UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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February 27 , 2018 |
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Date of Report (Date of Earliest Event Reported) |
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Sun BioPharma, Inc. |
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(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
000-55242 |
87-0543922 |
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(State of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
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712 Vista Blvd #305 Waconia, Minnesota |
55387 |
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(Address of Principal Executive Offices) |
(Zip Code) |
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( 952 ) 479 - 1196 |
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(Registrant ’s Telephone Number, Including Area Code) |
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(Former Name or Former Address, if Changed Since Last Report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter.)
Emerging growth company ☑
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☑
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Item 5.0 2 |
Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers . |
Effective February 27, 2018 , Sun BioPharma, Inc. (the “Company”) entered into waivers and third amendments (collectively, the “Amendments”) to the previously disclosed employment agreements, as amended (the “Agreements”), with our Executive Chairman, Michael T. Cullen, M.D., M.B.A., our President and Chief Executive Officer, David B. Kaysen, and our Chief Financial Officer, Scott Kellen, each of whom is an executive officer of the Company (collectively, the “Executives”), and our Chief Medical Officer, Suzanne Gagnon, M.D. (together with the Executives, the “Employees”). Dr. Cullen, Mr. Kaysen and Dr. Gagnon are also current members of the Company’s Board of Directors.
For each of the Employees, the Amendments waive the contingent payment of cash and/or equity that had been established by the amendments to the Agreements dated October 1, 2017, each of which could have become due on or before June 30, 2018 upon a change of control or the Company’s issuance of a threshold level of equity securities. The Amendments also entitled Dr. Cullen, Mr. Kaysen, Mr. Kellen and Dr. Gagnon to new ten-year options to purchase up to 100,000 shares, 50,000 shares, 25,000 shares and 95,000 shares of Company common stock, respectively, at an exercise price equal to fair market value as of the date of grant. The options were granted under the Company’s 2016 Omnibus Incentive Plan effective as of February 27, 2018.
The descriptions in this report of the material terms and conditions of the foregoing compensatory arrangements with the Employees are qualified by the text of the Amendments, copies of which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4, and each of which is incorporated herein by reference.
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Item 9 .0 1 |
Financial Statements and Exhibits . |
(d) Exhibits
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Exhibit No. |
Description |
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10.1 |
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10.2 |
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10.3 |
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10.4 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
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SUN BIOPHARMA, INC. |
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Date: March 5, 2018 |
By |
/s/ Scott Kellen |
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Scott Kellen |
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Chief Financial Officer |
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Exhibit 10.1
WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Third Amendment ”) is entered into effective as of February 27, 2018 by and among Sun BioPharma, Inc., a Delaware corporation (the “ Co mpany ”), and Michael T. Cullen (“ Employee ”).
WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated December 2, 2015, as amended September 12, 2016 and October 1, 2017 (the “ Employment A greement ”); and
WHEREAS, the Company and Employee have agreed to amend certain provisions of the Employment Agreement to, eliminate certain contingent compensation, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
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1. |
Capitalized terms used in this Third Amendment, to the extent not otherwise defined herein, shall have the same meaning as in the Employment Agreement. |
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2. |
Employee hereby waives all right to future payment of the Reference Amount pursuant to Section 3(a)(i) of the Employment Agreement, including any right to receive any substitute equity award pursuant to Section 3(a)(iv) of the Employment Agreement. |
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3. |
As consideration for the foregoing, Company agrees to grant to Employee a fully-exercisable, ten-year option to purchase up to 100,000 shares of Company common stock at a per share price equal to fair market value (determined in accordance with the applicable Company equity incentive plan) as of the grant date. |
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4. |
The Employment Agreement, as amended by this Third Amendment evidences the entire agreement of the parties hereto with respect to the subject matter thereof and hereof, and all prior oral discussions and writings have been taken into account in preparing this Third Amendment. |
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5. |
Except as specifically set forth herein, the Employment Agreement remains in full force and effect. |
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6. |
This Third Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. |
[ Remainder of page intentionally left blank; signature page follows ]
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date first written above.
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The Company:
SUN BIOPHARMA , INC. |
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By: /s/ David B. Kaysen |
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Name: David B. Kaysen |
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Title: President and Chief Executive O fficer |
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Date: March 5, 2018 |
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Employee:
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/s/ Michael T. Cullen |
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Michael T. Cullen |
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Date : March 5, 2018 |
[ Signature Page to Waiver and Third Amendment to Employment Agreement ]
Exhibit 10.2
WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Third Amendment ”) is entered into effective as of February 27, 2018 by and among Sun BioPharma, Inc., a Delaware corporation (the “ Co mpany ”), and David B. Kaysen (“ Employee ”).
WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated December 2, 2015, as amended September 12, 2016 and October 1, 2017 (the “ Employment Agreement ”); and
WHEREAS, the Company and Employee have agreed to amend certain provisions of the Employment Agreement to, eliminate certain contingent compensation, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
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1. |
Capitalized terms used in this Third Amendment, to the extent not otherwise defined herein, shall have the same meaning as in the Employment Agreement. |
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2. |
Employee hereby waives all right to future payment of the Reference Amount pursuant to Section 3(a)(i) of the Employment Agreement, including any right to receive any substitute equity award pursuant to Section 3(a)(iii) of the Employment Agreement. |
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3. |
As consideration for the foregoing, Company agrees to grant to Employee a fully-exercisable, ten-year option to purchase up to 50,000 shares of Company common stock at a per share price equal to fair market value (determined in accordance with the applicable Company equity incentive plan) as of the grant date. |
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4. |
The Employment Agreement, as amended by this Third Amendment evidences the entire agreement of the parties hereto with respect to the subject matter thereof and hereof, and all prior oral discussions and writings have been taken into account in preparing this Third Amendment. |
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5. |
Except as specifically set forth herein, the Employment Agreement remains in full force and effect. |
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6. |
This Third Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. |
[ Remainder of page intentionally left blank; signature page follows ]
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date first written above.
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The Company:
SUN BIOPHARMA, INC. |
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By: /s/ Michael T. Cullen |
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Name: Michael T. Cullen |
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Title: Executive Chairman |
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Date: March 5, 2018 |
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Employee:
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/s/ David B. Kaysen |
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David B. Kaysen |
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Date: March 5, 2018 |
[ Signature Page to Waiver and Third Amendment to Employment Agreement ]
Exhibit 10.3
WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Third Amendment ”) is entered into effective as of February 27, 2018 by and among Sun BioPharma, Inc., a Delaware corporation (the “ Co mpany ”), and Scott Kellen (“ Employee ”).
WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated December 2, 2015, as amended September 12, 2016 and October 1, 2017 (the “ Employment A greement ”); and
WHEREAS, the Company and Employee have agreed to amend certain provisions of the Employment Agreement to, eliminate certain contingent compensation, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
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1. |
Capitalized terms used in this Third Amendment, to the extent not otherwise defined herein, shall have the same meaning as in the Employment Agreement. |
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2. |
Employee hereby waives all right to future payment of the Reference Amount pursuant to Section 3(a)(i) of the Employment Agreement, including any right to receive any substitute equity award pursuant to Section 3(a)(iii) of the Employment Agreement. |
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3. |
As consideration for the foregoing, Company agrees to grant to Employee a fully-exercisable, ten-year option to purchase up to 25,000 shares of Company common stock at a per share price equal to fair market value (determined in accordance with the applicable Company equity incentive plan) as of the grant date. |
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4. |
The Employment Agreement, as amended by this Third Amendment evidences the entire agreement of the parties hereto with respect to the subject matter thereof and hereof, and all prior oral discussions and writings have been taken into account in preparing this Third Amendment. |
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5. |
Except as specifically set forth herein, the Employment Agreement remains in full force and effect. |
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6. |
This Third Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. |
[ Remainder of page intentionally left blank; signature page follows ]
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date first written above.
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The Company:
SUN BIOPHARMA , INC. |
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By: /s/ David B. Kaysen |
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Name: David B. Kaysen |
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Title: President and Chief Executive Officer |
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Date: March 5, 2018 |
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Employee:
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/s/ Scott Kellen |
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Scott Kellen |
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Date : March 5, 2018 |
[ Signature Page to Waiver and Third Amendment to Employment Agreement ]
Exhibit 10.4
WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This WAIVER AND THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Third Amendment ”) is entered into effective as of February 27, 2018 by and among Sun BioPharma, Inc., a Delaware corporation (the “ Co mpany ”), and Suzanne Gagnon (“ Employee ”).
WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated December 2, 2015, as amended September 12, 2016 and October 1, 2017 (the “ Employment A greement ”); and
WHEREAS, the Company and Employee have agreed to amend certain provisions of the Employment Agreement to, eliminate certain contingent compensation, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
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1. |
Capitalized terms used in this Third Amendment, to the extent not otherwise defined herein, shall have the same meaning as in the Employment Agreement. |
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2. |
Employee hereby waives all right to future payment of the Reference Amount pursuant to Section 3(a)(i) of the Employment Agreement, including any right to receive any substitute equity award pursuant to Section 3(a)(v) of the Employment Agreement. |
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3. |
As consideration for the foregoing, Company agrees to grant to Employee a fully-exercisable, ten-year option to purchase up to 95,000 shares of Company common stock at a per share price equal to fair market value (determined in accordance with the applicable Company equity incentive plan) as of the grant date. |
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4. |
The Employment Agreement, as amended by this Third Amendment evidences the entire agreement of the parties hereto with respect to the subject matter thereof and hereof, and all prior oral discussions and writings have been taken into account in preparing this Third Amendment. |
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5. |
Except as specifically set forth herein, the Employment Agreement remains in full force and effect. |
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6. |
This Third Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. |
[ Remainder of page intentionally left blank; signature page follows ]
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date first written above.
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The Company:
SUN BIOPHARMA , INC. |
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By: /s/ David B. Kaysen |
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Name: David B. Kaysen |
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Title: President and Chief Executive Officer |
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Date: March 5, 2018 |
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Employee:
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/s/ Suzanne Gagnon |
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Suzanne Gagnon |
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Date : March 5, 2018 |
[ Signature Page to Waiver and Third Amendment to Employment Agreement ]