd.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall have authority to issue is Two Hundred and Ten Million (210,000,000), of which (i) Two Hundred Million (200,000,000) shares shall be a class designated as common stock, par value $0.001 per share (the “Common Stock”), and (ii) Ten Million (10,000,000) shares shall be a class designated as undesignated preferred stock, par value $0.001 per share (the “Preferred Stock”).
Except as otherwise provided in any certificate of designations of any series of Preferred Stock, the number of authorized shares of the class of Common Stock or Preferred Stock may from time to time be increased or decreased (but not below the number of shares of such class outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation irrespective of the provisions of Section 242(b)(2) of the DGCL.
The powers, preferences and rights of, and the qualifications, limitations and restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below in, this Article IV.
A. COMMON STOCK
Subject to all the rights, powers and preferences of the Preferred Stock and except as provided by law or in this Certificate (or in any certificate of designations of any series of Preferred Stock):
(a) the holders of the Common Stock shall have the exclusive right to vote for the election of directors of the Corporation (the “Directors”) and on all other matters requiring stockholder action, each outstanding share entitling the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate (or on any amendment to a certificate of designations of any series of Preferred Stock) that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled to vote, either separately or together with the holders of one or more other such series, on such amendment pursuant to this Certificate (or pursuant to a certificate of designations of any series of Preferred Stock) or pursuant to the DGCL;
(b) dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the Corporation legally available for the payment of dividends, but only when and as declared by the Board of Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation shall be distributed pro rata to the holders of the Common Stock.
B. PREFERRED STOCK
The Board of Directors or any authorized committee thereof is expressly authorized, to the fullest extent permitted by law, to provide by resolution or resolutions for, out of the unissued shares of Preferred Stock, the issuance of the shares of Preferred Stock in one or more series of such stock, and by filing a certificate of designations pursuant to applicable law of the State of Delaware, to establish or change from time to time the number of shares of each such series, and to fix the designations, powers, including voting powers, full or limited, or no voting powers, preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof.
ARTICLE V
STOCKHOLDER ACTION
1. Action without Meeting. Any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof. Notwithstanding anything herein to the contrary, the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article V, Section 1.
2. Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of not less than a majority of the Directors then in office, and special meetings of stockholders may not be called by any other person or persons. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation. Notwithstanding anything herein to the contrary, the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article V, Section 2.
ARTICLE VI
DIRECTORS
1. General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided herein or required by law.
2. Election of Directors. Election of Directors need not be by written ballot unless the Amended and Restated Bylaws of the Corporation (the “Bylaws”) shall so provide.
3. Number of Directors; Term of Office. The number of Directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The Directors, other than those who may be elected by the holders of any series of Preferred Stock, shall be classified, with respect to the term for which they severally hold office, into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The term of the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the effectiveness of this Certificate; the term of the initial Class II Directors shall expire at the second annual meeting of the stockholders of the Corporation following the effectiveness of this Certificate; and the term of the initial Class III Directors shall expire at the third annual meeting of the stockholders of the Corporation following the effectiveness of this Certificate. Directors shall be elected by a plurality of the votes cast at an annual meeting of stockholders by holders of the Common Stock. At each annual meeting of stockholders, Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Notwithstanding the foregoing, the Directors elected to each class shall hold office until their successors are duly elected and qualified or until their earlier resignation, death or removal. The Board is hereby expressly authorized, by resolution or resolutions thereof, to assign members of the Board already in office to the aforesaid classes at the time this Certificate (and therefore such classification) becomes effective in accordance with the DGCL.
Notwithstanding the foregoing, whenever, pursuant to the provisions of Article VI of this Certificate, the holders of any one or more series of Preferred Stock shall have the right, voting separately as a series or together with holders of other such series, to elect Directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate and any certificate of designations applicable to such series.
Notwithstanding anything herein to the contrary, the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article VI, Section 3.
4. Vacancies. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors and to fill vacancies in the Board of Directors relating thereto, any and all vacancies in the Board of Directors, however occurring, including, without limitation, by reason of an increase in the size of the Board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors, and not by the stockholders. Any Director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death or removal. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors, when the number of Directors is increased or decreased, the Board of Directors shall, subject to Article VI., Section 3 hereof, determine the class or classes to which the increased or decreased number of Directors shall be apportioned; provided, however, that no decrease in the number of Directors shall shorten the term of any incumbent Director. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, shall exercise the powers of the full Board of Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of Preferred Stock to elect Directors and to remove any Director whom the holders of any such series have the right to elect, any Director (including persons elected by Directors to fill vacancies in the Board of Directors) may be removed from office (i) only with cause and (ii) only by the affirmative vote of the holders of not less than two-thirds (2/3) of the outstanding shares of capital stock then entitled to vote at an election of Directors. At least forty-five (45) days prior to any annual or special meeting of stockholders at which it is proposed that any Director be removed from office, written notice of such proposed removal and the alleged grounds thereof shall be sent to the Director whose removal will be considered at the meeting.
ARTICLE VII
LIMITATION OF LIABILITY
A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a Director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the Director derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Any amendment, repeal or modification of this Article VII by either of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such amendment, repeal or modification with respect to any acts or omissions occurring before such amendment, repeal or modification of a person serving as a Director at the time of such amendment, repeal or modification.
Notwithstanding anything herein to the contrary, the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article VII.
ARTICLE VIII
INDEMNIFICATION
1. Indemnification of Directors and Officers. The Corporation, to the fullest extent permitted by law, shall indemnify and advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, or his or her testator or estate, is or was a Director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.
2. Indemnification of Non-Officer Employees and Agents. The Corporation, to the fullest extent permitted by law, may indemnify and advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, or his or her testator or intestate, is or was an employee or agent of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
3. Amendment or Repeal. Neither any amendment nor repeal of this Article VIII, nor the adoption by amendment of this Certificate of any provision inconsistent with this Article VIII, shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring, or any action or proceeding accruing or arising (or that, but for this Article VIII, would accrue or arise) prior to such amendment or repeal or adoption of an inconsistent provision.
ARTICLE IX
EXCLUSIVE FORUM
Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery (the “Chancery Court”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any Director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL or the Bylaws or this Certificate (as either may be amended from time to time) or (iv) any action, suit or proceeding asserting a claim against the Corporation governed by the internal affairs doctrine; and (b) subject to the preceding sentences of this Article IX, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. If any action, the subject matter of which is within the scope of clause (a) of the immediately preceding sentence, is filed in a court other than the courts in the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the State of Delaware in connection with any action brought in any such court to enforce the provisions of clause (a) of the immediately preceding sentence and (y) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article IX. Notwithstanding the foregoing, the provisions of this Article IX shall not apply to suits brought to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts of the United States have exclusive jurisdiction.
If any sentence or sentences of this Article IX shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such sentences in any other circumstance and of the remaining sentences of this Article IX (including, without limitation, each portion of any paragraph of this Article IX containing any such sentence held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) the application of such sentence to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
ARTICLE X
AMENDMENT OF BYLAWS
1. Amendment by Directors. Except as otherwise provided by law, the Bylaws of the Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the Directors then in office.
2. Amendment by Stockholders. Except as otherwise provided therein, the Bylaws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.
ARTICLE XI
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Certificate in the manner now or hereafter prescribed by statute and this Certificate, and all rights conferred upon stockholders herein are granted subject to this reservation. Except as otherwise required by this Certificate or by law, whenever any vote of the holders of capital stock of the Corporation is required to amend or repeal any provision of this Certificate, such amendment or repeal shall require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly constituted meeting of stockholders called expressly for such purpose.
THIS ELEVENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of this ____ day of , 2021.
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FEMASYS INC. |
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Name: |
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Exhibit 3.4
AMENDED AND RESTATED
BYLAWS
OF
FEMASYS INC.
(the “Corporation”)
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders (any such meeting being referred to in these Bylaws as an “Annual Meeting”) shall be held at the hour, date and place within or without the United States which is fixed by the Board of Directors, which time, date and place may subsequently be changed at any time by vote of the Board of Directors. If no Annual Meeting has been held for a period of thirteen (13) months after the Corporation’s last Annual Meeting, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these Bylaws or otherwise, all the force and effect of an Annual Meeting. Any and all references hereafter in these Bylaws to an Annual Meeting or Annual Meetings also shall be deemed to refer to any special meeting(s) in lieu thereof.
SECTION 2. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of other business to be considered by the stockholders may be brought before an Annual Meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Bylaw, who is entitled to vote at the meeting, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this Bylaw as to such nomination or business. For the avoidance of doubt, the foregoing clause (ii) shall be the exclusive means for a stockholder to bring nominations or business properly before an Annual Meeting (other than matters properly brought under Rule 14a-8 (or any successor rule) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and such stockholder must comply with the notice and other procedures set forth in Article I, Section 2(a)(2) and (3) of this Bylaw to bring such nominations or business properly before an Annual Meeting. In addition to the other requirements set forth in this Bylaw, for any proposal of business to be considered at an Annual Meeting, it must be a proper subject for action by stockholders of the Corporation under the Delaware General Corporation Law (the “DGCL”).
(2) For nominations or other business to be properly brought before an Annual Meeting by a stockholder pursuant to clause (ii) of Article I, Section 2(a)(1) of this Bylaw, the stockholder must (i) have given Timely Notice (as defined below) thereof in writing to the Secretary of the Corporation, (ii) have provided any updates or supplements to such notice at the times and in the forms required by this Bylaw and (iii) together with the beneficial owner(s), if any, on whose behalf the nomination or business proposal is made, have acted in accordance with the representations set forth in the Solicitation Statement (as defined below) required by this Bylaw. To be timely, a stockholder’s written notice shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the one-year anniversary of the preceding year’s Annual Meeting; provided, however, that in the event the Annual Meeting is first convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no Annual Meeting were held in the preceding year, notice by the stockholder to be timely must be received by the Secretary of the Corporation not later than the close of business on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made (such notice within such time periods shall be referred to as “Timely Notice”). Notwithstanding anything to the contrary provided herein, for the first Annual Meeting following the initial public offering of common stock of the Corporation, a stockholder’s notice shall be timely if received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of the date of such Annual Meeting is first made or sent by the Corporation. Such stockholder’s Timely Notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for election or reelection as a director, (i) the name, age, business address and residence address of the nominee, (ii) the principal occupation or employment of the nominee, (iii) the class and number of shares of the corporation that are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by the nominee, (iv) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee with respect to any securities of the corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (v) a description of all arrangements or understandings between or among the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder or concerning the nominee’s potential service on the Board of Directors, (vi) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe fiduciary duties under the DGCL with respect to the corporation and its stockholders, and (vii) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);
(B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text, if any, of any resolutions or Bylaw amendment proposed for adoption, and any material interest in such business of each Proposing Person (as defined below);
(C) (i) the name and address of the stockholder giving the notice, as they appear on the Corporation’s books, and the names and addresses of the other Proposing Persons (if any) and (ii) as to each Proposing Person, the following information: (a) the class or series and number of all shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially or of record by such Proposing Person or any of its affiliates or associates (as such terms are defined in Rule 12b-2 promulgated under the Exchange Act), including any shares of any class or series of capital stock of the Corporation as to which such Proposing Person or any of its affiliates or associates has a right to acquire beneficial ownership at any time in the future, (b) all Synthetic Equity Interests (as defined below) in which such Proposing Person or any of its affiliates or associates, directly or indirectly, holds an interest including a description of the material terms of each such Synthetic Equity Interest, including without limitation, identification of the counterparty to each such Synthetic Equity Interest and disclosure, for each such Synthetic Equity Interest, as to (x) whether or not such Synthetic Equity Interest conveys any voting rights, directly or indirectly, in such shares to such Proposing Person, (y) whether or not such Synthetic Equity Interest is required to be, or is capable of being, settled through delivery of such shares and (z) whether or not such Proposing Person and/or, to the extent known, the counterparty to such Synthetic Equity Interest has entered into other transactions that hedge or mitigate the economic effect of such Synthetic Equity Interest, (c) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to, directly or indirectly, vote any shares of any class or series of capital stock of the Corporation, (d) any rights to dividends or other distributions on the shares of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, and (e) any performance-related fees (other than an asset based fee) that such Proposing Person, directly or indirectly, is entitled to based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation or any Synthetic Equity Interests (the disclosures to be made pursuant to the foregoing clauses (a) through (e) are referred to, collectively, as “Material Ownership Interests”) and (iii) a description of the material terms of all agreements, arrangements or understandings (whether or not in writing) entered into by any Proposing Person or any of its affiliates or associates with any other person for the purpose of acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation;
(D) (i) a description of all agreements, arrangements or understandings by and among any of the Proposing Persons, or by and among any Proposing Persons and any other person (including with any proposed nominee(s)), pertaining to the nomination(s), or other business proposed to be brought before the meeting of stockholders (which description shall identify the name of each other person who is party to such an agreement, arrangement or understanding), and (ii) identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such nominations or other business proposal(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and
(E) a statement whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, will deliver a proxy statement and form of proxy to holders of, in the case of a business proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to approve the proposal or, in the case of a nomination or nominations, at least the percentage of voting power of all of the shares of capital stock of the Corporation reasonably believed by such Proposing Person to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder (such statement, the “Solicitation Statement”).
For purposes of this Article I of these Bylaws, the term “Proposing Person” shall mean the following persons: (i) the stockholder of record providing the notice of nominations or business proposed to be brought before a stockholders’ meeting, and (ii) the beneficial owner(s), if different, on whose behalf the nominations or business proposed to be brought before a stockholders’ meeting is made. For purposes of this Section 2 of Article I of these Bylaws, the term “Synthetic Equity Interest” shall mean any transaction, agreement or arrangement (or series of transactions, agreements or arrangements), including, without limitation, any derivative, swap, hedge, repurchase or so-called “stock borrowing” agreement or arrangement, the purpose or effect of which is to, directly or indirectly: (a) give a person or entity economic benefit and/or risk similar to ownership of shares of any class or series of capital stock of the Corporation, in whole or in part, including due to the fact that such transaction, agreement or arrangement provides, directly or indirectly, the opportunity to profit or avoid a loss from any increase or decrease in the value of any shares of any class or series of capital stock of the Corporation, (b) mitigate loss to, reduce the economic risk of or manage the risk of share price changes for, any person or entity with respect to any shares of any class or series of capital stock of the Corporation, (c) otherwise provide in any manner the opportunity to profit or avoid a loss from any decrease in the value of any shares of any class or series of capital stock of the Corporation, or (d) increase or decrease the voting power of any person or entity with respect to any shares of any class or series of capital stock of the Corporation.
(3) A stockholder providing Timely Notice of nominations or business proposed to be brought before an Annual Meeting shall further update and supplement such notice, if necessary, so that the information (including, without limitation, the Material Ownership Interests information) provided or required to be provided in such notice pursuant to this Bylaw shall be true and correct as of the record date for the Annual Meeting and as of the date that is ten (10) business days prior to such Annual Meeting, and such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the fifth (5th) business day after the record date for the Annual Meeting (in the case of the update and supplement required to be made as of the record date), and not later than the close of business on the eighth (8th) business day prior to the date of the Annual Meeting (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting).
(4) Notwithstanding anything in the second sentence of Article I, Section 2(a)(2) of this Bylaw to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance with the second sentence of Article I, Section 2(a)(2), a stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(b) General.
(1) Only such persons who are nominated in accordance with the provisions of this Bylaw shall be eligible for election and to serve as directors and only such business shall be conducted at an Annual Meeting as shall have been brought before the meeting in accordance with the provisions of this Bylaw or in accordance with Rule 14a-8 under the Exchange Act. The Board of Directors or a designated committee thereof shall have the power to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the provisions of this Bylaw. If neither the Board of Directors nor such designated committee makes a determination as to whether any stockholder proposal or nomination was made in accordance with the provisions of this Bylaw, the presiding officer of the Annual Meeting shall have the power and duty to determine whether the stockholder proposal or nomination was made in accordance with the provisions of this Bylaw. If the Board of Directors or a designated committee thereof or the presiding officer, as applicable, determines that any stockholder proposal or nomination was not made in accordance with the provisions of this Bylaw, such proposal or nomination shall be disregarded and shall not be presented for action at the Annual Meeting.
(2) Except as otherwise required by law, nothing in this Article I, Section 2 shall obligate the Corporation or the Board of Directors to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board of Directors information with respect to any nominee for director or any other matter of business submitted by a stockholder.
(3) Notwithstanding the foregoing provisions of this Article I, Section 2, if the nominating or proposing stockholder (or a qualified representative of the stockholder) does not appear at the Annual Meeting to present a nomination or any business, such nomination or business shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Article I, Section 2, to be considered a qualified representative of the proposing stockholder, a person must be authorized by a written instrument executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such written instrument or electronic transmission, or a reliable reproduction of the written instrument or electronic transmission, to the presiding officer at the meeting of stockholders.
(4) For purposes of this Bylaw, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(5) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights of (i) stockholders to have proposals included in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor rule), as applicable, under the Exchange Act and, to the extent required by such rule, have such proposals considered and voted on at an Annual Meeting or (ii) the holders of any series of Undesignated Preferred Stock to elect directors under specified circumstances.
(c) Notwithstanding anything herein to the contrary, any provision of this Article I, Section 2 may be amended or repealed by the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.
SECTION 3. Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in office. The Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation. Nominations of persons for election to the Board of Directors of the Corporation and stockholder proposals of other business shall not be brought before a special meeting of stockholders to be considered by the stockholders unless such special meeting is held in lieu of an annual meeting of stockholders in accordance with Article I, Section 1 of these Bylaws, in which case such special meeting in lieu thereof shall be deemed an Annual Meeting for purposes of these Bylaws and the provisions of Article I, Section 2 of these Bylaws shall govern such special meeting.
Notwithstanding anything herein to the contrary, any provision of this Article I, Section 3 may be amended or repealed by the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.
SECTION 4. Notice of Meetings; Adjournments.
(a) A notice of each Annual Meeting stating the hour, date and place, if any, of such Annual Meeting and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given not less than ten (10) days nor more than sixty (60) days before the Annual Meeting, to each stockholder entitled to vote thereat by delivering such notice to such stockholder or by mailing it, postage prepaid, addressed to such stockholder at the address of such stockholder as it appears on the Corporation’s stock transfer books. Without limiting the manner by which notice may otherwise be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.
(b) Unless otherwise required by the DGCL, notice of all special meetings of stockholders shall be given in the same manner as provided for Annual Meetings, except that the notice of all special meetings shall state the purpose or purposes for which the meeting has been called.
(c) Notice of an Annual Meeting or special meeting of stockholders need not be given to a stockholder if a waiver of notice is executed, or waiver of notice by electronic transmission is provided, before or after such meeting by such stockholder or if such stockholder attends such meeting, unless such attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or convened.
(d) The Board of Directors may postpone and reschedule any previously scheduled Annual Meeting or special meeting of stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 2 of this Article I of these Bylaws or otherwise. In no event shall the public announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of stockholders commence a new time period for the giving of a stockholder’s notice under this Article I of these Bylaws.
(e) When any meeting is convened, the presiding officer may adjourn the meeting if (i) no quorum is present for the transaction of business, (ii) the Board of Directors determines that adjournment is necessary or appropriate to enable the stockholders to consider fully information which the Board of Directors determines has not been made sufficiently or timely available to stockholders, or (iii) the Board of Directors determines that adjournment is otherwise in the best interests of the Corporation. When any Annual Meeting or special meeting of stockholders is adjourned to another hour, date or place, notice need not be given of the adjourned meeting other than an announcement at the meeting at which the adjournment is taken of the hour, date and place, if any, to which the meeting is adjourned and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting; provided, however, that if the adjournment is for more than thirty (30) days from the meeting date, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting shall be given to each stockholder of record entitled to vote thereat and each stockholder who, by law or under the Eleventh Amended and Restated Certificate of Incorporation of the Corporation (as the same may hereafter be amended and/or restated, the “Certificate”) or these Bylaws, is entitled to such notice.
SECTION 5. Quorum. A majority of the outstanding shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders. If less than a quorum is present at a meeting, the holders of voting stock representing a majority of the voting power present at the meeting or the presiding officer may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as provided in Section 4 of this Article I. At such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the original meeting. The stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
SECTION 6. Voting and Proxies. Stockholders shall have one vote for each share of stock entitled to vote owned by them of record according to the stock ledger of the Corporation as of the record date, unless otherwise provided by law or by the Certificate. Stockholders may vote either (i) in person, (ii) by written proxy or (iii) by a transmission permitted by Section 212(c) of the DGCL. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission permitted by Section 212(c) of the DGCL may be substituted for or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Proxies shall be filed in accordance with the procedures established for the meeting of stockholders. Except as otherwise limited therein or as otherwise provided by law, proxies authorizing a person to vote at a specific meeting shall entitle the persons authorized thereby to vote at any adjournment of such meeting, but they shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by or on behalf of any one of them unless at or prior to the exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them.
SECTION 7. Action at Meeting. When a quorum is present at any meeting of stockholders, any matter before any such meeting (other than an election of a director or directors) shall be decided by a majority of the votes properly cast for and against such matter, except where a larger vote is required by law, by the Certificate or by these Bylaws. Any election of directors by stockholders shall be determined by a plurality of the votes properly cast on the election of directors.
SECTION 8. Stockholder Lists. The Secretary or an Assistant Secretary (or the Corporation’s transfer agent or other person authorized by these Bylaws or by law) shall prepare and make, at least ten (10) days before every Annual Meeting or special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for a period of at least ten (10) days prior to the meeting as provided in the manner, and subject to the terms, set forth in Section 219 of the DGCL (or any successor provision). The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.
SECTION 9. Presiding Officer. The Board of Directors shall designate a representative to preside over all Annual Meetings or special meetings of stockholders, provided that if the Board of Directors does not so designate such a presiding officer, then the Chairman of the Board, if one is elected, shall preside over such meetings. If the Board of Directors does not so designate such a presiding officer and there is no Chairman of the Board or the Chairman of the Board is unable to so preside or is absent, then the Chief Executive Officer, if one is elected, shall preside over such meetings, provided further that if there is no Chief Executive Officer or the Chief Executive Officer is unable to so preside or is absent, then the President shall preside over such meetings. The presiding officer at any Annual Meeting or special meeting of stockholders shall have the power, among other things, to adjourn such meeting at any time and from time to time, subject to Sections 4 and 5 of this Article I. The order of business and all other matters of procedure at any meeting of the stockholders shall be determined by the presiding officer.
SECTION 10. Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall perform such duties as are required by the DGCL, including the counting of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. The presiding officer may review all determinations made by the inspectors, and in so doing the presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations by the inspectors and, if applicable, the presiding officer, shall be subject to further review by any court of competent jurisdiction.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided by the Certificate or required by law.
SECTION 2. Number and Terms. The number of directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The directors shall hold office in the manner provided in the Certificate.
SECTION 3. Qualification. No director need be a stockholder of the Corporation.
SECTION 4. Vacancies. Vacancies in the Board of Directors shall be filled in the manner provided in the Certificate.
SECTION 5. Removal. Directors may be removed from office only in the manner provided in the Certificate.
SECTION 6. Resignation. A director may resign at any time by electronic transmission or by giving written notice to the Chairman of the Board, if one is elected, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 7. Regular Meetings. The regular annual meeting and other regular meetings of the Board of Directors may be held at such hour, date and place as the Board of Directors may by resolution from time to time determine and publicize by means of reasonable notice given to any director who is not present at the meeting at which such resolution is adopted.
SECTION 8. Special Meetings. Special meetings of the Board of Directors may be called, orally or in writing, by or at the request of a majority of the directors, the Chairman of the Board, if one is elected, or the President. The person calling any such special meeting of the Board of Directors may fix the hour, date and place thereof.
SECTION 9. Notice of Meetings. Notice of the hour, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairman of the Board, if one is elected, or the President or such other officer designated by the Chairman of the Board, if one is elected, or the President. Notice of any special meeting of the Board of Directors shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communication, sent to his or her business, home or email address, at least twenty-four (24) hours in advance of the meeting, or by written notice mailed to his or her business, home or email address, at least forty-eight (48) hours in advance of the meeting. Such notice shall be deemed to be delivered when hand-delivered to such address, read to such director by telephone, deposited in the mail so addressed, with postage thereon prepaid if mailed, or dispatched or transmitted if sent by facsimile transmission or by electronic mail or other form of electronic communications. A written waiver of notice signed or electronically transmitted before or after a meeting by a director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because such meeting is not lawfully called or convened. Except as otherwise required by law, by the Certificate or by these Bylaws, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
SECTION 10. Quorum. At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business, but if less than a quorum is present at a meeting, a majority of the directors present may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice. Any business which might have been transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. For purposes of this section, the total number of directors includes any unfilled vacancies on the Board of Directors.
SECTION 11. Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of the directors present shall constitute action by the Board of Directors, unless otherwise required by law, by the Certificate or by these Bylaws.
SECTION 12. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated as a resolution of the Board of Directors for all purposes.
SECTION 13. Manner of Participation. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting for purposes of these Bylaws.
SECTION 14. Presiding Director. The Board of Directors shall designate a representative to preside over all meetings of the Board of Directors, provided that if the Board of Directors does not so designate such a presiding director or such designated presiding director is unable to so preside or is absent, then the Chairman of the Board, if one is elected, shall preside over all meetings of the Board of Directors. If both the designated presiding director, if one is so designated, and the Chairman of the Board, if one is elected, are unable to preside or are absent, the Board of Directors shall designate an alternate representative to preside over a meeting of the Board of Directors.
SECTION 15. Committees. The Board of Directors, by vote of a majority of the directors then in office, may elect one or more committees, including, without limitation, a Compensation Committee, a Nominating & Corporate Governance Committee and an Audit Committee, and may delegate thereto some or all of its powers except those which by law, by the Certificate or by these Bylaws may not be delegated. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these Bylaws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its action to the Board of Directors.
SECTION 16. Compensation of Directors. Directors shall receive such compensation for their services as shall be determined by a majority of the Board of Directors, or a designated committee thereof, provided that directors who are serving the Corporation as employees and who receive compensation for their services as such, shall not receive any salary or other compensation for their services as directors of the Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist of a President, a Treasurer, a Secretary and such other officers, including, without limitation, a Chairman of the Board of Directors, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board of Directors following the Annual Meeting, the Board of Directors shall elect the President, the Treasurer and the Secretary. Other officers may be elected by the Board of Directors at such regular annual meeting of the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a director. Any person may occupy more than one office of the Corporation at any time.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by these Bylaws, each of the officers of the Corporation shall hold office until the regular annual meeting of the Board of Directors following the next Annual Meeting or until his or her successor is elected and qualified or until his or her earlier resignation, removal or death.
SECTION 5. Resignation. Any officer may resign by delivering his or her written or electronically transmitted resignation to the Corporation addressed to the President or the Secretary, and such resignation shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 6. Removal. Except as otherwise provided by law or by resolution of the Board of Directors, the Board of Directors may remove any officer with or without cause by the affirmative vote of a majority of the directors then in office.
SECTION 7. Absence or Disability. In the event of the absence or disability of any officer, the Board of Directors may designate another officer to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 9. President. The President shall, subject to the direction of the Board of Directors, have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 11. Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 12. Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 13. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors and except as the Board of Directors or the Chief Executive Officer may otherwise provide, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation. He or she shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 14. Secretary and Assistant Secretaries. The Secretary shall record all the proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board of Directors) in books kept for that purpose. In his or her absence from any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation). The Secretary shall have custody of the seal of the Corporation, and the Secretary, or an Assistant Secretary shall have authority to affix it to any instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or that of an Assistant Secretary. The Secretary shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. In the absence of the Secretary, any Assistant Secretary may perform his or her duties and responsibilities. Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 15. Other Powers and Duties. Subject to these Bylaws and to such limitations as the Board of Directors may from time to time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors or the Chief Executive Officer.
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by any two authorized officers of the Corporation. The Corporation seal and the signatures by the Corporation’s officers, the transfer agent or the registrar may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. Notwithstanding anything to the contrary provided in these Bylaws, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares (except that the foregoing shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation), and by the approval and adoption of these Bylaws the Board of Directors has determined that all classes or series of the Corporation’s stock may be uncertificated, whether upon original issuance, re-issuance, or subsequent transfer.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of stock that are represented by a certificate may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate theretofore properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require. Shares of stock that are not represented by a certificate may be transferred on the books of the Corporation by submitting to the Corporation or its transfer agent such evidence of transfer and following such other procedures as the Corporation or its transfer agent may require.
SECTION 3. Record Holders. Except as may otherwise be required by law, by the Certificate or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
SECTION 4. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of stockholders, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting and (b) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION 5. Replacement of Certificates. In case of the alleged loss, destruction or mutilation of a certificate of stock of the Corporation, a duplicate certificate may be issued in place thereof, upon such terms as the Board of Directors may prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a Director of the Corporation, (ii) as an Officer of the Corporation, (iii) as a Non-Officer Employee of the Corporation, or (iv) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For purposes of this Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;
(b) “Director” means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation;
(c) “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;
(d) “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;
(e) “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;
(f) “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;
(g) “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and
(i) “Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) fifty percent (50%) or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) fifty percent (50%) or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.
SECTION 2. Indemnification of Directors and Officers.
(a) Subject to the operation of Section 4 of this Article V of these Bylaws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in this Section 2.
(1) Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(2) Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 2(a)(2) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.
(3) Survival of Rights. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.
(4) Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these Bylaws in accordance with the provisions set forth herein.
SECTION 3. Indemnification of Non-Officer Employees. Subject to the operation of Section 4 of this Article V of these Bylaws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.
SECTION 4. Determination. Unless ordered by a court, no indemnification shall be provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (c) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition.
(a) The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (i) authorized by the Board of Directors of the Corporation, or (ii) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these Bylaws.
(b) If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article V shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.
(c) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.
(a) The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 7. Contractual Nature of Rights.
(a) The provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Article V is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Article V nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article V shall eliminate or reduce any right conferred by this Article V in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Article V shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributes of such person.
(b) If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Article V shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.
(c) In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 8. Non-Exclusivity of Rights. The rights to indemnification and to advancement of Expenses set forth in this Article V shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
SECTION 9. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Article V.
SECTION 10. Other Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to any person under this Article V as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification or advancement of Expenses under this Article V owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary Indemnitor(s) and any applicable insurance policies.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.
SECTION 2. Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.
SECTION 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by the Chairman of the Board, if one is elected, the President or the Treasurer or any other officer, employee or agent of the Corporation as the Board of Directors or the executive committee of the Board may authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors otherwise provides, the Chairman of the Board, if one is elected, the President or the Treasurer may waive notice of and act on behalf of the Corporation (including with regard to voting and actions by written consent), or appoint another person or persons to act as proxy or attorney in fact for the Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or shareholders of any other corporation or organization, any of whose securities are held by the Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the Certificate, Bylaws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock transfer books, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, may be kept outside the State of Delaware and shall be kept at the principal office of the Corporation, at an office of its counsel, at an office of its transfer agent or at such other place or places as may be designated from time to time by the Board of Directors.
SECTION 7. Certificate. All references in these Bylaws to the Certificate shall be deemed to refer to the Eleventh Amended and Restated Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time.
SECTION 8. Exclusive Jurisdiction of Delaware Courts. Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery (the “Chancery Court”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action, suit, or proceeding arising pursuant to any provision of the DGCL or these Bylaws or the Certificate (as either may be amended from time to time) or (iv) any action, suit or proceeding asserting a claim against the Corporation governed by the internal affairs doctrine; and (b) subject to the preceding provisions of this Article VI, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. If any action, the subject matter of which is within the scope of clause (a) of the immediately preceding sentence, is filed in a court other than the courts in the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the State of Delaware in connection with any action brought in any such court to enforce the provisions of clause (a) of the immediately preceding sentence and (y) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article VI. Notwithstanding the foregoing, the provisions of this Article VI shall not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts of the United States have exclusive jurisdiction.
If any provision or provisions of this Article VI shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article VI (including, without limitation, each portion of any paragraph of this Article VI containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
SECTION 9. Amendment of Bylaws.
(a) Amendment by Directors. Except as provided otherwise by law, these Bylaws may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the directors then in office.
(b) Amendment by Stockholders. Except as otherwise required by these Bylaws or by law, these Bylaws may be amended or repealed at any Annual Meeting, or special meeting of stockholders called for such purpose in accordance with these Bylaws, by the affirmative vote of not less than two thirds (2/3) of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class. Notwithstanding the foregoing, stockholder approval shall not be required unless mandated by the Certificate, these Bylaws, or other applicable law.
SECTION 10. Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.
SECTION 11. Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business to be transacted at, nor the purpose of, any meeting need be specified in such a waiver.
Adopted by the Board of Directors on [•], 2021 and approved by the stockholders on [•], 2021 subject to and effective upon the effectiveness of the Corporation’s Registration Statement on Form S-1 for its initial public offering.
Exhibit 4.2
FEMASYS INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
DATED JANUARY 6, 2017
TABLE OF CONTENTS
|
|
Page |
SECTION 1. |
GENERAL. |
2 |
1.1. |
Definitions. |
2 |
SECTION 2. |
REGISTRATION; RESTRICTIONS ON TRANSFER |
3 |
2.1. |
Restrictions on Transfer |
3 |
2.2. |
Demand Registration. |
4 |
2.3. |
Piggyback Registrations |
6 |
2.4. |
Form S-3 Registration |
7 |
2.5. |
Expenses of Registration |
8 |
2.6. |
Obligations of the Company |
8 |
2.7. |
Delay of Registration; Furnishing Information. |
9 |
2.8. |
Indemnification |
9 |
2.9. |
Assignment of Registration Rights |
11 |
2.10. |
Limitation on Subsequent Registration Rights |
12 |
2.11. |
Market Stand-Off Agreement |
12 |
2.12. |
Agreement to Furnish Information |
12 |
2.13. |
Rule 144 Reporting |
12 |
2.14. |
Termination of Registration Provisions |
13 |
SECTION 3. |
COVENANTS OF THE COMPANY |
13 |
3.1. |
Basic Financial Information and Reporting. |
13 |
3.2. |
Inspection Rights |
14 |
3.3. |
Confidentiality of Records |
14 |
3.4. |
Reservation of Common Stock |
14 |
3.5. |
Stock Vesting |
14 |
3.6. |
Director and Officer Insurance |
14 |
3.7. |
Proprietary Information and Inventions Agreement |
15 |
3.8. |
Election of Directors to Subsidiaries |
15 |
3.9. |
Qualified Small Business Stock |
15 |
3.10. |
Termination of Covenants |
15 |
SECTION 4. |
RIGHTS OF FIRST REFUSAL. |
15 |
4.1. |
Subsequent Offerings |
15 |
4.2. |
Exercise of Rights |
15 |
4.3. |
Issuance of Equity Securities to Other Persons |
16 |
4.4. |
Termination and Waiver of Rights of First Refusal |
16 |
4.5. |
Transfer of Rights of First Refusal |
16 |
4.6. |
Excluded Securities |
16 |
SECTION 5. |
VOTING OBLIGATIONS |
16 |
5.1. |
Board of Directors |
16 |
5.2. |
Drag-Along |
18 |
5.3. |
Exceptions |
19 |
5.4. |
Restrictions on Sales of Control of the Company |
20 |
SECTION 6. |
MISCELLANEOUS. |
21 |
6.1. |
Governing Law |
21 |
TABLE OF CONTENTS|
(Continued)
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|
Page |
|
|
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6.2. |
Successors and Assigns |
21 |
6.3. |
Entire Agreement |
21 |
6.4. |
Severability |
21 |
6.5. |
Amendment and Waiver |
21 |
6.6. |
Delays or Omissions |
22 |
6.7. |
Notices |
22 |
6.8. |
Attorneys’ Fees |
22 |
6.9. |
Titles and Subtitles |
22 |
6.10. |
Counterparts |
22 |
6.11. |
Aggregation of Stock |
22 |
6.12. |
Pronouns |
22 |
6.13. |
Termination |
22 |
6.14. |
Consent of Spouse |
23 |
FEMASYS INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 6th day of January, 2017, by and among FEMASYS INC., a Delaware corporation (the “Company”), the investors listed on Exhibit A hereto (each of which is referred to individually in this Agreement as an “Investor” and collectively, the “Investors”), and each of the Major Common Holders (as defined below) listed on Exhibit B hereto (each Major Common Holder together with the Investors, being the “Designated Holders”).
RECITALS
WHEREAS, the Company and certain of the Investors were parties to the (i) Investor Rights Agreement dated as of August 31, 2005 as amended (the “Original Investor Rights Agreement”) and (ii) Amended and Restated Investor Rights Agreement dated as of April 16, 2015 (the “Amended and Restated Investor Rights Agreement”) that amended and restated the Original Investor Rights Agreement in connection with the sale and issuance of the Company’s Series B Preferred Stock (the “Series B Financing”), and, along with certain other of the Investors, are parties to the Second Amended and Restated Investor Rights Agreement, dated as of December 14, 2016, (the “Second Amended and Restated Investor Rights Agreement”) that amended and restated the Amended and Restated Investor Rights Agreement in connection with the sale and issuance of the Company’s Series C Preferred Stock (the “Initial Series C Financing”) (such parties to the Amended and Restated Investor Rights Agreement and the Second Amendend and Restated Investor Rights Agreement, the “Existing Investors”);
WHEREAS, the Company and the Existing Investors that are holders of at least a majority of the Registrable Securities (as defined in the Second Amended and Restated Investor Rights Agreement) of the Company, desire to amend and restate the Second Amended and Restated Investor Rights Agreement in its entirety and to accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Second Amended and Restated Investor Rights Agreement;
WHEREAS, on December 14, 2016, the Company issued forty million dollars ($40,000,000) of its Series C Preferred Stock in a private placement to certain of the Investors;
WHEREAS, certain of the Investors are purchasing additional shares of the Company’s Series C Preferred Stock (as defined below) pursuant to that certain Series C Preferred Stock Purchase Agreement (the “Series C Purchase Agreement”) dated as of the date hereof (the ” Additional Series C Financing”);
WHEREAS, the obligations of the Company and such Investors in the Series C Purchase Agreement are conditioned upon the execution and delivery of this Agreement;
WHEREAS, each current and future holder who holds (or has the right to acquire by virtue of his, her or its ownership) at least 1% of the Common Stock of the Company is referred to herein as a “Major Common Holder” and collectively as the “Major Common Holders”;
WHEREAS, in connection with the consummation of the Additional Series C Financing, the parties desire to enter into this Agreement in order to grant registration, information and other rights to the Investors as set forth below.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree hereto as follows:
Section 1. GENERAL.
1.1. Definitions. As used in this Agreement the following terms shall have the following respective meanings:
(a) “Common Stock” means the Common Stock of the Company.
(b) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(c) “Form S-3” means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.
(d) “Holder” means any person owning of record Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 2.9 hereof.
(e) “Initial Offering” means the Company’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act.
(f) “Preferred Stock” means the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock.
(g) “Qualified IPO” means an underwritten public offering of shares of Common Stock of the Company on the Nasdaq National Market or the New York Stock Exchange at a price per share that is at least $2.099 and resulting in gross proceeds to the Company of at least $50 million.
(h) “Register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document.
(i) “Registrable Securities” means (a) Common Stock issuable or issued upon conversion of the Preferred Stock or any other securities held by the Investors, (b) any Common Stock or any Common Stock issued or issuable (directly or indirectly) upon conversion and/or exercise of any other securities of the Company acquired by the Investors after the date hereof; and (c) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, in exchange for or in replacement of, such above-described securities, excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 6.2 and in each case subject to the termination provisions of Section 2.14 herein.
(j) “Registrable Securities then outstanding” shall be the number of shares of the Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to then exercisable and/or convertible securities.
(k) “Registration Expenses” shall mean all expenses incurred by the Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, reasonable fees and disbursements not to exceed thirty thousand dollars ($30,000) of a single special counsel for the Holders, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding any transfer taxes, and Selling Expenses applicable to the sale).
(l) “SEC” or “Commission” means the Securities and Exchange Commission.
(m) “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
(n) “Securities Act” shall mean the Securities Act of 1933, as amended.
(o) “Selling Expenses” shall mean all underwriting discounts and selling commissions applicable to the sale.
(p) “Series A Preferred Stock” means shares of the Company’s Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock, Series A-6 Preferred Stock and Series A-7 Preferred Stock, each with a par value of $0.001 per share.
(q) “Series B Preferred Stock” means shares of the Company’s Series B Preferred Stock, par value $0.001 per share.
(r) “Series C Preferred Stock” means shares of the Company’s Series C Preferred Stock, par value $0.001 per share.
(s) “Special Registration Statement” shall mean (i) a registration statement relating to any employee benefit plan or (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act, including any registration statements related to the issuance or resale of securities issued in such a transaction, (iii) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered or (iv) a registration related to a dividend reinvestment plan.
Section 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1. Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any portion of the Preferred Stock or Registrable Securities unless and until:
(i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by the Company, such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144, except in unusual circumstances. After its Initial Offering, the Company will not require the transferee to be bound by the terms of this Agreement.
(b) Notwithstanding the provisions of Section 2.1(a) above, no such restriction shall apply to a transfer by a Holder that is (A) a partnership transferring to its partners or former partners in accordance with partnership interests, (B) a corporation transferring to a wholly-owned subsidiary or a parent corporation that owns all of the capital stock of the Holder, (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company, or (D) an individual transferring to the Holder’s family member or trust for the benefit of an individual Holder; provided that in each case the transferee will agree in writing to be subject to the terms of this Agreement to the same extent as if he were an original Holder hereunder.
(c) Each certificate representing Preferred Stock or Registrable Securities shall be stamped or otherwise imprinted with legends substantially similar to the following (in addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
(d) The Company shall be obligated to reissue promptly unlegended certificates at the request of any Holder thereof if the Company has completed its Initial Offering and the Holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company to the effect that the securities proposed to be disposed of may lawfully be so disposed of without registration, qualification and legend, provided that the second legend listed above shall be removed only at such time as the Holder of such certificate is no longer subject to any restrictions hereunder.
(e) Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal.
2.2. Demand Registration.
(a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering 25% or more of the Registrable Securities then outstanding, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within thirty (30) days after the receipt of the request from the Initiating Holders, and subject to the limitations of this Section 2.2, use its reasonable commercial efforts to cause the registration under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within ten (10) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.2(b) and 2.2(c).
(b) Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the fifth (5th) anniversary of the date of this Agreement or (B) six (6) months following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registration has been declared or ordered effective;
(iii) during the period starting with the date of filing of, and ending on the date six months (6) months following the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) or the Chief Executive Officer of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing or an amendment thereof or supplement thereto or taking action in connection therewith for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period;
(v) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
2.3. Piggyback Registrations. The Company shall notify all Holders of Registrable Securities in writing at least twenty (20) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Company solely for cash (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding Special Registration Statements) and will afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within fifteen (15) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder. If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.
(a) Underwriting. If the registration statement under which the Company gives notice under this Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis; provided, however, that no such reduction shall reduce the amount of securities of the selling Holders included in the registration below twenty-five percent (25%) of the total amount of securities requested by the Holders of the Registrable Securities to be included in such registration, unless such offering is the Initial Offering and such registration does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding clause. In no event will shares of any other selling stockholder be included in such registration that would reduce the number of shares which may be included by Holders without the written consent of Holders holding not less than a majority of the Registrable Securities proposed to be sold in the offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder which is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence.
(b) Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.3 whether or not any Holder has elected to include securities in such registration, and shall promptly notify any Holder that has elected to include shares in such registration of such termination or withdrawal. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.5 hereof.
2.4. Form S-3 Registration. If at any time when it is eligible to use a Form S-3 registration statement, the Company shall receive a written request from the Holders of at least twenty-five percent (25%) of the Registrable Securities that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders of Registrable Securities; and
(b) as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4:
(i) if Form S-3 is not available for such offering by the Holders,
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell less than 25% of the Registrable Securities then outstanding and such other securities (if any) at an aggregate price to the public of less than five million dollars ($5,000,000), or
(iii) if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the Holder or Holders under this Section 2.4; provided, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period,
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations on Form S-3 for the Holders pursuant to this Section 2.4, or
(v) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the requests of the required Holders, and in any event within forty-five (45) days after the receipt of the requests of the required Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
2.5. Expenses of Registration. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Section 2.2 or any registration under Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder, shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered. The Company shall not, however, be required to pay for expenses of any registration proceeding begun pursuant to Section 2.2 or Section 2.4, the request of which has been subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is based upon material adverse information concerning the Company of which the Initiating Holders were not aware at the time of such request or (b) the Holders of a majority of Registrable Securities agree to forfeit their right to one requested registration pursuant to Section 2.2 or Section 2.4, as applicable, in which event such right shall be forfeited by all Holders). If the Holders are required to pay the Registration Expenses, such expenses shall be borne by the holders of securities (including Registrable Securities) requesting such registration in proportion to the number of shares for which registration was requested. If the Company is required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above, then the Holders shall not forfeit their rights pursuant to Section 2.2 or Section 2.4 to a demand registration.
2.6. Obligations of the Company. Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to ninety (90) days or, if earlier, until the Holder or Holders have completed the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the period set forth in Section 2.6(a) above.
(c) Furnish to the selling Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company will use reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.
(g) Use its reasonable efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters.
2.7. Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling Holders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities.
(c) The Company shall have no obligation with respect to any registration requested pursuant to Section 2.2 if, due to the operation of Section 2.2(b), the number of shares or the anticipated aggregate offering price of the Registrable Securities to be included in the registration does not equal or exceed the number of shares or the anticipated aggregate offering price required to originally trigger the Company’s obligation to initiate such registration as specified in Section 2.2.
2.8. Indemnification. In the event any Registrable Securities are included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers and directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”) by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated by reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; and the Company will reimburse each such Holder, partner, member, officer, director, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, member, officer, director, underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors or officers or any person who controls such Holder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, underwriter or other such Holder, or partner, director, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any of the following statements: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated by reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act (collectively, a “Holder Violation”), in each case to the extent (and only to the extent) that such Holder Violation occurs in reliance upon and in conformity with written information furnished by such Holder under an instrument duly executed by such Holder and stated to be specifically for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter or other Holder, or partner, officer, director or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Holder Violation; provided, however, that the indemnity agreement contained in this Section 2.8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided further, that in no event shall any indemnity under this Section 2.8 exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8.
(d) If the indemnification provided for in this Section 2.8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) or Holder Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that (i) in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Section 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Section 2.8(b), exceed the proceeds from the offering received by such Holder, except in the case of willful misconduct or fraud by such Holder.
(e) The obligations of the Company and Holders under this Section 2.8 shall survive completion of any offering of Registrable Securities in a registration statement and the termination of this Agreement. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
2.9. Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of Registrable Securities (for so long as such shares remain Registrable Securities) that (a) is a subsidiary, parent, general partner, limited partner, retired partner, member or retired member, or stockholder of a Holder that is a corporation, partnership or limited liability company, (b) is a Holder’s family member or trust for the benefit of an individual Holder, or (c) acquires at least two hundred fifty thousand (250,000) shares of Registrable Securities (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) from an Investor; provided, however, (i) the transferor shall, within ten (10) days after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement; provided, however a Holder shall be prohibited from transferring its Registrable Securities to any person with a material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s major business relationship partners, service providers, joint venture partners, licensees or competitors.
2.10. Limitation on Subsequent Registration Rights. After the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company without the prior written approval of the holders of a majority of the Registrable Securities that would grant such holder (i) rights to demand the registration of their shares, or to include their shares in a registration statement that would reduce the number of shares includable by the Holders or (ii) any other registration rights on a parity with or senior to those granted to the Holders hereunder, other than the right to a Special Registration Statement.
2.11. Market Stand-Off Agreement. If requested by an underwriter, each Holder hereby agrees that such Holder shall not sell, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) for a period specified by the representative of the underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty (180) days following the effective date of a registration statement of the Company filed under the Securities Act; provided that:
(a) such agreement shall apply only to the Company’s Initial Offering; and
(b) all officers and directors of the Company and holders of at least one percent (1%) of the Company’s voting securities enter into and remain bound by similar agreements.
2.12. Agreement to Furnish Information. Each Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter that are consistent with the Holder’s obligations under Section 2.11 or that are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, each Holder shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in Section 2.11 and this Section 2.12 shall not apply to a Special Registration Statement. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of said one hundred eighty (180) day period. Each Holder agrees that any transferee of any shares of Registrable Securities shall be bound by Sections 2.11 and 2.12. The underwriters of the Company’s stock are intended third party beneficiaries of Sections 2.11 and 2.12 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.
If the restrictions of Section 2.11 are waived or terminated by the underwriters with respect to any party, the restrictions on the Holders contained in Section 2.11 will be waived or terminated to the same extent. The restrictions of Section 2.11 will not apply to transfers to affiliates of such Holders or to purchases made in the open market following completion of the Initial Offering; provided that the transferee agrees to be bound in writing by the restrictions set forth herein.
2.13. Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are understood and defined in SEC Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public;
(b) file with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 of the Securities Act, and of the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of the Company filed with the Commission; and such other reports and documents as a Holder may reasonably request in connection with availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.
2.14. Termination of Registration Provisions. With respect to any Holder, all provisions in Section 2 of this Agreement (other than Section 2.8 and 2.11) shall expire and terminate upon the earlier of (i) six (6) years after the closing of an Initial Offering, (ii) upon a “Deemed Liquidation Event,” as defined in the Company’s Ninth Amended and Restated Certificate of Incorporation, as may be amended from time to time (the “Certificate of Incorporation”) or (iii) when all Preferred Stock of such Holders are eligible to be sold without restriction under SEC Rule 144 or another similar exemption under the Securities Act of the Securities Act within any ninety (90) day period.
Section 3. COVENANTS OF THE COMPANY.
3.1. Basic Financial Information and Reporting.
(a) The Company will maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied (except as noted therein), and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied.
(b) So long as any shares of the Series C Preferred Stock or Series B Stock are outstanding, as soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, the Company will furnish to each Investor who invests or invested at least $2,000,000 pursuant to either the Series B Financing, the Initial Series C Financing or the Additional Series C Financing and who as of such date continues to hold at least 1/3 of the shares purchased in the Series B Financing, the Initial Series C Financing or the Additional Series C Financing (each, an “Eligible Investor”) a balance sheet of the Company, as at the end of such fiscal year, and a statement of income and a statement of cash flows of the Company, for such year, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein) and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants selected by the Board. Notwithstanding the forgoing, so long as there are at least 1,400,000 shares of the Series A-6 Preferred Stock outstanding, each Investor who holds at least $250,000 of Series A-6 Preferred Stock shall also be treated as an Eligible Investor for the purposes of this Section 3.
(c) So long as any shares of the Series B Preferred Stock or Series C Preferred Stock are outstanding, the Company will furnish to each Eligible Investor, as soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days thereafter, a balance sheet of the Company as of the end of each such quarterly period, along with an up-to-date capitalization table (displaying all outstanding shares, warrants and options) certified by an officer of the Company, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein), with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.
(d) So long as any shares of the Series B Preferred Stock or Series C Preferred Stock are outstanding, the Company will furnish to each Eligible Investor at least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent written revisions thereto) forecasting the Company’s revenues, expenses and cash position on a month-to-month basis for the upcoming fiscal year.
3.2. Inspection Rights. Each Eligible Investor shall have the right to visit and inspect any of the properties of the Company or any of its subsidiaries, and to discuss the affairs, finances and accounts of the Company or any of its subsidiaries with its officers, and to review such information as is reasonably requested all at such reasonable times and as often as may be reasonably requested, with reasonable advance notification; provided, however, that the Company shall not be obligated to provide any rights under this Section 3.2 to a competitor of the Company or with respect to information which the Board determines in good faith is confidential or attorney-client privileged and should not, therefore, be disclosed.
3.3. Confidentiality of Records. Each Eligible Investor agrees to use the same degree of care as such Eligible Investor uses to protect its own confidential information to keep confidential any information furnished to such Eligible Investor pursuant to Section 3.1 and 3.2 hereof that the Company identifies as being confidential or proprietary (so long as such information is not in the public domain), except that such Eligible Investor may disclose such proprietary or confidential information (i) to any partner, subsidiary or parent of such Investor for the purpose of evaluating its investment in the Company as long as such partner, subsidiary or parent is advised of the confidentiality provisions of this Section 3.3; (ii) at such time as it enters the public domain through no fault of such Investor; (iii) that is communicated to it free of any obligation of confidentiality; (iv) that is developed by Investor or its agents independently of and without reference to any confidential information communicated by the Company; or (v) as required by applicable law, provided, however that the Eligible Investor promptly notified the Company of a disclosure pursuant to subsection (v) and takes reasonable steps to minimize the extent of any such required disclosure; and provided, further, that any Eligible Investor may provide financial information to its partners or members as required by any partnership agreement or limited liability company operating agreement.
3.4. Reservation of Common Stock. The Company will at all times reserve and keep available, solely for issuance and delivery upon the conversion of the Preferred Stock, all Common Stock issuable from time to time upon such conversion.
3.5. Stock Vesting. Unless otherwise approved by the Board, all stock options and other stock equivalents issued after the date of this Agreement to employees, directors, consultants and other service providers shall be subject to vesting as follows: (a) twenty-five percent (25%) of such stock shall vest at the end of the first year following the earlier of the date of issuance or such person’s services commencement date with the Company, and (b) seventy-five percent (75%) of such stock shall vest over the remaining three (3) years in equal annual installments.
3.6. Director and Officer Insurance . The Company will maintain in full force and effect director and officer liability insurance in an amount deemed satisfactory by the Board, provided that such amount is no less than one million dollars ($1,000,000). In the event that the Company merges with another entity and is not the surviving entity or sells or transfers substantially all of its assets, the Company or the Board shall ensure that the successor entity in such transaction assumes the Company’s obligations with respect to the indemnification of directors and officers.
3.7. Proprietary Information and Inventions Agreement. The Company shall require all employees and consultants to execute and deliver a Proprietary Information and Inventions Agreement substantially in a form approved by the Company’s counsel or Board.
3.8. Election of Directors to Subsidiaries. The Company shall elect to the board of directors of any subsidiary the same directors that hold seats on the Board from time to time pursuant to the Initial Series C Financing and the Certificate of Incorporation.
3.9. Qualified Small Business Stock. Unless the Board determines that such qualification is inconsistent with the best interests of the Company, the Company shall use reasonable best efforts to cause its capital stock to constitute Qualified Small Business Stock under Section 1202(e)(4) of the Internal Revenue Code of 1986, as amended.
3.10. Termination of Covenants. All covenants of the Company contained in Section 3 of this Agreement (other than the provisions of Sections 3.3) shall expire and terminate as to each Investor upon the earlier of (i) the effective date of the registration statement pertaining to an Initial Offering that results in the Preferred Stock being converted into Common Stock, (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii) upon a “Deemed Liquidation Event,” as defined in the Certificate of Incorporation as may be amended from time to time or a transfer of more than fifty percent (50%) of the Company’s voting power (each of a Deemed Liquidation Event and such transfer being hereinafter referred to as a “Change of Control”).
Section 4. RIGHTS OF FIRST REFUSAL.
4.1. Subsequent Offerings. Subject to applicable securities laws, each Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than Excluded Securities (as defined below). Each Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Preferred Stock or upon exercise of any outstanding warrants or options) which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Preferred Stock or upon the exercise of any outstanding warrants or options). The term “Equity Securities” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, whether or not currently authorized (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock, Preferred Stock or other security (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security or (iv) any such warrant or right.
4.2. Exercise of Rights. If the Company proposes to issue any Equity Securities, other than Excluded Securities, it shall give each Investor written notice of its intention (the “Company Notice”), describing the Equity Securities, the price and the terms and conditions upon which the Company proposes to issue the same. Each Investor shall have fifteen (15) days from the delivery of the Company Notice to agree to purchase its pro rata share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to be purchased. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Equity Securities to any Investor who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale.
4.3. Issuance of Equity Securities to Other Persons. If not all of the Investors elect to purchase their pro rata share of the Equity Securities, then the Company shall promptly notify in writing the Investors who do so elect to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) and shall offer such Fully Exercising Investors the right to acquire such unsubscribed shares (the “Overallotment Notice”). Each Fully Exercising Investor shall have five (5) days after the delivery of the Overallotment Notice to notify the Company of its election to purchase its pro rata share of the unsubscribed shares. For the purposes of this Section 4.3, each Fully Exercising Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Preferred Stock or upon exercise of any outstanding warrants or options) which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Preferred Stock or upon the exercise of any outstanding warrants or options) held by all Fully Exercising Investors. If the Investors fail to exercise in full the rights of first refusal, the Company shall have ninety (90) days thereafter to sell the Equity Securities in respect of which the Investors’ rights were not exercised, at a price and upon general terms and conditions not materially more favorable to the purchasers thereof than specified in the Company’s notice to the Investors pursuant to Section 4.2 hereof. If the Company has not closed the sale of such Equity Securities within ninety (90) days of the notice provided pursuant to Section 4.2, the Company shall not thereafter issue or sell any Equity Securities, without first offering such securities to the Investors in the manner provided in Section 4.2 above.
4.4. Termination and Waiver of Rights of First Refusal. The rights of first refusal established by this Section 4 shall not apply to, and shall terminate upon the earlier of (i) the effective date of the registration statement pertaining to the Company’s Initial Offering or (ii) a Change in Control.
4.5. Transfer of Rights of First Refusal. The rights of first refusal of each Investor under this Section 4 may be transferred to the same parties, subject to the same restrictions as any transfer of registration rights pursuant to Section 2.9.
4.6. Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any Exempted Securities, as such term is defined in the Certificate of Incorporation (“Excluded Securities”).
Section 5. VOTING OBLIGATIONS
5.1. Board of Directors.
(a) Each Holder agrees to vote, or cause to be voted, all shares owned by such Holder, or over which such Holder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that (i) the size of the Board shall be set and remain at seven (7) directors and (ii) that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(i) One person designated by Common Stock voting exclusively and as a separate class and not on an as converted basis (the “Common Director”), which individual shall be the chief executive officer of the Company and shall initially be Kathy Lee-Sepsick.
(ii) One person designated by Series A Preferred Stock voting exclusively and as a separate class (the “Series A Director”), which individual shall initially be Edward R. Uzialko, Jr.
(iii) One person designated by Series B Preferred Stock voting exclusively and as a separate class (the “Series B Director”), which individual shall initially be John Q. Adams, Jr.
(iv) Two persons designated by Series C Preferred Stock voting exclusively and as a separate class (the “Series C Directors”), which individuals shall initially be John Dyett and William Witte.
(v) Two persons, designated by the majority of the remaining Board members.
(b) Each Holder also agrees to vote, or cause to be voted, all shares owned by such Holder, or over which such Holder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that:
(i) no director elected pursuant to this Section 5.1 of this Agreement may be removed from office other than for cause unless (i) such removal is directed or approved by the affirmative vote of the holders entitled under Section 5.1(a) to designate and approve that director; or (ii) the person(s) originally entitled to designate or approve such director pursuant to Section 5.1(a) is no longer so entitled to designate or approve such director;
(ii) any vacancies created by the resignation, removal or death of a director elected pursuant to Section 5.1(a) or (b) shall be filled pursuant to the provisions of this Section 5.1; and
(iii) upon the request of any party entitled to designate a director as provided in Section 5.1(a) or (b) to remove such director, such director shall be removed.
(c) Each Holder also agrees to vote, or cause to be voted, all shares owned by such Holder, or over which such Holder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that the compensation committee of the Board (the “Compensation Committee”) shall consist of the Series A Director, the Series B Director and one Series C Director. The Compensation Committee shall approve all executive compensation matters, including the grants of any stock options of the Corporation.
(d) All Holders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any party entitled to designate directors to call a special meeting of stockholders for the purpose of electing directors.
(e) No Holder shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Holder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.
(f) Each person with the right to designate or participate in the designation of a director as specified above hereby represents and warrants to the Company that, to such person’s knowledge, none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act of 1933 (each, a “Disqualification Event”), is applicable to such person’s initial designee named above except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any director designee to whom any Disqualification Event is applicable, except for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable, is hereinafter referred to as a “Disqualified Designee”. Each person with the right to designate or participate in the designation of a director as specified above hereby covenants and agrees (i) not to designate or participate in the designation of any director designee who, to such person’s knowledge, is a Disqualified Designee and (ii) that in the event such person becomes aware that any individual previously designated by any such person is or has become a Disqualified Designee, such person shall as promptly as practicable take such actions as are necessary to remove such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee.
5.2. Drag-Along. For the purposes of this Section 5, a “Sale of the Company” shall mean either (i) a transaction or series of related transactions in which a person, or a group of related persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company (a “Stock Sale”); or (ii) a transaction that qualifies as a “Deemed Liquidation Event” as defined the Certificate of Incorporation. In the event that (i) the Board and (ii) the Required Preferred Stockholder Vote (as defined in the Certificate of Incorporation) (the “Selling Investors”) approve a Sale of the Company in writing, specifying that this Section 5.2 shall apply to such transaction, then each Designated Holder and the Company hereby agree:
(a) If such transaction requires stockholder approval, with respect to all shares of Preferred Stock or Common Stock, as appropriate, that such Designated Holder owns or over which such Designated Holder exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Preferred Stock and/or Common Stock, as appropriate, in favor of, and adopt, such Sale of the Company (together with any related amendment to the Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) If such transaction is a Stock Sale, to sell the same proportion of shares of Preferred Stock or Common Stock, as appropriate, of the Company beneficially held by such Designated Holder as is being sold by the Selling Investors to the person to whom the Selling Investors propose to sell their Preferred Stock, and, except as permitted in Section 5.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 5, including, without limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances), and any similar or related documents;
(d) not to deposit, and to cause their affiliates not to deposit, except as provided in this Agreement, any Preferred Stock or Common Stock of the Company owned by such party or affiliate in a voting trust or subject any Preferred Stock or Common Stock to any arrangement or agreement with respect to the voting of such Preferred Stock or Common Stock, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company;
(f) if the consideration to be paid in exchange for the Preferred Stock or Common Stock sold pursuant to this Section 5.2 includes any securities and due receipt thereof by any Designated Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Designated Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Designated Holder in lieu thereof, against surrender of the Preferred Stock or Common Stock, as applicable, which would have otherwise been sold by such Designated Holder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Designated Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Preferred Stock or Common Stock, as applicable; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Holder Representative”) with respect to matters affecting the Designated Holders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (i) to consent to (A) the appointment of such Holder Representative, (B) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (C) the payment of such Designated Holder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Holder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Designated Holders, and (ii) not to assert any claim or commence any suit against the Holder Representative or any other Designated Holder with respect to any action or inaction taken or failed to be taken by the Holder Representative in connection with its service as the Holder Representative, absent fraud or willful misconduct.
5.3. Exceptions. Notwithstanding the foregoing, a Designated Holder will not be required to comply with Section 5.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless:
(a) Any representations and warranties to be made by such Designated Holder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Preferred Stock or Common Stock, as appropriate, including, but not limited to, representations and warranties that (i) the Designated Holder holds all right, title and interest in and to the Preferred Stock or Common Stock, as appropriate such Designated Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Designated Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Designated Holder have been duly executed by the Designated Holder and delivered to the acquirer and are enforceable against the Designated Holder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Designated Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(b) The Designated Holder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);
(c) The liability for indemnification, if any, of such Designated Holder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or the Designated Holders in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Designated Holder in connection with such Proposed Sale;
(d) Liability shall be limited to such Designated Holder’s applicable share (determined based on the respective proceeds payable to each Designated Holder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Designated Holders but that in no event exceeds the amount of consideration otherwise payable to such Designated Holder in connection with such Proposed Sale, except with respect to claims related to fraud by such Designated Holder, the liability for which need not be limited as to such Designated Holder;
(e) Upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s Preferred Stock or Common Stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each Holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other Holders in respect of their shares of such same series, (iii) each Major Common Holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the Required Preferred Stockholder Vote elects to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all Designated Holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Preferred Stock pursuant to this Section 5.3(e) includes any securities and due receipt thereof by any Designated Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Designated Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Designated Holder in lieu thereof, against surrender of the Preferred Stock or Common Stock, as appropriate, which would have otherwise been sold by such Designated Holder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Designated Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Preferred Stock or Common Stock, as appropriate; and
(f) Subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that nothing in this Section 5.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders.
5.4. Restrictions on Sales of Control of the Company. No Designated Holder shall be a party to any Stock Sale unless all holders of Preferred Stock are allowed to participate in such transaction and the consideration received pursuant to such transaction is allocated among the parties thereto in the manner specified in the Company’s Certificate of Incorporation in effect immediately prior to the Stock Sale (as if such transaction were a Deemed Liquidation Event), unless the holders of at least a majority of the Preferred Stock elect otherwise by written notice given to the Company at least thirty (30) days prior to the effective date of any such transaction or series of related transactions.
Section 6. MISCELLANEOUS.
6.1. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to conflicts of laws or principles thereof.
6.2. Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors, and administrators and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price. Before the Company records a stock transfer on its corporate record books or issues shares of its capital stock to any person who following such transfer or issuance will own one percent (1%) or more of the then outstanding shares of Common Stock of the Company (assuming the conversion of all then outstanding shares of Preferred Stock and the exercise and/or conversion of all other securities of the Company exercisable for or convertible into shares of Common Stock) and such person is not a party to this Agreement, such person shall be required to first execute and deliver to the Company a counterpart signature page to this Agreement pursuant to which such person agrees to be bound by all of the terms and conditions of this Agreement (as it may have been amended), and the failure of any such person to do so shall preclude the Company from recording such a transfer or issuance on its corporate record books. Upon the execution by each such person of a counterpart signature page to this Agreement, this Agreement shall be deemed to be amended to include such person as a “Major Common Holder” hereunder, without further action on the part of any person. The addition of any such person as a party to this Agreement shall not be deemed an amendment to this Agreement pursuant to Section 6.5 of this Agreement and shall not require the consent of any of the other parties to this Agreement. If applicable, the Company will also cause each subsequent Major Common Holder to comply with Section 6.2.
6.3. Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement.
6.4. Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
6.5. Amendment and Waiver
(a) Except as otherwise expressly provided, this Agreement may be amended or modified only upon the written consent of the Company and the holders of at least a majority of the then-outstanding Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the Company and the rights of the Holders under this Agreement may be waived only with the written consent of the holders of at least a majority of the then-outstanding Registrable Securities.
(c) For the purposes of determining the number of Holders or Investors entitled to vote or exercise any rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its stock as maintained by or on behalf of the Company.
6.6. Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any party’s part of any breach, default or noncompliance under the Agreement or any waiver on such party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to any party, shall be cumulative and not alternative.
6.7. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or Exhibit A hereto or at such other address or electronic mail address as such party may designate by ten (10) days advance written notice to the other parties hereto.
6.8. Attorneys’ Fees. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
6.9. Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
6.10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
6.11. Aggregation of Stock. All shares of Registrable Securities held or acquired by affiliated entities or persons or persons or entities under common management or control shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
6.12. Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require.
6.13. Termination. Other than Section 2 hereof, this Agreement shall terminate and be of no further force or effect upon the earlier of (i) a Change of Control; (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act; or (iii) the closing of an Initial Offering that results in the conversion of all outstanding shares of Preferred Stock.
6.14. Consent of Spouse. If any Designated Holder is married on the date of this Agreement, such Designated Holder’s spouse shall execute and deliver to the Company a consent of spouse in the form of Exhibit C hereto (“Consent of Spouse”), within thirty (30) days of the date hereof. Notwithstanding the execution and delivery thereof, such consent shall not be deemed to confer or convey to the spouse any rights in such Designated Holder’s shares of Common Stock that do not otherwise exist by operation of law or the agreement of the parties. If any Designated Holder should marry or remarry subsequent to the date of this Agreement, such Designated Holder shall within thirty (30) days thereafter obtain his/her new spouse’s acknowledgement of and consent to the existence and binding effect of all restrictions contained in this Agreement by causing such spouse to execute and deliver a Consent of Spouse acknowledging the restrictions and obligations contained in this Agreement and agreeing and consenting to the same.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
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COMPANY: |
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FEMASYS INC. |
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By: |
/s/ Kathy Lee-Sepsick |
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Name: Kathy Lee-Sepsick |
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Title: President and Chief Executive Officer |
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INVESTOR: |
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SALEM FEMASYS INVESTORS LLC |
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By: |
/s/ John Dyett |
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Name: John Dyett |
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Title: Manager |
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Address: |
11111 Santa Monica Blvd. |
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Suite 2250 |
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Los Angeles, CA 90025 |
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INVESTOR: |
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SHEA VENTURES – FMS |
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a California general partnership |
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By: |
Shea Ventures, LLC |
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a California limited liability company |
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Its: Managing General Partner |
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By: |
/s/ John C. Morrissey |
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Name: John C. Morrissey |
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Title: Vice President |
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Address: 655 Brea Canyon Road |
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Walnut, CA 91789 |
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INVESTOR: |
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/s/ Edward R. Uzialko Jr |
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Edward R. Uzialko Jr. |
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INVESTOR: |
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/s/ Todd Creech |
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Todd Creech |
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INVESTOR: |
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/s/ John Q. Adams Jr |
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John Q. Adams Jr. |
INVESTOR: |
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/s/ Ron Gorfinkel |
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Ron and Sara Gorfinkel |
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/s/ Sara Gorfinkel |
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Ron and Sara Gorfinkel |
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INVESTOR: |
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/s/ Donald Francis Vogt III |
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Donald Francis Vogt III & Lisa Maree Vogt |
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/s/ Lisa Maree Vogt |
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Donald Francis Vogt III & Lisa Maree Vogt |
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INVESTOR: |
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/s/ Jan N. Waters |
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Jan N. Waters |
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INVESTOR: |
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TMI TRUST COMPANY, CUSTODIAN |
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FBO: JOHN GRANT WILMER, JR. IRA |
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By: |
/s/ Jean D. Benedikt |
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Name: Jean D. Benedikt |
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Title: Trust Officer |
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INVESTOR: |
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TMI TRUST COMPANY, CUSTODIAN |
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FBO: JANICE WILMER, ROTH IRA |
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By: |
/s/ Jean D. Benedikt |
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Name: Jean D. Benedikt |
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Title: Trust Officer |
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INVESTOR: |
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TMI TRUST COMPANY, CUSTODIAN |
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FBO: CHARLES WILMER, IRA |
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By: |
/s/ Jean D. Benedikt |
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Name: Jean D. Benedikt |
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Title: Trust Officer |
Exhibit A
List of Investors
Series A Investors
James E. Dorsey
James E. Dorsey, executor of Trust U/W of Alec Glenn Dorsey
Parker H. Petit (Petit Investments, LP; Cox Road Partners, LLLP; Cox Road Partners II, LLLP)
Clinton D. Richardson
Edward R. Uzialko, Jr.
Series B Investors
John Q. Adams
Mario Family Partners LP
Salem Femasys Investors LLC
Edward R. Uzialko, Jr.
Warren Uzialko
Kevin & Julie Kirsch
Jason A. Kirsch
James E. Dorsey
Ron Gorfinkel
James E. Dorsey, executor of Trust U/W of Alec Glenn Dorsey
Jan Waters
John Grant Wilmer, Jr.
Charles I. Wilmer
Lee Martini
Tench Coxe, trustee of The Coxe Revocable Trust 4/23/98
Jeffrey Edelman
Heather L. Preston
James W. Smith
David R. Stern
Donald F. Vogt & Sandra G. Vogt
Lee Cohen
Charles R. Mann, manager of Heatherwood Holdings LLC
Darryn Marc Band
Advanta IRA Administration, LLC FBO Donald F. Vogt III IRA #1521365
TMICO FBO James E. Dorsey, IRA
Series C Investors
Todd Creech
Dyett Family Trust
Ron and Sara Gorfinkel
Berti Prough Trust
John Q. Adams
James E. Dorsey, executor of Trust U/W of Alec Glenn Dorsey
Essex Capital Corporation
Kevin & Julie Kirsch
Jason A. Kirsch
Lee Cohen
David Stern
TMI Trust Company, Custodian FBO: James E. Dorsey, IRA
TMI Trust Company, Custodian FBO: James E. Dorsey, Roth IRA
Mario Family Partners
John Grant Wilmer, Jr.
TMI Trust Company, Custodian FBO: John Grant Wilmer, Jr., IRA
Charles I. Wilmer
TMI Trust Company, Custodian FBO: Charles Wilmer, Jr., IRA
TMI Trust Company, Custodian FBO Janice Wilmer, Roth IRA
Donald Francis Vogt III
Donald Francis Vogt III and Lisa Maree Vogt
Salem Femasys Investors LLC
CFIC-2015 NV Kim Woo Investments II, LLC
SPK Femasys LLC
Shea Ventures – FMS
Covidien Group S.a.r.l.
Thomas Dammeyer 2001 Trust
DRD Family Partnership, LP
CAC, LLC
Rajen Raithatha
Citywall BV
Charles Larsen
Jan N. Waters
Advanta IRA Administration, LLC FBO: Donald F. Vogt III, IRA #1521365
Exhibit B
Major Common Holders
Major Common Holder |
Shares of Major Common Holder Stock Held |
Daniel S. Currie |
600,000 |
Kathy Lee-Sepsick |
2,500,000 |
Lee-Sepsick Family Trust |
650,000 |
The Marcus Family Partnership |
1,000,000 |
Edward R. Uzialko, Jr. |
10,270,856 |
James E. Dorsey |
1,593,956 |
Cox Road Partners, LLLP |
552,000 |
Cox Road Partners II, LLLP |
992,000 |
Parker H. Petit |
644,000 |
Trust U/W Alec Glenn Dorsey |
1,476,366 |
Petit Investments, LP |
612,000 |
Clinton D. Richardson |
454,190 |
John Q. Adams |
1,870,895 |
Salem Femasys Investors LLC |
28,978,140 |
Mario Family Partners LP |
1,656,990 |
CAC, LLC |
952,835 |
Thomas Dammeyer 2001 Trust |
238,209 |
DRD Family Partnership, LP |
476,417 |
CFIC-2015 NV Kim Woo Investments II, LLC |
4,764,173 |
SPK Femasys LLC |
4,144,831 |
Shea Ventures – FMS |
3,753,897 |
Covidien Group S.a.r.l. |
1,905,669 |
Exhibit C
CONSENT OF SPOUSE
I, [____________________], spouse of [______________], acknowledge that I have read the Third Amended and Restated Investor Rights Agreement, dated as of January 6, 2017, to which this Consent is attached as Exhibit C (the “Agreement”), and that I know the contents of the Agreement. I am aware that the Agreement contains provisions regarding certain rights to certain other holders of capital stock of the Company upon a Transfer of shares of Major Common Holder Stock which my spouse may own including any interest I might have therein.
I hereby agree that my interest, if any, in any Major Common Holder Stock subject to the Agreement shall be irrevocably bound by the Agreement and further understand and agree that any community property interest I may have in such shares Major Common Holder Stock shall be similarly bound by the Agreement.
I am aware that the legal, financial and related matters contained in the Agreement are complex and that I am free to seek independent professional guidance or counsel with respect to this Consent. I have either sought such guidance or counsel or determined after reviewing the Agreement carefully that I will waive such right.
Dated as of the [__] day of [__________, _____].
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Signature |
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Print Name |
Exhibit 4.3
FIRST AMENDMENT TO
THE THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Amendment”) is effective as of the 2nd day of April, 2021.
RECITALS
WHEREAS, Femasys Inc. (the “Company”), the Investors and the Designated Holders are parties to the Third Amended and Restated Investor Rights Agreement dated as of January 6, 2017 (the “IRA”);
WHEREAS, the Company, the Investors and the Designated Holders desire to amend the IRA pursuant to the terms of the IRA;
WHEREAS, pursuant to Section 6.5 of the IRA, the IRA may be amended or modified only upon written consent of (i) the Company and (ii) holders of at least a majority of the outstanding Registrable Securities; and
WHEREAS, capitalized terms not otherwise defined herein shall have the meanings set forth in the IRA.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals and the mutual terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereto hereby acknowledge, the Company and holders of at least a majority of the outstanding Registrable Securities agree as follows:
1. Amendment to the Section 2.11 of the IRA. Section 2.11 of the IRA is hereby amended by deleting Section 2.11 in its entirety and replacing it with the following:
“2.11 Market Stand-Off Agreement. If requested by an underwriter, each Holder hereby agrees that such Holder shall not sell, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) for a period specified by the representative of the underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty (180) days following the effective date of a registration statement of the Company filed under the Securities Act; provided that:
(a) such agreement shall apply only to the Company’s Initial Offering; and
(b) all officers and directors of the Company and holders of at least two percent (2%) of the Company’s voting securities enter into and remain bound by similar agreements.”
2. Ratification. Except as specifically set forth in this Amendment, all provisions of the IRA shall be unmodified and shall remain in full force and effect. The IRA, as amended by this Amendment, is hereby ratified and confirmed.
Exhibit 4.4
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUBJECT TO SECTION 6 BELOW, AND EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT, NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR HOLDER, SATISFACTORY TO COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, (“Holder”) is entitled to subscribe for and purchase fully paid and nonassessable shares of Common Stock, $0.001 par value, (the “Common Stock”) of Femasys Inc., a Delaware corporation (“Company”), at the Warrant Price (as hereinafter defined), subject to the provisions and upon the terms and conditions hereinafter set forth. “Warrant Shares” shall mean the shares of Common Stock that Holder may acquire pursuant to this Warrant.
1. Warrant Price. The “Warrant Price” shall initially be per share, subject to adjustment as provided in Section 7 below.
2. Conditions to Exercise. The purchase right represented by this Warrant may be exercised at any time, or from time to time, in whole or in part during the term commencing on the date hereof and ending at 5:00 P.M. (New York City time) on the tenth anniversary of the date of this Warrant (the “Expiration Date”).
3. Method of Exercise or Conversion; Payment; Issuance of Shares; Issuance of New Warrant.
(a) Cash Exercise. Subject to Section 2 hereof, the purchase right represented by this Warrant may be exercised by Holder hereof, in whole or in part, by the surrender of the original of this Warrant (together with a duly executed Notice of Exercise in substantially the form attached hereto) at the principal office of Company (as set forth in Section 18 below) and by payment to Company, by certified or bank check, or wire transfer of immediately available funds, of an amount equal to the then applicable Warrant Price per share multiplied by the number of Warrant Shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be in the name of, and delivered to, Holder hereof, or as such Holder may direct (subject to the terms of transfer contained herein and upon payment by such Holder hereof of any applicable transfer taxes). Such delivery shall be made within 30 days after exercise of this Warrant and at Company’s expense and, unless this Warrant has been fully exercised or expired, a new Warrant having terms and conditions substantially identical to this Warrant and representing the portion of the Warrant Shares, if any, with respect to which this Warrant shall not have been exercised, shall also be issued to Holder hereof within 30 days after exercise of this Warrant.
(b) Conversion. In lieu of exercising this Warrant as specified in Section 3(a), Holder may from time to time convert this Warrant, in whole or in part, into Warrant Shares by surrender of the original of this Warrant (together with a duly executed Notice of Exercise in substantially the form attached hereto) at the principal office of Company, in which event Company shall issue to Holder the number of Warrant Shares computed using the following formula:
X = Y (A-B)
A
Where:
X = the number of Warrant Shares to be issued to Holder.
Y = the number of Warrant Shares requested to be converted under this Warrant (at the date of such calculation).
A = the Fair Market Value of one share of Company’s Common Stock (at the date of such calculation).
B = Warrant Price (as adjusted to the date of such calculation).
(c) Fair Market Value. For purposes of this Section 3, Fair Market Value of one share of Company’s Common Stock shall mean:
(i) In the event of an exercise in connection with the initial underwritten public offering of shares of common stock of the Company (“Common Stock”) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”), the offering price at which the underwriters initially sell Common Stock to the public multiplied by the number of shares of Common Stock into which each share of Common Stock is then convertible; or
(ii) The average of the closing bid and asked prices of Common Stock quoted in the Over-The-Counter Market Summary, or the last reported sale price quoted on the Nasdaq Stock Market or on any other exchange on which the Common Stock is listed, whichever is applicable, as published in the Eastern Edition of the Wall Street Journal for the three (3) trading days prior to the date of determination of Fair Market Value, multiplied by the number of shares of Common Stock into which each share of Common Stock is then convertible; or
(iii) In the event of an exercise in connection with a merger, acquisition or other consolidation in which Company is not the surviving entity, the value to be received per share of Common Stock by all holders of the Common Stock in such transaction, including any deferred rights to receive cash (“Deferred Cash”), as determined in the reasonable good faith judgment of Company’s Board of Directors; or
(iv) In any other instance, the value as determined in the reasonable good faith judgment of Company’s Board of Directors.
In the event of Section 3(c)(iii) or 3(c)(iv) above, Company’s Board of Directors shall prepare a certificate, to be signed by an authorized officer of Company, setting forth in reasonable detail the basis for and method of determination of the per share Fair Market Value of the Common Stock. The Board of Directors will also certify to Holder that this per share Fair Market Value will be applicable to all holders of Company’s Common Stock. Such certifications must be made to Holder, in the event of Section 3(c)(iii) above, at least ten (10) business days prior to the proposed effective date of the merger, acquisition or other consolidation, and in the event of Section 3(c)(iv), promptly after exercise of this Warrant.
(d) Automatic Exercise. To the extent this Warrant is not previously exercised, it shall be deemed to have been automatically converted in accordance with Sections 3(b) and 3(c) hereof (even if not surrendered) as of immediately before its expiration, involuntary termination or cancellation (including, without limitation, upon an Acquisition pursuant to Section 3(e)(ii)) if the then-Fair Market Value of a Warrant Share exceeds the then-Warrant Price, unless Holder notifies Company in writing to the contrary prior to such automatic exercise.
(e) Treatment of Warrant Upon Acquisition of Company.
(i) Certain Definitions. For the purpose of this Warrant: “Acquisition” means any sale, license, assignment, or other disposition of all or substantially all of the assets of Company, or any reorganization, consolidation, or merger of Company, or sale of outstanding Company securities by holders thereof, where the holders of Company’s securities as of immediately before the transaction beneficially own less than a majority of the outstanding voting securities of the successor or surviving entity as of immediately after the transaction. For purposes of this Section 3(e), “Affiliate” shall mean any person or entity that owns or controls directly or indirectly ten percent (10%) or more of the voting capital stock of Company, any person or entity that controls or is controlled by or is under common control with such persons or entities, and each of such person’s or entity’s officers, directors, joint venturers or partners, as applicable. Company shall provide Holder with written notice of any proposed Acquisition not later than ten (10) business days prior to the closing thereof setting forth the material terms and conditions thereof, and shall provide Holder with copies of the draft transaction agreements and other documents in connection therewith and with such other information respecting such proposed Acquisition as may reasonably be requested by Holder.
(ii) Acquisition for Cash. Holder agrees that, in the event of an Acquisition in which the sole consideration is cash and/or Deferred Cash, this Warrant shall be automatically exercised (or terminate) as provided in Section 3(d) on and as of the closing of such Acquisition to the extent not previously exercised.
(iii) Asset Sale. In the event of an Acquisition that is an arms length sale of all or substantially all of Company’s assets (and only its assets) to a third party that is not an Affiliate of Company (a “True Asset Sale”), Holder may either (a) exercise its conversion or purchase right under this Warrant at least two (2) days prior to the consummation of the Acquisition and such exercise will be deemed effective immediately prior to the consummation of such Acquisition, or (b) permit the Warrant to continue until the Expiration Date if Company continues as a going concern following the closing of any such True Asset Sale.
(iv) Assumption of Warrant. Upon the closing of any Acquisition other than as particularly described in Section 3(e)(ii) or 3(e)(iii) above, Company shall, unless Holder requests otherwise, cause the surviving or successor entity to assume this Warrant and the obligations of Company hereunder, and this Warrant shall, from and after such closing, be exercisable for the same class, number and kind of securities, cash and other property as would have been paid for or in respect of the shares issuable (as of immediately prior to such closing) upon exercise in full hereof as if such shares had been issued and outstanding on and as of such closing, at an aggregate Warrant Price equal to the aggregate Warrant Price in effect as of immediately prior to such closing; and subject to further adjustment thereafter from time to time in accordance with the provisions of this Warrant.
4. Representations and Warranties of Holder and Company.
(a) Representations and Warranties by Holder. Holder represents and warrants to Company as of the date hereof with respect to this Warrant as follows:
(i) Evaluation. Holder has substantial experience in evaluating and investing in private placement transactions of securities of companies similar to Company so that Holder is capable of evaluating the merits and risks of its investment in Company and has the capacity to protect its interests.
(ii) Resale. Holder is acquiring this Warrant and the Warrant Shares issuable upon exercise of this Warrant (collectively the “Securities”) for investment for its own account and not with a view to, or for resale in connection with, any distribution thereof. Holder understands that the Securities have not been registered under Act by reason of a specific exemption from the registration provisions of the Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein.
(iii) Rule 144. Holder acknowledges that the Securities must be held indefinitely unless subsequently registered under the Act or an exemption from such registration is available. Holder is aware of the provisions of Rule 144 promulgated under the Act.
(iv) Accredited Investor. Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Act.
(v) Opportunity To Discuss. Holder, as a Company director and otherwise, has had an opportunity to discuss Company’s business, management and financial affairs with its management and an opportunity to review Company’s facilities.
(b) Representations and Warranties by Company. Company hereby represents and warrants to Holder that the statements in the following paragraphs of this Section 4(b) are true and correct as of the date hereof.
(i) Corporate Organization and Authority. Company (a) is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, (b) has the corporate power and authority to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted; and (c) is qualified as a foreign corporation in all jurisdictions where such qualification is required.
(ii) Corporate Power. Company has all requisite legal and corporate power and authority to execute, issue and deliver this Warrant, to issue the Warrant Shares issuable upon exercise or conversion of this Warrant, and to carry out and perform its obligations under this Warrant and any related agreements.
(iii) Authorization; Enforceability. All corporate action on the part of Company, its officers, directors and shareholders necessary for the authorization, execution, delivery and performance of its obligations under this Warrant and for the authorization, issuance and delivery of this Warrant and the Warrant Shares issuable upon exercise of this Warrant has been taken and this Warrant constitutes the legally binding and valid obligation of Company enforceable in accordance with its terms.
(iv) Valid Issuance of Warrant and Warrant Shares. This Warrant has been validly issued and is free of restrictions on transfer other than restrictions on transfer set forth herein and under applicable state and federal securities laws. The Warrant Shares issuable upon exercise or conversion of this Warrant, when issued, sold and delivered in accordance with the terms of this Warrant for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Warrant and under applicable state and federal securities laws. Subject to applicable restrictions on transfer, the issuance and delivery of this Warrant and the Warrant Shares issuable upon exercise or conversion of this Warrant are not subject to any preemptive or other similar rights or any liens or encumbrances except as specifically set forth in Company’s Certificate of Incorporation (“Certificate of Incorporation”) or this Warrant. The offer, sale and issuance of the Warrant Shares, as contemplated by this Warrant, are exempt from the prospectus and registration requirements of applicable United States federal and state security laws, and neither Company nor any authorized agent acting on its behalf has taken or will take any action hereafter that would cause the loss of such exemption.
(v) No Conflict. The execution, delivery, and performance of this Warrant will not result in (a) any violation of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice (1) any provision of Company’s Certificate of Incorporation or by-laws; (2) any provision of any judgment, decree, or order to which Company is a party, by which it is bound, or to which any of its material assets are subject; (3) any contract, obligation, or commitment to which Company is a party or by which it is bound; or (4) any statute, rule, or governmental regulation applicable to Company, or (b) the creation of any lien, charge or encumbrance upon any assets of Company.
5. Legends.
(a) Legend. Each certificate representing the Warrant Shares shall be endorsed with substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED (UNLESS SUCH TRANSFER IS TO AN AFFILIATE OF HOLDER) UNLESS COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT, A “NO ACTION” LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO SUCH TRANSFER, A TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT OF 1933, OR (IF REASONABLY REQUIRED BY COMPANY) AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
Company need not enter into its stock records a transfer of Warrant Shares unless the conditions specified in the foregoing legend are satisfied. Company may also instruct its transfer agent not to allow the transfer of any of the Warrant Shares unless the conditions specified in the foregoing legend are satisfied.
(b) Removal of Legend and Transfer Restrictions. The legend relating to the Act endorsed on a certificate pursuant to paragraph 5(a) of this Warrant shall be removed and Company shall issue a certificate without such legend to Holder if (i) the Securities are registered under the Act and a prospectus meeting the requirements of Section 10 of the Act is available or (ii) Holder provides to Company an opinion of counsel for Holder reasonably satisfactory to Company, a no-action letter or interpretive opinion of the staff of the Securities and Exchange Commission (“SEC”) reasonably satisfactory to Company, or other evidence reasonably satisfactory to Company, to the effect that public sale, transfer or assignment of the Securities may be made without registration and without compliance with any restriction such as Rule 144.
6. Transfers of Warrant. In connection with any transfer by Holder of this Warrant, Company may require the transferee to provide Company with written representations and warranties that transferee is acquiring this Warrant and the shares of Common Stock to be issued upon exercise for investment purposes only and not with a view to any sale or distribution, and may require a legal opinion, in form and substance satisfactory to Company and its counsel, stating that such transfer is exempt from the registration and prospectus delivery requirements of the Act. Following any transfer of this Warrant, at the request of either Company or the transferee, the transferee shall surrender this Warrant to Company in exchange for a new warrant of like tenor and date, executed by Company. Upon any partial transfer, Company will also execute and deliver to Holder a new warrant of like tenor with respect to the portion of this Warrant not so transferred. Subject to the foregoing, this Warrant is transferable on the books of Company at its principal office by the registered Holder hereof upon surrender of this Warrant properly endorsed. Holder shall not have any right to transfer any portion of this Warrant to any direct competitor of Company.
7. Adjustment for Certain Events. The number and kind of securities purchasable upon the exercise of this Warrant and the Warrant Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows:
(a) Reclassification or Merger. In case of (i) any reclassification or change of securities of the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any merger of Company with or into another corporation (other than a merger with another corporation in which Company is the acquiring and the surviving corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or (iii) any sale of all or substantially all of the assets of Company, Company, or such successor or purchasing corporation, as the case may be, shall duly execute and deliver to Holder a new Warrant (in form and substance satisfactory to Holder of this Warrant), or Company shall make appropriate provision without the issuance of a new Warrant, so that Holder shall have the right to receive, at a total purchase price not to exceed that payable upon the exercise of the unexercised portion of this Warrant, and in lieu of the Warrant Shares theretofore issuable upon exercise or conversion of this Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, change, merger or sale by a holder of the number of shares of Common Stock then purchasable under this Warrant, or in the case of such a merger or sale in which the consideration paid consists all or in part of assets other than securities of the successor or purchasing corporation, at the option of Holder, the securities of the successor or purchasing corporation having a value at the time of the transaction equivalent to the value of the Warrant Shares purchasable upon exercise of this Warrant at the time of the transaction. Any new Warrant shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 7. The provisions of this subparagraph (a) shall similarly apply to successive reclassifications, changes, mergers and transfers.
(b) Subdivision or Combination of Shares. If Company at any time while this Warrant remains outstanding and unexpired shall subdivide or combine its outstanding shares of Common Stock, the Warrant Price shall be proportionately decreased and the number of Warrant Shares issuable hereunder shall be proportionately increased in the case of a subdivision and the Warrant Price shall be proportionately increased and the number of Warrant Shares issuable hereunder shall be proportionately decreased in the case of a combination.
(c) Adjustment of Number of Shares. Upon each adjustment in the Warrant Price, the number of Warrant Shares purchasable hereunder shall be adjusted, to the nearest whole share, to the product obtained by multiplying the number of Warrant Shares purchasable immediately prior to such adjustment in the Warrant Price by a fraction, the numerator of which shall be the Warrant Price immediately prior to such adjustment and the denominator of which shall be the Warrant Price immediately thereafter.
8. Notice of Adjustments; Redemption. Whenever any Warrant Price or the kind or number of securities issuable under this Warrant shall be adjusted pursuant to Section 7 hereof, Company shall prepare a certificate signed by an officer of Company setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price and number or kind of shares issuable upon exercise of this Warrant after giving effect to such adjustment, and within thirty (30) days of such adjustment shall cause copies of such certificate to be delivered to Holder in accordance with Section 18 hereof.
9. No Fractional Shares. No fractional share of Common Stock will be issued in connection with any exercise or conversion hereunder, but in lieu of such fractional share Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect.
10. Charges, Taxes and Expenses. Issuance of certificates for shares of Common Stock upon the exercise or conversion of this Warrant shall be made without charge to Holder for any United States or state of the United States documentary stamp tax or other incidental expense with respect to the issuance of such certificate, all of which taxes and expenses shall be paid by Company, and such certificates shall be issued in the name of Holder.
11. No Shareholder Rights Until Exercise. Except as expressly provided herein, this Warrant does not entitle Holder to any voting rights or other rights as a shareholder of Company prior to the exercise hereof.
12. Registry of Warrant. Company shall maintain a registry showing the name and address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange or exercise, in accordance with its terms, at such office or agency of Company, and Company and Holder shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry.
13. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft, or destruction, of indemnity reasonably satisfactory to it, and, if mutilated, upon surrender and cancellation of this Warrant, Company will execute and deliver a new Warrant, having terms and conditions substantially identical to this Warrant, in lieu hereof.
14. Miscellaneous. The provisions of this Warrant shall be construed and shall be given effect in all respect as if it had been issued and delivered by Company on the date hereof. This Warrant shall be binding upon any successors or assigns of Company. The headings used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday in the State of New York, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or a legal holiday.
15. No Impairment. Company will not, by amendment of its Certificate of Incorporation or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of Holder hereof against impairment. Without limiting the breadth of the foregoing, Company will not cause the Common Stock to be converted into Common Stock unless such conversion is effected as part of the conversion of all Company’s outstanding series of Common Stock and other senior securities into Common Stock.
16. Addresses. All notices or other communications given in connection with this Warrant shall be in writing, shall be addressed to the parties at their respective addresses set forth below (unless and until a different address may be specified in a written notice to the other party delivered in accordance with this Section 18), and shall be deemed given (a) on the date of receipt if delivered by hand, (b) on the next business day after being sent by a nationally-recognized overnight courier, or (c) on the fourth business day after being sent by registered or certified mail, return receipt requested and postage prepaid.
If to Company: |
Femasys, Inc. |
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5000 Research Court, Suite 100 |
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Suwanee, Georgia 30024 |
Attn: |
President & CEO |
If to Holder: |
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17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS WARRANT OR THE WARRANT SHARES.
18. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES OF SUCH STATE).
IN WITNESS WHEREOF, Company has caused this Warrant to be executed by its officer thereunto duly authorized.
FEMASYS INC.
By. |
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Name: Kathy Lee-Sepsick |
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Title: President & CEO |
NOTICE OF EXERCISE
To:
Femasys Inc.
5000 Research Court
Suite 100
Suwanee, GA 30024
Attn: President & CEO
1. |
The undersigned Warrant holder (“Holder”) elects to acquire shares of the Common Stock (the “Common Stock”) of Femasys Inc. (the “Company”), pursuant to the terms of the Stock Purchase Warrant dated (the “Warrant”).
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2. |
Holder exercises its rights under the Warrant as set forth below: |
( ) Holder elects to purchase __________ shares of Common Stock as provided in Section 3(a) and tenders herewith a check in the amount of $__________ as payment of the purchase price.
( ) Holder elects to convert the purchase rights into shares of Common Stock as provided in Section 3(b) of the Warrant.
3. |
Holder surrenders the Warrant with this Notice of Exercise. |
Holder represents that it is acquiring the aforesaid shares of Common Stock for investment and not with a view to or for resale in connection with distribution and it has no present intention of distributing or reselling the shares.
Please issue a certificate representing the shares of the Common Stock in the name of Holder or in such other name as is specified below:
Name: |
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Address: |
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Taxpayer I.D.: |
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Name:
9
Exhibit 10.1
FEMASYS INC.
Amended and restated
2004 Stock Incentive Plan
Section 1.
Purpose
The purpose of this Stock Incentive Plan (“Plan”) is to promote the interests of Femasys Inc. (the “Company”) by providing the opportunity to purchase Shares or to receive compensation which is based upon appreciation in the value of Shares to Employees and Key Persons in order to attract and retain Employees and Key Persons by providing an incentive to work to increase the value of Shares and a stake in the future of the Company which corresponds to the stake of each of the Company’s shareholders. The Plan provides for the grant of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock Awards and Stock Appreciation Rights to aid the Company in attaining these goals.
Section 2.
Definitions
Each term set forth in this Section shall have the meaning set forth opposite such term for purposes of this Plan and, for purposes of such definitions, the singular shall include the plural and the plural shall include the singular, and reference to one gender shall include the other gender.
2.1 Board means the Board of Directors of the Company.
2.2 Cause shall mean an act or acts by an employee involving (a) the use for profit or disclosure to unauthorized persons of confidential information or trade secrets of the Company, (b) the breach of any contract with the Company, (c) the violation of any fiduciary obligation to the Company, (d) the unlawful trading in the securities of the Company or of another corporation based on information gained as a result of the performance of services for the Company, (e) a felony conviction or the failure to contest prosecution of a felony, or (f) willful misconduct, dishonesty, embezzlement, fraud, deceit or civil rights violations, or other unlawful acts.
2.3 Change of Control means either of the following:
(a) any transaction or series of transactions pursuant to which the Company sells, transfers, leases, exchanges or disposes of substantially all (i.e., at least eighty-five percent (85%)) of its assets for cash or property, or for a combination of cash and property, or for other consideration; or
(b) any transaction pursuant to which persons who are not current shareholders of the Company acquire by merger, consolidation, reorganization, division or other business combination or transaction, or by a purchase of an interest in the Company, an interest in the Company so that after such transaction, the shareholders of the Company immediately prior to such transaction no longer have a controlling (i.e., 50% or more) voting interest in the Company.
2.4 Code means the Internal Revenue Code of 1986, as amended.
2.5 Committee means any committee appointed by the Board to administer the Plan, as specified in Section 5 hereof. Any such committee shall be comprised entirely of Directors.
2.6 Common Stock means the common stock of the Company.
2.7 Company means Femasys Inc., a Delaware corporation, and any successor to such organization.
2.8 Director means a member of the Board.
2.9 Employee means an employee of the Company, a Subsidiary or a Parent.
2.10 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.11 Exercise Price means the price which shall be paid to purchase one (1) Share upon the exercise of an Option granted under this Plan.
2.12 Fair Market Value of each Share on any date means the price determined below on the last business day immediately preceding the date of valuation:
(a) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the National Market of the National Association of Securities Dealers, Inc. Automated Quotation (“NASDAQ”) System, its Fair Market Value per share shall be the closing sale price for the Common Stock (or the mean of the closing bid and asked prices, if no sales were reported), as quoted on such exchange or system on the date of such determination, as reported in The Wall Street Journal or such other source as the Board deems reliable; or
(b) If the Common Stock is not listed on any established stock exchange or a national market system, its Fair Market Value per share shall be the average of the closing dealer “bid” and “ask” prices of a share of the Common Stock as reflected on the NASDAQ interdealer quotation system of the National Association of Securities Dealers, Inc. on the date of such determination; or
(c) In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Board.
2.13 Insider means an individual who is, on the relevant date, an officer, director or ten percent (10%) beneficial owner of any class of the Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange Act.
2.14 ISO means an option granted under this Plan to purchase Shares which is intended by the Company to satisfy the requirements of Code §422 as an incentive stock option.
2.15 Key Person means (i) a member of the Board who is not an Employee, (ii) a consultant, distributor or other person who has rendered or committed to render valuable services to the Company, a Subsidiary or a Parent, (iii) a person who has incurred, or is willing to incur, financial risk in the form of guaranteeing or acting as co-obligor with respect to debts or other obligations of the Company, or (iv) a person who has extended credit to the Company. Key Persons are not limited to individuals and, subject to the preceding definition, may include corporations, partnerships, associations and other entities.
2.16 Non-ISO means an option granted under this Plan to purchase Shares which is not intended by the Company to satisfy the requirements of Code §422.
2.17 Option means an ISO or a Non-ISO.
2.18 Outside Director means a Director who is not an Employee and who qualifies as (1) a “non-employee director” under Rule 16b-3(b)(3) under the 1934 Act, as amended from time to time, and (2) an “outside director” under Code §162(m) and the regulations promulgated thereunder.
2.19 Parent means any corporation which is a “parent corporation” of the Company (within the meaning of Code §424(e)).
2.20 Participant means an individual who receives a Stock Incentive hereunder.
2.21 Performance-Based Exception means the performance-based exception from the tax deductibility limitations of Code §162(m).
2.22 Plan means the Femasys Inc. 2004 Stock Incentive Plan, as may be amended from time to time.
2.23 Restricted Stock Award means an award of Common Stock granted to a Participant under this Plan whereby the Participant has immediate rights of ownership in the shares of Common Stock underlying the award, but such shares are subject to restrictions in accordance with the terms and provisions of this Plan and the Stock Incentive Agreement pertaining to the award and may be subject to forfeiture by the individual until the earlier of (a) the time such restrictions lapse or are satisfied, or (b) the time such shares are forfeited, pursuant to the terms and provisions of the Stock Incentive Agreement pertaining to the award.
2.24 Section 409.A means Code §409A, related Treasury Regulations and other guidance issued thereunder.
2.25 Share means a share of the Common Stock of the Company.
2.26 Stock Appreciation Right means a right granted to a Participant pursuant to the terms and provisions of this Plan whereby the individual, without payment to the Company (except for any applicable withholding or other taxes), receives cash, shares of Common Stock, a combination thereof, or such other consideration as the Board may determine, in an amount equal to the excess of the Fair Market Value per share on the date on which the Stock Appreciation Right is exercised over the exercise price noted in the Stock Appreciation Right.
2.27 Stock Incentive means an ISO, a Non-ISO, a Restricted Stock Award or a Stock Appreciation Right.
2.28 Stock Incentive Agreement means an agreement between the Company and a Participant evidencing an award of a Stock Incentive.
2.29 Subsidiary means any corporation which is a “subsidiary corporation” of the Company (within the meaning of Code §424(f)).
2.30 Surrendered Shares means the Shares described in Section 8.2 which (in lieu of being purchased) are surrendered for cash or Shares, or for a combination of cash and Shares, in accordance with Section 8.
2.31 Ten Percent Shareholder means a person who owns (after taking into account the attribution rules of Code §424(d)) more than ten percent (10%) of the total combined voting power of all classes of shares of either the Company, a Subsidiary or a Parent.
2.32 Vesting Termination shall mean a termination of the employment of an employee where such termination is done by the Company without Cause.
Section 3.
Shares Subject to Stock Incentives
The total number of Shares that may be issued pursuant to Stock Incentives under this Plan shall not exceed Seven Hundred Fifty Thousand (750,000), as adjusted pursuant to Section 11. Such Shares shall be reserved, to the extent that the Company deems appropriate, from authorized but unissued Shares, and from Shares which have been reacquired by the Company. Furthermore, any Shares subject to a Stock Incentive which remain after the cancellation, expiration or exchange of such Stock Incentive thereafter shall again become available for use under this Plan, but any Surrendered Shares which remain after the surrender of an ISO or a Non-ISO under Section 8 shall not again become available for use under this Plan. Notwithstanding anything herein to the contrary, no Participant may be granted Options or Stock Appreciation Rights covering an aggregate number of Shares in excess of Five Hundred Thousand (500,000) in any calendar year.
Section 4.
Effective Date
The effective date of this Plan, as documented hereby, shall be the date it is adopted by the Board, as noted in resolutions effectuating such adoption, provided the shareholders of the Company approve this Plan within twelve (12) months after such effective date. If such effective date comes before such shareholder approval, any Stock Incentives granted under this Plan before the date of such approval automatically shall be granted subject to such approval.
Section 5.
Administration
5.1 General Administration. This Plan shall be administered by the Board. The Board, acting in its absolute discretion, shall exercise such powers and take such action as expressly called for under this Plan. The Board shall have the power to interpret this Plan and, subject to the terms and provisions of this Plan, to take such other action in the administration and operation of the Plan as it deems equitable under the circumstances. The Board’s actions shall be binding on the Company, on each affected Employee or Key Person, and on each other person directly or indirectly affected by such actions.
5.2 Authority of the Board. Except as limited by law or by the Certificate of Incorporation or Bylaws of the Company, and subject to the provisions herein, the Board shall have full power to select Employees and Key Persons who shall participate in the Plan, to determine the sizes and types of Stock Incentives in a manner consistent with the Plan, to determine the terms and conditions of Stock Incentives in a manner consistent with the Plan, to construe and interpret the Plan and any agreement or instrument entered into under the Plan, to establish, amend or waive rules and regulations for the Plan’s administration, and to amend the terms and conditions of any outstanding Stock Incentives as allowed under the Plan and such Stock Incentives. Further, the Board may make all other determinations which may be necessary or advisable for the administration of the Plan.
5.3 Delegation of Authority. The Board may delegate its authority under the Plan, in whole or in part, to a Committee appointed by the Board consisting of not less than two (2) directors. The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board. The Committee (if appointed) shall act according to the policies and procedures set forth in the Plan and to those policies and procedures established by the Board, and the Committee shall have such powers and responsibilities as are set forth by the Board. Reference to the Board in this Plan shall specifically include reference to the Committee where the Board has delegated its authority to the Committee, and any action by the Committee pursuant to a delegation of authority by the Board shall be deemed an action by the Board under the Plan. Notwithstanding the above, the Board may assume the powers and responsibilities granted to the Committee at any time, in whole or in part. With respect to Committee appointments and composition, only a Committee (or a sub-committee thereof) comprised solely of two (2) or more Outside Directors may grant Stock Incentives which will meet the Performance-Based Exception, and only a Committee comprised solely of Outside Directors may grant Stock Incentives to Insiders that will be exempt from Section 16(b) of the Exchange Act.
5.4 Decisions Binding. All determinations and decisions made by the Board (or its delegate) pursuant to the provisions of this Plan and all related orders and resolutions of the Board shall be final, conclusive and binding on all persons, including the Company, its stockholders, Directors, Employees, Key Persons, Participants, and their estates and beneficiaries.
5.5 Indemnification for Decisions. No member of the Board or the Committee (or a sub-committee thereof) shall be liable for any action taken or determination made hereunder in good faith. Service on the Committee (or a sub-committee thereof) shall constitute service as a director of the Company so that the members of the Committee (or a sub-committee thereof) shall be entitled to indemnification and reimbursement as directors of the Company pursuant to its bylaws and applicable law. In addition, the members of the Board, Committee (or a sub-committee thereof) shall be indemnified by the Company against (a) the reasonable expenses, including attorneys’ fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, any Stock Incentive granted hereunder, and (b) against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such individual is liable for gross negligence or misconduct in the performance or his duties.
Section 6.
Eligibility
Employees and Key Persons selected by the Board shall be eligible for the grant of Stock Incentives under this Plan, but no Employee or Key Person shall have the right to be granted a Stock Incentive under this Plan merely as a result of his or her status as an Employee or Key Person. Only Employees shall be eligible to receive a grant of ISO’s.
Section 7.
Terms of Stock Incentives
7.1 Terms and Conditions of All Stock Incentives.
(a) The Board, in its absolute discretion, shall grant Stock Incentives under this Plan from time to time and shall have the right to grant new Stock Incentives in exchange for outstanding Stock Incentives. Stock Incentives shall be granted to Employees or Key Persons selected by the Board, and the Board shall be under no obligation whatsoever to grant Stock Incentives to all Employees or Key Persons, or to grant all Stock Incentives subject to the same terms and conditions.
(b) The number of Shares as to which a Stock Incentive shall be granted shall be determined by the Board in its sole discretion, subject to the provisions of Section 3 as to the total number of shares available for grants under the Plan.
(c) Each Stock Incentive shall be evidenced by a Stock Incentive Agreement executed by the Company and the Participant, which shall be in such form and contain such terms and conditions as the Board in its discretion may, subject to the provisions of the Plan, from time to time determine.
(d) The date a Stock Incentive is granted shall be the date on which the Board has approved the terms and conditions of the Stock Incentive Agreement and has determined the recipient of the Stock Incentive and the number of Shares covered by the Stock Incentive and has taken all such other action necessary to complete the grant of the Stock Incentive.
7.2 Terms and Conditions of Options. Each grant of an Option shall be evidenced by a Stock Incentive Agreement which shall:
(a) specify whether the Option is an ISO or Non-ISO; and
(b) incorporate such other terms and conditions as the Board, acting in its absolute discretion, deems consistent with the terms of this Plan, including (without limitation) a restriction on the number of Shares subject to the Option which first become exercisable or subject to surrender during any calendar year.
The Board and/or the Company shall have complete discretion, notwithstanding subsection (a) above, to modify the terms and provisions of an Option in accordance with Section 13 of this Plan even though such modification may change the Option from an ISO to Non-ISO.
In determining Employee(s) or Key Person(s) to whom an Option shall be granted and the number of Shares to be covered by such Option, the Board may take into account the recommendations of the Chief Executive Officer of the Company and its other officers, the duties of the Employee or Key Person, the present and potential contributions of the Employee or Key Person to the success of the Company, the anticipated number of years of service remaining before the attainment by the Employee of retirement age, and other factors deemed relevant by the Board, in its sole discretion, in connection with accomplishing the purpose of this Plan. An Employee or Key Person who has been granted an Option to purchase Shares, whether under this Plan or otherwise, may be granted one or more additional Options. If the Board grants an ISO and a Non-ISO to an Employee on the same date, the right of the Employee to exercise or surrender one such Option shall not be conditioned on his or her failure to exercise or surrender the other such Option.
(a) Exercise Price. Subject to adjustment in accordance with Section 11 and the other provisions of this Section, the Exercise Price shall be as set forth in the applicable Stock Incentive Agreement. With respect to each grant of an ISO to a Participant who is not a Ten Percent Shareholder, the Exercise Price shall not be less than the Fair Market Value on the date the ISO is granted. With respect to each grant of an ISO to a Participant who is a Ten Percent Shareholder, a Ten Percent Shareholder shall not be less than one hundred ten percent (110%) of the Fair Market Value on the date the ISO is granted. If a Stock Incentive is a Non-ISO, the Exercise Price for each Share shall be no less than the Fair Market Value on the date the Non-ISO is granted.
(b) Option Term. Each Option granted under this Plan shall be exercisable in whole or in part at such time or times as set forth in the related Stock Incentive Agreement, but no Stock Incentive Agreement shall:
(i) make an Option exercisable before the date such Option is granted; or
(ii) make an Option exercisable after the earlier of:
(A) the date such Option is exercised in full, or
(B) the date which is the tenth (10th) anniversary of the date such Option is granted, if such Option is a Non-ISO or an ISO granted to a non-Ten Percent Shareholder, or the date which is the fifth (5th) anniversary of the date such Option is granted, if such Option is an ISO granted to a Ten Percent Shareholder.
A Stock Incentive Agreement may provide for the exercise of an Option after the employment of an Employee has terminated for any reason whatsoever, including death or disability. The Employee’s rights, if any, upon termination of employment will be set forth in the applicable Stock Incentive Agreement.
(c) Payment. Options shall be exercised by the delivery of a written notice of exercise to the Company, setting forth the number of Shares with respect to which the Option is to be exercised accompanied by full payment for the Shares. Payment for shares of Stock purchased pursuant to exercise of an Option shall be made in cash or, unless the Stock Incentive Agreement provides otherwise, by delivery to the Company of a number of Shares which have been owned and completely paid for by the holder for at least six (6) months prior to the date of exercise (i.e., “mature shares” for accounting purposes) having an aggregate Fair Market Value equal to the amount to be tendered, or a combination thereof. In addition, unless the Stock Incentive Agreement provides otherwise, the Option may be exercised through a brokerage transaction following registration of the Company’s equity securities under Section 12 of the Securities Exchange Act of 1934 as permitted under the provisions of Regulation T applicable to cashless exercises promulgated by the Federal Reserve Board. However, notwithstanding the foregoing, with respect to any Option recipient who is an Insider, a tender of shares or a cashless exercise must (1) have met the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act, or (2) be a subsequent transaction the terms of which were provided for in a transaction initially meeting the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act. Unless the Stock Incentive Agreement provides otherwise, the foregoing exercise payment methods shall be subsequent transactions approved by the original grant of an Option. Except as provided in subparagraph (f) below, payment shall be made at the time that the Option or any part thereof is exercised, and no Shares shall be issued or delivered upon exercise of an Option until full payment has been made by the Participant. The holder of an Option, as such, shall have none of the rights of a stockholder. Notwithstanding the above, and in the sole discretion of the Board, an Option may be exercised as to a portion or all (as determined by the Board) of the number of Shares specified in the Stock Incentive Agreement by delivery to the Company of a promissory note, such promissory note to be executed by the Participant and which shall include, with such other terms and conditions as the Board shall determine, provisions in a form approved by the Board under which: (i) the balance of the aggregate purchase price shall be payable in equal installments over such period and shall bear interest at such rate (which shall not be less than the prime bank loan rate as determined by the Board) as the Board shall approve, and (ii) the Participant shall be personally liable for payment of the unpaid principal balance and all accrued but unpaid interest. Other methods of payment may also be used if approved by the Board in its sole and absolute discretion and not prohibited under the Stock Incentive Agreement.
(d) Conditions to Exercise of an Option. Each Option granted under the Plan shall vest and shall be exercisable at such time or times, or upon the occurrence of such event or events, and in such amounts, as the Board shall specify in the Stock Incentive Agreement; provided, however, that subsequent to the grant of an Option, the Board, at any time before complete termination of such Option, may accelerate the time or times at which such Option may vest or be exercised in whole or in part. The Board may impose such restrictions on any Shares acquired pursuant to the exercise of an Option as it may deem advisable, including, without limitation, vesting or performance-based restrictions, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed and/or traded, and under any blue sky or state securities laws applicable to such Shares.
(e) Nontransferability of Options. An Option shall not be transferable or assignable except by will or by the laws of descent and distribution and shall be exercisable, during the Participant’s lifetime, only by the Participant; provided, however, that in the event the Participant is incapacitated and unable to exercise his or her Option, such Option may be exercised by such Participant’s legal guardian, legal representative, or other representative whom the Board deems appropriate based on applicable facts and circumstances. The determination of incapacity of a Participant and the determination of the appropriate representative of the Participant who shall be able to exercise the Option if the Participant is incapacitated shall be determined by the Board in its sole and absolute discretion.
(f) Special Provisions for Certain Substitute Options. Notwithstanding anything to the contrary in this Section, any Option in substitution for a stock option previously issued by another entity, which substitution occurs in connection with a transaction to which Code §424(a) is applicable, may provide for an exercise price computed in accordance with Code §424(a) and the regulations thereunder and may contain such other terms and conditions as the Board may prescribe to cause such substitute Option to contain as nearly as possible the same terms and conditions (including the applicable vesting and termination provisions) as those contained in the previously issued stock option being replaced thereby.
7.3 Terms and Conditions of Stock Appreciation Rights. A Stock Appreciation Right may be granted in connection with all or any portion of a previously or contemporaneously granted Option or not in connection with an Option. A Stock Appreciation Right shall entitle the Participant to receive upon exercise or payment the excess of: (I) the Fair Market Value of a specified number of Shares at the time of exercise, over (II) a specified price which shall be not less than the Exercise Price for that number of Shares in the case of a Stock Appreciation Right granted in connection with a previously or contemporaneously granted Option, or in the case of any other Stock Appreciation Right not less than one hundred percent (100%) of the Fair Market Value of that number of Shares at the time the Stock Appreciation Right was granted. A Stock Appreciation Right granted in connection with an Option may only be exercised to the extent that the related Option has not been exercised. The exercise of a Stock Appreciation Right shall result in a pro rata surrender of the related Option to the extent the Stock Appreciation Right has been exercised.
(a) Payment. Upon exercise or payment of a Stock Appreciation Right, the Company shall pay to the Participant the appreciation in cash or Shares (at the aggregate Fair Market Value on the date of payment or exercise) as provided in the Stock Incentive Agreement or, in the absence of such provision, as the Board may determine.
(b) Conditions to Exercise. Each Stock Appreciation Right granted under the Plan shall be exercisable at such time or times, or upon the occurrence of such event or events, and in such amounts, as the Board shall specify in the Stock Incentive Agreement; provided, however, that subsequent to the grant of a Stock Appreciation Right, the Board, at any time before complete termination of such Stock Appreciation Right, may accelerate the time or times at which such Stock Appreciation Right may be exercised in whole or in part.
(c) Nontransferability of Stock Appreciation Rights. Except as otherwise provided in a Participant’s Stock Incentive Agreement, no Stock Appreciation Right granted under the Plan may be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participant’s Stock Incentive Agreement, all Stock Appreciation Rights granted to a Participant under the Plan shall be exercisable, during the Participant’s lifetime, only by the Participant; provided, however, that in the event the Participant is incapacitated and unable to exercise his or her Stock Appreciation Right, such Stock Appreciation Right may be exercised by such Participant’s legal guardian, legal representative, or other representative whom the Board deems appropriate based on applicable facts and circumstances. The determination of incapacity of a Participant and the determination of the appropriate representative of the Participant shall be determined by the Board in its sole and absolute discretion.
7.4 Terms and Conditions of Restricted Stock Awards. Shares awarded pursuant to Restricted Stock Awards shall be subject to such restrictions as determined by the Board for periods determined by the Board. Unless the applicable Stock Incentive Agreement provides otherwise, holders of Restricted Stock Awards shall be entitled to vote and receive dividends during the periods of restriction to the same extent as holders of unrestricted Common Stock. The Board shall have the power to permit, in its discretion, an acceleration of the expiration of the applicable restriction period with respect to any part or all of the Shares awarded to a Participant. The Board may require a cash payment from the Participant in an amount no greater than the aggregate Fair Market Value of the Shares awarded determined at the date of grant in exchange for the grant of a Restricted Stock Award or may grant a Restricted Stock Award without the requirement of a cash payment. Each recipient of a Restricted Share Award shall be required to execute a signature page to, and agree to be bound by, the Voting Trust. A Restricted Stock Award may be transferred, except as otherwise provided in the Stock Incentive Agreement, as a bona fide gift (i) to his spouse or lineal descendant or lineal ascendant, (ii) to a trust for the benefit of one or more individuals described in clause (i), or (iii) to a partnership of which the only partners are one or more individuals described in clause (i), in which case the transferee shall be subject to all provisions of the Plan and the Stock Incentive Agreement. In the event of such a gift, the Optionee shall promptly notify the Board of such transfer and deliver to the Board such written documentation as the Board may in its discretion request, including, without limitation, the written acknowledgment of the donee that the donee is subject to the provisions of the Plan and the Stock Incentive Agreement.
Section 8.
Surrender of Options
8.1 General Rule. The Board, acting in its absolute discretion, may incorporate a provision in a Stock Incentive Agreement to allow an Employee or Key Person to surrender his or her Option in whole or in part in lieu of the exercise in whole or in part of that Option on any date that:
(a) the Fair Market Value of the Shares subject to such Option exceeds the Exercise Price for such Shares, and
(b) the Option to purchase such Shares is otherwise exercisable.
8.2 Procedure. The surrender of an Option in whole or in part shall be effected by the delivery of the Stock Incentive Agreement to the Board, together with a statement signed by the Participant which specifies the number of Shares (“Surrendered Shares”) as to which the Participant surrenders his or her Option and how he or she desires payment be made for such Surrendered Shares.
8.3 Payment. A Participant in exchange for his or her Surrendered Shares shall receive a payment in cash or in Shares, or in a combination of cash and Shares, equal in amount on the date such surrender is effected to the excess of the Fair Market Value of the Surrendered Shares on such date over the Exercise Price for the Surrendered Shares. The Board, acting in its absolute discretion, can approve or disapprove a Participant’s request for payment in whole or in part in cash and can make that payment in cash or in such combination of cash and Shares as the Board deems appropriate. A request for payment only in Shares shall be approved and made in Shares to the extent payment can be made in whole shares of Shares and (at the Board’s discretion) in cash in lieu of any fractional Shares.
8.4 Restrictions. Any Stock Incentive Agreement which incorporates a provision to allow a Participant to surrender his or her Option in whole or in part also shall incorporate such additional restrictions on the exercise or surrender of such Option as the Board deems necessary to satisfy the conditions to the exemption under Rule 16b-3 (or any successor exemption) to Section 16(b) of the Exchange Act.
Section 9.
Securities Regulation
Each Stock Incentive Agreement may provide that, upon the receipt of Shares as a result of the surrender or exercise of a Stock Incentive, the Participant shall, if so requested by the Company, hold such Shares for investment and not with a view of resale or distribution to the public and, if so requested by the Company, shall deliver to the Company a written statement satisfactory to the Company to that effect. Each Stock Incentive Agreement may also provide that, if so requested by the Company, the Participant shall make a written representation to the Company that he or she will not sell or offer to sell any of such Shares unless a registration statement shall be in effect with respect to such Shares under the Securities Act of 1933, as amended (“1933 Act”), and any applicable state securities law or, unless he or she shall have furnished to the Company an opinion, in form and substance satisfactory to the Company, of legal counsel acceptable to the Company, that such registration is not required. Certificates representing the Shares transferred upon the exercise or surrender of a Stock Incentive granted under this Plan may at the discretion of the Company bear a legend to the effect that such Shares have not been registered under the 1933 Act or any applicable state securities law and that such Shares may not be sold or offered for sale in the absence of an effective registration statement as to such Shares under the 1933 Act and any applicable state securities law or an opinion, in form and substance satisfactory to the Company, of legal counsel acceptable to the Company, that such registration is not required.
Section 10.
Life of Plan
No Stock Incentive shall be granted under this Plan on or after the earlier of:
(a) the tenth (10th) anniversary of the effective date of this Plan (as determined under Section 4 of this Plan), in which event this Plan otherwise thereafter shall continue in effect until all outstanding Stock Incentives have been surrendered or exercised in full or no longer are exercisable, or
(b) the date on which all of the Shares reserved under Section 3 of this Plan have (as a result of the surrender or exercise of Stock Incentives granted under this Plan) been issued or no longer are available for use under this Plan, in which event this Plan also shall terminate on such date.
Section 11.
Adjustment
Notwithstanding anything in Section 13 to the contrary, the number of Shares reserved under Section 3 of this Plan, the limit on the number of Shares which may be granted during a calendar year to any individual under Section 3 of this Plan, the number of Shares subject to Stock Incentives granted under this Plan, and the Exercise Price of any Options, shall be adjusted by the Board in an equitable manner to reflect any change in the capitalization of the Company, including, but not limited to, such changes as stock dividends or stock splits. Furthermore, the Board shall have the right to adjust (in a manner which satisfies the requirements of Code §424(a)) the number of Shares reserved under Section 3, and the number of Shares subject to Stock Incentives granted under this Plan, and the Exercise Price of any Options in the event of any corporate transaction described in Code §424(a) which provides for the substitution or assumption of such Stock Incentives. If any adjustment under this Section creates a fractional Share or a right to acquire a fractional Share, such fractional Share shall be disregarded, and the number of Shares reserved under this Plan and the number subject to any Stock Incentives granted under this Plan shall be the next lower number of Shares, rounding all fractions downward. An adjustment made under this Section by the Board shall be conclusive and binding on all affected persons and, further, shall not constitute an increase in the number of Shares reserved under Section 3.
Section 12.
Change of Control of the Company
To the extent such action does not conflict with any rights of the optionee as set forth in the applicable Stock Incentive Agreement, if a Change of Control occurs and the agreements effectuating such Change of Control do not provide for the assumption or substitution of the Stock Incentives granted under this Plan, each Stock Incentive, at the direction and discretion of the Board (i) may be deemed to be fully vested and/or exercisable, or (ii) may be canceled unilaterally by the Company in exchange for (a) whole Shares (or, subject to satisfying the conditions of an exemption under Rule 16b-3 or any successor exemption to Section 16(b) of the Exchange Act, for the whole Shares and cash in lieu of any fractional Share) which each Participant otherwise would receive if he or she had the right to surrender or exercise his or her outstanding Stock Incentive in full and he or she exercised that right exclusively for Shares on a date fixed by the Board which comes before such sale or other corporate transaction, or (b) cash or other property equivalent in value, as determined by the Board in its sole discretion, to the Shares described in clause (a) of this sentence; provided, however, the Board may not act to adversely affect the right; provided further, however, that in exercising its rights hereunder, the Board is not obligated to preserve the status of ISOs as “incentive stock options” for purposes of Code §424, and may take such actions it deems appropriate even if such actions cause an ISO to become a Non-ISO.
Section 13.
Amendment or Termination
This Plan may be amended by the Board from time to time to the extent that the Board deems necessary or appropriate; provided, however, no such amendment shall be made absent the approval of the shareholders of the Company: (a) to increase the number of Shares reserved under Section 3, except as set forth in Section 11, (b) to extend the maximum life of the Plan under Section 10 or the maximum exercise period under Section 7, (c) to decrease the minimum Exercise Price under Section 7, or (d) to change the designation of Employees or Key Persons eligible for Stock Incentives under Section 6. The Board also may suspend the granting of Stock Incentives under this Plan at any time and may terminate this Plan at any time. The Company shall not have the right to modify, amend or cancel any Stock Incentive after it has been granted before such unless: (I) the Participant consents in writing to such modification, amendment or cancellation, or (II) there is a dissolution or liquidation of the Company or a transaction described in Section 11 or Section 12, or (III) the Company would otherwise have the right to make such modification, amendment or cancellation by applicable law.
Section 14.
MISCELLANEOUS
14.1 Shareholder Rights. No Participant shall have any rights as a shareholder of the Company as a result of the grant of a Stock Incentive to him or to her under this Plan or his or her exercise or surrender of such Stock Incentive pending the actual delivery of Shares subject to such Stock Incentive to such Participant.
14.2 No Guarantee of Continued Relationship. The grant of a Stock Incentive to a Participant under this Plan shall not constitute a contract of employment and shall not confer on a Participant any rights upon his or her termination of employment or relationship with the Company in addition to those rights, if any, expressly set forth in the Stock Incentive Agreement which evidences his or her Stock Incentive.
14.3 Withholding. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company as a condition precedent for the fulfillment of any Stock Incentive, an amount sufficient to satisfy federal, state and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of this Plan. Whenever Shares are to be issued or cash paid to a Participant upon exercise of an Option, the Company shall have the right to require the Participant to remit to the Company, as a condition of exercise of the Option, an amount sufficient to satisfy federal, state and local withholding tax requirements at the time of exercise. However, notwithstanding the foregoing, to the extent that a Participant is an Insider, satisfaction of withholding requirements by having the Company withhold Shares may only be made to the extent that such withholding of Shares (1) has met the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act, or (2) is a subsequent transaction the terms of which were provided for in a transaction initially meeting the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act. Unless the Stock Incentive Agreement provides otherwise, the withholding of shares to satisfy federal, state and local withholding tax requirements shall be a subsequent transaction approved by the original grant of a Stock Incentive. Notwithstanding the foregoing, in no event shall payment of withholding taxes be made by a retention of Shares by the Company unless the Company retains only Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld.
14.4 Notification of Disqualifying Dispositions of ISO Options. If a Participant sells or otherwise disposes of any of the Shares acquired pursuant to an Option which is an ISO on or before the later of (1) the date two (2) years after the date of grant of such Option, or (2) the date one (1) year after the exercise of such Option, then the Participant shall immediately notify the Company in writing of such sale or disposition and shall cooperate with the Company in providing sufficient information to the Company for the Company to properly report such sale or disposition to the Internal Revenue Service. Participant acknowledges that the Company may condition the exercise of any Option which is an ISO on the Participant’s express written agreement with these provisions of this Plan.
14.5 Transfer. The transfer of an Employee between or among the Company, a Subsidiary or a Parent shall not be treated as a termination of his or her employment under this Plan.
14.6 Construction. This Plan shall be construed under the laws of the State of Delaware.
14.7 Compliance with Section 409A. It is the intent of the Company that this Plan comply with the requirements of Section 409A with respect to any Stock Incentive that constitutes non-qualified deferred compensation under Section 409A, and the Company intends to operate the Plan in compliance with Section 409A. If the Board or the Committee grants any Stock Incentive or takes any other action that would, either immediately or upon vesting or payment of the Stock Incentive, inadvertently result in the imposition of a penalty on a Participant under Section 409A, then the Company, in its discretion, may, to the maximum extent permitted by law, unilaterally rescind ab initio, sever, amend or otherwise modify the grant or action (or any provision of the Stock Incentive) in such manner necessary for the penalty to be inapplicable or reduced.
2010 DECLARATION OF AMENDMENT TO THE
FEMASYS INC.
AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN
THIS 2010 DECLARATION OF AMENDMENT, is made effective as of the 29th day of January, 2010, by FEMASYS INC. (the “Company”), to the Company’s Amended and Restated 2004 Stock Incentive Plan (the “Plan”).
R E C I T A L S:
WHEREAS, pursuant to Section 13 of the Plan, the Board of Directors of the Company (the “Board of Directors”) has the authority to amend the Plan, subject to approval by the stockholders of the Company in certain circumstances;
WHEREAS, as a result of the growth of the Company in recent years and the projected growth in the near future, the Board of Directors has deemed it advisable to amend the Plan to increase the number of shares of the Company’s common stock reserved under the Plan;
WHEREAS, the Board of Directors and the stockholders of the Company have approved the amendment set forth herein respectively; and
WHEREAS, the Company desires to evidence such amendment by this 2010 Declaration of Amendment.
NOW, THEREFORE, IT IS DECLARED that, effective as of January 29, 2010, the Plan shall be and hereby is amended as follows:
1. Amendment. Section 3 (“Shares Subject to Stock Incentives”) shall be deleted in its entirety and replaced with the following:
“The total number of Shares that may be issued pursuant to Stock Incentives under this Plan shall not exceed One Million Five Hundred Thousand (1,500,000), as adjusted pursuant to Section 11. Such Shares shall be reserved, to the extent that the Company deems appropriate, from authorized but unissued Shares, and from Shares which have been reacquired by the Company. Furthermore, any Shares subject to a Stock Incentive which remain after the cancellation, expiration or exchange of such Stock Incentive thereafter shall again become available for use under this Plan, but any Surrendered Shares which remain after the surrender of an ISO or a Non-ISO under Section 8 shall not again become available for use under this Plan. Notwithstanding anything herein to the contrary, no Participant may be granted Options or Stock Appreciation Rights covering an aggregate number of Shares in excess of Five Hundred Thousand (500,000) in any calendar year.”
2. Continued Effect. Except as set forth herein, the Plan shall be unchanged and shall remain in full force and effect.
IN WITNESS WHEREOF, this 2010 Declaration of Amendment is executed on behalf of FEMASYS INC. effective as of the day and year first above written.
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FEMASYS INC. |
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By: |
/s/ Kathy Lee-Sepsick |
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Kathy Lee-Sepsick, President and CEO |
ATTEST: |
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/s/ Daniel S. Currie |
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Daniel S. Currie, Secretary |
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[Corporate Seal] |
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Exhibit 10.2
FEMASYS INC.
2015 STOCK-BASED INCENTIVE COMPENSATION PLAN
Amended and restated effected as of: December 14, 2016
FEMASYS INC.
AMENDED AND RESTATED 2015 STOCK-BASED INCENTIVE COMPENSATION PLAN
1. Purpose of the Plan
The purpose of the Plan is to assist Femasys Inc., a Delaware corporation (the “Company”) in attracting, rewarding and retaining valued officers, employees, directors and consultants of the Company and its eligible subsidiaries by offering them a greater stake in the Company’s success and a closer identity with it, and to encourage ownership of the Company’s stock by such officers, employees, directors and consultants.
2. Definitions
2.1. “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
2.2. “Award” means an award of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units or Other Stock-Based Awards under the Plan.
2.3. “Award Agreement” means a written agreement pursuant to which an Award is granted.
2.4. “Board” means the Board of Directors of the Company.
2.5. “Cause” means,
(a) if the applicable Holder is party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary, and such term is defined therein, “Cause” shall have the meaning provided in such agreement;
(b) if the applicable Holder is not a party to an effective employment, consulting, severance or similar agreement or if no definition of “Cause” is set forth in the applicable employment, consulting, severance or similar agreement, “Cause” shall have the meaning provided in the applicable Award Agreement; or
(c) if neither (a) nor (b) applies, then “Cause” shall mean an act or acts by the applicable Holder involving (i) the use for profit or disclosure to unauthorized persons of confidential information or trade secrets of the Company or its Affiliates, (ii) the breach of any contract with the Company or its Affiliates, (iii) the violation of any fiduciary obligation to the Company or its Affiliates, (iv) a felony conviction or the failure to contest prosecution of a felony, or (v) willful misconduct, dishonesty, embezzlement, fraud, deceit or civil rights violations, or other unlawful acts.
2.6. “Change in Control” means (i) any transaction or series of transactions pursuant to which the Company sells, transfers, leases, exchanges or disposes of substantially all (i.e., at least eighty-five percent (85%)) of its assets for cash or property, or for a combination of cash and property, or for other consideration; or (ii) any transaction pursuant to which persons who are not current shareholders of the Company acquire by purchase, merger, consolidation, reorganization, division or other business combination or transaction an interest in the Company so that after such transaction, the shareholders of the Company immediately prior to such transaction no longer have a controlling (i.e., 50% or more) voting interest in the Company.
2.7. “Code” means the Internal Revenue Code of 1986, as amended.
2.8. “Committee” means the Compensation Committee of the Board or, if no such committee exists, the Board.
2.9. “Common Stock” means the Common Stock of the Company, par value $0.001 per share, or such other class or kind of shares or other securities resulting from the application of Section 11.
2.10. “Consultant” means a consultant, distributor or other person who has rendered or committed to render services to the Company or a Subsidiary and who is not an Employee or Director.
2.11. “Director” means any member of the Board who is not also an Employee or Consultant.
2.12. “Disability” means,
(a) if the applicable Holder is party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary, and such term is defined therein, “Disability” shall have the meaning provided in such agreement;
(b) if the applicable Holder is not a party to an effective employment, consulting, severance or similar agreement or if no definition of “Disability” is set forth in the applicable employment, consulting, severance or similar agreement, “Disability” shall have the meaning provided in the applicable Award Agreement; or
(c) if neither (a) nor (b) applies, then “Disability” shall mean that the Holder is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
2.13. “Employee” means an officer or other employee of the Company or a Subsidiary, including a director who is such an employee.
2.14. “Fair Market Value” means: (i) if shares of Common Stock are publicly traded on an established stock exchange or a national market system, the closing price of one share of Common Stock on the trading day prior to the date as of which the Fair Market Value is to be determined and (ii) if shares of Common Stock are not publicly traded on an established stock exchange or a national market system, the amount of consideration that would be paid by an unrelated party in an arm’s length transaction to acquire one share of Common Stock, as determined by the Board in good faith and in accordance with Code Section 409A.
2.15. “Holder” means an Employee, Director or Consultant to whom an Award is granted under the Plan.
2.16. “Incentive Stock Option” means an Option intended to meet the requirements of an “incentive stock option” as defined in Section 422 of the Code and expressly designated as an Incentive Stock Option in the applicable Award Agreement.
2.17. “Investor Rights Agreement” means the Femasys Inc. Second Amended and Restated Investor Rights Agreement, dated December 14, 2016.
2.18. “Non-Qualified Stock Option” means an Option not designated as an Incentive Stock Option in the applicable Award Agreement.
2.19. “Option” means any stock option granted by the Committee from time to time under Section 6 of the Plan.
2.20. “Option Price” means the per share price at which a share of Common Stock may be purchased upon exercise of an Option in accordance with Section 6 of the Plan.
2.21. “Other Stock-Based Awards” means an Award granted by the Committee from time to time under Section 10 of the Plan.
2.22. “Person” means an individual, corporation, partnership, association, limited liability company, estate or other entity.
2.23. “Plan” means the Femasys Inc. 2015 Stock-Based Incentive Compensation Plan, as amended from time to time, as set forth herein.
2.24. “Restricted Stock” means Common Stock granted by the Committee from time to time under Section 8 of the Plan.
2.25. “Restricted Stock Unit” means a right granted by the Committee from time to time under Section 9 of the Plan to receive, on the settlement date, one share of Common Stock or an amount equal to the Fair Market Value of one share of Common Stock.
2.26. “Restriction Period” means the period during which Restricted Stock or Restricted Stock Units awarded under the Plan are subject to forfeiture.
2.27. “Stock Appreciation Right” means a stock appreciation right granted by the Committee from time to time under Section 7 of the Plan.
2.28. “Subsidiary” means any corporation, partnership, joint venture or other business entity of which 50% or more of the outstanding voting power is beneficially owned, directly or indirectly, by the Company.
2.29. “Ten Percent Shareholder” means a person who on any given date owns, either directly or indirectly (taking into account the attribution rules contained in Section 424(d) of the Code), stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Subsidiary.
3. Eligibility
Any Employee, Director or Consultant is eligible to receive an Award; provided, however, that only an Employee is eligible to receive an Incentive Stock Option.
4. Administration and Implementation of Plan
4.1. The Plan shall be administered by the Committee, which shall have full power to interpret and administer the Plan and full authority to act in selecting the Employees, Directors and Consultants to whom Awards will be granted, to make such grants, and to determine the type and amount of Awards to be granted to each such Employee, Director or Consultant, the time of such Awards, the terms and conditions of such Awards, including, without limitation, any time-based or performance-based vesting conditions, and the terms of the Award Agreements which will be entered into with Holders (which shall not be inconsistent with the terms of the Plan), as well as to waive or modify any such terms and conditions previously imposed. The Committee shall have full and final authority in its sole discretion to interpret the provisions of the Plan, to decide all questions of fact arising and to make all other determinations necessary or advisable for the administration of the Plan. Notwithstanding the foregoing, the Board, and not the Committee, shall have the full authority to make adjustments to Awards upon certain changes in capitalization and to take actions upon a Change in Control, both as described in Section 11 of the Plan. No member of the Committee or the Board shall be personally liable for any action, determination or interpretation made with respect to the Plan, and all members of the Committee and the Board shall be fully protected by the Company in respect of any such action, determination or interpretation in the manner provided in the Company’s bylaws.
Subject to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the applicable Award Agreement: (i) approve from time to time those eligible Employees, Directors and Consultants to whom Awards are to be awarded and the number of shares of Common Stock subject to each such Award; (ii) determine the vesting conditions or Restriction Period applicable to an Award; (iii) determine the time or times when and the manner and condition in which each Award shall vest or become exercisable; (iv) determine the effect, if any, of a Change in Control on outstanding Awards; and (v) determine or impose other conditions to the receipt of shares of Common Stock subject to an Award under the Plan as it may deem appropriate.
4.2. The Committee may condition the vesting, exercisability or settlement of an Award upon: (i) the Holder’s continued service over a period of time with the Company or its Subsidiaries, (ii) the achievement by the Holder, the Company or its Subsidiaries of any other performance goals set by the Committee, or (iii) any combination of the above conditions, as specified in the Award Agreement. If the specified conditions are not attained, the Holder shall forfeit the portion of the Award with respect to which those conditions are not attained.
4.3. The Committee shall have the power to adopt regulations for carrying out the Plan and to make changes in such regulations as it shall, from time to time, deem advisable. Any interpretation by the Committee of the terms and provisions of the Plan and the administration thereof, and all action taken by the Committee, shall be final and binding on the Holders.
4.4. The Committee may amend any outstanding Awards without the consent of the Holder to the extent it deems appropriate, including, without limitation, to accelerate the vesting of such Awards; provided however, that, in the case of amendments adverse to the Holder, the Committee must obtain the Holder’s consent to any such amendment.
5. Shares of Stock Subject to the Plan
5.1. Subject to adjustment as provided in Section 11, the total number of shares of Common Stock available for Awards under the Plan shall be 10,590,134 shares. All shares available for Awards under the Plan shall be available for Incentive Stock Options.
5.2. Any shares issued by the Company through the assumption or substitution of outstanding grants from an acquired company shall not reduce the shares available for Awards under the Plan. Any shares issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If any shares subject to any Award granted hereunder are forfeited or such Award otherwise terminates without the issuance of such shares or the payment of other consideration in lieu of such shares, the shares subject to such Award, to the extent of any such forfeiture or termination, shall again be available for Awards under the Plan.
6. Options
Options give the Holder the right to purchase a specified number of shares of Common Stock from the Company for a specified time period at a specified price. The grant of Options shall be subject to the following terms and conditions:
6.1. Option Grants: Options shall be granted to an Employee, Director or Consultant at the time and in the amount determined by the Committee. The Committee shall have full authority in its sole discretion to grant Options for whole or fractional shares of Common Stock. Any Option granted under the Plan shall be evidenced by an Award Agreement executed by the Company and the Holder, which Award Agreement shall conform to the requirements of the Plan, and shall specify (i) the number of shares of Common Stock subject to the Option, (ii) the Option Price, (iii) the events that will give rise to the forfeiture of the Option, (iv) the effects, if any, of the occurrence of a Change in Control of the Company and (v) whether the Option is an Incentive Stock Option or Non-Qualified Stock Option. The Award Agreement may contain such other provisions not inconsistent with the terms of the Plan as the Committee shall deem advisable.
6.2. Option Price: The price per share at which Common Stock may be purchased upon exercise of an Option shall be determined by the Committee. The Option Price shall not be less than 100% of the Fair Market Value of a share of Common Stock on the date of grant (110% in the case of an Incentive Stock Option granted to a Ten Percent Shareholder).
6.3. Term of Options: The applicable Award Agreement shall specify when an Option will be exercisable and the terms and conditions applicable thereto. The term of an Option shall in no event be greater than ten (10) years (five (5) years in the case of an Incentive Stock Option granted to a Ten Percent Shareholder).
6.4. Vesting: At the discretion of the Committee, Options granted under the Plan may be subject to a vesting schedule set forth in the applicable Award Agreement, under which such Options cannot be exercised until they are vested. The restrictions or conditions with respect to the time and method of vesting of Options, if any, shall be as prescribed by the Committee.
6.5. Incentive Stock Options: Each provision of the Plan and each Award Agreement relating to an Incentive Stock Option shall be construed and interpreted in a manner consistent with the requirements of Section 422 of the Code. Without limiting the foregoing, the aggregate Fair Market Value (determined as of the time the Option is granted) of the Common Stock with respect to which an Incentive Stock Option may first become exercisable by a Holder in any one calendar year under the Plan shall not exceed $100,000 (or such other limit imposed by Section 422 of the Code). If shares of Common Stock acquired upon the exercise of an Incentive Stock Option are disposed of by a Holder in a “disqualifying disposition” within the meaning of Code Section 422 prior to the expiration of the later of (i) two years after the date of grant of such Incentive Stock Option and (ii) one year after the transfer of Common Stock to the Holder pursuant to the exercise of such Incentive Stock Option, the Holder shall promptly notify the Company in writing of the date and terms of such disposition and, if the Company (or any Affiliate) has a tax-withholding obligation, shall pay to the Company (or such Affiliate) the amount of any withholding tax the Company (or such Affiliate) is required to withhold as a result of such disqualifying disposition.
6.6. Payment of Option Price and Taxes:
(a) The Option Price shall be paid in full within three days following the date of exercise, in cash or by certified or bank cashier’s check payable to the Company, or, subject to the approval of the Committee: (i) by surrendering shares of the Company’s Common Stock have an aggregate Fair Market Value equal to the aggregate Option Price, (ii) in cash received from a broker-dealer whom the Holder has authorized to sell all or a portion of the Common Stock covered by the Option, (iii) the retention of the number of shares of Common Stock otherwise deliverable to the Holder upon the exercise of the Option having a Fair Market Value equal to all or any portion of the Option Price, (iv) payment of such other lawful consideration as the Committee may determine, or (v) any combination of the foregoing.
(b) Any taxes required to be withheld by the Company upon exercise of an Option shall be paid in full in cash or by certified or bank cashier’s check payable to the Company, or, subject to the approval of the Committee, by having the Company retain the number of shares of Common Stock subject to the Option whose aggregate Fair Market Value equals the minimum amount to be withheld in satisfaction of the applicable withholding taxes.
(c) Only whole shares of Common Stock shall be issuable upon exercise of the Options. An Option may be exercised only for a whole number of shares of Common Stock unless the Option is exercised in its entirety and such entirety includes a fractional share of Common Stock. Any right to a fractional share of Common Stock may, in the sole discretion of the Committee, be satisfied in cash. Promptly following receipt of payment of the Option Price and any withholding taxes payable to the Company pursuant to Section 6.6(b), the Company shall, subject to the terms hereof and if it would otherwise normally issue certificates evidencing the ownership of Common Stock, deliver a certificate for the number of whole shares of Common Stock and a check for the Fair Market Value on the date of exercise of the fractional shares of Common Stock to which the Holder exercising the Option is entitled. Shares of Common Stock acquired upon the exercise of an Option shall be subject to restrictions on transfer pursuant to applicable securities laws and shall bear a legend subjecting such shares to those restrictions on transfer in accordance with the applicable Award Agreements. Any such certificates shall also bear a legend referring to any restrictions on transfer arising hereunder or under the applicable Award Agreement or any other applicable law, regulation or agreement.
6.7. Termination by Reason of Death or Disability: Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee at any time, if a Holder’s employment by the Company or a Subsidiary (or service to the Company or any Subsidiary in the case of a Director) terminates by reason of the death or Disability of the Holder, any vested and unexercised Option granted to such Holder may thereafter be exercised by, where appropriate, the Holder’s transferee or legal representative, to the extent it was exercisable at the time of death or Disability or on such accelerated basis as the Committee may determine at or after grant, for a period of three (3) months after the date of death or termination due to Disability, or until the expiration of the stated term of the Option, whichever of the applicable foregoing periods is shorter. Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee, all Options that are unvested at the time of the termination of the Holder’s employment (or service to the Company or any Subsidiary in the case of a Director) shall immediately terminate on the date of the termination of the Holder’s employment or service.
6.8. Other Termination; Unvested Options: Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee at any time, if a Holder’s employment by the Company or a Subsidiary (or service to the Company or any Subsidiary in the case of a Director) terminates for any reason other than death or Disability (including if a Holder is terminated by the Company or a Subsidiary without Cause), all vested and unexercised Options may thereafter be exercised by the Holder to the extent it was exercisable at the time of termination for a period of sixty (60) days from the date of termination or until the expiration of the stated term of the Option, whichever of the foregoing periods is shorter (unless such termination was for Cause, in which case, such Option shall terminate immediately). Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee, all Options that are unvested at the time of the termination of the Holder’s employment (or service to the Company or any Subsidiary in the case of a Director) shall immediately terminate on the date of the termination of the Holder’s employment or service with no compensation due therefor.
7. Stock Appreciation Rights A Stock Appreciation Right shall confer on the Holder a right to receive, upon exercise thereof, the excess of (i) the Fair Market Value of one share of Common Stock on the date of exercise over (ii) the grant price of the Stock Appreciation Right, payable in cash, in shares of Common Stock or any combination thereof, as determined by the Committee in its sole discretion. The grant of SARs shall be subject to the following terms and conditions:
7.1. Grant of Stock Appreciation Rights: Each Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement executed by the Company and the Holder, which Award Agreement shall conform to the requirements of the Plan and shall specify (i) the number of shares of Common Stock subject to the Stock Appreciation Right, (ii) the grant price, (iii) the events that will give rise to the forfeiture of the Stock Appreciation Right, and (iv) the effects, if any, of the occurrence of a Change in Control of the Company. The Award Agreement may contain such other provisions not inconsistent with the terms of the Plan as the Committee shall deem advisable.
7.2. Grant Price: The grant price per Stock Appreciation Right shall be determined by the Committee, but shall not be less than 100% of the Fair Market Value of a share of Common Stock on the date of grant.
7.3. Term: The applicable Award Agreement shall specify when a Stock Appreciation Right will be exercisable and the terms and conditions applicable thereto. The term of a Stock Appreciation Right shall in no event be greater than ten (10) years.
7.4. Vesting: At the discretion of the Committee, Stock Appreciation Rights granted under the Plan may be subject to a vesting schedule set forth in the applicable Award Agreement, under which such Stock Appreciation Rights cannot be exercised until they are vested. The restrictions or conditions with respect to the time and method of vesting of Stock Appreciation Rights, if any, shall be as prescribed by the Committee.
7.5. Termination by Reason of Death or Disability: Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee at any time, if a Holder’s employment by the Company or a Subsidiary (or service to the Company or any Subsidiary in the case of a Director) terminates by reason of the death or Disability of the Holder, any vested and unexercised Stock Appreciation Right granted to such Holder may thereafter be exercised by, where appropriate, the Holder’s transferee or legal representative, to the extent it was exercisable at the time of death or Disability or on such accelerated basis as the Committee may determine at or after grant, for a period of three (3) months after the date of death or termination due to Disability, or until the expiration of the stated term of the Stock Appreciation Right, whichever of the applicable foregoing periods is shorter. Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee, all Stock Appreciation Rights that are unvested at the time of the termination of the Holder’s employment (or service to the Company or any Subsidiary in the case of a Director) shall immediately terminate on the date of the termination of the Holder’s employment or service.
7.6. Other Termination; Unvested Stock Appreciation Rights: Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee at any time, if a Holder’s employment by the Company or a Subsidiary (or service to the Company or any Subsidiary in the case of a Director) terminates for any reason other than death or Disability (including if a Holder is terminated by the Company or a Subsidiary without Cause), all vested and unexercised Stock Appreciation Rights may thereafter be exercised by the Holder to the extent it was exercisable at the time of termination for a period of sixty (60) days from the date of termination or until the expiration of the stated term of the Stock Appreciation Right, whichever of the foregoing periods is shorter (unless such termination was for Cause, in which case, such Stock Appreciation Right shall terminate immediately). Unless provided otherwise in the applicable Award Agreement or determined otherwise by the Committee, all Stock Appreciation Rights that are unvested at the time of the termination of the Holder’s employment (or service to the Company or any Subsidiary in the case of a Director) shall immediately terminate on the date of the termination of the Holder’s employment or service with no compensation due therefor.
8. Restricted Stock
An Award of Restricted Stock is a grant by the Company of a specified number of shares of Common Stock to the Holder, which shares are subject to forfeiture upon the happening of specified events (including the attainment or failure to obtain performance goals, if established by the Committee). A grant of Restricted Stock shall be subject to the following terms and conditions:
8.1. Grant of Restricted Stock: Any Restricted Stock granted under the Plan shall be evidenced by an Award Agreement executed by the Company and the Holder, which Award Agreement shall conform to the requirements of the Plan, and shall specify (i) the number of shares of Common Stock subject to the Award, (ii) the Restriction Period applicable to the Award, (iii) the events that will give rise to a forfeiture of the Award, (iv) the performance goals, if any, that must be achieved in order for the restriction to be removed from the Award, and (v) the effects, if any, of the occurrence of a Change in Control of the Company. The Award Agreement may contain such other provisions not inconsistent with the terms of the Plan as the Committee shall deem advisable.
8.2. Delivery of Restricted Stock: Upon determination of the number of shares of Restricted Stock to be granted to the Holder, the Committee shall, if it would otherwise normally issue certificates evidencing the ownership of Common Stock, direct that a certificate or certificates representing the number of shares of Common Stock be issued to the Holder with the Holder designated as the registered owner. Any such certificate(s) representing such shares shall be legended as to restrictions on the sale, transfer, assignment, or pledge of the Restricted Stock during the Restriction Period and deposited by the Holder, together with a stock power endorsed in blank, with the Company.
8.3. Dividend and Voting Rights: Unless otherwise determined by the Committee or provided in the applicable Award Agreement, during the Restriction Period, the Holder shall have all of the rights of a stockholder, including the right to vote the shares of Restricted Stock and receive dividends and other distributions, provided that distributions in the form of Common Stock shall be subject to the same restrictions as the underlying Restricted Stock.
8.4. Receipt of Common Stock: At the end of the Restriction Period, the Committee shall determine, in light of the terms and conditions set forth in the applicable Award Agreement, the number of shares of Restricted Stock with respect to which the restrictions imposed hereunder shall lapse. The Restricted Stock with respect to which the restrictions shall lapse shall be converted to unrestricted Common Stock by the removal of the restrictive legends from the Restricted Stock, related to the restrictions imposed by the Plan.
8.5. Termination of Service: Unless otherwise determined by the Committee or provided in the applicable Award Agreement, if a Holder’s employment or service with the Company, a Subsidiary or an Affiliate terminates for any reason, any unvested Restricted Stock shall be forfeited with no compensation due therefor.
9. Restricted Stock Units
An Award of Restricted Stock Units is a bookkeeping device for the measurement and determination of the amounts to be paid to a Holder under the Plan. Restricted Stock Units do not constitute shares of Common Stock and shall not be treated as (or as giving rise to) property or as a trust fund of any kind. The right of any Holder in respect of an Award of Restricted Stock Units shall be no greater than the right of any unsecured general creditor of the Company. A grant of Restricted Stock Units shall be subject to the following terms and conditions:
9.1. Grant of Restricted Stock Units: Any Restricted Stock Units granted under the Plan shall be evidenced by an Award Agreement executed by the Company and the Holder, which Award Agreement shall conform to the requirements of the Plan, and shall specify (i) the number of shares of Common Stock subject to the Award, (ii) the Restriction Period applicable to the Award, (iii) the events that will give rise to a forfeiture of the Award, (iv) the performance goals, if any, that must be achieved in order for the restriction to be removed from the Award, and (v) the effects, if any, of the occurrence of a Change in Control of the Company. The Award Agreement may contain such other provisions not inconsistent with the terms of the Plan as the Committee shall deem advisable.
9.2. Settlement: Unless otherwise provided in an Award Agreement, subject to the Holder’s continued employment or other service with the Company or a Subsidiary from the grant date through the expiration of the Restriction Period (or applicable portion thereof), the vested portion of an Award of Restricted Stock Units shall be settled in cash or Common Stock, in the sole discretion of the Committee, within 10 business days after the expiration of the Restriction Period (or applicable portion thereof).
9.3. Dividend and Voting Rights: Unless otherwise provided in an Award Agreement, nothing contained in the Plan shall be construed to give any Holder rights as a stockholder with respect to an Award of Restricted Stock Units (including, without limitation, any voting, dividend or derivative or other similar rights) unless and until shares of Common Stock are delivered to the Holder upon the settlement of such Award.
9.4. Termination of Service: Unless otherwise determined by the Committee or provided in the applicable Award Agreement, if a Holder’s employment or service with the Company or a Subsidiary terminates for any reason, any unvested Restricted Stock Units shall be forfeited with no compensation due therefor.
10. Other Stock-Based Awards
The Committee is authorized, subject to limitations under applicable law, to grant any type of award (in addition to Options, Stock Appreciation Rights, Restricted Stock and Restricted Stock Units) that is payable in, or valued in whole or in part by reference to, Common Stock, and that is deemed by the Committee to be consistent with the purposes of the Plan. Such Awards may include outright grants of Common Stock that are not subject to any restrictions as to vesting or other forfeiture conditions. Any Other Stock-Based Award granted under the Plan shall be evidenced by a written agreement executed by the Company and the Holder, which agreement shall contain such terms and conditions as the Committee determines in its sole discretion, consistent with provisions of the Plan.
11. Adjustments upon Changes in Capitalization; Change in Control
11.1. In the event of a reorganization, recapitalization, stock split, spin-off, split-off, split-up, stock dividend, extraordinary cash dividend, issuance of stock rights, combination of shares, merger, consolidation or any other change in the corporate structure of the Company affecting Common Stock, or any distribution to shareholders other than an ordinary cash dividend, the Board shall make appropriate adjustment in the number and kind of shares available for Awards under the Plan and any adjustments to an outstanding Award, including the number of shares subject to and, if applicable, the Option Price or grant price for the Award, as it in good faith determines to be appropriate.
11.2. In the event of a Change in Control, unless otherwise provided in an Award Agreement, the Board, in its sole discretion, may take any one or more of the following actions: (a) accelerate the vesting, exercisability or settlement of outstanding Awards; (b) terminate all Options and Stock Appreciation Rights immediately prior to the date of any such Change in Control, provided that the Holder shall have been given at least five (5) days written notice of such Change in Control and of the Board’s intention to cancel any Options or Stock Appreciation Rights that remain unexercised; (c) cancel any Options or Stock Appreciation Rights that remain unexercised immediately before such Change in Control in exchange for a payment in cash of an amount equal to the excess of the Fair Market Value of the Common Stock underlying the unexercised portion of such Option or Stock Appreciation Right over the aggregate Option Price or grant price of such unexercised portion of such Option or Stock Appreciation Right, provided, however, that if the Fair Market Value of the Common Stock underlying the unexercised portion of an Option or Stock Appreciation Right is less than or equal to the aggregate Option Price or grant price of the unexercised portion of such Option or Stock Appreciation Right, the Option or Stock Appreciation Right shall be canceled with no further payment due the Participant; (d) require that Awards be assumed by the successor entity or that substitute or replacement awards be granted by such successor entity (with such substitute or replacement awards to have an economic value substantially equivalent to the economic value of the substituted or replaced Awards); or (e) take such other action as the Board shall determine to be reasonable under the circumstances.
12. Nontransferability
Except as otherwise provided in an Award Agreement, Awards may not be pledged, assigned or transferred for any reason by the Holder (other than by will or the laws of descent or distribution), and any attempt to do so shall be void and the relevant Award shall be forfeited. Any Person who acquires the right to an Award by bequest or inheritance shall, in all cases, be subject to the provisions of the Plan and the relevant Award Agreement and shall, if requested to do so by the Committee, confirm in writing that such Person is bound by the Plan and the relevant Award Agreement. No Person who refuses to take such actions shall have any rights with respect to the Common Stock underlying or constituting such Award. The Committee may, in its sole discretion, permit transfers of Awards other than Incentive Stock Options if the Committee concludes that such transferability (i) does not result in any adverse tax consequences to the Company or any of its Subsidiaries or Affiliates, (ii) is exempt from, or complies with, the registration requirements of the Securities Act of 1933, as amended, (iii) is permitted by the Company’s governing documents, (iv) complies with all other applicable legal requirements and (v) is otherwise appropriate and desirable.
13. Effective Date, Termination and Amendment
The amendment and restatement of the Plan shall be effective as of December 14, 2016 subject, in the case of any Awards of Incentive Stock Options, to the Company’s stockholders approving the Plan within twelve (12) months following the Board’s adoption of the Plan in accordance with Section 422 of the Code. The Plan shall remain in full force and effect until the date that is ten (10) years after the date of its initial adoption by the Board, unless the Plan is terminated earlier by the Board. The Board shall have the power to amend, suspend or terminate the Plan at any time, subject to applicable law and regulation. Termination of the Plan pursuant to this Section shall not affect Awards outstanding under the Plan at the time of termination.
14. General Provisions
14.1. Nothing contained in the Plan, or any Award granted pursuant to the Plan, shall confer upon any Employee, Director or Consultant any right with respect to continuance of employment by or service to the Company or a Subsidiary, nor interfere in any way with the right of the Company or a Subsidiary to terminate the employment or service of any Employee, Director or Consultant at any time.
14.2. Except as otherwise expressly provided in an Award Agreement, Holders shall be responsible to make appropriate provision for all taxes required to be withheld in connection with any Award, the exercise thereof and the transfer of shares of Common Stock pursuant to the Plan. Such responsibility shall extend to all applicable federal, state, local and foreign withholding taxes.
14.3. To the extent that federal laws do not otherwise control, the Plan and all determinations made and actions taken pursuant hereto shall be governed by the substantive laws of the State of Delaware and construed accordingly.
14.4. The Plan and each Award under the Plan shall be subject to the requirement that if at any time the Committee shall determine that (a) the listing, registration or qualification of the shares of Common Stock constituting or underlying an Award upon any securities exchange or under any state or federal law, (b) the consent or approval of any government regulatory body, or (c) an agreement by the recipient of an Award with respect to the disposition of the shares of Common Stock constituting or underlying such Award is necessary or desirable as a condition of, or in connection with, the Plan or the granting of such Award or the issue or purchase of shares of Common Stock thereunder, the Award may not be consummated in whole or in part until such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee.
14.5. The Company shall not be obligated to issue or transfer Common Stock or deliver any certificates for Common Stock subject to Awards under the Plan unless and until (i) the Holder has executed a copy of the Investor Rights Agreement, and (ii) there has been compliance with all other laws or regulations as the Company may deem applicable.
14.6. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Award under the Plan.
14.7. Without amending the Plan, Awards may be granted to individuals who are foreign nationals or employed or providing services outside the United States or both, on such terms and conditions different from those specified in the Plan as may, in the judgment of the Committee, be necessary or desirable to further the purpose of the Plan.
14.8. The Plan and all Awards are intended to comply with, or be exempt from, Code Section 409A and all regulations, guidance, compliance programs and other interpretative authority thereunder, and shall be interpreted in a manner consistent therewith; provided, however, that neither the Company, any of its Subsidiaries or Affiliates or any member of the Committee, shall have any liability to Holders or any other Person if any Award is not exempt from or compliant with Code Section 409A. Notwithstanding anything contained herein to the contrary, in the event any Award is subject to Code Section 409A, the Committee may, in its sole discretion and without a Holder’s prior consent, amend the Plan or Awards, adopt policies and procedures, or take any other actions as deemed appropriate by the Committee to (i) exempt the Plan and/or any Award from the application of Code Section 409A, (ii) preserve the intended tax treatment of any such Award or (iii) comply with the requirements of Code Section 409A. Each installment of any payment provided under the Plan and/or any Award shall be treated as a separate “payment” for purposes of Code Section 409A.
14.9. A citation to any law, regulation or rule herein shall be construed to be a citation to the most recent version of, or successor to, any such law, regulation or rule.
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Exhibit 10.3
Femasys Inc.
2021 EQUITY INCENTIVE PLAN1
Section 1. Purpose of the Plan.
The purpose of the Femasys Inc. 2021 Equity Incentive Plan (the “Plan”) is to assist the Company and its Subsidiaries in attracting and retaining valued Employees, Consultants and Non-Employee Directors by offering them a greater stake in the Company’s success and a closer identity with it, and to encourage ownership of the Company’s shares by such Employees, Consultants and Non-Employee Directors.
Upon the approval of the Plan by the stockholders of the Company, no new awards will be granted under the Femasys Inc. 2015 Stock-Based Incentive Compensation Plan, as amended and/or restated from time to time (the “2015 Plan”).
Section 2. Definitions.
As used herein, the following definitions shall apply:
2.1. “Award” means the grant of Options, SARs, Restricted Stock, Restricted Stock Units, Performance Stock, Performance Stock Units and Other Stock-Based Awards under the Plan.
2.2. “Award Agreement” means the written agreement, instrument or document evidencing an Award.
2.3. “Board” means the Board of Directors of the Company.
2.4. “Cause” means,
(a) if the applicable Participant is party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary, and such term is defined therein, “Cause” shall have the meaning provided in such agreement;
(b) if the applicable Participant is not a party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary or if no definition of “Cause” is set forth in the applicable employment, consulting, severance or similar agreement, “Cause” shall have the meaning provided in the applicable Award Agreement;
1 |
All share numbers will be adjusted in connection with any reverse stock split or similar capitalization adjustment pursuant to Section 8.1. |
(c) if neither clause (a) nor clause (b) applies, then “Cause” shall mean (i) engaging in (A) willful or gross misconduct or (B) willful or gross neglect; (ii) failing to follow the lawful directions of superiors or the Board or the written policies and practices of the Company or any Subsidiary; (iii) the Participant’s indictment for, conviction of, plea of guilty or no contest to, or commission of, a felony or a crime involving any of the following: moral turpitude, dishonesty, breach of trust or unethical business conduct; or the Participant’s indictment for, conviction of, plea of guilty or no contest to, or commission of, any crime involving the Company or any Subsidiary; (iv) fraud, misappropriation or embezzlement; (v) a material breach of the Participant’s employment agreement (if any) with the Company or any Subsidiary, whether or not such breach results in the termination of the Participant’s employment; (vi) acts or omissions constituting a material failure to perform substantially and adequately the duties assigned to the Participant that are consistent with his or her position(s); (vii) any illegal act detrimental to the Company or any Subsidiary; (viii) repeated failure to devote substantially all of the Participant’s business time and efforts to the Company or any Subsidiary if required by the Participant’s employment agreement; or (ix) the Participant’s abuse of illegal drugs or other controlled substances or the Participant’s habitual intoxication while providing services to the Company or any Subsidiary.
A Participant’s resignation or death, in either case, at a time when Cause to terminate the Participant’s employment or other service exists shall be treated as a termination for Cause for all purposes of the Plan and the Participant’s Awards and Award Agreements.
2.5. “Change in Control” means, unless otherwise provided in an Award Agreement, after the Effective Date:
(a) the acquisition in one or more transactions (whether by purchase, merger, amalgamation or otherwise) by any “Person” (as such term is used for purposes of Section 13(d) or Section 14(d) of the Exchange Act, but excluding, for this purpose, (i) the Company and the Subsidiaries, (ii) any employee benefit plan of the Company or any Subsidiary or (iii) an entity owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company) of “Beneficial Ownership” (within the meaning of Rule 13d-3 under the Exchange Act), of more than fifty percent (50%) of the combined voting power of the Company’s then outstanding voting securities (the “Voting Securities”);
(b) a change in the composition of the Board such that the individuals who as of any date constitute the Board (the “Incumbent Board”) cease to constitute a majority of the Board at any time during the 24-month period immediately following such date; provided, however, that if the election, or nomination for election by the Company’s stockholders, of any new director was approved by a vote of at least a majority of the Incumbent Board, such new director shall be considered as a member of the Incumbent Board, and provided further that any reductions in the size of the Board that are instituted voluntarily by the Incumbent Board shall not constitute a Change in Control, and after any such reduction the “Incumbent Board” shall mean the Board as so reduced;
(c) a complete liquidation or dissolution or winding up of the Company (other than pursuant to a transaction in which the assets of the Company are distributed to an entity owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company); or
(d) the sale, directly or indirectly, of all or substantially all of the Company’s and its Subsidiaries’ assets (determined on a consolidated basis), other than to a Person described in clauses (i), (ii) or (iii) of Section 2.5(a) above.
Notwithstanding the foregoing, (i) a restructuring, reorganization or similar or analogous event in which the stockholders of the Company immediately before such event have “Beneficial Ownership” (within the meaning of Rule 13d-3 under the Exchange Act) of the Company, or of the resulting entity, immediately after such event in substantially the same proportions as their ownership of Shares of the Company immediately before such event shall not constitute a Change in Control and (ii) an IPO shall not be considered a Change in Control.
2.6. “Code” means the Internal Revenue Code of 1986, as amended.
2.7. “Company” means Femasys Inc., a Delaware corporation, or any successor corporation or company.
2.8. “Committee” means the Compensation Committee of the Board, provided that the Committee shall at all times have at least two members, each of whom shall be a “non-employee director” as defined in Rule 16b-3 under the Exchange Act and the regulations issued thereunder and an “independent director” under the rules of any applicable stock exchange.
2.9. “Consultant” means a natural person (within the meaning of Form S-8 of the Securities Act) who provides bona fide services to the Company or any Subsidiary other than in connection with the offer or sale of Shares or other securities or shares in a capital-raising transaction and is not engaged in activities that directly or indirectly promote or maintain a market for the Shares or other securities of the Company.
2.10. “Disability” means,
(a) if the applicable Participant is party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary, and such term is defined therein, “Disability” shall have the meaning provided in such agreement;
(b) if the applicable Participant is not a party to an effective employment, consulting, severance or similar agreement with the Company or a Subsidiary or if no definition of “Disability” is set forth in the applicable employment, consulting, severance or similar agreement, “Disability” shall have the meaning provided in the applicable Award Agreement;
(c) if neither clause (a) nor clause (b) applies, then “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 which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
2.11. “Effective Date” means the day immediately prior to the IPO Registration Date, provided that the Plan is approved by the stockholders of the Company prior to such day.
2.12. “Employee” means an officer or other employee of the Company or a Subsidiary, including without limitation a director who is such an employee.
2.13. “Exchange Act” means the Securities Exchange Act of 1934, as amended.
2.14. “Fair Market Value” means, on any given date (i) if the Shares are listed on any established stock exchange or a national market system, including without limitation NASDAQ, the closing sales price for such Shares as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable (or, if no closing sales price was reported on that date, on the last trading date such closing sales price was reported); (ii) if clause (i) does not apply, then if the Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, the mean between the high bid and low asked prices for the Shares on the day of determination (or, if no bids and asks were reported on that date, on the last trading date such bids and asks were reported); or (iii) if neither clause (i) nor clause (ii) applies, such value as the Committee in its discretion may in good faith determine in accordance with Section 409A of the Code and the regulations thereunder (and, with respect to Incentive Stock Options, in accordance with Section 422 of the Code and the regulations thereunder).
2.15. “IPO” means (i) the initial public offering of the Company’s securities, other than pursuant to a Form S-8 (or any successor form thereto), or (ii) the Company’s securities becoming subject to registration under the Exchange Act.
2.16. “IPO Registration Date” means the date on which the Company’s registration statement on Form S-1 in connection with its initial public offering of Shares is declared effective by the Securities and Exchange Commission under the Securities Act.
2.17. “Incentive Stock Option” means an Option or portion thereof intended to meet the requirements of an incentive stock option as defined in Section 422 of the Code and designated as an Incentive Stock Option, and which in fact meets such requirements of Section 422 of the Code.
2.18. “Incumbent Director” means a director who either (1) is a member of the Board as of the Effective Date or (2) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination.
2.19. “Non-Employee Director” means a member of the Board who is not an Employee.
2.20. “Non-Qualified Option” means an Option or portion thereof that is designated as not being an Incentive Stock Option or that does not otherwise qualify as an Incentive Stock Option.
2.21. “Option” means a right granted under Section 6.1 of the Plan to purchase a specified number of Shares at a specified price. An Option may be an Incentive Stock Option or a Non-Qualified Option; provided, however, that unless otherwise explicitly stated in an Award Agreement, each Option is hereby designated as a Non-Qualified Option.
2.22. “Other Stock-Based Award” means a right granted under Section 6.7 of the Plan.
2.23. “Participant” means any Employee, Non-Employee Director or Consultant who receives an Award.
2.24. “Performance Goals” means any goals established by the Committee in its sole discretion, the attainment of which is substantially uncertain at the time such goals are established. Performance Goals may be described in terms of Company-wide objectives or objectives that are related to the performance of the individual Participant or a Subsidiary, division, department or function within the Company or a Subsidiary. Performance Goals may be measured on an absolute or relative basis. Relative performance may be measured, for example, by a group of peer companies or by a financial market index. Performance Goals may include, but are not limited to: achievement of specified research and development, publication, clinical and/or regulatory milestones, total shareholder return, earnings before interest, taxes, depreciation and amortization, net income (loss) (either before or after interest, taxes, depreciation and/or amortization), changes in the market price of the Shares, economic value-added, funds from operations or similar measure, sales or revenue, acquisitions or strategic transactions, operating income (loss), cash flow (including, but not limited to, operating cash flow and free cash flow), return on capital, assets, equity, or investment, return on sales, gross or net profit levels, productivity, expense, margins, operating efficiency, customer satisfaction, working capital, earnings (loss) per Share, sales or market shares and number of customers, any of which may be measured either in absolute terms or as compared to any incremental increase or as compared to results of a peer group, and any combination of any of the foregoing criteria. If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company or a Subsidiary, or the manner in which it conducts its business, or other events or circumstances render the Performance Goals unsuitable, the Committee may modify such Performance Goals and/or the related minimum, target, maximum and/or other acceptable levels of achievement, in whole or in part, as the Committee deems appropriate and equitable.
2.25. “Performance Period” means the period selected by the Committee during which performance is measured for the purpose of determining the extent to which a Performance Goal has been achieved.
2.26. “Performance Stock” means Shares awarded by the Committee under Section 6.6 of the Plan that are subject to Performance Goals.
2.27. “Performance Stock Unit” means the right granted under Section 6.5 of the Plan to receive, on the date of settlement, one Share or an amount equal to the Fair Market Value of one Share, which right is subject to Performance Goals. Performance Stock Units may be settled in cash, Shares or any combination thereof; provided, however, that unless otherwise provided in an Award Agreement, Performance Stock Units shall be settled in Shares.
2.28. “Person” means an individual, corporation, partnership, association, limited liability company, estate or other entity.
2.29. “Restricted Stock” means a Share awarded by the Committee under Section 6.3 of the Plan.
2.30. “Restricted Stock Unit” means the right granted under Section 6.4 of the Plan to receive, on the date of settlement, one Share or an amount equal to the Fair Market Value of one Share. An Award of Restricted Stock Units may be settled in cash, Shares or any combination of the foregoing; provided, however, that unless otherwise provided in an Award Agreement, Restricted Stock Units shall be settled in Shares.
2.31. “Restriction Period” means the period during which Performance Stock, Performance Stock Units, Restricted Stock and Restricted Stock Units are subject to forfeiture.
2.32. “SAR” means a stock appreciation right awarded by the Committee under Section 6.2 of the Plan.
2.33. “Securities Act” means the Securities Act of 1933, as amended.
2.34. “Share” means one share of the Company’s common stock, par value $0.001 per share.
2.35. “Subsidiary” means any corporation, partnership, joint venture, company or other business entity of which 50% or more of the outstanding voting power is beneficially owned, directly or indirectly, by the Company.
2.36. “Ten Percent Stockholder” means a Person who on any given date owns, either directly or indirectly (taking into account the attribution rules contained in Section 424(d) of the Code), shares possessing more than 10% of the total combined voting power of all classes of shares of the Company, a “parent” or a “subsidiary” (as the terms “parent” and “subsidiary” are defined in Code Section 424).
Section 3. Eligibility.
Any Employee, Non-Employee Director or Consultant shall be eligible to be selected to receive an Award under the Plan, as determined in the sole discretion of the Committee.
Section 4. Administration of the Plan.
4.1. The Plan and all Award Agreements shall be administered by the Committee. Any action of the Committee in administering the Plan and an Award Agreement shall be final, conclusive and binding on all Persons, including without limitation the Company, its Subsidiaries, Participants, Persons claiming rights from or through Participants and stockholders of the Company. No member of the Committee (or any person to whom the Committee has delegated authority to act under the Plan) shall be personally liable for any action, determination or interpretation taken or made in good faith by the Committee (or such person) with respect to the Plan or any Awards granted hereunder, and all members of the Committee (and such persons to whom the Committee has delegated authority to act under the Plan) shall be fully indemnified and protected by the Company in respect of any such action, determination or interpretation to the fullest extent permitted by law.
4.2. Subject to the provisions of the Plan, the Committee shall have full and final authority in its discretion to (i) select the Employees, Non-Employee Directors and Consultants who will receive Awards pursuant to the Plan; provided that Awards granted to Non-Employee Directors shall be subject to approval by the full Board; (ii) determine the type or types of Awards to be granted to each Participant; (iii) determine the number of Shares to which an Award will relate, the terms and conditions of any Award granted under the Plan (including, but not limited to, restrictions as to vesting, Performance Goals relating to an Award, transferability or forfeiture, exercisability or settlement of an Award, waivers or accelerations thereof, and waivers of or modifications to Performance Goals relating to an Award, based in each case on such considerations as the Committee shall determine) and all other matters to be determined in connection with an Award; (iv) determine the exercise price or purchase price (if any) of an Award; (v) determine whether, to what extent, and under what circumstances an Award may be cancelled, forfeited, or surrendered; (vi) determine whether (and, if necessary, certify that) Performance Goals to which an Award is subject are satisfied; (vii) determine whether Participants will be permitted to defer the settlement of certain Awards; (viii) correct any defect or supply any omission or reconcile any inconsistency in the Plan and Award Agreements, and adopt, amend and rescind such rules, regulations, guidelines, forms of agreements and instruments relating to the Plan and Award Agreements as it may deem necessary or advisable; (ix) construe and interpret the Plan and Award Agreements; and (x) make all other determinations as it may deem necessary or advisable for the administration of the Plan and Award Agreements. Notwithstanding anything in the Plan or an Award Agreement to the contrary, no underwater Option or underwater SAR may be repriced, replaced or regranted through cancellation, nor may any underwater Option or underwater SAR be repurchased for cash, in any case, without the approval of the stockholders of the Company, provided that nothing herein shall prevent the Committee from taking any action provided for in Sections 7 or 8 of the Plan.
4.3. To the extent permitted by applicable law and the Company’s by-laws, the Committee may delegate some or all of its authority with respect to the Plan and Awards to any executive officer of the Company or any other person or persons designated by the Committee, in each case, acting individually or as a committee, provided that the Committee may not delegate its authority hereunder to any person to make Awards to (a) Employees who are (i) subject to the requirements of Rule 16b-3 of the Exchange Act or (ii) officers or other Employees who are delegated authority by the Committee pursuant to this Section 4.3 or (b) members of the Board. Any delegation hereunder shall be subject to the restrictions and limits that the Committee specifies at the time of such delegation or thereafter in its sole discretion. The Committee may at any time rescind the authority delegated to any person pursuant to this Section 4.3. Any action undertaken by any such person or persons in accordance with the Committee’s delegation of authority pursuant to this Section 4.3 shall have the same force and effect as if undertaken directly by the Committee.
4.4. Notwithstanding any other provision to the contrary, Awards granted to Non-Employee Directors shall be administered by the full Board, and any authority reserved under the Plan for the Committee with regard to Awards granted to Non-Employee Directors shall be exercised by the full Board.
Section 5. Shares Subject to the Plan.
5.1. Subject to adjustment as provided in Section 8 hereof and this Section 5, the maximum number of Shares that may be issued pursuant to Awards under the Plan shall be 10,000,000 Shares (the “Cap”); provided, however, that on January 1st of each year, commencing with the first January 1st following the Effective Date of the Plan, the Cap shall be increased by a number of Shares equal to (x) 4% of the total number of Shares outstanding on the immediately preceding December 31st and (y) such lesser number of Shares determined by the Board. In addition, the Cap shall be increased by the number of Shares underlying the portion of an award granted under the 2015 Plan that is cancelled, terminated or forfeited or lapses, in any case, on or after the Effective Date. No more than 10,000,000 Shares issued under the Plan may be issued pursuant to the exercise of Incentive Stock Options (provided that on January 1st of each year of the term of the Plan, this limitation shall be increased by the lesser of (x) 4% of the total number of Shares outstanding on the immediately preceding December 31st and (y) 5,000,000 Shares (subject to adjustment as provided in Section 8 hereof)). The Shares issued under the Plan may, at the election of the Board, be (i) authorized but previously unissued Shares or (ii) Shares previously issued and outstanding and reacquired by the Company. Notwithstanding the foregoing, Shares issued under Awards granted in assumption, substitution or exchange for previously granted awards of a company acquired by the Company or any Subsidiary (“Substitute Awards”) shall not count against the Cap, and to the extent permitted by the rules of the stock exchange on which the Shares are then listed or quoted, shares under a stockholder approved plan of an acquired company (adjusted to reflect the transaction) may be used for Awards under the Plan and do not count against the Cap. No Non-Employee Director may be granted Awards in any one calendar year covering a number of Shares that have a Fair Market Value on the grant date in excess of (i) $350,000 in the first calendar year of such Non-Employee Director’s initial service as a Non-Employee Director and (ii) $200,000 in any other calendar year of such Non-Employee Director’s service.
5.2. If any Shares subject to an Award under the Plan are forfeited or such Award otherwise terminates for any reason whatsoever without an actual distribution of Shares to the Participant, any Shares counted against the number of Shares available for issuance pursuant to the Plan with respect to such Award shall, to the extent of any such forfeiture or termination, be added back to the Cap and shall again be available for Awards under the Plan; provided, however, that (i) such treatment shall not apply for Substitute Awards and (ii) the Committee may adopt procedures for the counting of Shares relating to any Award to ensure appropriate counting, avoid double counting, provide for adjustments in any case in which the number of Shares actually distributed differs from the number of Shares previously counted in connection with such Award, and if necessary, to comply with applicable law or regulations. In addition, and notwithstanding anything contained herein to the contrary, Shares tendered in payment of the exercise price or withholding taxes with respect to an Award shall not become, or again be, available for Awards under the Plan.
Section 6. Awards.
Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the Committee may impose on any Award or the settlement or exercise thereof, at the grant date or thereafter, such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including without limitation terms requiring forfeiture of Awards in the event of a Participant’s termination of employment or other service with the Company or any Subsidiary; provided, however, that the Committee shall retain full power to accelerate or waive any such additional term or condition as it may have previously imposed (provided that, in any case, any such action is permitted under Code Section 409A). The right of a Participant to exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such Performance Goals as may be determined by the Committee. Each Award, and the terms and conditions applicable thereto, shall be evidenced by an Award Agreement.
6.1. Options. Options give a Participant the right to purchase a specified number of Shares from the Company for a specified time period at a fixed exercise price, as provided in the applicable Award Agreement. Options may be either Incentive Stock Options or Non-Qualified Options; provided that Incentive Stock Options may be granted only to employees of the Company or a “subsidiary” (as defined in Code Section 424(f)) of the Company. The grant of Options shall be subject to the following terms and conditions:
(a) Exercise Price. The price per Share at which Shares may be purchased upon exercise of an Option shall be determined by the Committee and specified in the Award Agreement, but shall be not less than the Fair Market Value of one Share on the grant date (or 110% of the Fair Market Value of one Share on the grant date in the case of an Incentive Stock Option granted to a Ten Percent Stockholder).
(b) Term of Options. The term of an Option shall be specified in the Award Agreement, but shall in no event be greater than ten years from the grant date (or five years from the grant date in the case of an Incentive Stock Option granted to a Ten Percent Stockholder).
(c) Exercise of Option. Each Award Agreement with respect to an Option shall specify the time or times at which an Option may be exercised in whole or in part and the terms and conditions applicable thereto, including without limitation (i) a vesting schedule which may be based upon the passage of time, attainment of Performance Goals or a combination thereof, (ii) whether the exercise price for an Option shall be paid in cash, with Shares, with any combination of cash and Shares, or with other legal consideration that the Committee may deem appropriate and to the extent permitted by applicable law, (iii) the methods of payment, which may include payment through cashless and net exercise arrangements, to the extent permitted by applicable law and (iv) the methods by which, or the time or times at which, Shares will be delivered or deemed to be delivered to Participants upon the exercise of such Option. Payment of the exercise price shall in all events be made within three days after the date of exercise of an Option. With respect to any Participant who is subject to Section 16 of the Exchange Act with respect to the Company, such Participant may direct the Company to reduce the number of Shares that would otherwise be deliverable upon the exercise of his or her Option by the number of Shares having a Fair Market Value on the date of exercise equal to the exercise price of the portion of the Option then being exercised.
(d) Incentive Stock Options. Each Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing immediately after the date he or she makes a “disqualifying disposition” (as defined in Section 421(b) of the Code) of any Shares acquired pursuant to the exercise of such Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an Incentive Stock Option as agent for the applicable Participant until the end of any period during which a disqualifying disposition could occur, subject to complying with any instructions from such Participant as to the sale of such Shares. The aggregate Fair Market Value, determined as of the grant date, for Awards granted under the Plan (or any other stock or share option plan required to be taken into account under Section 422(d) of the Code) that are intended to be Incentive Stock Options which are first exercisable by the Participant during any calendar year shall not exceed $100,000. To the extent an Award purporting to be an Incentive Stock Option exceeds the limitation in the previous sentence or does not otherwise qualify as an Incentive Stock Option, the portion of the Award in excess of such limit or that does not so qualify shall be a Non-Qualified Option.
(e) No Dividend Equivalent Rights. No Participant shall be entitled to dividend equivalent rights or payments with respect to any Shares underlying the Participant’s Options.
6.2. Stock Appreciation Rights. A SAR shall confer on the Participant a right to receive, upon exercise thereof, the excess of (i) the Fair Market Value of one Share on the date of exercise over (ii) the grant price of the SAR as determined by the Committee, but which may never be less than the Fair Market Value of one Share on the grant date. No payment from the Participant shall be required to exercise a SAR. The grant of SARs shall be subject to the following terms and conditions:
(a) General. Each Award Agreement with respect to a SAR shall specify the number of SARs granted, the grant price of the SAR, the time or times at which the SAR may be exercised in whole or in part (including without limitation vesting upon the passage of time, the attainment of Performance Goals or a combination thereof), the method of exercise, method of settlement (in cash, Shares or a combination thereof), method by which Shares will be delivered or deemed to be delivered to Participants (if applicable) and any other terms and conditions of the SAR. Unless provided otherwise in an Award Agreement, all SARs shall be settled in Shares.
(b) Term. The term of a SAR shall be specified in the Award Agreement, but shall in no event be greater than ten years from the grant date.
(c) No Dividend Equivalent Rights. No Participant shall be entitled to dividend equivalent rights or payments with respect to any Shares underlying the Participant’s SARs.
6.3. Restricted Stock. An Award of Restricted Stock is a grant by the Company of a specified number of Shares to the Participant, which Shares are subject to forfeiture upon the occurrence of specified events during the Restriction Period. Such an Award shall be subject to the following terms and conditions:
(a) General. Each Award Agreement with respect to Restricted Stock shall specify the duration of the Restriction Period and/or each installment thereof, the conditions under which the Restricted Stock may be forfeited to the Company, and the amount, if any, the Participant must pay to receive the Restricted Stock. Such restrictions may include a vesting schedule based upon the passage of time.
(b) Transferability. During the Restriction Period, the transferability of Restricted Stock shall be prohibited or restricted in the manner and to the extent prescribed in the applicable Award Agreement. Such restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee.
(c) Stockholder Rights. Unless otherwise provided in the applicable Award Agreement, during the Restriction Period the Participant shall have all the rights of a stockholder with respect to Restricted Stock, including, without limitation, the right to receive dividends thereon (whether in cash or Shares) and to vote such Shares of Restricted Stock in accordance with the Company’s by-laws. Dividends may, in the discretion of the Committee, be paid currently or subject to the same restrictions as the underlying Restricted Stock, in either case, as set forth in the applicable Award Agreement (and the Committee may, in its sole discretion, withhold any cash dividends paid on Restricted Stock until the restrictions applicable to such Restricted Stock have lapsed); provided, however, that dividends paid on unvested Restricted Stock that is subject to Performance Goals shall not be paid or released unless and until the applicable Performance Goals have been achieved.
(d) Additional Matters. Upon the Award of Restricted Stock, the Committee may direct the number of Shares subject to such Award be issued to the Participant or placed in a restricted stock account (including without limitation an electronic account) with the transfer agent and in either case designating the Participant as the registered owner. The certificate(s), if any, representing such Shares shall be physically or electronically legended, as applicable, as to sale, transfer, assignment, pledge or other encumbrances during the Restriction Period and, if issued to the Participant, returned to the Company to be held in escrow during the Restriction Period. In all cases, the Participant shall sign a stock power or share transfer form (as appropriate) endorsed in blank to the Company to be held in escrow during the Restriction Period.
6.4. Restricted Stock Units. Restricted Stock Units are solely a device for the measurement and determination of the amounts to be paid to a Participant under the Plan. Restricted Stock Units do not constitute Shares and shall not be treated as (or as giving rise to) property or as a trust fund of any kind; provided, however, that the Company may establish a bookkeeping reserve to meet its obligations hereunder or a trust or other funding vehicle that would not cause the Plan to be deemed to be funded for tax purposes or for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. The right of any Participant in respect of an Award of Restricted Stock Units shall be no greater than the right of any unsecured general creditor of the Company. The grant of Restricted Stock Units shall be subject to the following terms and conditions:
(a) Restriction Period. Each Award Agreement with respect to Restricted Stock Units shall specify the duration of the Restriction Period, if any, and/or each installment thereof and the conditions under which such Award may be forfeited to the Company. Such restrictions may include a vesting schedule based upon the passage of time.
(b) Settlement. Unless otherwise provided in an Award Agreement (i) an Award of Restricted Stock Units shall be settled in Shares, provided that any fractional Restricted Stock Units shall be settled in cash and (ii) subject to the Participant’s continued employment or other service with the Company or a Subsidiary from the date of grant through the expiration of the Restriction Period (or applicable portion thereof), the vested portion of an Award of Restricted Stock Units shall be settled within 60 days after the expiration of the Restriction Period (or applicable portion thereof).
(c) Stockholder Rights. Nothing contained in the Plan shall be construed to give any Participant rights as a stockholder with respect to an Award of Restricted Stock Units (including, without limitation, any voting, dividend or derivative or other similar rights). Notwithstanding the foregoing, the Committee may provide in an Award Agreement that amounts equal to any dividends declared during the Restriction Period or deferral period on the Shares represented by an Award of Restricted Stock Units will be credited to the Participant’s account and settled in Shares unless otherwise specified in the applicable Award Agreement at the same time (and subject to the same forfeiture restrictions) as the Restricted Stock Units to which such dividend equivalents relate (with the number of Shares released in payment of such dividend equivalents to equal the amount of dividend equivalents then being settled, divided by the Fair Market Value of one Share on the settlement date of such dividend equivalents); provided, however, that the Committee may determine at or after the grant date to settle any such dividend equivalents in cash.
6.5. Performance Stock Units. Performance Stock Units are solely a device for the measurement and determination of the amounts to be paid to a Participant under the Plan. Performance Stock Units do not constitute Shares and shall not be treated as (or as giving rise to) property or as a trust fund of any kind; provided, however, that the Company may establish a bookkeeping reserve to meet its obligations hereunder or a trust or other funding vehicle that would not cause the Plan to be deemed to be funded for tax purposes or for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. The right of any Participant in respect of an Award of Performance Stock Units shall be no greater than the right of any unsecured general creditor of the Company. The grant of Performance Stock Units shall be subject to the following terms and conditions:
(a) Restriction Period. Each Award Agreement with respect to Performance Stock Units shall specify the duration of the Performance Period and the Restriction Period, if any, and/or each installment thereof, the Performance Goals applicable to the Performance Stock Units and the conditions under which the Performance Stock Units may be forfeited to the Company. Such restrictions shall include a vesting schedule based on the attainment of one or more Performance Goals.
(b) Settlement. Unless otherwise provided in an Award Agreement, subject to the Participant’s continued employment or other service with the Company or a Subsidiary from the grant date through the expiration of the Restriction Period (or applicable portion thereof), the vested portion of an Award of Performance Stock Units shall be settled within 60 days after the expiration of the Restriction Period (or applicable portion thereof). Unless provided otherwise in an Award Agreement, all Performance Stock Units will be settled in Shares (except that fractional Performance Stock Units shall be settled in cash).
(c) Stockholder Rights. Nothing contained in the Plan shall be construed to give any Participant rights as a stockholder with respect to an Award of Performance Stock Units (including, without limitation, any voting, dividend or derivative or other similar rights). Notwithstanding the foregoing, the Committee may provide in an Award Agreement that amounts equal to any dividends declared by the Company during the Restriction Period on the Shares represented by an Award of Performance Stock Units will be credited to the Participant’s account and settled in cash or Shares at the same time (and subject to the same forfeiture restrictions and Performance Goals) as the Performance Stock Units to which such dividend equivalents relate (with the number of Shares released in payment of such dividend equivalents to equal the amount of dividend equivalents then being settled in Shares, divided by the Fair Market Value of one Share on the settlement date of such dividend equivalents).
6.6. Performance Stock. An Award of Performance Stock is a grant by the Company of a specified number of Shares to the Participant, which Shares are conditional on the achievement of one or more Performance Goals during the Performance Period and subject to forfeiture upon the occurrence of specified events during the Restriction Period. An Award of Performance Stock shall be subject to the following terms and conditions.
(a) General. Each Award Agreement with respect to Performance Stock shall specify the duration of the Performance Period and the Restriction Period, if any, and/or each installment thereof, the Performance Goals applicable to the Performance Stock and the conditions under which the Performance Stock may be forfeited to the Company, and the amount, if any, the Participant must pay to receive the Performance Stock.
(b) Transferability. During the Restriction Period, if any, the transferability of Performance Stock shall be prohibited or restricted in the manner and to the extent prescribed in the applicable Award Agreement. Such restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Performance Stock to a continuing substantial risk of forfeiture in the hands of any transferee.
(c) Stockholder Rights. Unless otherwise provided in the applicable Award Agreement, during the Restriction Period the Participant shall have all the rights of a stockholder with respect to Performance Stock, including, without limitation, the right to receive dividends thereon (whether in cash or Shares), but only to the extent that Performance Stock vests based on the achievement of Performance Goals, and to vote such shares of Performance Stock. Dividends shall be subject to the same restrictions (and Performance Goals) as the underlying Performance Stock and the Committee shall withhold any cash dividends paid on Performance Stock until the Performance Goals are achieved and restrictions applicable to such Performance Stock have lapsed.
6.7. Other Stock-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants any type of Award (in addition to those Awards provided in Sections 6.1, 6.2, 6.3, 6.4, 6.5 and 6.6 hereof) that is payable in, or valued in whole or in part by reference to, Shares, and that is deemed by the Committee to be consistent with the purposes of the Plan, including, without limitation, fully vested Shares and dividend equivalents (“Other Awards”).
6.8. Termination of Employment or Other Service. Unless otherwise provided in an Award Agreement, and except as otherwise provided in Section 7.2 hereof, upon a Participant’s termination of employment or other service with the Company and its Subsidiaries (x) for any reason other than for Cause, the unvested portion of each Award shall be immediately forfeited upon such termination with no compensation or other payment due the Participant, and the vested portion of each Option and SAR shall be exercisable for the period set forth in the Award Agreement (but not beyond the stated term of such vested Option or vested SAR) or (y) for Cause, all vested and unvested Awards granted to such Participant shall be immediately forfeited upon such termination with no compensation or other payment due the Participant.
Section 7. Change in Control.
7.1. General. Unless otherwise provided in an Award Agreement, a Change in Control shall not, in and of itself, accelerate the vesting, settlement or exercisability of outstanding Awards. Notwithstanding the foregoing and unless otherwise provided in an Award Agreement, if (i) the successor corporation or company (or its direct or indirect parent) does not agree to assume an outstanding Award or does not agree to substitute or replace such Award with an award involving the ordinary equity securities of such successor corporation (or its direct or indirect parent) on terms and conditions necessary to preserve the rights of the applicable Participant with respect to such Award, (ii) the securities of the Company or the successor corporation or company (or its direct or indirect parent) will not be publicly traded on a U.S. securities exchange immediately following such Change in Control or (iii) the Change in Control is not approved by a majority of the Incumbent Directors immediately prior to such Change in Control, then the Committee, in its sole discretion, may take one or more of the following actions with respect to all, some or any such Awards: (a) accelerate the vesting and, if applicable, exercisability of such Awards such that the Awards are fully vested and, if applicable, exercisable (effective immediately prior to such Change in Control); (b) with respect to any Awards that do not constitute “non-qualified deferred compensation” within the meaning of Code Section 409A, accelerate the settlement of such Awards upon such Change in Control; (c) with respect to Awards that constitute “non-qualified deferred compensation” within the meaning of Code Section 409A, terminate all such Awards and settle all such Awards for a cash payment equal to the Fair Market Value of the Shares underlying such Awards less the amount the Participant is required to pay for such Shares, if any, provided that (I) such Change in Control satisfies the requirements of Treasury Regulation Section 1.409A-3(i)(5)(v), (vi) or (vii) and (II) all other arrangements that would be aggregated with such Awards under Code Section 409A are terminated and liquidated within 30 days before or 12 months after such Change in Control; (d) cancel any outstanding Option or SAR in exchange for a cash payment in an amount equal to the excess, if any, of the Fair Market Value as of the date of the Change in Control of the Shares underlying the portion of the Option or SAR being so cancelled over the exercise price or grant price, as the case may be, of such portion, provided that any Option or SAR with a per Share exercise price or grant price, as the case may be, that equals or exceeds the Fair Market Value of one Share on the date of the Change in Control shall be cancelled with no payment due the Participant and (e) take such other actions as the Committee deems appropriate (to the extent permitted by Code Section 409A). If any action is taken with respect to any Award under items (a) through (e) of this Section 7.1 and such Award is subject to Performance Goals, such Performance Goals shall be deemed satisfied based on the actual level of achievement of the applicable Performance Goals through the date of the Change in Control or, if determined by the Committee in its sole discretion prior to such Change in Control, using the applicable target level of achievement rather than such actual level of achievement. The judgment of the Committee with respect to any matter referred to in this Section 7.1 shall be conclusive and binding upon each Participant (and all other Persons) without the need for any amendment to the Plan or any Award or Award Agreement. Notwithstanding the foregoing, no Award that constitutes “non-qualified deferred compensation” (within the meaning of Section 409A of the Code) shall be payable upon the occurrence of a Change in Control unless such Change in Control satisfies the requirements of Treasury Regulation Section 1.409A-3(i)(5).
7.2. Termination Following a Change in Control. Notwithstanding anything contained in the Plan to the contrary, unless otherwise provided in an Award Agreement, in the event that Awards under the Plan are assumed in connection with a Change in Control or are substituted with new awards, in either case, pursuant to Section 7.1 above, and a Participant’s employment or other service with the Company and its Subsidiaries is terminated by the Company or a Subsidiary without Cause or due to Disability or as the result of the Participant’s death, in any case, within 24 months following a Change in Control, (i) the unvested portion of such Participant’s Awards (including without limitation any awards received in substitution of an Award) shall vest in full (with any applicable Performance Goals being deemed to have been achieved at target or, if greater, actual levels of performance), (ii) Awards of Options and SARs (including without limitation options and stock or share appreciation rights received in substitution of an Award) shall remain exercisable by the Participant or the Participant’s beneficiary or legal representative, as the case may be, for a period of one-year thereafter (but not beyond the stated term of such Option or SAR), (iii) all Restricted Stock Units and Performance Stock Units (including without limitation restricted stock units and performance stock units received in substitution of an Award) shall be settled within 30 days after such termination and (iv) all Other Stock-Based Awards (including without limitation any other stock-based awards received in substitution of an Award) shall be settled within 30 days after such termination; provided, however, that with respect to clauses (iii) and (iv), if settlement of such Awards on the date described in this Section 7.2 would violate Code Section 409A, then such Award instead shall be settled in full at the time it otherwise would have been settled in connection with a termination of employment or service without Cause or due to death or Disability, as applicable.
Section 8. Adjustments upon Changes in Capitalization.
8.1. In order to prevent dilution or enlargement of the rights of Participants under the Plan as a result of any share dividend, recapitalization, forward share split or reverse share split, reorganization, spin-off, extraordinary cash distribution or other similar or analogous corporate transaction or event, in any case, that occurs on or after the date the Plan is approved by the Board (even if such date is prior to the Effective Date), that affects the Shares and which is effected without the receipt of consideration by the Company, the Committee shall adjust (i) the number and kind of Shares which may thereafter be issued in connection with Awards, (ii) the number and kind of Shares issuable in respect of outstanding Awards, (iii) the Cap, the number of Shares set forth in the second clause (y) in Section 5.1 hereof, and the specific Share limitations under Section 5 hereof and (iv) the exercise or grant price relating to any Award. Any such adjustment shall be made in an equitable manner which reflects the effect of such transaction or event. It is provided, however, that in the case of any such transaction or event, the Committee may make any additional adjustments to the items in clauses (i) through (iv) above which it deems appropriate in the circumstances, or make provision for a cash payment with respect to any outstanding Award.
8.2. In addition to the adjustments described in Section 8.1 above, the Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards, including without limitation any Performance Goals, in recognition of unusual or nonrecurring events affecting the Company or any Subsidiary, or in response to changes in applicable laws, regulations, or accounting principles (including, without limitation, (a) asset write-downs; (b) significant litigation or claim judgments or settlements; (c) the effect of changes in tax laws, accounting standards or principles, or other laws or regulatory rules affecting reporting results; (d) any reorganization and/or restructuring programs or change in the corporate structure or capital structure of the Company or a Subsidiary; (e) extraordinary nonrecurring items as described 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 or period; (f) acquisitions or divestitures; (g) any other specific unusual or nonrecurring events or objectively determinable category thereof; (h) foreign exchange gains and losses; and (i) a change in the Company’s fiscal year).
8.3. If Sections 7 and 8 hereof could both apply to an event, Section 7 hereof shall control.
Section 9. Termination and Amendment.
9.1. Changes to the Plan and Awards. The Board may amend, alter, suspend, discontinue, or terminate the Plan without the consent of the Company’s stockholders or Participants, except that any such amendment or alteration shall be subject to the approval of the Company’s stockholders if (i) such action would increase the number of Shares subject to the Plan (other than in connection with adjustments under Section 8.1 hereof), (ii) such action would decrease the price at which Awards may be granted, or (iii) such stockholder approval is required by any applicable federal, state or foreign law or regulation or the rules of any stock exchange or automated quotation system on which the Shares may then be listed or quoted, and the Board may otherwise, in its discretion, determine to submit such other changes to the Plan to the Company’s stockholders for approval; provided, however, that except as provided in Section 18 hereof, without the consent of an affected Participant, no amendment, alteration, suspension, discontinuation, or termination of the Plan may materially and adversely affect the rights of such Participant under any outstanding Award unless such amendment, alteration, suspension, discontinuation or termination is required by law or the rules of any applicable securities exchange.
9.2. The Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue, or terminate, any Award theretofore granted and any Award Agreement relating thereto; provided, however, that except as provided in Section 18 hereof, without the consent of an affected Participant, no such amendment, alteration, suspension, discontinuation, or termination of any Award may materially and adversely affect the rights of such Participant under such Award unless such amendment, alteration, suspension, discontinuation or termination is required by law or the rules of any applicable securities exchange.
9.3. No Repricing. Notwithstanding anything in the Plan or an Award Agreement to the contrary, no underwater Option or underwater SAR may be repriced, replaced or regranted through cancellation, nor may any underwater Option or underwater SAR be repurchased for cash, in any case, without the approval of the stockholders of the Company, provided that nothing herein shall prevent the Committee from taking any action provided for in Sections 7 and/or 8 hereof.
Section 10. No Right to Award, Employment or Service.
No Employee, Consultant or Non-Employee Director shall have any claim to be granted any Award under the Plan, and there is no obligation that the terms of Awards be uniform or consistent among Participants. Neither the 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 any Subsidiary. For purposes of the Plan, a transfer of employment or service between the Company and any of its Subsidiaries shall not be deemed a termination of employment or service; provided, however, that individuals employed by, or otherwise providing services to, an entity that ceases to be a Subsidiary shall be deemed to have incurred a termination of employment or service, as the case may be, as of the date such entity ceases to be a Subsidiary unless such individual becomes an employee of, or service provider to, the Company or another Subsidiary as of the date of such cessation. A change in status from Employee to Consultant shall be deemed to be a termination of employment, unless otherwise determined by the Committee. The Committee may adopt rules and make determinations on how a leave of absence will impact an Award, including, without limitation, tolling the vesting schedule or treating such leave of absence as a termination of employment or other service (such rules may be applied retroactively).
Section 11. Taxes.
Each Participant must make appropriate arrangement acceptable to the Company in its discretion for the payment of any taxes relating to an Award granted hereunder. The Company or any Subsidiary is authorized to withhold from any payment relating to an Award under the Plan, including without limitation from a distribution of Shares or cash, amounts of withholding and other taxes due in connection with any transaction involving an Award, and to take such other action as the Committee may deem advisable to enable the Company and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Award (including without limitation withholding from any payroll or other payment due to a Participant). This authority shall include the ability to withhold or receive Shares or other property and to make cash payments in respect thereof in satisfaction of a Participant’s tax obligations. Withholding of taxes in the form of Shares with respect to an Award shall not occur at a rate that equals or exceeds the rate that would result in liability accounting treatment.
Section 12. Limits on Transferability; Beneficiaries.
No Award or other right or interest of a Participant under the Plan shall be (i) pledged, encumbered, or hypothecated to, or in favor of, or subject to any lien, obligation, or liability of such Participant to, any party, other than the Company or any Subsidiary, or (ii) assigned or transferred by such Participant other than by will or the laws of descent and distribution, and such Awards and rights shall be exercisable during the lifetime of the Participant only by the Participant or (with respect to Awards other than Incentive Stock Options) his or her guardian or legal representative. Notwithstanding the foregoing, the Committee may, in its discretion, provide that Non-Qualified Options, SARs, Performance Stock and Restricted Stock be transferable, without consideration, to immediate family members (i.e., children, grandchildren or spouse), to trusts for the benefit of such immediate family members and to partnerships in which such family members are the only partners (any vesting conditions shall be unaffected by such transfer). The Committee may attach to such transferability feature such terms and conditions as it deems advisable. In addition, a Participant may, in the manner established by the Committee, designate a beneficiary (which may be a Person or a trust) to exercise the rights of the Participant, and to receive any distribution, with respect to any Award upon the death of the Participant. A beneficiary, guardian, legal representative or other Person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional restrictions deemed necessary or appropriate by the Committee.
Section 13. Foreign Nationals.
Without amending the Plan, Awards may be granted to Employees, Consultants and Non-Employee Directors who are foreign nationals or are employed or providing services outside the United States or both, on such terms and conditions different from those specified in the Plan as may, in the judgment of the Committee, be necessary or desirable to further the purpose of the Plan. Moreover, the Committee may approve such supplements to, or sub-plans, amendments, restatements or alternative versions of, the Plan as it may consider necessary or appropriate for such purposes without thereby affecting the terms of the Plan as in effect for any other purpose, provided that no such supplements, sub-plans, amendments, restatements or alternative versions shall include any provisions that are prohibited by the terms of the Plan, as then in effect, unless the Plan could have been amended to eliminate such prohibition without further approval by the stockholders of the Company.
Section 14. Securities Law Requirements.
14.1. No Shares may be issued hereunder if the Company shall at any time determine that to do so would (i) violate the listing requirements of an applicable securities or stock exchange, or adversely affect the registration or qualification of the Company’s Shares under any state or federal law, or otherwise violate any law, rule or regulation, or (ii) require the consent or approval of any regulatory or supervising body or stockholders. In any of the events referred to in clause (i) or clause (ii) above, the issuance of such Shares shall be suspended and shall not be effective unless and until it is done in compliance with all applicable laws, rules and regulations, and such listing, registration, qualifications, consents or approval shall have been effected or obtained free of any conditions not acceptable to the Company in its sole discretion, notwithstanding any termination of any Award or any portion of any Award during the period when issuance has been suspended (provided, however, that if permitted under Code Section 409A, the Committee may toll the expiration date of an Award such that it will not terminate during any such period of suspension).
14.2. The Committee may require, as a condition to the issuance of Shares hereunder, representations, warranties and agreements to the effect that such Shares are being purchased or acquired by the Participant for investment only and without any present intention to sell or otherwise distribute such Shares, and that the Participant will not dispose of such Shares in transactions which, in the opinion of counsel to the Company, would violate the registration provisions of the Securities Act and the rules and regulations thereunder.
Section 15. Termination.
Unless earlier terminated, the Plan shall terminate with respect to the grant of new Awards on the earlier of the 10-year anniversary of the date the Plan was approved by the stockholders of the Company or the 10-year anniversary of the date the Plan was approved by the Board, and no Awards under the Plan shall thereafter be granted; provided that no such termination shall impact Awards that were granted prior to such termination.
Section 16. Fractional Shares.
The Company will not be required to issue any fractional Shares pursuant to the Plan. The Committee may provide for the elimination of fractions and settlement of such fractional Shares in cash, in its sole discretion.
Section 17. Discretion.
In exercising, or declining to exercise, any grant of authority or discretion hereunder, the Committee may consider or ignore such factors or circumstances and may accord such weight to such factors and circumstances as the Committee alone and in its sole judgment deems appropriate and without regard to the effect such exercise, or declining to exercise such grant of authority or discretion, would have upon the affected Participant, any other Participant, any Employee, any Consultant, any Non-Employee Director, the Company, any Subsidiary, any affiliate, any stockholder or any other Person.
Section 18. Code Section 409A.
The Plan and all Awards are intended to comply with, or be exempt from, Code Section 409A and all regulations, guidance, compliance programs and other interpretative authority thereunder, and shall be interpreted in a manner consistent therewith without increasing the cost to the Company. In the event that a Participant is a “specified employee” within the meaning of Code Section 409A, and a payment or benefit provided for under the Plan would be subject to additional tax under Code Section 409A if such payment or benefit is paid within six (6) months after such Participant’s “separation from service” (within the meaning of Code Section 409A), then such payment or benefit shall not be paid (or commence) during the six (6) month period immediately following such Participant’s separation from service except as provided in the immediately following sentence. In such an event, any payments or benefits that would otherwise have been made or provided during such six (6) month period and which would have incurred such additional tax under Code Section 409A shall instead be paid to the Participant in a lump-sum, without interest, on the earlier of (i) the first business day of the seventh month following the month in which such Participant’s separation from service occurs or (ii) the tenth business day following such Participant’s death (but not earlier than if such delay had not applied). A Participant’s right to receive any installment payments under an Award Agreement, including without limitation as the result of any deferral of an Award in accordance with Code Section 409A, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Code Section 409A. Notwithstanding anything contained in the Plan or in an Award Agreement to the contrary, neither the Company, any member of the Committee nor any Subsidiary shall have any liability or obligation to any Participant or any other Person for taxes, interest, penalties or fines (including without limitation any of the foregoing resulting from the failure of any Award granted hereunder to comply with, or be exempt from, Code Section 409A). For purposes of any Award that constitutes “non-qualified deferred compensation” under Code Section 409A, the terms “termination of employment” or “termination of service” and similar phrases to each shall mean “separation from service” within the meaning of Code Section 409A.
Section 19. Governing Law.
The validity and construction of the Plan and any Award Agreements entered into hereunder shall be construed and enforced in accordance with the laws of the State of Delaware, but without giving effect to the conflict of laws principles thereof.
Section 20. Recoupment/Share Ownership.
Any Award granted pursuant to the Plan (and all Shares acquired hereunder) shall be subject to mandatory repayment and clawback pursuant to the terms of the Company’s corporate governance guidelines, as in effect from time to time, and as may be otherwise required by law or the rules of any applicable securities exchange. Additional recoupment and clawback policies may be provided in the Participant’s Award Agreement. In addition, all Awards granted under the Plan (and all Shares acquired hereunder) shall be subject to the holding periods set forth in the Company’s stock ownership guidelines, as in effect from time to time.
Section 21. Effective Date.
The Plan shall become effective upon the Effective Date.
[end of Plan]
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Exhibit 10.4
FEMASYS INC.
EMPLOYEE STOCK PURCHASE
PLAN
Adopted by the Board of Directors February 26, 2021
Approved by the Stockholders March, 2021
FEMASYS INC.
EMPLOYEE STOCK PURCHASE PLAN1
SECTION 1. PURPOSE OF THE PLAN.
The Femasys Inc. Employee Stock Purchase Plan (the “Plan”) is intended to provide Eligible Employees (as defined below) the opportunity to increase their proprietary interest in Femasys Inc. (the “Company”) by conveniently purchasing shares of the Company’s common stock, par value $0.001 per share (the “Stock”). The Plan is composed of two components: a 423 Component and a Non-423 Component. The 423 Component is intended to qualify under Section 423 of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, the provisions of the 423 Component will be construed in a manner consistent with the requirements of Section 423 of the Code. The Plan also authorizes participation in the Plan under the Non-423 Component under terms that do not meet the requirements of Section 423 of the Code. The Company shall be permitted to grant rights to purchase Stock under separate offerings not having identical terms (provided that such terms are not inconsistent with the terms of the Plan and, with respect to an offering under the 423 Component, the requirements of Section 423 of the Code), and offerings may run concurrently (in whole or in part) with each other. Each offering under the Non-423 Component shall be separate and distinct from (and shall not be included in or be part of) any offering under the 423 Component, and each offering to a Participating Company shall be treated as an offering that is separate from any other offering made to another Participating Company, in each case, even if such offerings are running concurrently (in whole or in part) and/or have common terms and conditions.
SECTION 2. DEFINITIONS.
(a) “423 Component” means the portion of the Plan under which any right to purchase Stock shall be granted in a manner that is intended to satisfy the requirements of Section 423 of the Code.
(b) “Affiliate” means any branch or representative office or other disregarded entity of the Company or a Subsidiary, as determined by the Committee, whether now or hereafter existing.
(c) “Board” means the Board of Directors of the Company, as constituted from time to time.
(d) “Change in Control” shall have the meaning set forth in the Company’s most recently adopted equity incentive plan as of the date of determination, as in effect from time to time.
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All share numbers will be adjusted in connection with any reverse stock split or similar capitalization adjustment pursuant to Section 14(b). |
(e) “Committee” means the duly constituted committee appointed by the Board to administer the Plan, as described in Section 3 of the Plan. If no such committee is appointed, the Compensation Committee of the Board shall be the Committee.
(f) “Compensation” means all of an Eligible Employee’s base salary or wages. “Compensation” shall exclude (i) commissions, bonuses and special incentive payments, (ii) equity compensation and income attributable to equity-based awards (including, without limitation, amounts realized from the exercise of any stock option and any dividends paid with respect to equity awards), (iii) all non-cash items, (iv) pre-tax contributions made by the Participant under Sections 401(k) or 125 of the Code or under any similar arrangements available under laws outside the United States and (v) allowances and other miscellaneous payments, including, without limitation, moving or relocation allowances, cost-of-living equalization payments, car allowances, tuition reimbursements, imputed income attributable to cars or life insurance, severance pay, fringe benefits and benefits received under employee benefit plans. The Committee shall determine whether a particular item not listed in this Section 2(f) is included in Compensation. In addition, and notwithstanding the foregoing, with respect to any Offering Period, the Committee may modify the definition of Compensation for such Offering Period, provided that (i) such definition satisfies the requirements of Section 423 of the Code with respect to the 423 Component, (ii) such definition is established in writing and made available to Eligible Employees prior to the commencement of such Offering Period and (iii) such modified definition shall apply only for that Offering Period unless otherwise specified in writing by the Committee.
(g) “Effective Date” means the day immediately prior to the IPO Registration Date, provided that the Plan is approved by the stockholders of the Company prior to such day.
(h) “Eligible Employee” means any individual who (i) is an Employee of a Participating Company, (ii) does not own 5% or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary, including, for purposes of this provision, through application of the rules of Section 424(d) of the Code and (iii) is not a “highly compensated employee” (within the meaning of Section 414(q) of the Code) that is subject to Section 16 of the Securities Exchange Act of 1934, as amended. The foregoing notwithstanding, an individual who is a citizen or resident of a jurisdiction other than the United States (even if he or she is also a citizen of the United States or a resident alien) shall not be considered an Eligible Employee if, as determined in the sole discretion of the Committee, (i) his or her participation in the Plan is prohibited by the laws or regulations of any country which has jurisdiction over him or her or (ii) compliance with the laws and regulations of the foreign country that has jurisdiction over him or her would cause the Plan or an offering under the 423 Component to violate Section 423 of the Code. In addition, and notwithstanding the foregoing, with respect to any Offering Period, the Committee may modify the definition of Eligible Employee for such Offering Period by excluding the following class or classes of Employees: (i) Employees who have been employed for less than two (2) years (or such lesser period of time as may be determined by the Committee in its discretion); (ii) Employees whose customary employment is for twenty (20) hours or less per week (or such lesser period of time as may be determined by the Committee in its discretion); (iii) Employees who are customarily employed for five (5) months or less in any calendar year (or such lesser period of time as may be determined by the Committee in its discretion), (iv) Employees who are “highly compensated employees” (within the meaning of Section 414(q) of the Code) of a Participating Company and (v) Employees who are “highly compensated employees” (within the meaning of Section 414(q) of the Code) of a Participating Company with compensation above a certain level; provided that (i) such definition satisfies the requirements of Section 423 of the Code with respect to the 423 Component, (ii) such definition is established in writing and made available to Employees prior to the commencement of such Offering Period, (iii) such modified definition shall apply only for that Offering Period unless otherwise specified in writing by the Committee and (iv) such definition shall be applied in an identical manner under each Offering Period to all Employees, in accordance with Treasury Regulation Section 1.423-2(e).
(i) “Employee” means an individual who is a common-law employee of a Participating Company and, if such employee is employed in the United States, whose earnings are reported on a Form W-2. For the avoidance of doubt, the term “Employee” shall not include any consultant, independent contractor or non-employee director of a Participating Company.
(j) “Fair Market Value” means, on any given date (i) if the Stock is listed on any established U.S. stock exchange or a U.S. national market system, the closing sales price for such Stock as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable (or, if no closing sales price was reported on that date, as applicable, on the last preceding trading date such closing sales price was reported); (ii) if the foregoing clause (i) does not apply, then if the Stock is regularly quoted by a recognized U.S. securities dealer but selling prices are not reported, the mean between the high bid and low asked prices for the Stock on the day of determination (or, if no bids and asks were reported on that date, as applicable, on the last preceding trading date such bids and asks were reported); or (iii) if the foregoing clauses (i) and (ii) do not apply, such value as the Committee in its discretion may in good faith determine in accordance with Section 423 of the Code.
(k) “IPO Registration Date” means the date on which the Company’s registration statement on Form S-1 in connection with its initial public offering of Stock is declared effective by the Securities and Exchange Commission under the Securities Act.
(l) “Non-423 Component” means the portion of the Plan under which the right to purchase Stock may be granted in a manner that is not intended to satisfy the requirements of Section 423 of the Code.
(m) “Offering Period” means a period with respect to which the right to purchase Stock may be granted under the Plan, as determined pursuant to Section 4(a) of the Plan, which shall not exceed twenty-seven (27) months.
(n) “Parent” has the meaning given to such term under U.S. Treasury Regulation Section 1.424-1(f). As used in the Plan, “Parent” shall mean a Parent of the Company.
(o) “Participant” means an Eligible Employee who elects to participate in the Plan, as provided in Section 4(b) of the Plan.
(p) “Participating 423 Company” means any of the following that is designated by the Committee as participating in the 423 Component: (i) the Company, (ii) any present or future Parent and/or (iii) any present or future Subsidiary.
(q) “Participating Company” means each Participating 423 Company and Participating Non-423 Company.
(r) “Participating Non-423 Company” means any of the following that is designated by the Committee as participating in the Non-423 Component: (i) the Company, (ii) any present or future Parent, (iii) any present or future Subsidiary and/or (iv) any present or future Affiliate. Unless determined otherwise by the Committee, only entities incorporated or formed outside of the United States shall be Participating Non-423 Companies.
(s) “Plan Account” means the account established for each Participant pursuant to Section 8(a) of the Plan.
(t) “Purchase Price” means the price at which Participants may purchase Stock under the Plan, as determined pursuant to Section 8(b) of the Plan.
(u) “Subsidiary” means a subsidiary corporation of the Company as that term is defined in Section 424(f) of the Code.
SECTION 3. Administration Of The Plan.
(a) General. The Plan shall be administered by the Committee. To the extent permitted by applicable law, the Committee may delegate some or all of its authority with respect to the Plan to any executive officer of the Company or any other person or persons designated by the Committee, in each case, acting individually or as a committee.
(b) Committee Authorities. The Committee shall have the exclusive power and authority to administer the Plan, including, without limitation, the right and power to interpret the provisions of the Plan and make all determinations deemed necessary or advisable for the administration of the Plan (including, without limitation, a determination as to whether a Change in Control has occurred, whether to designate the Company, a Parent or Subsidiary as a Participating 423 Company or as a Participating Non-423 Company and whether to establish separate offerings). All such actions, interpretations and determinations that are done or made by the Committee shall be final, conclusive and binding on the Company, the Participating Companies, the Participants and all other parties and shall not subject the Committee (or its members) to any liability.
SECTION 4. ENROLLMENT AND PARTICIPATION.
(a) Offering Periods. Two Offering Periods shall commence in each calendar year, which shall be the periods commencing on January 1 and ending on June 30 and commencing on July 1 and ending on December 31; provided, however, that the first Offering Period may commence on a different date as determined by the Committee, but shall end on June 30 of the year commenced if commenced prior to June 30 or on December 31 of the year commenced if commenced after June 30.
(b) Enrollment. Any individual who, on the day preceding the first day of an Offering Period, qualifies as an Eligible Employee may elect to become a Participant in the Plan for such Offering Period by executing the enrollment form prescribed for this purpose by the Committee. The enrollment form shall be filed with the Company or its designee according to procedures established by the Committee.
(c) Duration of Participation. Once enrolled in the Plan, a Participant shall continue to participate in the Plan (according to the elections made on the Participant’s most recently-filed enrollment form) until he or she ceases to be an Eligible Employee, withdraws from the Plan under Section 6(a) of the Plan or reaches the end of the Offering Period in which his or her contributions were discontinued under Section 5(c) or Section 9(b) of the Plan. A Participant who discontinued his or her contributions under Section 5(c) of the Plan or withdrew from the Plan under Section 6(a) of the Plan may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Section 4(b) of the Plan. A Participant whose employee contributions were discontinued automatically under Section 9(b) of the Plan shall automatically resume participation at the beginning of the next Offering Period in which such Participant’s participation would not be limited by Section 9(b) of the Plan, if he or she then is an Eligible Employee.
SECTION 5. EMPLOYEE CONTRIBUTIONS.
(a) Frequency of Employee Contributions. A Participant may make contributions to the Plan for purchasing shares of Stock by means of payroll deductions (unless payroll deductions are not permitted under applicable laws or regulations or unless the Company determines that another means of making employee contributions is necessary or appropriate for legal or administrative reasons).
(b) Amount of Employee Contributions. An Eligible Employee shall designate on the enrollment form the portion of his or her Compensation that he or she elects to contribute to the Plan with respect to the applicable Offering Period. Such portion shall be a whole percentage of the Eligible Employee’s Compensation, on an after-tax basis, but not less than 1% nor more than 10% of the Eligible Employee’s Compensation with respect to the applicable Offering Period. A Participant may not change the rate of his or her contributions during an Offering Period unless the Participant seeks (i) to discontinue contributions under Section 5(c) of the Plan or (ii) to withdraw from the Plan under Section 6(a) of the Plan, and, in either such case, the Company will cease contributions on behalf of the Participant as soon as reasonably practicable (which may not be until the payroll period following receipt of the applicable form or later). In addition, and notwithstanding the foregoing, with respect to any Offering Period, the Committee may modify the contribution limits for such Offering Period, provided that (i) such modification satisfies the requirements of Section 423 of the Code with respect to the 423 Component, (ii) such new contribution limits are established in writing and provided to Eligible Employees prior to the commencement of such Offering Period and (iii) such new contribution limits shall apply only for that Offering Period unless otherwise specified in writing by the Committee.
(c) Discontinuing Employee Contributions. A Participant may discontinue contributions by filing a new enrollment form. Any contributions made from payroll shall cease as soon as reasonably practicable (which may not be until the payroll period following receipt or later). A Participant who has discontinued employee contributions may not resume such contributions until the next Offering Period. If a Participant discontinues contributions, previously made contributions shall remain in the Participant’s Plan Account (and will be used to purchase shares) unless and until the Participant withdraws from the Plan in accordance with the provisions of Section 6 of the Plan.
SECTION 6. Withdrawal From The Plan.
(a) Withdrawal. A Participant may elect to withdraw from the Plan by filing the prescribed form with the Company or its designee at any time before the last day of an Offering Period. As soon as reasonably practicable thereafter, contributions shall cease and all employee contributions made by the Participant for the then current Offering Period shall be refunded to the Participant in cash, without interest. No partial withdrawals shall be permitted.
(b) Re-enrollment After Withdrawal. A former Participant who has withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Section 4(b) of the Plan. Re-enrollment shall be effective only at the commencement of an Offering Period.
SECTION 7. CHANGE IN EMPLOYMENT STATUS.
(a) Termination of Employment. Termination of employment with a Participating Company, or otherwise ceasing to be an Eligible Employee, for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 6(a) of the Plan, unless, with respect to an offering under the Non-423 Component, otherwise required by applicable laws or regulations. A transfer from one Participating Company to another shall not be treated as a termination of employment.
(b) Leave of Absence. For purposes of the Plan, employment shall not be deemed to terminate when the Participant goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by a Participating Company in writing or if such leave of absence is protected under applicable laws or regulations. Employment shall be deemed to terminate in any event when the approved leave ends, unless the Participant immediately returns to work.
(c) Death. In the event of the Participant’s death, any amounts then held in the Participant’s Plan Account and any shares of Stock then held in the Participant’s name by the Company or the broker designated by the Company shall be paid or transferred to the Participant’s estate or as otherwise required by applicable laws of descent and distribution, or as may be otherwise provided pursuant to Section 8(e) of the Plan.
SECTION 8. PLAN ACCOUNTS AND PURCHASE OF SHARES.
(a) Plan Accounts. The Company shall maintain a Plan Account on its books in the name of each Participant. Whenever an amount is contributed to the Plan, such amount shall be credited to the Participant’s Plan Account. Amounts credited to Plan Accounts shall not be trust funds and may be commingled with the general assets of the Company or any Parent or Subsidiary and applied to general corporate purposes, unless otherwise required by applicable law or regulation. Unless required by applicable law or regulation, no interest will be paid or credited with respect to any amounts held in a Participant’s Plan Account.
(b) Purchase Price. The Purchase Price for each share of Stock purchased at the close of an Offering Period shall be the lesser of:
(i) 85% of the Fair Market Value of such share on the last day of such Offering Period; or
(ii) 85% of the Fair Market Value of such share on the first day of such Offering Period.
The Committee may round the Purchase Price up (but not down) to a whole cent, and in no event shall the Purchase Price be less than the par value of the shares of Stock being purchased.
(c) Number of Shares Purchased. As of the last day of each Offering Period, each Participant shall be deemed to have elected to purchase the number of shares of Stock calculated in accordance with this Section 8(c), unless the Participant has withdrawn from the Plan under Section 6(a) or Section 7 of the Plan. The amount then in the Participant’s Plan Account shall be divided by the Purchase Price, and the number of shares that results shall be purchased with the funds in the Participant’s Plan Account. The foregoing notwithstanding, no Participant shall purchase more than 110,294 shares of Stock (subject to adjustment pursuant to Section 14(b) of the Plan) with respect to any Offering Period (or, if the Board determines that a different number of Offering Periods shall commence in each calendar year in accordance with Section 4(a) of the Plan, a proportionate number of shares of Stock (subject to adjustment pursuant to Section 14(b) of the Plan) with respect to any Offering Period) nor more than the amounts of Stock set forth in Sections 9(b) and 14(a) of the Plan. The Committee may determine with respect to all Participants that any fractional share, as calculated under this Section 8(c), shall be (i) rounded down to the next lower whole share (with the Purchase Price for such fractional share to be carried over to the next Offering Period as provided in Section 8(g) of the Plan) or (ii) credited as a fractional share. To the extent permitted by law, the Committee may adjust the individual share limit set forth in this Section 8(c) from time to time without stockholder or Participant approval, provided that any such change shall not apply until the Offering Period commencing after such change is made.
(d) Available Shares Insufficient. In the event that the aggregate number of shares of Stock that all Participants elect to purchase during an Offering Period exceeds the maximum number of shares of Stock remaining available for issuance under Section 14(a) of the Plan, then the number of shares of Stock a Participant shall purchase shall be determined by multiplying the number of shares of Stock available for issuance by a fraction, the numerator of which is the number of shares of Stock that such Participant has elected to purchase and the denominator of which is the number of shares of Stock that all Participants have elected to purchase.
(e) Issuance of Shares. Shares of Stock shall be issued either in book entry form or in certificates. Certificates, if any, representing the shares of Stock purchased by a Participant under the Plan shall be issued to the Participant, or book entry in the Participant’s name shall be made, as soon as reasonably practicable after the close of the applicable Offering Period, except that the Committee may determine that such certificates shall be held for each Participant’s benefit by a broker designated by the Committee. Shares may be registered in the name of the Participant or jointly in the name of the Participant and his or her spouse as joint tenants with right of survivorship or as community property or in such other manner of taking title as may be permitted under applicable law or regulation; provided, however, that unless otherwise required by applicable law or specified by the Participant in writing, shares of Stock purchased under the Plan will be registered in the name of the Participant.
(f) Transfer of Shares. If certificates representing shares of Stock are not otherwise issued to the Participant in connection with the purchase of such shares at the end of an Offering Period, a Participant may elect to transfer any number of shares of Stock previously purchased under the Plan by providing notification and transfer instructions to Company or the broker designated by the Company, in accordance with procedures established under the Plan. As soon as administratively practicable following receipt of a Participant’s election to transfer shares of Stock, the Company or the designated broker shall cause a transfer of the shares or a certificate representing the number of shares to be transferred to be delivered to the Participant or a broker designated by the Participant.
(g) Unused Cash Balances. Any amount remaining in the Participant’s Plan Account that represents the Purchase Price for whole shares that could not be purchased by reason of Section 8(c), Section 9(b) or Section 14(a) of the Plan or otherwise shall be refunded to the Participant in cash, without interest, promptly after the end of the applicable Offering Period.
SECTION 9. LIMITATIONS ON STOCK OWNERSHIP.
(a) Five Percent Limit. Any other provision of the Plan notwithstanding, no Participant shall be granted a right to purchase Stock under the Plan if such Participant, immediately after his or her election to purchase such Stock, would own stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary. For purposes of this Section 9(a), the following rules shall apply:
(i) the attribution rules of Section 424(d) of the Code shall be applied in determining ownership of Stock;
(ii) each Participant shall be deemed to own any stock that he or she has a right or option to purchase under this Plan or any other plan or arrangement; and
(iii) each Participant shall be deemed to have the right to purchase under this Plan with respect to each Offering Period 110,294 shares of Stock (as adjusted pursuant to Section 8(c) of the Plan), subject to adjustment pursuant to Section 14(b) of the Plan.
(b) Dollar Limit. Any other provision of the Plan notwithstanding, consistent with Treasury Regulation Section 1.423-2(i), no Participant shall purchase Stock under this Plan and all other employee stock purchase plans of the Company or any Parent or Subsidiary at a rate that exceeds $25,000 in fair market value of the Stock (determined at the time the option is granted) for each calendar year in which any option granted to the Participant is outstanding at any time.
For purposes of this Section 9(b), the Fair Market Value of Stock shall be determined as of the first day of the Offering Period in which such Stock is purchased. Employee stock purchase plans not described in Section 423 of the Code shall be disregarded. If a Participant is precluded by this Section 9(b) from purchasing additional Stock under the Plan, then his or her employee contributions shall automatically be discontinued, and shall resume (in accordance with the Participant’s most recently-filed enrollment form) on the first day of the earliest Offering Period in which this Section 9(b) would not prohibit such participation, provided that he or she then is an Eligible Employee.
SECTION 10. RIGHTS NOT TRANSFERABLE.
The rights of any Participant under the Plan, or the interest in any Stock or moneys to which any Participant may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or in any manner other than by beneficiary designation or the laws of descent and distribution. If a Participant attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than as permitted by this Section 10, such act shall be treated as an election by the Participant to withdraw from the Plan under Section 6(a) of the Plan.
SECTION 11. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan or in any right granted under the Plan shall confer upon the Participant any right to continue in the employ of a Participating Company for any period or interfere with or otherwise restrict in any way the rights of the Participating Companies or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her employment at any time and for any reason, with or without cause, to the fullest extent permitted by applicable laws or regulations.
SECTION 12. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with respect to any shares of Stock that he or she may have a right to purchase under the Plan until such shares have been purchased and transferred or credited to the Participant .
SECTION 13. SECURITIES LAW REQUIREMENTS.
Shares of Stock shall not be issued under the Plan unless the issuance and delivery of such shares comply with (or are exempt from) all applicable requirements of law, including, without limitation, the U.S. Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, all state securities laws and regulations, any applicable non-U.S. securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities are then traded.
SECTION 14. STOCK OFFERED UNDER THE PLAN.
(a) Authorized Shares. The aggregate number of shares of Stock available for purchase under the Plan as of the Effective Date shall be 1,500,000, and on January 1st of each year during which the Plan is in effect, the number of shares available for purchase under the Plan shall be increased by the lesser of (x) 1% of the number of shares of Stock outstanding as of the immediately preceding December 31 (calculated on a fully diluted basis), (y) 2,000,000 shares of Stock and (z) such lesser number of shares of Stock as the Board may determine, in each case, as subject to adjustment as provided in this Section 14. Notwithstanding the foregoing or anything contained in the Plan to the contrary, not more than 21,500,000 shares of Stock may be issued under the 423 Component. Shares of Stock issued under the Plan may be shares already outstanding or newly issued or treasury shares.
(b) Changes in Capitalization. In the event of a reorganization, recapitalization, stock split, spin-off, split-off, split-up, stock or extraordinary cash dividend or other distribution, combination of shares, merger, amalgamation, consolidation or any other change in the corporate structure of the Company, or a sale by the Company of all or part of its assets, in any case, that occurs on or after the date the Plan is approved by the Board (even if such date is prior to the Effective Date), the Committee shall make such adjustments to the aggregate number of shares of Stock offered under the Plan, the maximum annual increase number in clause (y) of Section 14(a) of the Plan, the share limitation under the 423 Component specified in Section 14(a) of the Plan, the share limitation described in Section 8(c) of the Plan (and the corresponding number of shares specified in clause (iii) of Section 9(a) of the Plan) and/or the price of shares that any Participant has elected to purchase under the Plan as may be necessary to prevent the dilution or enlargement of Participants’ rights. The Plan shall in no event be construed to restrict in any way the Company’s right to undertake a dissolution, liquidation, merger, amalgamation, consolidation or other reorganization or corporate transaction of any kind or type.
(c) Change in Control. Any other provision of the Plan notwithstanding, immediately prior to the effective time of a Change in Control, the Plan shall terminate and shares shall be purchased pursuant to Section 8 of the Plan as if the Offering Period during which such Change in Control occurs was scheduled to end on the day immediately preceding such Change in Control, unless the Plan is expressly assumed by the surviving corporation, the buyer or an affiliate of the foregoing. In addition, in anticipation of a Change in Control, the Committee may take any action under the Plan as it deems necessary or appropriate, including, without limitation, terminating the Plan and preventing Participants from continuing their contributions to the Plan.
SECTION 15. WITHHOLDING
To the extent any payments or distributions under the Plan, or at the time a Participant disposes of some or all of the shares of Stock he or she acquired under the Plan, are determined by any Participating Company to be subject to U.S. Federal, state or local taxes, or the taxes of a jurisdiction other than the United States, the Participating Company is authorized (but not obligated) to withhold any required taxes. The Participating Company may satisfy any withholding obligation by (i) withholding shares of Stock purchased under the Plan; (ii) withholding from the proceeds from the sale of shares of Stock purchased under the Plan, either through a voluntary sale or through a mandatory sale arranged by the Company; (iii) deducting cash from a Participant’s Plan Account; (iv) deducting cash from a Participant’s other cash compensation payable to him or her by any Participating Company or (v) any other method deemed appropriate by the Participating Company, in each case, as approved by the Committee. A Participant’s election to participate in the Plan authorizes any Participating Company to take any of the actions described in the preceding sentence.
SECTION 16. GOVERNING LAW
To the extent that U.S. Federal laws do not otherwise control, the validity and construction of the Plan shall be construed and enforced in accordance with the laws of the State of Delaware, without giving effect to the choice of law principles thereof.
SECTION 17. NON-423 COMPONENT AND SUB-PLANS
The Board and/or the Committee may adopt procedures and sub-plans to this Plan that are necessary or appropriate to permit or facilitate participation in the Plan by Eligible Employees who are employed or located in a jurisdiction other than the United States or to generally operate the Plan in jurisdictions outside the United States (provided that such procedures or sub-plans would not result in (i) the Plan failing to be eligible to qualify under Section 423 of the Code or (ii) any offering under the 423 Component not complying with Section 423 of the Code). Without limiting the generality of, but consistent with, the foregoing, the Board and/or the Committee are expressly authorized to adopt rules, procedures, and sub-plans, which, for purposes of the Non-423 Component, may be beyond the scope of Section 423 of the Code, regarding, without limitation, eligibility to participate in the Plan, excluding Employees in certain countries under the Non-423 Component (even if employed by a Participating Company), handling and making of employee contributions under the Plan, satisfying payroll taxes, determining beneficiaries, withholding procedures and issuances of Stock, any of which may vary from time to time and between jurisdictions, as determined by the Board and/or the Committee.
SECTION 18. TAX QUALIFICATION.
The 423 Component is intended to be exempt from the application of Section 409A of the Code under Section 1.409A-1(b)(5)(ii) of the U.S. Treasury Regulations. Purchases of stock by Participants who are U.S. taxpayers participating in the Non-423 Component are intended to be exempt from the application of Section 409A of the Code under the short-term deferral exception and any ambiguities will be construed and interpreted in accordance with such intent. Subject to the provisions of this Section 18, Participants who are U.S. taxpayers participating in the Non-423 Component shall be subject to such terms and conditions as shall permit his or her participation in the Plan to satisfy the requirements of the short-term deferral exception to Section 409A of the Code, including the requirement that the shares subject to the right to purchase Stock under the Plan be delivered within the short-term deferral period. Notwithstanding the foregoing or any other provision of the Plan to the contrary, neither the Company nor any Parent or Subsidiary shall have any liability to a Participant or any other person or entity if the right to purchase Stock under the Plan that is intended to be exempt from or compliant with Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee, the Board, the Company or any Parent or Subsidiary in relation thereto. Notwithstanding the foregoing or any other provision of the Plan to the contrary, although the Company may endeavor to (i) qualify the 423 Component or Non-423 Component for special tax treatment under the laws and regulations of the United States or of a jurisdiction other than the United States or (ii) avoid adverse tax treatment (e.g., under Section 409A of the Code), the Company makes no representation to that effect and expressly disavows any covenant to maintain special, or to avoid unfavorable, tax treatment. The Company and each Parent and Subsidiary shall be unconstrained in their corporate activities without regard to any potentially negative tax impact on any one or more Participants.
SECTION 19. SEVERABILITY.
If any particular provision of the Plan is found to be invalid or otherwise unenforceable, such provision shall not affect the other provisions of the Plan, and the Plan shall be construed in all respects as if such invalid provision were omitted.
SECTION 20. AMENDMENT AND TERMINATION.
The Board shall have the right to amend, suspend or terminate the Plan, and to shorten an Offering Period (and refund Participant contributions in the event of any such shortening, suspension or termination) at any time and without notice. Except as provided in Section 14 of the Plan, any increase in the aggregate number of shares of Stock to be issued under the Plan shall be subject to approval by a vote of the stockholders of the Company. In addition, any other amendment of the Plan shall be subject to approval by a vote of the stockholders of the Company to the extent required by applicable law, rule or regulation, including, without limitation, Section 423 of the Code. No amendment, termination or suspension of the Plan shall require the consent of any Participant unless otherwise required by applicable law or the rules of any applicable stock exchange. The Plan shall terminate on the earlier to occur of (i) a termination of the Plan by the Board (pursuant to this Section 20), (ii) the issuance of all of the shares of Stock reserved for issuance under the Plan, (iii) the tenth anniversary of the date the Plan is approved by the Board or (iv) the tenth anniversary of the date the Plan is approved by the stockholders of the Company.
[End of Plan]
13
Exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 17th day of March, 2004 by and between FEMASYS INC., a Delaware corporation (“Employer”), and KATHY LEE-SEPSICK, a resident of Georgia (“Employee”).
Recitals:
A. Employer considers the availability of Employee’s services to be important to the management and conduct of Employer’s business and desires to secure the continuing availability of Employee’s services.
B. Employee is willing to make her services available to Employer on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. Employment. For the Term (as defined in Section 2), Employee shall be employed as Employer’s President and Chief Executive Officer and shall be based at the Employer’s principal executive office in Suwanee, Georgia. Employee hereby accepts and agrees to such employment, subject to the general supervision of the Board of Directors of Employer (the “Board”). Employee shall perform such duties and shall have such powers, authority and responsibilities as are customary for one holding the position of President and Chief Executive Officer of a start-up medical device development company and shall render such services and duties as may be reasonably assigned to her from time to time by the Board.
2. Term of Employment. This Agreement shall commence retroactively as of February 19, 2004 (the “Effective Date”) and continue until terminated as provided in Section 6 or Section 7 (such period, the “Term”). Any termination of this Agreement shall not affect the continuing obligations under Section 5, which shall survive any such termination.
3. Compensation.
(a) For all services rendered by Employee to Employer under this Agreement, Employer shall pay to Employee during the Term a base annual salary of not less than $130,000, to be increased to $175,000 once a minimum of $2 million in investment capital shall have been raised by Employer, payable in accordance with the customary payroll practices of Employer. Employee’s annual base salary shall be reviewed and subject to increase in the discretion of the Board.
(b) Employee shall be eligible to earn an annual bonus during the Term in the discretion of the Board (or a compensation committee thereof). Eligibility for a bonus shall be based upon the achievement of performance objectives mutually agreed upon by Employee and Employer and shall be payable within thirty (30) days of the end of each fiscal year.
(c) All amounts payable hereunder shall be subject to such deductions and withholdings as shall be required by law, if any.
(d) Employee shall be granted a stock option to purchase 1,250,000 shares of Employer’s common stock under the terms of Employer’s 2004 Officers and Directors Equity Incentive Plan and pursuant to an option agreement in the form attached hereto as Exhibit “A” (the “Option Agreement”). The Option Agreement shall have a term of 10 years and an exercise price of $0.25 per share and shall vest ratably over four years commencing March 20, 2004. Any terms contained in this Agreement regarding the exercisability or vesting of such option, including without limitation this Section 3(d) and Section 7, shall be reflected in the terms of the Option Agreement. Employee shall also be eligible to receive additional awards thereunder in the discretion of the Board (or a compensation committee thereof).
(e) Employee shall also be entitled to holidays, sick leave and other time off and to participate in those life, health or other insurance plans and other employee pension and welfare benefit programs, plans, practices and benefits generally made available from time to time to executive employees of Employer; provided that nothing herein shall obligate Employer to continue any of such benefits for Employee if discontinued for other executive employees. Without limiting the foregoing, Employee shall be entitled to twenty (20) days paid vacation during each fiscal year of the Term.
4. Reimbursement of Expenses. Employer shall pay or reimburse Employee for all reasonable travel and other expenses incurred by Employee in performing her obligations under this Agreement, subject to such reasonable documentation and substantiation as Employer shall require.
5. Covenants of Employee.
(a) Covenant Not to Compete. Employee covenants that during the Noncompetition Period (as defined in Section 5(g)) and within the Noncompetition Area (as defined in Section 5(h)), she shall not, as principal, agent, officer, director, employee, consultant or trustee, or through the agency of any entity (an “Entity”), engage in the Business (as defined in Section 5(i)). Without limiting the generality of the foregoing, Employee agrees that during the Noncompetition Period and within the Noncompetition Area, she shall not be (i) the owner of the outstanding capital stock or other equity interests of any Entity (other than Employer) that directly engages in the Business, or (ii) an officer, director, partner, manager, consultant or employee of any Entity that directly engages in the Business; provided, that this Section 5(a) shall not prevent Employee from (A) being an employee of any division of any Entity to the extent that such division does not directly engage in the Business, (B) beneficially owning less than one percent (1%) of the stock of a corporation traded on a national securities exchange or The Nasdaq National Market, or (C) being involved with any Entity provided she shall have the prior written approval by Employer’s Board.
(b) Nondisclosure Covenant. The parties acknowledge that Employer’s success will be attributable largely to the ownership, use and development of certain valuable confidential and proprietary information (the “Proprietary Information”), and that Employee’s employment by Employer will involve access to and work with such Proprietary Information. Employee acknowledges that her relationship with Employer is a confidential relationship, and agrees that (i) she shall keep and maintain the Proprietary Information in strictest confidence, and (ii) she shall not, either directly or indirectly, use any Proprietary Information for her own benefit, or divulge, disclose or communicate any Proprietary Information in any manner whatsoever to any person or Entity other than to employees or agents of Employer having a need to know such Proprietary Information to perform their responsibilities on behalf of Employer, and to other persons or Entities in the normal course of Employer’s business. This nondisclosure obligation shall apply to all Proprietary Information, whether or not Employee participated in the development thereof. Upon termination of her employment with Employer for any reason, Employee will return to Employer all Proprietary Information in any medium and all other documents, data, materials or property of Employer (including any copies thereof) in her possession. For purposes of this Agreement, the term “Proprietary Information” shall include any and all proprietary information related directly to the Business or to any of Employer’s products, services or operations which are not generally known to the public, specifically including (but without limitation) trade secrets, processes, formulae, data, files, research results, computer programs and related source codes and object codes, improvements, inventions, techniques, marketing plans, strategies, forecasts, copyrightable material, suppliers, methods and manner of operations, and information with respect to the internal affairs of Employer. Such Proprietary Information may or may not contain legends or other written notice that it is of a confidential or proprietary nature. The parties stipulate that, as between them, the above-described matters are important and confidential and gravely affect the successful conduct of the business of Employer and that any breach of the terms of this Section 5(b) shall be a material breach of this Agreement.
(c) Nonsolicitation Covenant. Employee covenants that during the Noncompetition Period she shall not, on behalf of herself or any Entity, call upon any of the customers of Employer for the purpose of soliciting or providing any product or service similar to that provided by Employer, nor will she, in any way on behalf of herself or any Entity solicit, divert or take away, or attempt to solicit, divert, or take away any of the business of Employer for directly competing business. Employee further covenants that during the Noncompetition Period she shall not, on behalf of herself or any Entity, solicit, induce or encourage any person to leave the employ of Employer for directly competing business.
(d) Inventions. All inventions, designs, formulae, processes, discoveries, drawings, improvements and developments made by Employee, either solely or in collaboration with others, during her employment by Employer, whether or not during working hours, and relating to any methods, apparatus, products, devices, services or deliverables which are made, furnished, sold, used or developed by Employer or which directly pertain to the Business (the “Developments”) shall become and remain the sole property of Employer. Employee shall disclose promptly in writing to Employer all such Developments. Employee acknowledges and agrees that all Developments shall be deemed “works made for hire” within the meaning of the United States Copyright Act, as amended. If, for any reason, such Developments are not deemed works made for hire, Employee hereby assigns to Employer all of her right, title and interest (including, but not limited to, copyright and all rights of inventorship) in and to such Developments that directly pertain to the Business. At the request and sole expense of Employer, whether during or after employment by Employer, Employee shall make, execute and deliver all application papers, assignments or instruments, and perform or cause to be performed such other lawful acts as Employer may deem necessary or desirable in making or prosecuting applications, domestic or foreign, for patents (including reissues, continuations and extensions thereof) and copyrights related to such Developments or in vesting in Employer full legal title to such Developments. Such request shall be reasonable and directly pertain to the Business. At the sole expense of Employer, Employee shall assist and cooperate with Employer or its representatives in any controversy or legal proceeding relating to such Developments, or to any patents, copyrights or trade secrets with respect thereto. If Employee refuses or is unable to assist Employer in obtaining or enforcing its rights with respect to such Developments, she hereby irrevocably designates and appoints Employer and its duly authorized agents as her agents and attorneys-in-fact to execute and file any documents and to do all other lawful acts necessary to protect Employer’s rights in the Developments. Employee expressly acknowledges that the special foregoing power of attorney is coupled with an interest and is therefore irrevocable and shall survive (i) her death or incompetency, (ii) the termination of her employment with Employer and (iii) the termination of this Agreement. This covenant does not apply to any Invention for which no equipment, supplies, facility or trade secret information of Employer was used, which was developed entirely on Employee’s own time, and (i) which does not relate directly to the business of Employer or to Employer’s actual or demonstrably anticipated research or development, or (ii) which does not result from any work performed by Employee for Employer.
(e) Independent Covenants. Each of the covenants on the part of Employee contained in Sections 5(a), (b), (c) and (d) of this Agreement shall be construed as an agreement independent of each other such covenant. The existence of any claim or cause of action of Employee against Employer, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer of any such covenant.
(f) Reasonableness; Injunction. Employee acknowledges that her covenants contained in Section 5 of this Agreement are reasonably necessary for the protection of Employer and the Business, and that such covenants are reasonably limited with respect to the activities prohibited, the duration thereof, the geographic area thereof, the scope thereof and the effect thereof on Employee and the general public. Employee further acknowledges that violation of the covenants would immeasurably and irreparably damage Employer, and by reason thereof Employee agrees that for violation or threatened violation of any of the provisions of this Agreement, Employer shall, in addition to any other rights and remedies available to it, at law or otherwise, be entitled to an injunction to be issued by any court of competent jurisdiction enjoining and restraining Employee from committing any violation or threatened violation of this Agreement. Employee consents to the issuance of such injunction.
(g) Noncompetition Period. “Noncompetition Period” shall mean the period commencing on the Effective Date and continuing until one year following termination of this Agreement with the exception of Employer’s termination of Employee for disability as described in Section 6 or for termination without just cause as described in Section 7(b).
(h) Noncompetition Area. The “Noncompetition Area” shall consist of the United States.
(i) Business. For the purposes of this Agreement, the “Business” shall mean the business of developing, manufacturing, marketing or selling contraceptive devices.
6. Disability. Upon the “disability” of Employee, this Agreement may be terminated by action of the Board upon thirty (30) days prior written notice (the “Disability Notice”), such termination to become effective only if such disability continues. If, prior to the effective time of the Disability Notice, Employee shall recover from such disability and return to the full-time active discharge of her duties, then the Disability Notice shall be of no further force and effect and Employee’s employment shall continue as if the same had been uninterrupted. If Employee shall not so recover from her disability and return to her duties, then her services shall terminate at the effective time of the Disability Notice with the same force and effect as if that date had been the end of the Term originally provided for hereunder. Such termination shall not prejudice any benefits payable to Employee that are fully vested as of the date of such termination. Prior to the effective time of the Disability Notice, Employee shall continue to earn all compensation to which Employee would have been entitled as if she had not been disabled, such compensation to be paid at the time, in the amounts, and in the manner provided in Section 3(a). A “disability” of Employee shall be deemed to exist at all times that Employee is considered by the insurance company which has issued any policy of disability insurance owned by Employer or for which premiums are paid by Employer (the “Employer Policy”) to be totally disabled under the terms of such policy. In the event there is no Employer Policy, “disability” shall mean the inability, by reason of physical or mental incapacity, impairment or infirmity, of Employee to perform, upon request, her regular duties required herein for six (6) consecutive months, and the determination of the existence or nonexistence of disability shall be made by a medical doctor who is licensed to practice medicine in the State of Georgia mutually acceptable to the Board and to Employee (or, if Employee is incapacitated, her spouse or her designated representative).
7. Termination.
(a) If Employee shall die during the Term, this Agreement and the employment relationship hereunder will automatically terminate on the date of death; provided that such termination shall not prejudice any benefits payable to Employee or Employee’s beneficiaries that are fully vested as of the date of death.
(b) Employer may terminate Employee’s employment under this Agreement only in the event of Just Cause. Any termination for Just Cause shall be effective immediately or at such other time set by the Board. “Just Cause” shall mean (i) Employee’s willful and material breach of this Agreement and her continued failure to cure such breach to the reasonable satisfaction of the Board within thirty (30) days following written notice of such breach to Employee from the Board; (ii) Employee’s conviction of, or entry of a plea of guilty or nolo contendere to, a felony involving moral turpitude, (iii) Employee’s willful commission of an act of fraud including, without limitation, embezzlement, that results in material damage or harm to the Business, financial condition or assets of Employer; or (iv) Employee’s intentional damage or destruction of substantial property of Employer. Just Cause shall be determined by the Board in its reasonable discretion and the particulars of any determination shall be provided to Employee in writing. At any time within ninety (90) days of receipt by Employee in writing of such determination, Employee may object to such determination in writing and submit the determination to arbitration in accordance with Section 9(i). If such determination is overturned in arbitration, Employee will be treated as having been terminated without Just Cause and shall be entitled to the benefits described in items (A)-(D) of Section 7(d).
(c) Employee may voluntarily terminate her employment by Employer on thirty (30) days prior written notice to Employer.
(d) Upon any termination pursuant to this Section 7, Employee shall be entitled to receive a lump sum equal to any base salary, bonus and other compensation earned and due but not yet paid through the effective date of termination. However, if this Agreement and Employee’s employment hereunder are terminated by (i) Employer (or any successor) other than for Just Cause, or (ii) Employee for Good Reason (defined in Sec. 7(f)), Employee shall be entitled to the following:
(A) severance, payable monthly, equal to Employee’s then current base salary for twenty four (24) months following such termination (the “Severance Period”);
(B) twenty four (24) months acceleration of unvested stock options to purchase capital stock or restricted stock of Employer held by Employee;
(C) the health care (including medical and dental) and life insurance benefits coverage provided to Employee at her date of termination shall be continued at the same level and in the same manner as if her employment had not terminated (subject to the customary changes in such coverages if Employee reaches age 65 or similar events), for the Severance Period, followed by COBRA election rights. Any additional coverages Employee had at termination, including dependent coverage, will also be continued for such period on the same terms. Any costs Employee was paying for such coverages at the time of termination shall continue to be paid by Employee. If the terms of any benefit plan referred to in this section do not permit continued participation by Employee, then Employer will arrange for other coverage providing substantially similar benefits at the same contribution level of Employee; and
(D) outplacement counseling services selected by Employee, up to a maximum of ten thousand dollars ($10,000).
(e) If Employee terminates her employment or if Employer (or any successor) terminates Employee’s employment without Just Cause, Employee shall have one hundred eighty (180) days from the date of termination to exercise any vested options.
(f) For purposes hereof, “Good Reason” shall mean the occurrence of any of the following events without Employee’s express written consent:
(A) the breach by Employer (or any successor entity) of any material provision of this Agreement;
(B) any purported termination of the employment of Employee by Employer (or any successor entity) which is not effected in accordance with this Agreement;
(C) any failure of Employer (or any successor entity) to pay Employee her base salary or bonus compensation that has become due and payable to Employee within thirty (30) days after Employee has given Employer (or any successor entity) notice of demand therefor; or
(D) a relocation of Employer’s place of business to a location more than 25 miles from its current location, provided that Employee shall not have approved the decision to effect such relocation.
Notwithstanding the foregoing, Employee expressly acknowledges and agrees that the appointment by the Board of a new President and Chief Executive Officer shall not constitute Good Reason so long as Employee remains as executive officer of Employer.
8. Best Efforts of Employee. Employee agrees that she will at all times faithfully, industriously and to the best of her ability, experience and talents perform all the duties that may be required of her pursuant to the express and implicit terms hereof, to the reasonable satisfaction of Employer, commensurate with her position. Such duties shall be rendered at such place as Employer designates and Employee acknowledges that she may be required to travel as shall reasonably be required to promote the Business of Employer. To the extent reasonably required by the duties assigned to her, Employee shall devote her time, attention, knowledge and skills to the Business and interests of Employer.
9. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to conflicts of law principles thereof.
(b) This Agreement constitutes the entire agreement between Employee and Employer with respect to the subject matter hereof, and supersedes all prior oral or written agreements, understandings or arrangements between Employee and Employer relating to the terms of Employee’s employment by Employer, and all such agreements, understandings and arrangements are hereby terminated and are of no force and effect. Employee hereby expressly disclaims any rights under any such agreements, understandings and arrangements. This Agreement may not be amended or terminated except by an agreement in writing signed by both parties.
(c) This Agreement may be executed in counterparts, both of which shall be deemed an original and both of which, taken together, shall constitute a single instrument.
(d) Any notice or other communication required or permitted under this Agreement shall be effective only if it is in writing and delivered in person or by nationally recognized overnight courier service or deposited in the mails, postage prepaid, return receipt requested, addressed as follows:
To Employer:
Femasys Inc.
9070 Brixham Court
Suwanee, Georgia 30024
Attn: Board of Directors
To Employee:
Kathy Lee-Sepsick
9070 Brixham Court
Suwanee, Georgia 30024
With a copy to:
Mark H. Mirkin, Esq., Smith Moore LLP
Two Hannover Square
Raleigh, North Carolina 27601
Notices given in person or by overnight courier service shall be deemed given when delivered in person or the day after delivery to the courier addressed to the address required by this Section 9(d), and notices given by mail shall be deemed given three (3) days after deposit in the mails. Any party hereto may designate by written notice to the other party in accordance herewith any other address to which notices addressed to it or her shall be sent.
(e) The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. It is understood and agreed that no failure or delay by Employer or Employee in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
(f) This Agreement may not be assigned by Employee without the written consent of Employer. This Agreement shall be binding on any successors or assigns of either party hereto.
(g) The respective rights and obligations of the parties hereunder shall survive any termination of the Term or Employee’s employment by Employer to the extent necessary to preserve such rights and obligations for their stated durations.
(h) In the event that it shall become necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, Employer shall reimburse Employee, if Employee is the prevailing party, for her reasonable attorneys’ fees and costs of enforcement. Employer shall reimburse Employee for the reasonable fees and expenses of counsel to Employee for the original negotiation of this Agreement.
(i) Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitration panel, which shall consist of three (3) members, may be entered in any court having jurisdiction. Any arbitration shall be held in Atlanta, Georgia, unless otherwise agreed in writing by the parties. One (1) arbitrator shall be selected by Employee, one (1) arbitrator shall be selected by Employer, and the third arbitrator shall be selected by the two (2) arbitrators selected by Employee and Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
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FEMASYS INC. |
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By: |
/s/ Lani Paxton |
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Name: |
Lani Paxton |
Title: |
Vice President, Technology |
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/s/ Kathy Lee-Sepsick |
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KATHY LEE-SEPSICK |
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into as of the 31st day of August, 2005 by and between FEMASYS INC., a Delaware corporation (“Employer”) and KATHY LEE-SEPSICK, a resident of Georgia (“Employee”).
WITNESSETH:
WHEREAS, Employer and Employee entered into that certain Employment Agreement dated as of March 17, 2004 pursuant to which Employee has been employed as Employer’s President and Chief Executive Officer (the “Employment Agreement”);
WHEREAS, as of the date hereof certain investors are purchasing $2,290,000 in newly issued Series A-1 Preferred Stock of Employer (the “Investment”);
WHEREAS, in order to induce such investors to consummate the Investment, Employer and Employee desire to amend the Employment Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. The last sentence of Section 5(d) of the Employment Agreement is hereby deleted and the following sentence is hereby inserted in lieu thereof: “This covenant does not apply to any Invention: (i) for which no equipment, supplies, facility or trade secret information of Employer was used, which was developed entirely on Employee’s own time, and (ii) which does not relate directly to the business of Employer or to Employer’s actual or demonstrably anticipated research or development.”
2. Section 7(d)A) of the Employment Agreement is amended by deleting the phrase “for twenty four (24) months” and inserting “for twelve (12) months” in lieu thereof.
3. Section 7(d)(B) of the Employment Agreement is amended by deleting the phrase “twenty four (24) months” and inserting “twelve (12) months” in lieu thereof.
4. Employer and Employee acknowledge that they are parties to that certain Vesting Agreement of even date herewith that is being entered into in connection with the Investment (“Vesting Agreement”) and that Section 7(d)(B) of the Employment Agreement, as amended hereby, provides for acceleration of vesting for Employee’s restricted stock. The parties hereto further acknowledge that such provision is not inconsistent with Section 2 of the Vesting Agreement and that the accelerated vesting provisions in the Employment Agreement, as amended, will be given full force and effect in accordance with the terms of the Employment Agreement.
5. Except as amended hereby, the Employment Agreement shall remain in full force and effect.
6. This First Amendment to Employment Agreement may be executed in counterparts, both of which shall be deemed an original and which, taken together, shall constitute a singe instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above.
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“EMPLOYER” |
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FEMASYS INC. |
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By: |
/s/ Kathy Lee-Sepsick |
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Title: |
President and Chief Executive Officer |
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“EMPLOYEE” |
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/s/ Kathy Lee-Sepsick |
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Kathy Lee-Sepsick |
2
Exhibit 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 17th day of March, 2004 by and between FEMASYS INC., a Delaware corporation having a principal place of business at 9070 Brixham Court, Suwanee, Georgia 30024 (hereinafter the “Company”), and Daniel S. Currie, residing at 675 Sweet Gum Forest Lane, Alpharetta, GA 30005 (hereinafter “Executive”).
Recital:
The Company desires to employ Executive and Executive desires to be employed by the Company upon the terms and conditions herein set forth.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. The terms defined in this Section 1 shall have the respective meanings indicated:
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(a) |
“Affiliate” of a Person shall mean a Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the first Person. |
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(b) |
“Cause” shall mean any of the following: |
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(i) |
any intentional or reckless misrepresentation of a material fact to the Board of Directors of the Company (the “Board”); breach of a fiduciary duty to the Company; or misappropriation or fraud against the Company; |
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(ii) |
intentional destruction or theft of the Company’s property or falsification of the Company’s documents; |
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(iii) |
a material breach by Executive of any provision of this Agreement and the failure by Executive to cure such breach within thirty (30) days of the date on which the Company gives Executive notice thereof; or |
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(iv) |
gross negligence in the performance of his duties. |
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(c) |
“Commencement Date” shall mean March 1, 2004, the date that Executive’s employment hereunder retroactively commences. |
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(d) |
“Common Stock” shall mean the Company’s Common Stock, par value $.001 per share. |
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(e) |
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise. |
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(f) |
“Date of Termination” shall mean in the case of Executive’s death, the date of death, in the case of Disability, thirty (30) days after Notice of Termination is given following the occurrence of a Disability (provided Executive shall not have returned to the full-time performance of his duties during such thirty (30) day period), and in all other cases, the date specified in the Notice of Termination. Date of Termination shall also mean the final date of employment if the Term is not extended pursuant to Section 3 below. |
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(g) |
“Disability” shall occur if, as a result of Executive’s incapacity because of physical or mental illness, Executive shall have been absent from the full-time performance of his duties with the Company for one hundred eighty (180) days in any nine (9) month period. |
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(h) |
“Good Reason” shall mean any of the following bases for termination of Executive’s employment by Executive: |
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(i) |
the removal of Executive as Vice President, Quality Assurance & Regulatory Compliance of the Company without Cause; |
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(ii) |
the assignment to Executive of any duties inconsistent in any material respect with Executive’s executive position, authority, duties or responsibilities as contemplated by Section 5(a) of this Agreement; |
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(iii) |
an action of the Company changing Executive’s primary place of employment to a new location for which the daily round trip commute (by the most direct route) is at least sixty (60) miles farther than Executive’s daily round trip commute to the original place of employment; or |
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(iv) |
a material breach by the Company of any provision of this Agreement and the failure by the Company to cure such breach within thirty (30) days of the date on which Executive gives the Company notice thereof. |
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(i) |
“Inventions” means all inventions, discoveries, concepts and ideas, and the expressions of all concepts and ideas, whether or not copyrightable, and whether or not patentable, including but not limited to processes, methods, formulas, software, systems, and techniques, as well as improvements and enhancements. |
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(j) |
“Notice of Termination” means a written notice of the termination of Executive’s employment by either the Company or Executive, except for a termination based on Executive’s death. A notice given pursuant to Section 3 is a Notice of Termination. |
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(k) |
“Person” shall mean any natural person, corporation, partnership, association, limited liability company, trust, governmental authority or other entity. |
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(l) |
“Retirement” shall mean termination of Executive’s employment for any reason after Executive has reached age sixty five (65). |
2. Employment. The Company hereby employs Executive and Executive hereby accepts employment with the Company for the Term defined in Section 3 below, in the position and with the duties and responsibilities set forth in Sections 4 and 5 below, and upon the other terms and conditions hereinafter stated.
3. Term. Executive’s employment is for the period commencing on the Commencement Date and terminating two (2) years from such date, or upon Executive’s earlier death, termination by reason of Disability or termination by either party pursuant to Section 10 (the “Initial Term”). The Initial Term shall be automatically extended for successive one (1) year periods (each a “Renewal Term,” with the Initial Term and any Renewal Terms collectively referred to herein as the “Term”), unless at least thirty (30) days prior to the end of the Initial Term or any Renewal Term, either party, by notice to the other party, elects not to have the Term automatically extended.
4. Position. Executive shall serve as Vice President, Quality Assurance & Regulatory Compliance of the Company.
5. Duties and Responsibilities.
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(a) |
Executive shall devote his full business time and best efforts to, and shall perform faithfully and loyally, the duties of the office of Vice President, Quality Assurance & Regulatory Compliance , and shall exercise such powers and fulfill such responsibilities as may be assigned to him by the Company’s Board and the President and Chief Executive Officer. |
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(b) |
During the Term, Executive will not engage in other employment or consulting work or any trade or business for his own account or on behalf of any other Person without prior written consent of the Company’s President and Chief Executive Officer. Notwithstanding the foregoing, Executive may (i) serve on corporate, civic, industry or charitable boards or committees and (ii) manage his own and his immediate family’s personal investments, provided that the activities permitted by clauses (i) and (ii) above shall not, individually or in the aggregate, interfere in any material respect with the performance of Executive’s responsibilities hereunder. |
6. Salary. For services rendered by Executive under this Agreement, the Company shall pay to Executive an aggregate annual base salary of sixty thousand dollars ($60,000), to be adjusted to eighty thousand dollars ($80,000) once financing of a minimum of one million dollars ($1,000,000) shall have been invested, and to be adjusted to one hundred thousand dollars ($100,000) once financing of a minimum of two million dollars ($2,000,000) shall have been invested in the Company, payable in equal installments, at least monthly, in accordance with the Company’s regular payroll procedures. The Compensation Committee of the Board shall in good faith consider increasing Executive’s salary at least annually beginning January 2006.
7. Employee Benefits. Executive shall be eligible for disability, medical, dental and other benefits provided to executives of the Company at the Company’s expense once such benefits are offered by the Company to its executives. Executive shall be granted options under the Company’s 2004 Stock Incentive Plan and pursuant to a Stock Option Grant Certificate in the form attached hereto as Exhibit “A” (the “Option Agreement”) to purchase 250,000 shares of the Company’s Common Stock (the “Option Stock”). The Option Stock shall have a term of ten (10) years and an exercise price of $0.25 per share and shall vest ratably over four (4) years commencing April 20, 2004. Any terms contained in this Agreement regarding the exercisability or vesting of such option, including without limitation this Section 7, shall be reflected in the terms of the Option Agreement.
8. Vacation. Executive shall be entitled to three (3) weeks vacation (or a pro rata portion thereof) during each consecutive twelve (12) month period of employment beginning on the Commencement Date.
9. Business Expenses. Executive shall be reimbursed for all reasonable business expenses incurred by him in connection with his employment, while he is engaged in Company business, to be supported by such documentation as is required by the Company’s normal procedures.
10. Termination. Either the Company or Executive may terminate the employment of Executive at any time prior to the expiration of the Term of this Agreement, upon a finding of Cause or Good Reason.
11. Payments During Disability and Upon Termination or Expiration. Executive or his estate shall be entitled to the following during a period of Disability, upon Executive’s death, upon termination of Executive’s employment by Executive or the Company, or if the Term of this Agreement is not extended by either party pursuant to Section 3 above, as the case may be:
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(a) |
During any period that Executive fails to perform his full-time duties with the Company as a result of incapacity due to physical or mental illness, until such time as Executive returns to the full-time performance of his duties or the Date of Termination if Executive’s employment is terminated after the occurrence of a Disability, Executive shall continue to receive his base salary at the rate in effect at the commencement of any such period, plus all other amounts or benefits to which Executive is entitled through such date under any plan, arrangement or practice in effect at the time of such termination, minus any disability benefits received by him under any insurance or disability plan of the Company or maintained at the expense of the Company, but only to the extent that such benefits are paid for periods for which Executive also receives the payments described in this Section 11(a). |
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If: (i) Executive’s employment is terminated by Executive without Good Reason prior to Retirement; (ii) Executive’s employment is terminated by the Company for Cause; then the Company shall pay Executive his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts or benefits to which Executive is entitled through such date under any plan, arrangement or practice in effect at the time of such termination. The Company shall have no further obligations to Executive under this Agreement (other than under COBRA and for vested and accrued benefits under Company-sponsored employee benefit plans and accrued and unpaid vacation. |
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(c) |
If Executive’s employment is (i) terminated by reason of Executive’s death, or (ii) wrongfully terminated by the Company absent Cause, or (iii) terminated by Executive for Good Reason, then Executive shall be entitled to the following: |
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the Company shall pay to Executive any unpaid base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the end of the pay cycle following the Date of Termination, plus a pro rata portion of his bonus, if any, based on the number of months during which Executive was employed during the fiscal year in which his employment was terminated; |
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Executive shall be entitled to receive a lump sum severance payment equal to fifty percent (50%) of the then-current base annual salary. The severance payment will be due within thirty (30) days of the last date of employment; and |
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Executive shall be entitled to twelve (12 months) acceleration of unvested stock options to purchase capital stock or restricted stock of Company held by Executive. |
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If Executive’s employment shall be terminated by reason of Executive’s Retirement, then Executive shall be entitled to receive the compensation provided for in subsection 11(c)(A). |
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If Executive terminates his employment or if Company (or any successor) terminates Executive’s employment without Cause, Executive shall have ninety (90) days from the date of termination to exercise any vested options. |
12. Indemnification. Executive shall be provided indemnification protection in his capacity as an officer for actions taken within the scope of his employment, including insurance coverage with customary limits, to the full extent permitted by the Company’s Certificate of Incorporation and By-laws.
13. Non-Solicitation/No-Hire. Executive agrees that, during the Term of his employment and for a period of one (1) year following the Date of Termination or expiration of the Term of his employment, as the case may be, he shall not conduct or participate (directly or indirectly, including through one or more Affiliates) in hiring, attempting to hire or assisting any other Person in hiring or attempting to hire, or inducing to leave the employ of the Company, any employee, officer or contractor of the Company, or any person who was an employee, officer or contractor of the Company within the six (6) month period prior to the Date of Termination or expiration of the Term of his employment.
14. Non-Competition; Confidentiality.
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(a) |
During the Term and for the Restricted Period (hereinafter defined) after his employment hereunder terminates or is terminated, Executive will not in any way, directly or indirectly, manage, operate, control, accept employment or a consulting position with or otherwise advise, participate in, assist or be connected with, or provide any services to any Competitive Enterprise (as hereinafter defined); provided, that this Section 14(a) shall not prevent Employee from (A) being an employee of any division of any Entity to the extent that such division does not directly engage in the Competitive Enterprise, or (B)owning or having any other interest in, or right with respect to the revenues, receipts, profits or losses of any Competitive Enterprise (other than through ownership of no more than five percent (5%) of the outstanding shares of a Person’s stock which is listed on a national securities exchange or in the NASDAQ system). For purposes of this Section 14: |
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(i) |
“Restricted Period” means the greater of the period of two (2) years next following the termination of the Executive’s employment by the Company for Cause or by Executive without Good Reason, or the period of time during which the Executive is receiving payments from the Company pursuant to Section 11 hereof (as the case may be); and |
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“Competitive Enterprise” means any person, firm or corporation that directly or indirectly produces, markets, promotes, or sells contraception products or whose business, activities, products or services are then competitive with any of the business, activities, products or services conducted or offered by the Company. |
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For purposes of this Agreement, “Proprietary Information” shall mean any information relating to the business of the Company or its Affiliates that has not previously been publicly released by authorized representatives of the Company without a breach of this Agreement by Executive and shall include (but shall not be limited to) information encompassed in all marketing and business plans, customer lists, financial information, costs, pricing information, source code and related information and all methods, concepts, or ideas in or reasonably related to the business of the Company or its Affiliates which is treated by the Company as confidential information and any third party or client information received by the Company in confidence. |
The Executive agrees to regard and preserve as confidential all Proprietary Information that has been or may be developed or obtained by Executive in the course of his employment with the Company or its Affiliates, whether he has such information in his memory or in writing or other physical form. Executive shall not, without written authorization from the Company to do so, use for his benefit or purposes, nor disclose to others, either during the Term or thereafter, except as required by the conditions of his employment hereunder, any Proprietary Information. This prohibition shall not apply to Proprietary Information which has been voluntarily disclosed to the public by the Company, independently developed and disclosed by others, or otherwise enters the public domain through lawful means. Upon termination of his employment, Executive shall promptly deliver to the Company all documents, storage media, and other tangibles containing Proprietary Information.
In the event that Executive is required by judicial process to make a disclosure of Proprietary Information, he shall provide the Company with immediate notice thereof, and will make no disclosure until the Company has had the opportunity to seek an appropriate protective order or some other waiver of compliance with the process, unless in the opinion of counsel to Executive the failure to make earlier disclosure would make Executive liable for contempt or cause him to suffer some other censure or penalty. In any circumstance where disclosure of Proprietary Information is required by valid legal process, Executive shall use his best efforts to obtain an order or other binding assurance that all disclosures will receive confidential treatment by the recipient(s).
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(c) |
Except as set forth in the NOTICE below, all Inventions which Executive conceives, develops or first actually reduces to practice either alone or with others during the Term of this Agreement shall be the exclusive property of the Company. Executive will disclose all such Inventions to the Company promptly and in writing and will comply with applicable Company procedures, if any, or as otherwise requested of Executive by the Company. When requested, and at the Company’s expense, Executive will assist the Company in efforts to protect such Inventions, including without limitation by taking any of the following actions: |
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(i) |
making application for a patent on any such Invention specified by the Company; |
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(ii) |
executing documents of assignment to the Company of all his right, title and interest in and to any such Inventions, all patent applications relating thereto, and all patents granted thereon; and |
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from time to time, at the request of the Company, executing all instruments and rendering all such assistance as may reasonably be required in order to protect the rights of the Company and to vest in the Company all rights to any such Invention, patent application, and patent. |
Each of Executive’s duties specified in this paragraph (c) shall survive termination of his employment to the extent such duties relate to Inventions made or conceived by him during his employment.
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(d) |
The Company will determine, in its sole and absolute discretion, whether an application for a patent will be filed on any Invention which is the exclusive property of the Company, as set forth above, and whether such an application will be abandoned prior to issuance of a patent. |
NOTICE: This Agreement does not apply to any Invention for which no equipment, supplies, facility or trade secret information of the Company was used, which was developed entirely on Executive’s own time, and (1) which does not relate (a) directly to the business of the Company or (b) to the Company’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by Executive for the Company.
15. Remedies. Executive recognizes the highly competitive nature of the industry in which the Company’s business is involved and acknowledges that his services to the Company will be special and unique; his work for the Company will allow him access to the Company’s highly proprietary and confidential information; the Company’s business is conducted throughout the world; the Company would not have entered into this Agreement but for the covenants and agreements contained in Sections 13 and 14 hereof; and the agreements and covenants in Sections 13 and 14 are essential to protect the business and goodwill of the Company. Executive understands and agrees that the Company will be irreparably damaged in the event that Sections 13 and 14 of this Agreement are violated and that such restrictions are necessary to protect the business and interests of the Company. Accordingly, Executive agrees that a remedy at law for any breach of such covenants would be inadequate. Executive agrees that the Company shall be entitled (in addition to any other remedy to which it may be entitled, at law or in equity) to a temporary, preliminary and permanent injunction to redress actual or threatened breaches of said Sections 13 and 14 and specifically to enforce the terms and provisions thereof, without the necessity of proving actual damage, provided that nothing herein contained shall be construed as prohibiting the Company from pursuing any other or additional judicial remedies available to it for any actual or threatened breach, including monetary damages or other remedies.
16. Successors and Assigns. This Agreement is a personal contract, and the rights and interests of Executive hereunder may not be sold, transferred, assigned, pledged, encumbered, or hypothecated by him. Payments due Executive hereunder shall be payable to his heirs or fiduciaries upon his death. Except as may be expressly provided otherwise herein, this Agreement shall be binding upon the Company and inure to the benefit of the Company and its Affiliates, and its successors and assigns, including (but not limited to) any corporation or other entity which may acquire all or substantially all of the Company’s assets or business or into or with which the Company or an Affiliate may be consolidated or merged.
17. Governing Law. Any controversy or claim arising out of or relating to this Agreement, or any breach thereof shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of laws thereof.
18. Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitration panel, which shall consist of three (3) members, may be entered in any court having jurisdiction. Any arbitration shall be held in Atlanta, Georgia. One (1) arbitrator shall be selected by Executive, one (1) arbitrator shall be selected by the Company, and the third arbitrator shall be selected by the two (2) arbitrators selected by Executive and the Company.
19. Entire Agreement. This Agreement contains all the understandings between the parties hereto pertaining to the matters referred to herein, and supersedes all undertakings and agreements, whether oral or in writing, previously entered into by them with respect thereto. The Company and the Executive are not relying on any such prior agreements or understandings in entering into this Agreement.
20. Amendment or Modification, Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by Executive and by authorized officers of the Company. No waiver by any party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any prior time or any subsequent time.
21. Notices. Any notice to be given hereunder shall be in writing and delivered personally or by overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party concerned at the address indicated below or to such other address as such party may subsequently give notice of hereunder in writing:
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To Executive: |
675 Sweet Gum Forest Lane,
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To the Company:
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9070 Brixham Court, Suwanee,
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With a copy to: |
Mark H. Mirkin, Esq., Smith Moore, LLP
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Any notice delivered personally shall be deemed given on the date delivered, any notice delivered by overnight courier shall be deemed given the day after deposit with a courier, and any notice sent by registered or certified mail, postage prepaid, return receipt requested, shall be deemed given on the date delivered as evidenced by the return receipt.
22. Severability. If any provision of this Agreement or the application of any such provision to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law.
23. Survivorship. The respective rights and obligations of the parties hereunder shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations.
24. Headings. All descriptive headings of sections and paragraphs in this Agreement are intended solely for convenience, and no provision of this Agreement is to be construed by reference to the heading of any section or paragraph.
25. Acknowledgment. The restrictions contained in Sections 13 and 14 of this Agreement are considered reasonable by the Company and Executive, and it is the desire of both parties that such restrictions and the other provisions of this Agreement be enforced to the fullest extent permissible under the laws and the public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any such restriction or provision shall be found to be void or invalid but would be valid if some part thereof were deleted or the period or area of application reduced, such restriction or provisions shall apply with such modification as shall be necessary to make it valid and effective. A deletion resulting from any adjudication shall occur only with respect to the operation of the provision or a portion thereof affected in the particular jurisdiction in which such adjudication is made, and each court or other body having jurisdiction with respect to the enforcement of the provisions of Section 13 and 14 of this Agreement are hereby empowered to modify by reduction, rather than deletion, the time periods or other restrictions referred to therein. Executive has had an opportunity independently to consult with counsel and has had an opportunity to be advised in all respects concerning the reasonableness and propriety of such restrictions and the other provisions of this Agreement, and represents that the Agreement is intended to be fully enforceable and effective in accordance with its terms.
26. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which together shall be one (1) and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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/s/ Daniel S. Currie |
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Daniel S. Currie |
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FEMASYS INC. |
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By: |
/s/ Kathy Lee-Sepsick |
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Kathy Lee-Sepsick, President and |
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Chief Executive Officer |
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into as of the 31’ day of August, 2005 by and between FEMASYS INC., a Delaware corporation (the “Company”) and DANIEL S. CURRIE, a resident of Georgia (the “Executive”).
WITNESSETH:
WHEREAS, the Company and the Executive entered into that certain Employment Agreement dated as of March 17, 2004 pursuant to which the Executive has been employed as the Company’s Vice President, Operations (the “Employment Agreement”);
WHEREAS, as of the date hereof certain investors are purchasing $2,290,000 in newly issued Series A-1 Preferred Stock of the Company (the “Investment”);
WHEREAS, in order to induce such investors to consummate the Investment, the Company and the Executive desire to amend the Employment Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Section 11(c)(C) of the Employment Agreement is amended by deleting the phrase “twelve (12) months” and inserting “six (6) months” in lieu thereof.
2. The last sentence of Section 14 of the Employment Agreement is hereby deleted and the following sentence is hereby inserted in lieu thereof: “NOTICE: This Agreement does not apply to any Invention: (i) for which no equipment, supplies, facility or trade secret information of the Company was used, which was developed entirely on Executive’s own time, and (ii) which does not relate directly to the business of the Company or to Executive’s actual or demonstrably anticipated research or development.”
3. The Company and the Executive acknowledge that they are parties to that certain Vesting Agreement of even date herewith that is being entered into in connection with the Investment (“Vesting Agreement”) and that Section 11(c)(C) of the Employment Agreement, as amended hereby, provides for acceleration of vesting for the Executive’s restricted stock. The parties hereto further acknowledge that such provision is not inconsistent with Section 2 of the Vesting Agreement and that the accelerated vesting provisions in the Employment Agreement, as amended, will be given full force and effect in accordance with the terms of the Employment Agreement.
4. Except as amended hereby, the Employment Agreement shall remain in full force and effect.
5. This First Amendment to Employment Agreement may be executed in counterparts, both of which shall be deemed an original and which, taken together, shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above.
“COMPANY” | ||
FEMASYS INC | ||
By: | /s/ Kathy Lee-Sepsick | |
Title: President and Chief Executive Officer |
“EXECUTIVE” | ||
/s/ Daniel S. Currie | ||
Daniel S. Currie |
2
Exhibit 10.12
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is made and entered into this ___ day of _______, 2021, by and between Femasys Inc., a Delaware corporation (the “Company,” which term shall include, where appropriate, any Enterprise (as hereinafter defined) controlled directly or indirectly by the Company), and __________ (the “Indemnitee”).
WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company;
WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, the Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Tenth Amended and Restated Certificate of Incorporation (as it may be amended from time to time, the “Charter”) currently authorizes, and the Bylaws (as it may be amended from time to time, the “Bylaws”) of the Company currently require, indemnification of the officers and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”);
WHEREAS, the Charter, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is detrimental to the best interests of the Company’s stockholders;
WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification and advancement of expenses currently provided in the Charter and the Bylaws (as well as any indemnification or advancement of expenses as may hereafter be provided in any amendment to the Charter or Bylaws) and pursuant to any resolutions of the directors of the Company, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Services to the Company. Indemnitee agrees to serve as an [officer] [director] [officer and/or director] of the Company. Indemnitee may at any time and for any reason resign from such position or positions (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. [Indemnitee specifically acknowledges that Indemnitee’s employment with the Company (or any of its subsidiaries or any Enterprise), if any, is at will, and the Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), or other applicable formal severance policies duly adopted by the Board.]1 The foregoing notwithstanding, this Agreement shall continue in force after Indemnitee has ceased to serve as an [officer] [director] [officer and/or director] of the Company, as provided in Section 16 hereof.
2. Definitions.
As used in this Agreement:
(a) “Agent” means any person who is or was a director, officer, or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.
(b) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:
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(i) |
Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
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(ii) |
Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was so approved, cease for any reason to constitute at least a majority of the members of the Board; |
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(iii) |
Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its ultimate parent, as applicable) more than fifty percent (50%) of the combined voting power of the voting securities of the surviving entity or its ultimate parent, as applicable, outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity or its ultimate parent, as applicable; |
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NTD: Include only for “officer” or “director and officer” forms of agreement. |
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(iv) |
Liquidation or Sale. The approval by the stockholders of the Company of a complete liquidation of the Company or the effective date of an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
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(v) |
Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
For purposes of this Section 2(b), the following terms shall have the following meanings:
(A) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
(B) “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities of the Company under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
(C) “Beneficial Owner” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner shall exclude any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.
(c) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of any other corporation, limited liability company, partnership or joint venture, trust or other enterprise which such person is or was serving at the request of the Company.
(d) “Disinterested Director” shall mean a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, employee, agent or fiduciary.
(f) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also shall include: (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise (unless a court of competent jurisdiction determines that the assertions made by Indemnitee in such Proceeding or otherwise were not made in good faith or were frivolous). The parties agree that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed to be reasonable. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Independent Counsel” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter (other than with respect to matters concerning other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(h) The term “Proceeding” shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, arbitrative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company or by reason of any action taken by him (or a failure to take action by him) or of any action (or failure to act) on his part while acting pursuant to his Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. If the Indemnitee believes in good faith that a given situation may lead to or culminate in the institution of a Proceeding, this shall be considered a Proceeding under this paragraph.
(i) Reference to “other enterprise” shall include employee benefit plans; references to “fines” shall include any excise tax assessed with respect to any employee benefit plan; references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in manner “not opposed to the best interests of the Company” as referred to in this Agreement.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that his conduct was unlawful. The parties hereto intend that this Agreement shall provide to the fullest extent permitted by applicable law for indemnification in excess of any indemnification provided by the Charter, the Bylaws, vote of its stockholders or disinterested directors or applicable law.
4. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware Court (as hereinafter defined) or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is, by reason of his Corporate Status, a witness or otherwise asked to participate in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
7. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
8. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding.
(b) For purposes of Section 8(a), the meaning of the phrase “to the fullest extent permitted by applicable law” shall include, but not be limited to:
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to the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL, and |
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(ii) |
to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors. |
9. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification payment:
(a) in connection with any claim for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); or
(c) except as provided in Section 14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (by complaint, counterclaim or otherwise), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
(d) to provide any indemnification or advancement of expenses that is prohibited by applicable law (as such law exists at the time payment would otherwise be required pursuant to this Agreement).
10. Advances of Expenses. Notwithstanding any provision of this Agreement to the contrary (other than Section 14(d)), the Company shall advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee, and such advancement shall be made within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. In accordance with Section 14(d), advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed (unless a court of competent jurisdiction determines that the assertions made by Indemnitee in such Proceeding or otherwise were not made in good faith or were frivolous). The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement, which shall constitute an undertaking by the Indemnitee to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company with respect to such applicable Proceeding or claim as to which the advancement of expenses was made. No other form of undertaking shall be required other than the execution of this Agreement. This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 9.
11. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. The written notification to the Company shall include a reasonable description of the nature of the Proceeding and the facts underlying the Proceeding, based upon the information available to the Indemnitee. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding, provided that documentation and information need not be so provided to the extent that the provision thereof would undermine or otherwise jeopardize attorney-client privilege. The omission by Indemnitee to notify the Company hereunder will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement unless (and then only to the extent) the Company’s ability to participate in the defense of such claim was materially and adversely affected by such failure, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) In the event that the Company shall be obligated hereunder to provide indemnification for or make any advancement of Expenses with respect to any Proceeding, the Company shall be entitled to assume the defense of such Proceeding, or any claim, issue or matter therein, with counsel approved by Indemnitee (which approval shall not be unreasonably withheld or delayed) upon the delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded based on the advice of counsel that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (C) the Company shall not continue to retain such counsel to defend such Proceeding, then the reasonable fees and expenses actually and reasonably incurred by Indemnitee with respect to his or her separate counsel shall be Expenses hereunder (but not for more than one law firm plus, if applicable, local counsel in respect of any such Proceeding).
(c) In the event that the Company does not assume the defense in a Proceeding pursuant to Section 11(b) above, then the Company will be entitled to participate in the Proceeding at its own expense.
(d) The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its prior written consent (which consent shall not be unreasonably withheld or delayed). The Company shall not, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter into any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and actually indemnified hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may be or is made a party or may be otherwise entitled to seek indemnification hereunder, does not include the full release of Indemnitee from all liability in respect of such Proceeding.
12. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (D) if there are no Disinterested Directors and if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) Subject to Section 14(e), if the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 13(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within thirty (30) days after receipt by the Company of the request for such determination the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within ninety (90) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of guilty, nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Enterprise. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. Remedies of Indemnitee.
(a) Subject to Section 14(e), in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12(a) of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification or, in the case of a determination to be made by the stockholders of the Company, within the time period provided therefor in Section 13(b), (iv) payment of indemnification is not made pursuant to Section 5, 6 or 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) payment of indemnification pursuant to Section 3, 4 or 8 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of his entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 or 6 of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or arbitration.
(b) In the event that a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise (unless a court of competent jurisdiction determines that the assertions made by Indemnitee in such Proceeding or otherwise were not made in good faith or were frivolous) because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company shall, to the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law (unless a court of competent jurisdiction determines that the assertions made by Indemnitee in such Proceeding or otherwise were not made in good faith or were frivolous), whichever is greater.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Charter, the Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company currently has directors and officers liability insurance and will use all reasonable efforts to maintain such insurance coverage during the term of this Agreement, but if it is unable to do so, it will immediately notify Indemnitee of this fact.
(c) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The Company shall keep Indemnitee reasonably informed as to the status of all relevant insurance matters.
(d) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(e) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(f) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such other corporation, limited liability company, partnership, joint venture, trust or other enterprise.
16. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a [officer] [director] [officer or director, whichever is later,] of the Company or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee has rights of indemnification or advancement of Expenses under this Agreement and of any proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
17. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
18. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director and/or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director and/or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof, including any indemnification agreement previously entered into between the Company and the Indemnitee; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
19. Modification and Waiver. No supplement, modification or amendment, or waiver of any provision, of this Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver. No supplement, modification or amendment of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee prior to such supplement, modification or amendment.
20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
21. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by facsimile transmission, with receipt of confirmation that such transmission has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide to the Company.
(b) If to the Company, to:
Femasys Inc.
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
Attn: Kathy Lee-Sepsick, President and Chief Executive Officer
or to any other address as may have been furnished to Indemnitee by the Company. Either party may change his or its address for purposes of receiving notice under this Agreement by providing such address change by notice under this Section 21, which notice shall be effective as provided above in this Section 21.
22. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other hand, as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its other directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such event(s) and/or transaction(s).
23. Internal Revenue Code Section 409A. The Company intends for this Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”), which provides that indemnification of, or the purchase of an insurance policy providing for payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of compensation, subject to Section 409A of the Code, where such claim is based on actions or failures to act by Indemnitee in his or her capacity as a service provider of the Company. The parties intend that this Agreement be interpreted and construed with such intent.
24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, irrevocably Corporation Service Company, 251 Little Falls Drive, City of Wilmington, County of New Castle, Delaware 19808 as its agent in the State of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
25. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
26. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
27. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the day and year first above written.
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[Signature Page to Femasys Indemnification Agreement]
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Femasys Inc.:
We consent to the use of our report included herein and to the reference to our firm under the heading “Experts” in the prospectus. Our report dated March 17, 2021 contains an explanatory paragraph that states that the Company has suffered recurring losses from operations and has a net capital deficiency that raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Atlanta, Georgia
May 14, 2021