UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
(Amendment No. 1)
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR
THE FISCAL YEAR ENDED
or
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ________ to ________
COMMISSION
FILE NUMBER
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s
telephone number, including area code:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
(Nasdaq Capital Market) |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐
Indicate
by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule
405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant
was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| ☒ | Smaller reporting company | ||
| Emerging growth company |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered
public accounting firm that prepared or issued its audit report.
If
securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant
included in the filing reflect the correction of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to § 240.10D-1(b). ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No
The
aggregate market value of the Common Stock held by non-affiliates of the registrant was approximately $
There were shares of Common Stock outstanding as of April 29, 2025.
EXPLANATORY NOTE
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), this Form 10-K/A also contains certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, which are attached hereto. Because no financial statements have been included in this Form 10-K/A and this Form 10-K/A does not contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4, and 5 of the certifications have been omitted, as required by Question 161.01 of the Compliance and Disclosure Interpretations of the Division of Corporation Finance of the SEC.
Except as described above, this Form 10-K/A does not modify or update disclosure in, or exhibits to, the Original Form 10-K. Furthermore, this Form 10-K/A does not change any previously reported financial results. Information not affected by this Form 10-K/A remains unchanged and reflects the disclosures made at the time the Original Form 10-K was filed.
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| Page | |||
| PART III. | |||
| Item 10. | Directors, Executive Officers and Corporate Governance | 1 | |
| Item 11. | Executive Compensation | 4 | |
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 14 | |
| Item 13. | Certain Relationships and Related Transactions, and Director Independence | 15 | |
| Item 14. | Principal Accountant Fees and Services | 16 | |
| PART IV. | |||
| Item 15. | Exhibit and Financial Statement Schedules | 17 | |
| Item 16. | Form 10-K Summary | 17 | |
| SIGNATURES | 21 | ||
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ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors and Executive Officers
The following table sets forth information concerning our current executive officers and directors as of March 29, 2025. There are no family relationships among any of our directors or executive officers.
| Name | Age | Position | ||
| Executive Officers: | ||||
| Thomas Zindrick, J.D. | 66 | President, Chief Executive Officer and Chairman | ||
| Paul Scigalla, M.D., Ph.D. | 80 | Chief Medical Officer | ||
| Matthew Pulisic, M.B.A. | 41 | Chief Financial Officer | ||
| Ralph Smalling | 69 | Head of Regulatory | ||
| Joseph Cappello, Ph.D. | 68 | Chief Technical Officer | ||
| Sean Ryder, J.D. | 56 | General Counsel and Corporate Secretary | ||
| Tony Yu, Ph.D. | 54 | Senior Vice President, Clinical Development |
| Non-Employee Directors: | ||||
| Mary Mirabelli | 68 | Director | ||
| John Thomas, Ph.D. | 67 | Director | ||
| James L. Tyree | 72 | Lead Independent Director | ||
| John Smither | 72 | Director |
Thomas Zindrick, J.D has served as our President, Chief Executive Officer and a member of our Board since May 2014 and as our Chair since July 2021. Currently, he serves as Executive Chair of Aeromics, Inc., a clinical-stage pharmaceutical company developing products for the treatment of edema in ischemic stroke, since August 2018. Mr. Zindrick served as Chief Executive Officer of Amitech Therapeutic Solutions, Inc., from 2012 to 2014. From 1993 to 2009, Mr. Zindrick was at Amgen Inc. (Amgen), a public commercial biotechnology company, where he held positions of increasing responsibility, including Vice President Associate General Counsel from 2001 to 2004 and again from 2008 to 2009. At Amgen, from 2004 to 2008, Mr. Zindrick served as Chief Compliance Officer. Prior to joining Amgen, Mr. Zindrick was an attorney at The Dow Chemical Company. Mr. Zindrick served on the board of directors of Amitech Therapeutic Solutions, Inc. from 2011 to February 2021 and DNX Biopharmaceuticals, Inc. from November 2014 to March 2020. Mr. Zindrick received his J.D. from the University of Illinois College of Law and a B.A. in biology from North Central College in Naperville, Illinois.
We believe Mr. Zindrick’s extensive experience managing and leading companies within the pharmaceutical and biotechnology industries qualify him to serve on our Board.
Paul Scigalla, M.D., Ph.D. has served as our Chief Medical Officer since September 2011. Since September 2003, he has served as President and Chief Executive Officer of International Pharmaceutical Research Consulting. From 2001 to 2003, he served as Vice President Research Oncology, at Pharmacia/Pfizer Bedminster, New Jersey and from 1998 to 2001, he served as Executive Vice President at SUGEN, Inc. Dr. Scigalla served as Senior Vice President, Development Worldwide at Boehringer Mannheim from 1984 to 1998. Dr. Scigalla received an M.D. and a Ph.D. in pediatrics from Humboldt University in Berlin.
Matthew Pulisic, M.B.A. has served as our Chief Financial Officer since January 2025. Mr. Pulisic most recently served as Vice President of Finance at Arrowhead Pharmaceuticals, a publicly traded RNAi technology company, from August 2020 to January 2025. He played a key role in shaping the company’s financial direction, leading planning and analysis, establishing a commercial manufacturing facility, and driving operational improvements to support the company’s evolution from a clinical-stage to a pre-commercial organization. Prior to that, Mr. Pulisic served as Head of Finance for Global Product Development, R&D, Global Marketing & Sourcing at HARMAN International, a standalone subsidiary of Samsung Electronics Co. Ltd., from August 2019 to August 2020. He began his career at Amgen in April 2006 as a Research Associate and transitioned into finance where he held positions of increasing responsibility, including Commercial Finance, Corporate Finance, Treasury, Finance Director of Amgen Worldwide and Head of Capital Finance, spanning from 2007 to 2019. Mr. Pulisic received his M.B.A. in finance from the California Lutheran University and a B.S. in Biochemistry and Molecular Biology from the University of California, Santa Cruz.
Ralph Smalling, M.S. has served as our Head of Regulatory since July 2023. From 2005 to present, Mr. Smalling has served as Principal Consultant at Linus Consulting, LLC and has provided regulatory support to numerous companies, including Aeromics, a clinical-stage biopharmaceutical company since March 2019, Medicines Development for Global Health, a non-profit pharmaceutical organization since February 2014; and Lanier Biotherapeutics, a biotechnology company since September 2022. Mr. Smalling serves as a member of the board of directors for SymBio Pharmaceuticals, Inc., a global pharmaceutical company since April 2025. Mr. Smalling has over 40 years of experience in the biopharmaceutical industry, with expertise in all aspects of regulatory development and international safety. From February 1982 to May 2005, he served at Amgen in positions of increasing responsibility, including Vice President of Regulatory Affairs and International Safety. Under his leadership, Amgen obtained marketing authorizations, supplemental approvals and orphan drug designations in the United States, Europe, Canada and Australia for numerous products. Mr. Smalling was a member of the industry team that negotiated PDUFA II and drafted several of the provisions included in the FDAMA legislation passed by Congress in 1997. Mr. Smalling earned an M.S. in Microbiology from California State University, Long Beach, and a B.A. in Biology from Occidental College.
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Joseph Cappello, Ph.D. has served as our Chief Technical Officer since July 2023. He previously served as our General Manager of Manufacturing since September 2018 and our Vice President of Pharmaceutical Development since November 2012. From 1988 to 2010, Dr. Cappello served as the Vice President and Chief Technology Officer of Protein Polymer Technologies Inc. From January to September 2012, Dr. Cappello served as the Director and General Manager in the Biological Test Center of B. Braun Medical Inc. Dr. Cappello earned his Ph.D. in Biological Chemistry from the University of Cincinnati, College of Medicine, and his B.S. in Molecular and General Genetics from the University of California, Davis.
Sean Ryder, J.D. has served as our General Counsel and Corporate Secretary since October 2021. Previously, from August 2019 to October 2021, Mr. Ryder was the Associate General Counsel of Mesoblast Limited. Previously, Mr. Ryder was the Vice President of Legal from November 2011 to August 2019 and Acting Chief Compliance Officer from November 2011 to March 2016 at Helsinn Therapeutics (U.S.), Inc. From February 2007 to October 2011, Mr. Ryder was the Senior Director of Legal at Glenmark Generics Inc., USA. Mr. Ryder received his B.S. in biochemistry from University of Maryland College Park and his J.D. from University of San Francisco School of Law.
Tony Yu, Ph.D. has served as our Senior Vice President of Clinical Development since July 2023. He previously served as our Vice President of Clinical Trial Operations since January 2010. From 2008 to 2010, he served as our Associate Vice President of Preclinical Research and Business Development. From 2002 to 2008, Dr. Yu was Director of the Imaging Group and Director of Tumor Diagnosis/Therapy. Dr. Yu received a B.A. in biology from the University of Utah and a Ph.D. in anatomy and biochemistry from Loma Linda University.
Non-Employee Directors
Mary Mirabelli has served as a member of the Board since June 2021. Most recently, Ms. Mirabelli served as the Senior Vice President at the Healthcare Finance Management Association from April 2018 to November 2023. Previously, Ms. Mirabelli served as the Vice President of Global Healthcare Services at Hewlett Packard Enterprise Company from June 2014 to April 2018. Ms. Mirabelli served as a senior executive at Hospital Corporation of America from 2000 to 2014. Since January 2024, Ms. Mirabelli has served as a member on the board of directors of Health IT Leaders, a health information technology consulting firm. Ms. Mirabelli holds a B.S. in occupational therapy from University of Illinois at Urbana-Champaign and an M.B.A. in management from Northwestern University’s Kellogg Graduate School of Management.
We believe Ms. Mirabelli’s extensive experience managing and leading companies within the healthcare industry qualify her to serve on the Board.
John Thomas, Ph.D. has served as a member of the Board since September 2002. Dr. Thomas served as our first Chief Financial Officer from 2002 to 2004. Dr. Thomas has been the Dean of the School of Business and Management at La Sierra University since 1999. Dr. Thomas has served on the boards of directors of ICON Business Bank, a financial institution, since June 2023, KSGN Good News Radio, a non-profit organization, since January 2004, Loma Linda Broadcasting Network International, a broadcasting network, since January 2009 and ADRA International, a humanitarian aid organization, as a member of the finance committee since September 2015. He previously served as a member of the board of directors of the Family Service Association, a non-profit public benefit health and human service agency, from 1992 to 2018. Dr. Thomas holds an M.B.A. in finance from Loma Linda University and an M.B.A. in marketing from Symbiosis Institute of Management Studies, an M.A. in international political economy from Claremont Graduate University and a Ph.D. in political economy from Claremont Graduate University.
We believe that Dr. Thomas’s extensive training, expertise and experience in finance, qualifies him to serve on the Board.
James L. Tyree has served as a member of the Board since May 2012 and as our Lead Independent Director since July 2021. Mr. Tyree previously served as Chairman of the Board from 2014 to 2021. Mr. Tyree is the retired co-founder and managing partner of Tyree & D’Angelo Partners, a private equity investment firm founded in 2014. Prior to founding Tyree & D’Angelo Partners, Mr. Tyree served as Executive Vice President and President of Abbott Biotech Ventures (Abbott), a subsidiary of Abbott Laboratories in 2012. Prior to that position, Mr. Tyree held numerous executive positions at Abbott, including Executive Vice President Global Pharmaceuticals, Senior Vice President Global Nutrition, Corporate Vice President Pharmaceutical and Nutritional Products Group Business Development and Divisional Vice President and General Manager, Japan from 1997 to 2000. Mr. Tyree also served as a member of the board of directors of ChemoCentryx, Inc., a biopharmaceutical company, since June 2012, until the company was sold to Amgen in 2022 and at that time was lead independent director. Mr. Tyree previously served as a member of the board of directors of SonarMed, Inc., a medical device company (now a subsidiary of Medtronic plc), from March 2012 to November 2022. Mr. Tyree served as a member of the board of directors and chair of the compensation committee of Assertio Holdings, Inc., a public pharmaceutical company, from October 2016 to April 2024. Mr. Tyree previously served as chairman of the board of directors of the Illinois Biotechnology Industry Organization, as a member of the Advisory Board of the University of Chicago Booth Graduate School of Business, and as a member of the Chicago Council on Global Affairs chairing the Global Health Policy Roundtable. Mr. Tyree earned his B.A. in psychology and forensic studies and an M.B.A. from Indiana University.
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We believe that Mr. Tyree’s extensive experience in biotechnology and pharmaceuticals qualifies him to serve on the Board.
John Smither has served as a member of the Board since September 2023. Mr. Smither currently serves as a senior advisor at Frazier Life Sciences, an investment firm, since November 2024. From September 2023 to 2024, Mr. Smither served as the Interim Chief Financial Officer of Arcutis Biotherapeutics, Inc., a biopharmaceutical company (Arcutis), and from May 2019 and May 2021, served as the Chief Financial Officer of Arcutis, where he was responsible for all financial aspects of Arcutis including leading Arcutis’s successful initial public offering and two follow-on financings. Previously, Mr. Smither was the Chief Financial Officer at Sienna Biopharmaceutics from January 2016 to April 2017, and again from April 2018 to March 2019. Mr. Smither also served as the Interim Chief Financial Officer at Kite Pharma, a Gilead Company, from November 2017 through April 2018, and was the Chief Financial Officer of Unity Biotechnology from January 2016 to July 2017. He also served as Chief Financial Officer at Kythera Biopharmaceuticals (Kythera), where he was responsible for all financial activities during early clinical stage development through approval and launch, led private fundraising rounds, prepared Kythera for its successful initial public offering in October 2012, and oversaw its acquisition by Allergan plc for approximately $2.1 billion. From February 1998 to November 2007, Mr. Smither held several financial positions at Amgen of increasing responsibility, including Vice President of Finance and Administration for Amgen’s European operations in 28 countries, and as Executive Director of Corporate Accounting. In January 2023, Mr. Smither was appointed to the board of directors of NewAmsterdam Pharma, a public biotechnology company, and has served as the chair of its audit committee since January 2022. From January 2022 to December 2023, Mr. Smither served as a member of the board of directors of Applied Molecular Transport Inc. a public biopharmaceutical company (acquired by Cyclo Therapeutics, Inc. in December 2023), as chair of its audit committee, and as a member of its compensation committee. From March 2018 to September 2023, Mr. Smither served as a member of the board of directors of eFFECTOR Therapeutics Inc., a public biopharmaceutical company, and its predecessor entity, as chair of its audit committee, and as a member of its nominating and corporate governance committee. Additionally, from December 2013 to May 2020, Mr. Smither served as a member of the board of directors of Achaogen, Inc., a biopharmaceutical company, as chair of its audit committee, and as a member of its compensation committee. Mr. Smither began his career at Ernst & Young, where he was audit partner and held a certification as a Certified Public Accountant (inactive). He holds a B.S. in accounting, with honors, from California State University at Los Angeles.
We believe Mr. Smither’s extensive experience as a chief financial officer and service on the boards of directors of other biotechnology and pharmaceutical companies qualifies him to serve on our Board.
Delinquent Section 16(a) Reports
Based solely on our review of electronic filings with the SEC of such reports and written representations from our executive officers and directors that no Form 5 is required, we believe that our executive officers and directors complied with all Section 16(a) filing requirements during 2024, except that: (i) two reports, covering an aggregate of four transactions, were filed late by Thomas Zindrick, J.D.; (ii) two reports, covering an aggregate of four transactions, were filed late by Lourie Zak; (iii) two reports, covering an aggregate of five transactions, were filed late by Tony Yu, Ph.D.; (iv) two reports, covering an aggregate of five transactions, were filed late by Sean Ryder; (v) one report, covering an aggregate of two transactions, was filed late by Joseph Cappello, Ph.D.; (vi) one report, covering an aggregate of two transactions, was filed late by John Thomas, Ph.D.; (vii) one report, covering an aggregate of three transactions, was filed late by Carolyn Jewett; (viii) two reports, covering an aggregate of four transactions, were filed late by Ralph Smalling, (ix) one report, covering an aggregate of two transactions, was filed late by John Smither; (x) one report, covering an aggregate of two transactions, was filed late by Mary Mirabelli; and (xi) one report, covering an aggregate of two transactions, was filed late by James L. Tyree.
Code of Conduct
We have adopted a Code of Conduct that applies to all officers, directors and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or person performing similar functions. A current copy of the Code of Conduct is available on the Corporate Governance section of our website at www.genelux.com. If we make any substantive amendments to the Code of Conduct or grant any waiver from a provision of the Code of Conduct to any executive officer or director that are required to be disclosed pursuant to SEC rules, we will promptly disclose the nature of the amendment or waiver on our website. The information contained on our website is not considered part of, or incorporated by reference into, this Annual Report on Form 10-K/A or any other filing that we make with the SEC.
Audit Committee Members and Financial Expert
The Audit Committee of the Board (the Audit Committee) was established by the Board to oversee our corporate accounting and financial reporting processes, systems of internal control and financial-statement audits, and to oversee our independent registered accounting firm. The Audit Committee is currently composed of three directors: Ms. Mirabelli, Mr. Smither, and Dr. Thomas, with Dr. Thomas serving as Chair. The Board has adopted a written Audit Committee charter that is available to stockholders on our website at https://investors.genelux.com/corporate-governance/documents-charters. Information contained on, or that can be accessed through, our website is not incorporated by reference into and does not form a part of this Form 10-K/A.
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The Board reviews the Nasdaq listing standards definition of independence for Audit Committee members on an annual basis and has determined that all members of our Audit Committee are independent (as independence is currently defined in Rule 5605(c)(2)(A)(i) and (ii) of the Nasdaq listing standards). The Board has determined that each of the members of the Audit Committee satisfies the independence requirements under Rule 10A-3(b)(1) of the Exchange Act. The Board has also determined that Dr. Thomas qualifies as an “audit committee financial expert,” as defined in applicable SEC rules.
Insider Trading Policy
We
have
ITEM 11. EXECUTIVE COMPENSATION
Our named executive officers for the year ended December 31, 2024, consisting of our principal executive officer and the next two most highly compensated executive officers who were serving in such capacity as of December 31, 2024, were:
| ● | Thomas Zindrick, J.D., our President and Chief Executive Officer; |
| ● | Lourie Zak, our former Chief Financial Officer; and |
| ● | Joseph Cappello, Ph.D., our Chief Technical Officer. |
Summary Compensation Table
The following table presents all of the compensation awarded to or earned by or paid to our named executive officers during the fiscal years ended December 31, 2024 and 2023.
| Fiscal | Salary | Option Awards (1) | Stock Awards (1) | All Other Compensation (2) | Total | |||||||||||||||||||
| Name and Principal Position | Year | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||
| Thomas Zindrick, J.D. | 2024 | 595,000 | 338,257 | 536,942 | 3,048 | 1,473,247 | ||||||||||||||||||
| President and Chief Executive Officer | 2023 | 570,519 | 5,479,863 | 151,110 | 471 | 6,201,963 | ||||||||||||||||||
| Lourie Zak (3) | 2024 | 360,000 | 104,481 | 128,953 | 1,584 | 595,018 | ||||||||||||||||||
| Former Chief Financial Officer | 2023 | 119,077 | 2,711,285 | - | 157 | 2,830,362 | ||||||||||||||||||
Joseph Cappello, Ph.D.(4) Chief Technical Officer | 2024 | 360,000 | 72,088 | 166,678 | 3,048 | 601,814 | ||||||||||||||||||
| (1) | The amounts disclosed represent the aggregate grant date fair value of stock options and restricted stock unit awards (RSUs) granted to our named executive officers under our 2019 and 2022 Plans, computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 Compensation—Stock Compensation (ASC Topic 718). As required by SEC rules, the amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions. The assumptions used in calculating the grant date fair value of the stock options are set forth in Note 11 to our annual financial statements included in our Annual Report. This amount does not reflect the actual economic value that may be realized by the named executive officer upon vesting or exercise of the stock options and RSUs, or the sale of the common stock underlying such awards. |
| (2) | Consists of the Company’s contributions to employee life insurance in 2024. |
| (3) | Ms. Zak joined the Company in August 2023 and as such, her 2023 salary reflects the pro rata amount earned in 2023. Ms. Zak resigned as our Chief Financial Officer in January 2025. |
| (4) | Dr. Cappello was not a “named executive officer” during fiscal year 2023 and accordingly his 2023 compensation is not presented in the table above. |
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Annual Base Salary
The 2024 annual base salaries for our named executive officers are set forth in the table below.
| Name | 2024 Base Salary | |||
| Thomas Zindrick, J.D. | $ | 595,000 | ||
| Lourie Zak | $ | 360,000 | ||
| Joseph Cappello, Ph.D. | $ | 360,000 | ||
In April 2025, our Board of Directors approved a merit increase of Mr. Zindrick and Dr. Cappello’s annual base salary to $613,000 and $390,000, respectively, effective as of January 1, 2025.
Equity-Based Incentive Awards
Our equity-based incentive awards are designed to align our interests and those of our stockholders with those of our employees and consultants, including our executive officers. The Board or an authorized committee thereof is responsible for approving equity grants.
We have generally used stock options as an incentive for long-term compensation to our executive officers because stock options allow our executive officers to realize value from this form of equity compensation only if our stock price increases. We may grant equity awards, including restricted stock units, at such times as the Board determines appropriate. Our executives generally are awarded an initial grant in the form of a stock option in connection with their commencement of employment with us. Additional grants may occur periodically in order to specifically incentivize executives with respect to achieving certain corporate goals or to reward executives for exceptional performance.
Prior to our initial public offering, we granted stock options to each of our named executive officers pursuant to our 2009 Equity Incentive Plan (the 2009 Plan). The 2009 Plan was replaced by our 2019 Equity Incentive Plan (the 2019 Plan) in January 2019. Upon the effective date of the 2019 Plan, no further grants were made under our 2009 Plan. Any outstanding awards granted under our 2009 Plan will remain subject to the terms of our 2009 Plan and applicable award agreements. Upon the completion of our initial public offering, we adopted our 2022 Equity Incentive Plan (the 2022 Plan), which replaced our 2019 Plan. Upon the adoption of the 2022 Plan, no further grants were made under our 2022 Plan. Any outstanding awards granted under our 2019 Plan will remain subject to the terms of our 2019 Plan and applicable award agreements. In September 2023, the Company also adopted the 2023 Inducement Plan, pursuant to which the Company may exclusively grant awards to individuals that were not previously Company employees or directors, as an inducement material to the individual’s entry into employment with the Company within the meaning of Rule 5635(c)(4) of the Nasdaq Listing Rules.
In December 2024, we granted stock options and restricted stock units to each of our named executive officers, as further described below under “—Outstanding Equity Awards as of December 31, 2024.”
All stock options are granted with an exercise price per share that is no less than the fair market value of our common stock on the date of grant of such award. Our stock option and restricted stock unit awards are subject to a variety of vesting periods, including vesting over a four-year period, a two-year period, or being fully vested on the date of grant, and may be subject to acceleration of vesting and exercisability under certain termination and change in control events as described below in the section titled “—Potential Payments Upon Termination or Change in Control.”
Agreements with Named Executive Officers
Below are descriptions of our employment agreements with Mr. Zindrick, Ms. Zak and Dr. Cappello. The employment of each of our named executive officers is at will. Each of our named executive officers is eligible for certain severance and change in control benefits, as described below in the section titled “—Potential Payments Upon Termination or Change in Control.”
Mr. Zindrick. We entered into an employment agreement with Mr. Zindrick on May 30, 2023, with retroactive effect to April 1, 2023. Pursuant to the agreement, Mr. Zindrick is entitled to an initial base salary of $595,000 and an annual discretionary bonus of up to 55% of his annual base salary. The agreement also provides that Mr. Zindrick will be eligible to receive an annual discretionary option and/or other equity award grant covering shares of our common stock, as determined by the Board in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board, pursuant to our 2022 Plan.
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Ms. Zak. We entered into an employment agreement with Ms. Zak on August 28, 2023. Pursuant the agreement, effective as of August 28, 2023 (the Zak Effective Date), Ms. Zak was entitled to an initial base salary of $360,000 per year and an annual discretionary bonus of up to 40% of her then-current base salary based on the achievement of certain performance goals determined by the Board of Directors of the Company (and prorated for the number of calendar days she is employed in a calendar year). Ms. Zak’s employment agreement provided for an option to purchase 150,000 shares of common stock of the Company with a per share exercise price equal to the fair market value on the date of grant (the Zak Option). The shares subject to the Zak Option would vest over four years of continuous service to the Company, with 25% of the shares subject to the Zak Option vesting on the first-year anniversary of the Zak Effective Date, and the remaining shares vesting in equal monthly installments over the subsequent 36 months of continuous service thereafter.
On January 29, 2025, Ms. Zak resigned as our Chief Financial Officer, effective as of January 29, 2025 (the Separation Date). In connection with Ms. Zak’s separation from the Company, we entered into a separation agreement with Ms. Zak (the Separation Agreement) pursuant to which Ms. Zak will: (i) serve as a non-employee advisor to the Company beginning on the Separation Date and ending on August 29, 2025, unless earlier terminated pursuant to the Separation Agreement (the Advisory Period); (ii) receive a cash payment equal to six months of her base salary in effect as of the Separation Date (in the total amount of approximately $180,000), subject to standard payroll deductions and withholdings, to be paid in equal biweekly installments continuing until on or about August 29, 2025; (iii) receive up to 12 months of COBRA group health insurance continuation; and (iv) remain eligible to receive her annual bonus for calendar year 2024. In addition, Ms. Zak’s vested stock options granted pursuant to the 2022 Plan and the2023 Inducement Plan, as applicable, shall remain exercisable until the earlier of (a) the date that is 12 months after the last day of the Advisory Period and (b) the original expiration date of the applicable vested stock option.
Dr. Cappello. We entered into an employment agreement with Dr. Cappello on May 21, 2023 with retroactive effect to April 1, 2023. Pursuant to the agreement, Dr. Cappello is entitled to an initial base salary of $360,000 per year and an annual discretionary bonus of up to 40% of his annual base salary. The agreement also provides that Dr. Cappello will be eligible to receive an annual discretionary option and/or other equity award grant covering shares of our common stock, as determined by the Board in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board, pursuant to our 2022 Plan. Dr. Cappello’s employment may be terminated at-will by either party, with or without notice, subject to the terms of the agreement.
Perquisites Health, Welfare and Retirement Benefits
Our named executive officers, during their employment with us, are eligible to participate in our employee benefit plans, including our medical, dental, group term life, disability and accidental death and dismemberment insurance plans, in each case on the same basis as all of our other employees. In addition, we provide a 401(k) plan to our employees, including our named executive officers, as discussed in the section below entitled “401(k) Plan.”
We generally do not provide perquisites or personal benefits to our named executive officers, except in limited circumstances. We do, however, pay the premiums for medical, dental, group term life, disability and accidental death and dismemberment insurance for all of our employees, including our named executive officers. The Board may elect to adopt qualified or nonqualified benefit plans in the future if it determines that doing so is in our best interests.
Employee Benefit and Stock Plans
We believe that our ability to grant equity-based awards is a valuable and necessary compensation tool that aligns the long-term financial interests of our employees, consultants and directors with the financial interests of our stockholders. In addition, we believe that our ability to grant options and other equity-based awards helps us to attract, retain and motivate employees, consultants, and directors, and encourages them to devote their best efforts to our business and financial success. The principal features of our equity incentive plans and our 401(k) plan are summarized below. These summaries are qualified in their entirety by reference to the actual text of the plans, which, other than the 401(k) plan, are filed as exhibits to our Annual Report on Form 10-K for our fiscal year ended December 31, 2024.
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401(k) Plan
We maintain a 401(k) plan that provides eligible U.S. employees with an opportunity to save for retirement on a tax advantaged basis. Eligible employees are able to defer eligible compensation up to certain Code limits, which are updated annually. We have the ability to make employer profit sharing contributions to the 401(k) plan. The 401(k) plan is intended to be qualified under Section 401(a) of Internal Revenue Code of 1986, as amended (the Code), with the related trust intended to be tax exempt under Section 501(a) of the Code. As a tax-qualified retirement plan, contributions to the 401(k) plan are deductible by us when made, and contributions and earnings on those amounts are not generally taxable to the employees until withdrawn or distributed from the 401(k) plan.
Nonqualified Deferred Compensation
We do not maintain nonqualified defined contribution plans or other nonqualified deferred compensation plans. The Board may elect to provide our officers and other employees with nonqualified defined contribution or other nonqualified deferred compensation benefits in the future if it determines that doing so is in our best interests.
Potential Payments Upon Termination or Change in Control
Regardless of the manner in which a named executive officer’s service terminates, each named executive officer is entitled to receive amounts earned during his or her term of service, including unpaid salary and unused paid time off, as applicable.
Pursuant to the terms of Mr. Zindrick’s employment agreement, in the event he is subject to a termination without “cause” or he resigns for “good reason” (each, as defined in Mr. Zindrick’s employment agreement), Mr. Zindrick shall be entitled to receive (i) continued payment of his base salary for twelve (12) months and Company-paid COBRA premiums for up to twelve (12) months, and (ii) in the event of a termination by the Company without cause, 100% of his target annual bonus for the calendar year in which the separation occurs. In the event Mr. Zindrick is subject to a termination without cause or he resigns for good reason within three (3) months prior to or eighteen (18) months following a “change in control” (as defined in the 2022 Plan), Mr. Zindrick shall be entitled to receive (i) a lump sum cash payment equal to eighteen (18) months of his then-current base salary and 100% of his target annual bonus for the calendar year in which the separation occurs; and (ii) Company-paid COBRA premiums for up to eighteen (18) months. Such benefits are contingent on Mr. Zindrick’s execution and nonrevocation of a general release of claims against the Company.
For a description of Ms. Zak’s Separation Agreement, please see the description included under “—Agreements with Named Executive Officers.”
Pursuant to the terms of Dr. Cappello’s employment agreement, in the event he is subject to a termination for any reason, Dr. Cappello is entitled to all accrued and unpaid wages earned through Dr. Cappello’s last day of employment. In the event Dr. Cappello is subject to an “involuntary termination” that does not occur within the “change in control period” (each, as defined in Dr. Cappello’s employment agreement), Dr. Cappello shall be entitled to Company-paid COBRA premiums for up to twelve (12) months. In the event Dr. Cappello is subject to an “involuntary termination” during a “change in control period,” Dr. Cappello is entitled to receive (i) a lump sum cash payment equal to twelve (12) months of his then-current base salary and (ii) Company-paid COBRA premiums for up to twelve (12) months. Such benefits are contingent on Dr. Cappello’s execution and nonrevocation of a general release of claims against the Company.
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Outstanding Equity Awards at Fiscal Year End
The following table presents the outstanding equity incentive plan awards held by each named executive officer as of December 31, 2024.
| Option Awards(1) | Stock Awards(1) | |||||||||||||||||||||||||||
| Name | Grant Date | Number of Securities Underlying Unexercised Options Exercisable (#) | Number of Securities Underlying Unexercised Options Unexercisable (#) | Option Exercise Price Per Share ($)(2) | Option Expiration Date | Number of shares or units of stock that have not vested (#) | Market value of shares of units of stock that have not vested ($) | |||||||||||||||||||||
| Thomas Zindrick, J.D. | 9/19/2017 | (3) | 200,000 | — | 6.00 | 9/19/2027 | — | — | ||||||||||||||||||||
| 9/19/2017 | (3) | 725,000 | — | 6.00 | 9/19/2027 | — | — | |||||||||||||||||||||
| 3/23/2020 | (3) | 157,372 | — | 6.00 | 3/23/2030 | — | — | |||||||||||||||||||||
| 9/24/2020 | (3) | 23,568 | — | 6.00 | 9/24/2030 | — | — | |||||||||||||||||||||
| 9/11/2023 | (4)(6) | 78,125 | 171,875 | 22.40 | 9/24/2033 | — | — | |||||||||||||||||||||
| 12/18/2024 | (4)(6) | — | 183,000 | 2.29 | 12/18/2034 | |||||||||||||||||||||||
| 12/18/2024 | (5)(6) | — | — | — | — | 134,500 | 317,420 | |||||||||||||||||||||
| Lourie Zak | 9/11/2023 | (4)(6) | 50,000 | 100,000 | 22.40 | 9/11/2033 | — | — | ||||||||||||||||||||
| 12/18/2024 | (4)(6) | — | 56,525 | 2.29 | 12/18/2034 | |||||||||||||||||||||||
| 12/18/2024 | (5)(6) | — | — | — | — | 41,650 | 98,294 | |||||||||||||||||||||
| Joseph Cappello, Ph.D. | 5/1/2015 | (4)(6) | 50,000 | — | 6.00 | 5/1/2025 | ||||||||||||||||||||||
| 9/13/2017 | (4)(6) | 80,000 | — | 6.00 | 9/13/2027 | |||||||||||||||||||||||
| 12/31/2016 | (4)(6) | 16,666 | — | 6.00 | 12/31/2026 | |||||||||||||||||||||||
| 9/24/2020 | (4)(6) | 13,333 | — | 6.00 | 9/24/2030 | |||||||||||||||||||||||
| 09/11/2023 | (4)(6) | 65,000 | 44,688 | 22.40 | 09/11/2033 | |||||||||||||||||||||||
| 12/18/2024 | (4)(6) | 39,000 | 39,000 | 2.29 | 12/18/2034 | |||||||||||||||||||||||
| 12/18/2024 | (5)(6) | 29,000 | 68,440 | |||||||||||||||||||||||||
| (1) | All of the option and RSU awards were granted under the 2009 Plan, the 2019 Plan, the 2022 Plan or the 2023 Inducement Plan, the terms of which are described below under “Equity Compensation Arrangements—2009 Equity Incentive Plan, 2019 Equity Incentive Plan, 2022 Equity Incentive Plan and 2023 Inducement Plan.” |
| (2) | In September 2022, the Board approved a stock option repricing whereby the exercise prices of previously granted and unexercised options held by certain employees, directors and key advisers with exercise prices between $9.00 and $10.50 per share, were adjusted to equal the initial offering price of $6.00, contingent and effective upon the completion of the Company’s initial public offering. |
| (3) | All shares subject to this option award were fully vested as of the date of grant. |
| (4) | The shares subject to this option award vest as to 25% of the total shares on the one-year anniversary of the vesting commencement date, and vest in 1/36th monthly thereafter, subject to continuous service through each such date. |
| (5) | The shares subject to this RSU award vest as to 25% of the total shares on the one-year anniversary of the vesting commencement date, and the balance of the shares subject to each RSU will vest as to 8.33% on each of the subsequent twelve Quarterly Vesting Dates, subject to continuous service through each such date. “Quarterly Vesting Dates” generally mean each of March 1, June 1, September 1, and December 1. |
| (6) | In the event the holder is terminated without cause within three months prior to, or within eighteen months following, a change in control, or resigns for good reason within such period, then the unvested portion of this option or RSU shall vest and become exercisable in full. |
Equity Compensation Arrangements
Since our initial public offering, we have granted stock options and other equity awards to employees, including named executive officers, under our 2022 Plan and 2023 Inducement Plan. Prior to the initial public offering, we granted stock options and other equity awards under our 2019 Plan and 2009 Plan. Also, since our initial public offering, we have maintained the ESPP to provide additional long-term equity incentives to our employees and named executive officers. The following is a brief summary of the material terms of each of our equity compensation plans.
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2022 Equity Incentive Plan
Types of Awards. Our 2022 Plan provides for the grant of incentive stock options (ISOs) to employees, including employees of any parent or subsidiary, and for the grant of nonstatutory stock options (NSOs), stock appreciation rights, restricted stock awards, restricted stock unit awards, performance awards and other forms of stock awards to employees, directors, and consultants, including employees and consultants of our affiliates.
Corporate Transactions. The following applies to stock awards under the 2022 Plan in the event of a corporate transaction, unless otherwise provided in a participant’s stock award agreement or other written agreement with us or one of our affiliates or unless otherwise expressly provided by the plan administrator at the time of grant.
In the event of a corporate transaction, any stock awards outstanding under the 2022 Plan may be assumed, continued or substituted for by any surviving or acquiring corporation (or its parent company), and any reacquisition or repurchase rights held by us with respect to the stock award may be assigned to the successor (or its parent company). If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then with respect to any such stock awards that are held by participants whose continuous service has not terminated prior to the effective time of the transaction, or current participants, the vesting (and exercisability, if applicable) of such stock awards will be accelerated in full to a date prior to the effective time of the transaction (contingent upon the effectiveness of the transaction), and such stock awards will terminate if not exercised (if applicable) at or prior to the effective time of the transaction, and any reacquisition or repurchase rights held by us with respect to such stock awards will lapse (contingent upon the effectiveness of the transaction). With respect to performance awards with multiple vesting levels depending on performance level, unless otherwise provided by an award agreement or by the administrator, the award will accelerate at 100% of target. If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then with respect to any such stock awards that are held by persons other than current participants, such awards will terminate if not exercised (if applicable) prior to the effective time of the transaction, except that any reacquisition or repurchase rights held by us with respect to such stock awards will not terminate and may continue to be exercised notwithstanding the transaction. The plan administrator is not obligated to treat all stock awards or portions of stock awards in the same manner and is not obligated to take the same actions with respect to all participants.
In the event a stock award will terminate if not exercised prior to the effective time of a corporate transaction, the plan administrator may provide, in its sole discretion, that the holder of such stock award may not exercise such stock award but instead will receive a payment equal in value to the excess (if any) of (1) the value of the property the participant would have received upon the exercise of the stock award over (2) any exercise price payable by such holder in connection with such exercise.
Under our 2022 Plan, a corporate transaction is defined to include the consummation of: (1) a sale of all or substantially all of our assets, (2) the sale or disposition of at least 50% of our outstanding securities, (3) a merger or consolidation where we do not survive the transaction, and (4) a merger or consolidation where we do survive the transaction but the shares of our common stock outstanding before such transaction are converted or exchanged into other property by virtue of the transaction, unless otherwise provided in an award agreement or other written agreement between us and the award holder.
Change in Control. In the event of a change in control, as defined under our 2022 Plan, awards granted under our 2022 Plan will not receive automatic acceleration of vesting and exercisability, although this treatment may be provided for in an award agreement.
Under the 2022 Plan, a change in control is defined to include (1) the acquisition by any person or company of more than 50% of the combined voting power of our then outstanding stock; (2) a consummated merger, consolidation or similar transaction in which our stockholders immediately before the transaction do not own, directly or indirectly, more than 50% of the combined voting power of the surviving entity (or the parent of the surviving entity); (3) the approval by the stockholders or the board of directors of a plan of complete dissolution or liquidation of the company, or the occurrence of a complete dissolution or liquidation of the company, except for a liquidation into a parent corporation; (4) a consummated sale, lease, exclusive license or other disposition of all or substantially all of our assets other than to an entity more than 50% of the combined voting power of which is owned by our stockholders; and (5) an unapproved change in the majority of the board of directors.
2019 Equity Incentive Plan
Types of Awards. Our 2019 Plan provides for the grant of ISOs, NSOs, stock appreciation rights, restricted stock awards, restricted stock units and other stock-based awards to employees, directors, and consultants.
Transactions. Our 2019 Plan provides that, in the event of a “change in control” or a “corporate transaction,” unless otherwise provided in an award agreement or other written agreement between us and the award holder or unless otherwise expressly provided by our board of directors at the time of grant of a stock award, our board of directors, the plan administrator, may take one or more of the following actions with respect to such stock awards contingent upon the closing or completion of the transaction:
| ● | arrange for the assumption of, continuation of or substitution of the stock award by the surviving or acquiring corporation; |
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| ● | arrange for the assignment of any reacquisition or repurchase rights held by us to the surviving or acquiring corporation; |
| ● | provide for acceleration of vesting of any stock award; |
| ● | arrange for the lapse of any reacquisition or repurchase rights held by us with respect to the stock award; |
| ● | provide for the cancellation of any stock award, to the extent not vested or not exercised prior to the effective time of such transaction, for such cash consideration, if any, as the board of directors in its sole discretion may consider appropriate; or |
| ● | make a payment (in such form as may be determined by the board of directors) equal to the excess, if any, of (A) the value of the property that would have been received upon the exercise of the stock award immediately prior to the effective time of the transaction, over (B) any exercise price payable by such holder in connection with such exercise, with such payments delayed to the same extent that payment of consideration to the holders of our common stock is delayed as a result of escrows, earn outs, holdbacks or any other contingencies related to such transaction. |
The plan administrator is not obligated to treat all stock awards or portions of stock awards in the same manner and is not obligated to treat all participants in the same manner.
Change in Control. A stock award may be subject to additional acceleration of vesting and exercisability upon or after a change in control as may be provided in an applicable award agreement or other written agreement, but in the absence of such provision, no such acceleration will occur.
2009 Equity Incentive Plan
Types of Awards. Our 2009 Plan provides for the grant of ISOs to our employees, NSOs, restricted stock awards, stock appreciation rights, dividend equivalent awards, stock payment awards and restricted stock unit awards to restricted stock units to employees, non-employee directors and consultants.
Corporate Transactions. Our 2009 Plan provides that in the event of certain changes to the capital structure describe above or a change in control, the plan administrator may take one or more of the following actions with respect to such stock awards:
| ● | to provide for either (A) termination of any award in exchange for an amount of cash or other property equal to the amount that would have been received upon the exercise of such award or realization of participants rights, or (B) the replacement of such award with other rights or property; |
| ● | arrange for the assumption, continuation, or substitution of a stock award by a surviving or acquiring corporation; |
| ● | to make adjustments in the number and type of securities subject to outstanding awards, and to the terms and conditions of awards; |
| ● | to provide that an award will be exercisable, payable, or fully vested with respect to all shares; or |
| ● | to provide that an award cannot vest, be exercised or become payable after such event. |
If a change in control occurs and awards are not continued, converted, assumed, or replaced by the successor entity, then immediately prior to such change in control, the awards will become fully exercisable or payable.
2022 Employee Stock Purchase Plan
The 2022 Employee Stock Purchase Plan (ESPP) is intended to qualify as an “employee stock purchase plan” within the meaning of Section 423 of the Code for U.S. employees. Under the ESPP, all of our regular employees, including our Named Executive Officers, and employees of any of our parent or subsidiary companies designated by the board of directors as eligible to participate may participate and may contribute, normally through payroll deductions, up to 15% of their earnings up to a total of $25,000 per purchase period for the purchase of our common stock under the ESPP. The ESPP is implemented through a series of offerings of purchase rights to eligible employees. Under the ESPP, we may specify offerings with a duration of not more than 27 months and may specify shorter purchase periods within each offering. Each offering will have one or more purchase dates on which our common stock will be purchased for employees participating in the offering. Unless otherwise determined by the Board of Directors, shares of our common stock are purchased for accounts of employees participating in the ESPP at a price per share equal to the lower of (a) 85% of the fair market value of a share of our common stock on the first date of an offering or (b) 85% of the fair market value of a share of our common stock on the date of purchase.
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Corporate Transactions. In the event of certain significant corporate transactions, including the consummation of (1) a sale of all or substantially all of our assets, (2) the sale or disposition of more than 50% of our outstanding securities, (3) a merger or consolidation where we do not survive the transaction, or (4) a merger or consolidation where we do survive the transaction but the shares of our common stock outstanding immediately before such transaction are converted or exchanged into other property by virtue of the transaction, any then-outstanding rights to purchase our stock under the ESPP may be assumed, continued or substituted for by any surviving or acquiring entity (or its parent company). If the surviving or acquiring entity (or its parent company) elects not to assume, continue, or substitute for such purchase rights, then the participants’ accumulated payroll contributions will be used to purchase shares of our common stock within ten business days before such corporate transaction, and such purchase rights will terminate immediately.
2023 Inducement Plan
Types of Awards. Our 2023 Inducement Plan provides for the grant of ISOs, NSOs, restricted stock awards, restricted stock unit awards, performance awards and other forms of stock awards to eligible employees who satisfy the standards for inducement grants under Nasdaq Marketplace Rule 5635(c)(4) or 5635(c)(3), if applicable, and the related guidance under Nasdaq IM 5635-1.
Corporate Transactions. The following applies to stock awards under the 2023 Inducement Plan in the event of a corporate transaction, unless otherwise provided in a participant’s stock award agreement or other written agreement with us or one of our affiliates or unless otherwise expressly provided by the plan administrator at the time of grant.
In the event of a corporate transaction, any stock awards outstanding under the 2023 Inducement Plan may be assumed, continued or substituted for by any surviving or acquiring corporation (or its parent company), and any reacquisition or repurchase rights held by us with respect to the stock award may be assigned to the successor (or its parent company). If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then with respect to any such stock awards that are held by participants whose continuous service has not terminated prior to the effective time of the transaction, or current participants, the vesting (and exercisability, if applicable) of such stock awards will be accelerated in full to a date prior to the effective time of the transaction (contingent upon the effectiveness of the transaction), and such stock awards will terminate if not exercised (if applicable) at or prior to the effective time of the transaction, and any reacquisition or repurchase rights held by us with respect to such stock awards will lapse (contingent upon the effectiveness of the transaction). With respect to performance awards with multiple vesting levels depending on performance level, unless otherwise provided by an award agreement or by the administrator, the award will accelerate at 100% of target. If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then with respect to any such stock awards that are held by persons other than current participants, such awards will terminate if not exercised (if applicable) prior to the effective time of the transaction, except that any reacquisition or repurchase rights held by us with respect to such stock awards will not terminate and may continue to be exercised notwithstanding the transaction. The plan administrator is not obligated to treat all stock awards or portions of stock awards in the same manner and is not obligated to take the same actions with respect to all participants.
In the event a stock award will terminate if not exercised prior to the effective time of a corporate transaction, the plan administrator may provide, in its sole discretion, that the holder of such stock award may not exercise such stock award but instead will receive a payment equal in value to the excess (if any) of (1) the value of the property the participant would have received upon the exercise of the stock award over (2) any exercise price payable by such holder in connection with such exercise.
Under our 2023 Inducement Plan, a corporate transaction is defined to include the consummation of: (1) a sale of all or substantially all of our assets, (2) the sale or disposition of at least 50% of our outstanding securities, (3) a merger or consolidation where we do not survive the transaction, and (4) a merger or consolidation where we do survive the transaction but the shares of our common stock outstanding before such transaction are converted or exchanged into other property by virtue of the transaction, unless otherwise provided in an award agreement or other written agreement between us and the award holder.
Change in Control. In the event of a change in control, as defined under our 2023 Inducement Plan, awards granted under our 2023 Inducement Plan will not receive automatic acceleration of vesting and exercisability, although this treatment may be provided for in an award agreement.
Under the 2023 Inducement Plan, a change in control is defined to include (1) the acquisition by any person or company of more than 50% of the combined voting power of our then outstanding stock; (2) a consummated merger, consolidation or similar transaction in which our stockholders immediately before the transaction do not own, directly or indirectly, more than 50% of the combined voting power of the surviving entity (or the parent of the surviving entity); (3) the approval by the stockholders or the board of directors of a plan of complete dissolution or liquidation of the company, or the occurrence of a complete dissolution or liquidation of the company, except for a liquidation into a parent corporation; (4) a consummated sale, lease, exclusive license or other disposition of all or substantially all of our assets other than to an entity more than 50% of the combined voting power of which is owned by our stockholders; and (5) an unapproved change in the majority of the board of directors.
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Clawbacks
As a public company, if we are required to restate our financial results due to our material noncompliance with any financial reporting requirements under the federal securities laws as a result of misconduct, the Chief Executive Officer and Chief Financial Officer may be legally required to reimburse our Company for any bonus or other incentive-based or equity-based compensation they receive in accordance with the provisions of section 304 of the Sarbanes-Oxley Act of 2002, as amended. Additionally, we have implemented a Dodd-Frank Act-compliant clawback policy, as required by SEC rules.
Policies and Practices Related to the Grant of Certain Equity Awards Close in Time to the Release of Material Nonpublic Information
Non-Employee Director Compensation
The following table sets forth information regarding the compensation earned for service on the Board during the year ended December 31, 2024. Thomas Zindrick, J.D., our current President and Chief Executive Officer, was also a member of the Board during 2024, but did not receive any additional compensation for his service as a director on the Board. Mr. Zindrick’s compensation as an executive officer is set forth in the section titled “Executive Compensation—Summary Compensation Table.” All of our non-employee directors are entitled to reimbursement of direct expenses incurred in connection with attending meetings of the Board or committees thereof.
| Name | Fees Earned or Paid in Cash ($) | Option Awards ($)(1) | Stock Awards ($)(1) | Total ($) | ||||||||||||
| James L. Tyree | 70,000 | 77,500 | 77,500 | 225,000 | ||||||||||||
| John Thomas, Ph.D. | 64,000 | 77,500 | 77,500 | 219,000 | ||||||||||||
| Mary Mirabelli | 60,500 | 77,500 | 77,500 | 215,500 | ||||||||||||
| John Smither | 76,500 | 77,500 | 77,500 | 216,500 | ||||||||||||
| (1) | The amounts reported in this column do not reflect dollar amounts actually received by the director. Instead, the amounts reflect the aggregate grant date fair value of the stock options and RSU’s granted to the director during 2024 under the 2022 Plan, computed in accordance with ASC Topic 718, as further described below. As required by SEC rules, the amount shown excludes the impact of estimated forfeitures related to service-based vesting conditions. The amount reported in this column reflects the accounting cost for these stock options and does not correspond to the actual economic value that may be received by the director upon the exercise of the stock options or any sale of the underlying shares of common stock. |
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The table below sets forth the aggregate number of shares subject to outstanding stock options beneficially owned by each of our directors as of December 31, 2024: |
| Name | Number of Shares Underlying Outstanding Options as of December 31, 2024 | Number of Shares Underlying Outstanding RSU Awards as of December 31, 2024 | Total Shares | |||||||||
| James L. Tyree | 148,933 | 39,541 | 188,474 | |||||||||
| John Thomas, Ph.D. | 81,209 | 39,541 | 120,750 | |||||||||
| Mary Mirabelli | 79,866 | 39,541 | 119,407 | |||||||||
| John Smither | 58,916 | 39,541 | 98,457 | |||||||||
The exercise price of each option is equal to the fair market value of our common stock as of the date of grant.
In October 2024, the Board, following consultation with the Compensation Committee and the Company’s compensation consultant, approved and awarded Mr. Smither a one-time cash payment of $15,000 for his advisory contributions to the Company’s strategic financing transactions, which is reflected in the table above.
Non-Employee Director Compensation Policy
We maintain a non-employee director compensation policy (as amended, the compensation policy) that is applicable to all of our non-employee directors, which was effective from the date of our initial public offering, and was most recently amended in September 2023. This compensation policy provides that each such non-employee director will automatically receive the following compensation for service on the Board:
| ● | an annual cash retainer of $40,000; | |
| ● | an additional annual cash retainer of $30,000 to the lead independent director of the Board; | |
| ● | an additional annual cash retainer of $15,000, $10,000, and $8,000 for service as chair of our Audit Committee, Compensation Committee and Nominating Committee, respectively; | |
| ● | an additional annual cash retainer (not applicable to committee chairs) of $7,500, $5,000, and $4,000 for service as a member of our Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee, respectively; | |
| ● | for each eligible director who is first elected or appointed to the Board, an initial option to purchase a number of shares of our common stock with a grant-date value of $155,000 and a restricted stock unit award with a grant-date value of $155,000 (the Initial Grants). These Initial Grants will vest in equal installments every three months over a three year period such that the Initial Grants are fully vested on the third anniversary of the date of grant, subject to the directors continuous service through each such vesting date, and will vest in full upon a Change in Control (as defined in the 2022 Plan). The number of shares underlying stock options hall be calculated based on the grant date fair value of a share of our common stock using a Black-Scholes model. The number of shares underlying restricted stock unit awards shall be calculated in accordance with the Company’s equity award policy in effect from time to time; and | |
| ● | an annual option grant to purchase a number of shares of our common stock with a grant-date value of $77,500 and a restricted stock unit award with a grant-date value of $77,500 (the Annual Grants); provided, however, that if a director has not served as member of the Board for 12 months prior to the applicable annual stockholder meeting, the number of shares subject to such individual’s Annual Grants will be pro-rated based on the number of full months served on the Board, rounded to the nearest whole share. The Annual Grants will vest on the first anniversary of the date of grant, provided that the Annual Grants will in any case be fully vested on the date of Company’s next annual stockholder meeting, subject to the director’s continuous service through such vesting date and will vest in full upon a Change in Control. The number of shares underlying stock options hall be calculated based on the grant date fair value of a share of our common stock using a Black-Scholes model. The number of shares underlying restricted stock unit awards shall be calculated in accordance with the Company’s equity award policy in effect from time to time. |
Each of the option grants and restricted stock unit awards described above will be granted under our 2022 Plan. The term of each option will be 10 years, subject to earlier termination as provided in the 2022 Plan.
In addition, the Board or the Compensation Committee may from time to time determine to make discretionary cash awards and/or discretionary grants of stock options or other equity awards under the 2022 Plan to our non-employee directors in connection with their service on the Board.
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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information regarding beneficial ownership of our capital stock as of April 29, 2025 by:
| ● | each person, or group of affiliated persons, known by us to beneficially own more than 5% of our common stock; | |
| ● | each of our directors; | |
| ● | each our of named executive officers; and | |
| ● | all of our current executive officers and directors as a group. |
We have determined beneficial ownership in accordance with the rules and regulations of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Except as indicated by the footnotes below, we believe, based on information furnished to us, that the persons and entities named in the table below have sole voting and sole investment power with respect to all shares that they beneficially own, subject to applicable community property laws. Shares of our common stock subject to options, restricted stock units or other rights that are currently exercisable or exercisable within 60 days of April 29, 2025 are deemed to be outstanding and to be beneficially owned by the person holding such equity for the purpose of computing the percentage ownership of that person, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
Applicable percentage ownership is based on 37,734,967 shares of Common Stock outstanding as of April 29, 2025.
Unless otherwise indicated, the address for each beneficial owner listed in the table below is c/o Genelux Corporation, 2625 Townsgate Road, Suite 230, Westlake Village, California 91361.
| Name and Address of Beneficial Owner: | Number of Shares Beneficially Owned | Percentage of Shares Beneficially Owned | ||||||
| Greater than 5% Holders | ||||||||
| Aladar Szalay, Ph.D.(1) | 3,413,581 | 9.0 | % | |||||
| Directors and Named Executive Officers: | ||||||||
| Mary Mirabelli(2) | 49,857 | * | ||||||
| John Smither(3) | 27,867 | * | ||||||
| John Thomas, Ph.D. (4) | 559,557 | 1.5 | % | |||||
| James L. Tyree(5) | 150,505 | * | ||||||
| Thomas Zindrick, J.D.(6) | 1,672,609 | 4.3 | % | |||||
| Lourie Zak(7) | 180,177 | * | ||||||
| Joseph Cappello, Ph.D.(8) | 242,731 | * | ||||||
| All directors and executive officers as a group (12 persons)(9) | 3,611,124 | 9.6 | % | |||||
*Represents beneficial ownership of less than 1%.
| (1) | Consists of shares of common stock held by Dr. Szalay and his affiliates. |
| (2) | Consists of (i) 12,460 shares of common stock; (ii) 29,397 shares of common stock issuable to Ms. Mirabelli pursuant to options exercisable within 60 days of April 29, 2025; and (iii) 8,000 shares of common stock issuable to Ms. Mirabelli pursuant to warrants exercisable within 60 days of April 29, 2025. |
| (3) | Consists of (i) 13,170 shares of common stock; (ii) 8,447 shares of common stock issuable to Mr. Smither pursuant to options exercisable within 60 days of April 29, 2025; and (iii) 6,250 shares of common stock issuable to Mr. Smither pursuant to warrants exercisable within 60 days of April 29, 2025. |
| (4) | Consists of (i) 471,920 shares of common stock; (ii) 85,137 shares of common stock issuable to Dr. Thomas pursuant to options exercisable within 60 days of the April 29, 2025; and (iii) 2,500 shares of common stock issuable to Dr. Thomas pursuant to warrants exercisable within 60 days of April 29, 2025. |
| (5) | Consists of (i) 45,791 shares of common stock; (ii) 98,464 shares of common stock issuable to Mr. Tyree pursuant to options exercisable within 60 days of April 29, 2025; and (iii) 6,250 shares of common stock issuable to Mr. Tyree pursuant to warrants exercisable within 60 days of April 29, 2025. |
| (6) | Consists of (i) 237,372 shares of common stock; (ii) 30,339 shares of our common stock subject to the vesting of restricted stock units within 60 days of April 29, 2025, (iii) 1,204,898 shares of common stock issuable to Mr. Zindrick pursuant to options exercisable within 60 days of April 29, 2025; and (iv) 200,000 shares of common stock issuable to Mr. Zindrick pursuant to warrants exercisable within 60 days of April 29, 2025. |
| (7) | Consists of (i) 82,452 shares of common stock held directly by Ms. Zak, (ii) 13,350 shares of our common stock subject to the vesting of restricted stock units within 60 days of April 29, 2025, (iii) 53,125 shares of common stock issuable to Ms. Zak pursuant to options exercisable within 60 days of April 29, 2025; and (iv) 31,250 shares of common stock issuable to Ms. Zak pursuant to warrants exercisable within 60 days of April 29, 2025. |
| 14 |
| (8) | Consists of (i) 43,653 shares of common stock, (ii) 13,350 shares of our common stock subject to the vesting of restricted stock units within 60 days of April 29, 2025, and (iii) 185,728 shares of common stock issuable to Dr. Cappello pursuant to options exercisable within 60 days of April 29, 2025. |
| (9) | Consists of (i) the shares of common stock described in notes (2) through (6) and (8) above; (ii) 166,660 shares of common stock issuable to Dr. Scigalla pursuant to options exercisable within 60 days of April 29, 2025; (iii) (a) 39,869 shares of common stock held by Dr. Yu, (b) 13,350 shares of our common stock issuable to Dr. Yu subject to the vesting of restricted stock units within 60 days of April 29, 2025, (c) 233,381 shares of common stock issuable to Dr. Yu pursuant to options exercisable within 60 days of April 29, 2025, and (d) 2,500 shares of common stock issuable to Dr. Yu pursuant to warrants exercisable within 60 days of April 29, 2025; (iv) (a) 31,847 shares of common stock held by Mr. Smalling, (b) 4,797 shares of our common stock issuable to Mr. Smalling subject to the vesting of restricted stock units within 60 days of April 29, 2025, (c) 33,083 shares of common stock issuable to Mr. Smalling pursuant to options exercisable within 60 days of April 14, 2024, and (d) 1,250 shares of common stock issuable to Mr. Smalling pursuant to warrants exercisable within 60 days of April 29, 2025; and (v) (a) 43,653 shares of common stock held by Mr. Ryder, (b) 10,708 shares of our common stock issuable to Mr. Ryder subject to the vesting of restricted stock units within 60 days of April 29, 2025, (c) 137,083 shares of common stock issuable to Mr. Ryder pursuant to options exercisable within 60 days of April 29, 2025, and (d) 10,000 shares of common stock issuable to Mr. Ryder pursuant to warrants exercisable within 60 days of April 29, 2025. |
Equity Compensation Plan Information
The following table provides certain information with respect to all of our equity compensation plans in effect as of December 31, 2024.
| Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a)(#) | Weighted-average exercise price of outstanding options, warrants and rights (b)($) | Number of securities remaining available for issuance under equity compensation plans (excluding securities reflected in column (a)) (c)(#) | |||||||||
| Equity compensation plans approved by security holders: | ||||||||||||
| 2009 Equity Incentive Plan | 1,754,213 | 6.08 | — | |||||||||
| 2019 Equity Incentive Plan | 1,637,562 | 6.08 | — | |||||||||
| 2022 Equity Incentive Plan | 3,113,962 | 8.82 | 1,025,487 | |||||||||
| 2022 Employee Stock Purchase Plan | 53,818 | — | 914,072 | |||||||||
| Equity compensation plans not approved by security holders | 383,800 | 22.40 | 616,200 | |||||||||
| Total | 7,000,439 | 2,555,759 | ||||||||||
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
Policies and Procedures for Related Party Transactions
We adopted a written policy that our executive officers, directors, nominees for election as a director, beneficial owners of more than 5% of any class of our common stock and any members of the immediate family of any of the foregoing persons are not permitted to enter into a related person transaction with us without the approval or ratification of the Board or our Audit Committee. Under the policy, any request for us to enter into a transaction with an executive officer, director, nominee for election as a director, beneficial owner of more than 5% of any class of our common stock, or any member of the immediate family of any of the foregoing persons, in which the amount involved exceeds $120,000 (or, if less, 1% of the average of our total assets in a fiscal year) and such person would have a direct or indirect interest, must be presented to the Board or our Audit Committee for review, consideration and approval. In approving or rejecting any such proposal, the Board or our Audit Committee is to consider the material facts of the transaction, including whether the transaction is on terms comparable to the terms generally available to an unaffiliated third party under the same or similar circumstances and the extent of the related person’s interest in the transaction.
Transactions with Related Persons
The following includes a summary of transactions since January 1, 2023 to which we have been a party in which the amount involved exceeded or will exceed the lesser of $120,000 or 1% of the average of our total assets as of December 31, 2023 and 2024, and in which any of our directors, executive officers or, to our knowledge, beneficial owners of more than 5% of our capital stock or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest, other than equity and other compensation, termination, change in control and other arrangements, which are described under “Executive Compensation.” We also describe below certain other transactions with our directors, executive officers and stockholders.
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Offer Letters and Equity Awards
We have entered into offer letters with certain of our executive officers and granted equity awards to our executive officers and our directors. For more information regarding these agreements and awards with our named executive officers and directors, see the sections titled “Executive Compensation” and “Non-Employee Director Compensation.”
Indemnification Agreements
Our amended and restated certificate of incorporation contains provisions limiting the liability of directors, and our amended and restated bylaws provide that we will indemnify each of our directors and officers to the fullest extent permitted under Delaware law. Our amended and restated certificate of incorporation and amended and restated bylaws also provide the Board with discretion to indemnify our employees and other agents when determined appropriate by the Board. In addition, we have entered into an indemnification agreement with each of our directors and executive officers, which will require us to indemnify them.
Independence of the Board of Directors
As required under the listing standards of The Nasdaq Stock Market, LLC (Nasdaq), a majority of the members of a listed company’s board of directors must qualify as “independent,” as affirmatively determined by the board of directors. The board of directors consults with our outside counsel to ensure that its determinations are consistent with relevant securities and other laws and regulations regarding the definition of “independent,” including those set forth in pertinent listing standards of Nasdaq, as in effect from time to time.
The Board undertook a review of the independence of each director. Based on information provided by each director concerning his or her background, employment, and affiliations, the Board has determined that Ms. Mirabelli, Dr. Thomas, Mr. Tyree, and Mr. Smither do not have relationships that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent” as that term is defined under the listing standards. In making these determinations, the Board considered the current and prior relationships that each non-employee director has with the Company and all other facts and circumstances the Board deemed relevant in determining their independence, including the beneficial ownership of our shares by each non-employee director and the transactions described in “Certain Relationships and Related Person Transactions.”
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Weinberg & Company, P.A. (Los Angeles, California, PCAOB Auditor ID: 572), who performed our audit services for fiscal year 2024 and 2023 including an audit of the financial statements and services related to filings with the SEC, has served as our independent registered public accounting firm since 2021.
The following table represents aggregate fees billed to the Company for the fiscal years ended December 31, 2024 and 2023 by Weinberg & Company, P.A., our independent registered public accounting firm.
Fees for Fiscal 2024 | Fees for Fiscal 2023 | |||||||
| Audit Fees | $ | 185,147 | $ | 219,338 | ||||
| All Other Fees | 137,265 | 43,596 | ||||||
| Total Fees | $ | 322,412 | $ | 262,934 | ||||
Audit Fees. This category consists of the annual audit of our financial statements and the interim reviews of the quarterly financial statements and services rendered in connection with registration statements, including comfort letters and consents.
All Other Fees. This category consists of fees for all other services that are not reported above.
Pre-Approval Policies and Procedures
The Audit Committee has adopted a policy and procedures for the pre-approval of audit and non-audit services rendered by our independent registered public accounting firm, Weinberg & Company, P.A. The policy generally pre-approves specified services in the defined categories of audit services, audit-related services and tax services up to specified amounts. Pre-approval may also be given as part of the Audit Committee’s approval of the scope of the engagement of the independent auditor or on an individual, explicit, case-by-case basis before the independent auditor is engaged to provide each service. The pre-approval of services may be delegated to one or more of the Audit Committee’s members, but the decision shall be reported to the full Audit Committee at its next scheduled meeting.
The Audit Committee has determined that the rendering of services other than audit services by Weinberg & Company, P.A. is compatible with maintaining the principal accountant’s independence.
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PART IV
Item 15. Exhibits and Financial Statement Schedules
(a)(1) Financial Statements.
For a list of the financial statements included herein, see Index on page F-1 of the Original Form 10-K.
(a)(2) Financial Statement Schedules.
All required information is included in the financial statements or notes thereto.
(a)(3) List of Exhibits.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
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| 18 |
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| * | Filed with this Annual Report on Form 10-K/A. |
| † | This certification shall not be deemed filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act. |
| + | Indicates management contract or compensatory plan. |
| ¥ | Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Registrant undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC. |
| # | Pursuant to Item 601(b)(10) of Regulation S-K, certain portions of this exhibit have been omitted (indicated by “[***]”) because the Registrant has determined that the information is not material and is the type that the Registrant treats as private or confidential. |
Item 16. Form 10-K Summary
None.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused Amendment No. 1 to the Form 10-K to be signed on its behalf by the undersigned thereunto duly authorized.
| Date: April 29, 2025 | By: | /s/ Thomas Zindrick, J.D. |
| Name: | Thomas Zindrick, J.D. | |
| Title: | President and Chief Executive Officer |
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Exhibit 10.31
GENELUX CORPORATION
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into effective as of the 1st day of September, 2011 (the “Effective Date”), by and between Genelux Corporation, a Delaware corporation (the “Company”), and Pharmaceutical Research Consulting (PRC) (“Consultant”).
W I T N E S S E T H:
WHEREAS, the Company wishes to retain Consultant as an independent contractor to perform certain consulting services; and
WHEREAS, Consultant is willing to perform such services for the consideration and on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth below, the parties agree as follows:
1. Engagement.
(a) Scope of Work. Consultant shall perform the work described in Exhibit A attached hereto and such other work as may be mutually agreed upon by the Company and Consultant (the “Work”). Consultant shall perform the Work under the direction of the President of the Company or such other person(s) as the Company may designate. During the term of this Agreement, Consultant shall use Consultant’s best efforts in performing the Work. Except as otherwise agreed upon by the Company in writing, all of the Work under this Agreement shall be performed by Paul Scigalla, M.D., Ph.D.
(b) Professional Standards. The manner and means used by Consultant to achieve the result desired by the Company are in the sole discretion and control of Consultant. Consultant’s results will be the product of the highest degree of professional skill and expertise.
(c) Location. Consultant shall provide services at places which in his judgment are best suited to accomplish the projects in a timely and professional manner consistent with industry standards. Consultant agrees to attend meetings and presentations at the Company’s facility as may be requested by the Company from time to time. Consultant agrees not to remove from the Company’s premises any Company-owned hardware, software, or other equipment or property, without the prior written consent of the Company.
2. Compensation. In consideration for the services and the terms of this Agreement, Consultant shall be paid the following compensation:
(a) The Company agrees to pay Consultant three hundred forty U.S. dollars ($340) per hour for services performed in accordance with this Agreement, up to a maximum of two thousand seven hundred twenty U.S. dollars ($2720) per day. During any day when Consultant works from home at the request of the Company, he will perform a minimum of two (2) hours of Work per day and be entitled for compensation for a minimum of two (2) hours of Work per day. Consultant agrees, at the Company’s request, to work at the Company’s San Diego office as the Company shall from time to time designate, for which Consultant will be paid a flat daily fee of $2,720, and which shall reflect nine (9) hours of work. From time to time, the Company may also request that Consultant participate in investigator meetings or scientific meetings such as ASN, ASCO or EDTA, the time for which shall be billed as set forth hereinabove.
/s/ PS
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(b) In addition to payment for services provided, the Company shall also reimburse Consultant for pre-approved out-of-pocket expenses incurred directly in the performance of services under this Agreement, including overnight mailing, facsimile transmissions, authorized telephone charges, including those associated with e-mail use, and authorized hotel expenses. Further, the Company agrees to reimburse Contractor for pre-approved travel expenses incurred directly in the performance of services under this Agreement, including business-class travel on both domestic and international flights in accordance with Company policy, after the Company’s receipt and approval of monthly expense reports documenting all such expenses in reasonable detail.
3. Consultant’s Warranties.
(a) Consultant acknowledges and agrees that Consultant’s performance of the Work hereunder does not conflict with any obligation of Consultant to a third party or any obligation of Consultant under a contract or other agreement or policy by which Consultant is bound.
(b) Consultant represents and warrants that (i) Consultant is authorized to enter into and perform this Agreement, and (ii) Consultant is subject to, and shall in the future enter into, no contract or agreement with any person, corporation, government agency or other entity that could, in any manner, impede or prevent Consultant from giving, and the Company from receiving, the benefit of the Work to be performed under this Agreement.
(c) Consultant represents and warrants that no information to be disclosed to the Company in performance of this Agreement was or shall be acquired by Consultant (i) pursuant to any relationship in which Consultant was obligated to hold such information in confidence for the benefit of any third party or (ii) by any unlawful or otherwise improper means.
(d) Consultant represents and warrants that no information, materials or other products or results of the Work delivered to the Company under this Agreement shall infringe upon, conflict with or violate any patent rights, copyrights, trade secrets or other proprietary rights, however denominated, of any person or entity.
4. Rights in Intellectual Property.
(a) Consultant agrees that all discoveries, developments, inventions, ideas, concepts, research and other information arising out of any of the Work or use of any Confidential Information or any Materials by or on behalf of Consultant (hereinafter collectively referred to as the “Developments”) shall be the sole property of the Company. Consultant further agrees that the originals and all copies of all notebooks, disks, tapes, computer programs, reports, proposals and other documents and materials furnished to Consultant by the Company, however and whenever produced (whether by Consultant or others), shall be the sole property of the Company.
/s/ PS
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(b) Consultant agrees that all of the Developments, including, without limitation, all parts thereof, and any memorialization thereof by electronic or manual storage, transcription, or recording, and any display, performance or modification thereof or derivative work based thereon, is work made for hire under the copyright laws of the United States especially ordered and commissioned by the Company.
(c) Consultant agrees to and hereby does, assign, to the Company all of Consultant’s right, title and interest throughout the world in all Developments and to anything tangible which evidences, incorporates, constitutes, represents, memorializes, embodies, performs, displays or records any such Development. Consultant hereby assigns and, to the extent any such assignment cannot be made at present, Consultant hereby agrees to assign to the Company all copyrights, patents, trademarks and other proprietary rights, however denominated, Consultant may have in any such Developments.
(d) Consultant specifically agrees and acknowledges that the foregoing assignment covers all results, outputs and products of Consultant’s Work for the Company prior to the date hereof, in any capacity and all related copyrights, patents, trademarks or other proprietary rights, however denominated, and that all such results, outputs and products shall be Developments hereunder and the sole property of the Company.
(e) Consultant hereby undertakes, without payment of any consideration to Consultant in addition to the compensation described in Section 2(a), (i) promptly to disclose all Developments to the Company; (ii) to assist the Company in every reasonable manner to obtain thereon patents, copyrights, and other forms of proprietary protections, however denominated, in any and all countries for the Company’s benefit; (iii) to execute all such patent applications, patent or copyright assignments, registrations and applications that may be required for other forms of proprietary protection, however denominated, and other lawful documents, and to take all such other actions, as the Company may request to obtain for the Company all right, title and interest in and to any of the Developments or otherwise to carry out the purposes of this Agreement. Without limiting the foregoing, if Consultant is called upon by the Company in writing after termination or expiration of this Agreement or performance of the Work to assist the Company as provided herein, Consultant shall be entitled to reasonable fees for services rendered in providing such assistance. The out-of-pocket cost of prosecuting patent applications and obtaining copyright registration shall be borne by the Company.
(f) If Consultant incorporates into any Developments any information, software, materials or other technology owned by Consultant or in which Consultant has any interest, Consultant hereby grants, and to the extent any such grant cannot be made at the present, Consultant agrees to grant to the Company a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license, with the right to sublicense, to make, use, refrain from using, sell, offer for sale, import, modify, delete, add to, reproduce, create derivative works based upon, distribute, perform, display or exploit in any way, such information, software, materials or other technology, in whole or in part, by any means, now known or later developed, in all languages.
(g) It is understood that Sections 4 and 5 of this Agreement apply, without limitation, to any and all oral communications and writings, including, without limitation, notes, drawings, specifications, software, source code, object code, schematics, flow charts, algorithms and engineering, sales, marketing and financial plans, and studies and reports that are prepared, compiled or acquired by Consultant during the term of this Agreement.
/s/ PS
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5. Non-Disclosure and Confidentiality.
(a) The Company shall provide Consultant with materials and such information about the Company, its business and its products and services as the Company, in its sole discretion, shall deem necessary or appropriate to enable Consultant to carry out Consultant’s obligations under this Agreement.
(b) Consultant acknowledges that in the course of consulting for the Company, Consultant shall receive materials and information about, and access to, trade secrets and other confidential and proprietary information (including, without limitation, the information and materials described in Section 4 of this Agreement) which are vital to the competitive position and success of the Company. During the term of this Agreement and thereafter, Consultant shall hold strictly confidential and shall not disclose to others any of the Confidential Information. Consultant shall not use any of the Confidential Information or Materials other than as part of the Work and for the sole benefit of the Company. Without the prior written consent of the Company, (i) Consultant shall not distribute or otherwise allow the release of the Materials to any third party, (ii) Consultant shall not, nor allow or encourage any third party to, manufacture or analyze or otherwise “reverse engineer” any Materials, and (iii) Consultant shall comply with all laws and regulations regarding the transportation, use and disposal of Materials.
(c) The term “Confidential Information” as used throughout this Agreement shall mean all Developments and all trade secrets, confidential or proprietary information, all information concerning any of the Materials, and other data or information (and any tangible evidence, record or representation thereof), whether prepared, conceived or developed by an employee or consultant of the Company (including, without limitation, Consultant) or received by the Company from an outside source, which is in the possession of the Company (whether or not the property of the Company) and which is maintained in secrecy or confidence by the Company or which might permit the Company or any of its customers to obtain a competitive advantage over competitors who do not have access to such Developments, Materials, trade secrets, confidential or proprietary information or other data or information. The term “Materials” as used throughout this Agreement shall mean all materials provided to Consultant by or on behalf of the Company, all materials derived therefrom, and all Developments to the extent such Developments constitute tangible materials.
(d) Consultant understands that the Company from time to time may have in its possession materials and information (including product and development plans and specifications) which is claimed by others to be proprietary and which the Company has agreed to keep confidential. Consultant agrees that all such materials and information shall be Materials and Confidential Information, respectively, for purposes of this Agreement.
/s/ PS
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6. Non-Competition, Non-Solicitation.
(a) During the term of this Agreement, Consultant shall not, directly or indirectly, participate, whether as owner, stockholder, director, officer, manager, employee, agent or consultant or otherwise in any business, firm or corporation which is in competition with the Company, or which otherwise provides any products or services similar to any products or services provided by the Company at the time of such termination or expiration (collectively, a “Competing Company”). However, the foregoing sentence shall not be construed to prohibit purchase on a national securities exchange or in the “over-the-counter” market of any securities of a Competing Company listed on such exchange or publicly traded in such market, provided however, that such purchase does not result in Consultant becoming owner of record of five percent (5%) or more of the outstanding of any class of such company’s securities.
(b) During the term of this Agreement and for a period of one year after the termination or expiration hereof, Consultant shall not solicit or attempt to solicit any employee of the Company (or any other person who may have been employed by the Company during the term of this Agreement) with whom the Consultant had contact during the term of this Agreement to perform work or services for any person or entity other than the Company.
7. Relationship of the Parties. In performing the Work under this Agreement, Consultant shall at all times act as an independent contractor. This Agreement shall not create any relationship whereby Consultant shall be an agent or legal representative of the Company for any purpose whatsoever and creates no relationship of employment, principal and agent, partnership or joint venturers. Consultant shall have no authority to bind the Company or to create any express or implied obligation for the Company, and shall not hold himself out as having such authority. Consultant shall have full responsibility for payment of, and shall pay, all compensation, social security, unemployment, withholding and other taxes and charges for all persons engaged by him in the performance of services hereunder, as and when the same become due and payable, and the Company shall have no obligation to pay or make available any employee benefit to Consultant or any person employed by or associated with Consultant.
8. Term and Termination; Effects of Termination.
(a) The initial term of this Agreement is twelve (12) months from the Effective Date (the “Initial Term”), unless earlier terminated as provided below or extended upon mutual agreement of the Company and Consultant. All services performed by Consultant during the Initial Term in excess of four hundred eighty (480) hours must be pre-approved by the President of the Company, and Consultant will be compensated for the excess time and related expenses as set out in Section 2.
(b) The Company may terminate this Agreement by sending written notice of termination to Consultant at any time after Consultant fails or neglects to perform any of Consultant’s obligations hereunder, including, without limitation, the timely performance of the Work, or otherwise after Consultant’s breach of any provision hereof, such notice to be effective immediately upon sending.
(c) The Company or Consultant may terminate this Agreement at any time prior to expiration of the Initial Term for its own convenience at any time upon sixty (60) days prior written notice to the other party. Upon any such termination, Consultant will be entitled solely to compensation in accordance with Section 2 hereof for the amount of time worked and expenses incurred in accordance with the terms and conditions of this Agreement through the date of termination. In the event of an early termination by the Company under this Section, such amounts shall be paid by the Company within ten (10) days after receipt of Consultant’s final invoice.
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(d) Upon termination or expiration of this Agreement, or at any time upon the written request of the Company, Consultant shall return promptly to the Company all Confidential Information and Materials and all other documents, materials and property belonging to the Company or its clients. If requested to do so by the Company, Consultant shall sign a Termination Certificate in which Consultant confirms that Consultant has complied with the requirements of this Section 8(d) and that Consultant is aware that certain restrictions imposed upon Consultant by this Agreement shall continue after termination or expiration of this Agreement, provided that Consultant’s obligations under this Agreement shall continue even if Consultant does not sign such a Termination Certificate. The Company may withhold final payment under this Agreement until its receipt of such a Termination Certificate.
(e) Upon the earlier to occur of the termination or expiration of this Agreement or completion of the Work, or at any other time upon request of the Company, Consultant shall deliver promptly to the Company all Materials, notebooks, disks, tapes, computer programs, reports, proposals, other documents, materials, tools, equipment and other property belonging to the Company or its customers.
(f) Consultant understands and agrees that Consultant’s obligations under Sections 3, 4, 5, 6, 7 and 9 hereof and this Section 8 shall survive and shall not be affected by any expiration or earlier termination of this Agreement.
9. Miscellaneous.
(a) Any notice required or permitted to be given under this Agreement shall be given in writing and sent by certified mail to the party at the address set forth below or to such other address as such party shall have designated in writing:
| If to the Company: | Genelux Corporation |
3030 Bunker Hill Street, Suite 310
San Diego, CA 92109
Attention: President and Chief Executive Officer
Facsimile: 1.858.483.0026
| If to Consultant: | Pharmaceutical Research Consulting (PRC) |
[***]
[***]
Attention: President and Chief Executive Officer
(b) This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings between them relating thereto. In the event of any inconsistency between this Agreement and any other contract between the Company and Consultant, the provisions of this Agreement shall prevail.
/s/ PS
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(c) No waiver or amendment of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties. No failure on the part of either party to exercise, or delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy by such party preclude any other or further exercise thereof or the exercise of any other right or remedy. A waiver on one occasion shall not constitute a waiver on any further occasion.
(d) This Agreement is personal to Consultant, and Consultant shall not delegate or assign any of Consultant’s rights, duties or obligations hereunder. Any purported assignment or delegation thereof by Consultant shall be void and ineffective. Consultant shall perform Consultant’s duties and obligations hereunder alone or in cooperation with employees of the Company only, and shall not retain, or use other persons to assist Consultant, or work with other persons, in performing such duties and obligations.
(e) This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective heirs, legal representatives, successors and assigns.
(f) In the event that any provision of this Agreement shall be determined to be unenforceable by reason of its extension for too great a period of time or over too large a geographic area or over too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area or range of activities as to which it may be enforceable. If, after application of the immediately preceding sentence, any provision of this Agreement shall be determined to be invalid, illegal or otherwise unenforceable by any court of competent jurisdiction, the validity, legality and enforceability of the other provisions of this Agreement shall not be affected thereby. Except as otherwise provided in this Section 9(f), any invalid, illegal or unenforceable provision of this Agreement shall be severable, and after any such severance all other provisions hereof shall remain in full force and effect.
(g) This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of California, without regard to its principles of conflicts of laws. All litigation arising from or relating to this Agreement shall be filed and prosecuted before any court of competent subject matter jurisdiction in San Diego, California. Consultant hereby consents to the jurisdiction of such courts over him, stipulates to the convenience, efficiency and fairness of proceeding in such courts, and covenants not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts.
[remainder of this page intentionally left blank]
/s/ PS
| 7 |
ATTACHMENT A-1
Dr. Aladar A. Szalay, President and CEO, Genelux Corporation, San Diego, USA.
Dr. Tony Yu, Vice President of Clinical Trial Operations, Genelux Corporation, San Diego, USA.
Medical and Clinical Trial Strategy Committee:
Dr. Yuman Fong. Chief, Gastric & Mixed Tumor Service, Murray F. Brennan, Chair in Surgery, Memorial Sloan Kettering Cancer Center, New York, USA; Chairperson of Medical and Clinical Trial Strategy Committee, Member of the Scientific Advisory Board and Member of Clinical Advisory and Implementation Board of Genelux Corporation, San Diego, USA.
Dr. Ulrich Lauer, Senior Physician and Associate Professor at the Medical University Clinic Tübingen, Tübingen, Germany; Member of Medical and Clinical Trial Strategy Committee of Genelux Corporation, San Diego, USA.
Dr. Reinhard von Roemeling, Vice President of Clinical Development Oncology, Daiichi Sankyo, Inc, New Jersey, USA; Member of Medical and Clinical Trial Strategy Committee and Member of Clinical Advisory and Implementation Board of Genelux Corporation, San Diego, USA
Clinical Trials:
| 1. | Royal Marsden Phase I Clinical Trial (Intravenous): |
Dr. Kevin Harrington, Senior Lecturer at the Institute of Cancer Research and an Honorary Consultant in Clinical Oncology, Head and Neck Unit, Principal Investigator of completed Phase I Trial at Royal Marsden Hospital, London, UK.
Dr. Johann de Bono, Honorary Consultant in Medical Oncology, Professor in Experimental Cancer Medicine and Principal Investigator of completed Phase I Trial at Royal Marsen Hospital, London, UK.
COMPLETED
| 2. | Tübingen Phase I Clinical Trial (Intraperitoneal): |
Prof. Dr. med. Ulrich Lauer, Senior Physician and Associate Professor at the Medical University Clinic Tübingen, Tübingen, Germany; Member of Medical and Clinical Trial Strategy Committee of Genelux Corporation, San Diego, USA.
Prof. Dr. med. Michael Bitzer, Senior Physician for Gastroenterology and Intensive Care Medicine, Coordinating Physician of the Department Gastroenterology and Hepatology within the Center of Gastrointestinal Oncology (ZGO) of the Comprehensive Cancer Center (CCC) Tübingen, Tübingen Germany.
| 3. | UCSD Phase I Clinical Trial (Chemotherapy/Radiation Combination Therapy): |
Dr. Loren Mell, Medical Research Director, Radiation Oncology; Co-Director of the Center for Advanced Radiotherapy Technologies; and Principal Investigator of Phase I Clinical Trial, UC San Diego, San Diego, USA.
Dr. Sunil Advani, Assistant Professor, Radiology Oncology; and Principal Investigator of Phase I Clinical Trial, UC San Diego, San Diego, USA.
| 4. | Memorial Sloan Kettering Phase I Clinical Trial (Intrapleural): |
Dr. Valerie Rusch, Chief, Thoracic Service; Miner Family Chair in Intrathoracic Cancers and Principal Investigator of Phase I Clinical Trial, Memorial Sloan Kettering, New York, USA.
Dr. Lee Krug, Associate Attending Physician, Thoracic Oncology Service and Principal Investigator of Phase I Clinical Trial, Memorial Sloan Kettering, New York, USA.
/s/ PS
EXHIBIT A
Description of Work:
The Consultant will devote at least one week per month to the performance of services to the Company under this Agreement. The Consultant’s duties and responsibilities shall include the following:
| 1. | The Consultant will serve as the Company’s acting Chief Medical Officer. The roles and responsibilities of this position are comparable to a Chief Medical Officer of an entity comparable to the Company, differentiated by the fact that Consultant is not an employee. |
| 2. | The Consultant will serve as a primary advisor on medical issues relating to the Company’s preclinical and clinical development programs. |
| 3. | The Consultant will serve as a global medical expert relating to the Company’s development programs and will assist the Company in the development of partnerships with institutions, experts, opinion leaders, health ministries and other regulatory authorities for ensuring the development of high quality strategies, clinical plans and protocols. |
| 4. | The Consultant will assist in the oversight of the Company’s clinical programs on a global basis, including assuring that clinical activities are consistent with the Company’s objectives and proposed timelines. |
| 5. | The Consultant will participate in a variety of other activities relating to the Company’s development programs. |
| 6. | The Consultant will at all times work in a professional and cooperative manner and interact harmoniously with the individuals listed in Attachment A-1 hereto. |
Consulting Fees:
$340 per hour, up to a maximum of $2,720 per day, to be invoiced to the Company on a monthly basis. Payment of undisputed amounts are due within thirty (30) days after the Company’s receipt of invoice.
/s/ PS
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| COMPANY: | CONSULTANT | |||
| GENELUX CORPORATION | PHARMACEUTICAL RESEARCH CONSULTING | |||
| By: | /s/ A. A. Szalay | By: | /s/ Paul Scigalla | |
| Name: | A. A. Szalay | Name: | Prof. Dr. med Paul Scigalla | |
| Title: | Pres. and CEO | Title: | President and CEO | |
April 9, 2012
Paul Scigalla, MD, PhD
Professor of Medicine
Chief Medical Officer
Genelux Corporation
[***]
[***]
Dear Professor Scigalla,
I am writing to you concerning the change in the form of payment of your advisory position. In contrast to a payment based on a hourly service reimbursement, you and I discussed the format of a retainer based payment. We also agreed, that your payment will be part cash $16,000 per month (U.S. $), as well as additional stock options currently 50,000 per year (present strike price $3). The options will vest at the end of each employment year and in the case of early termination, the monthly equivalent until the end of service will be recognized. This agreement is a one year agreement renewable at the end of each service year.
The monthly service payments starting March 1, 2012 will be transferred to you at the end of each month. The cost of travel and accommodation will be reimbursed to you at the same time each month based on your submitted original receipts.
In closing, I would like to thank you for all your professional contributions to Genelux Corporation in the past and in the future.
Sincerely yours,
/s/ Aladar A. Szalay, PhD
Aladar A. Szalay, PhD
President and CEO, Genelux Corporation
University Professor, University of Würzburg, Germany
Professor, Department of Radiation Oncology, Rebecca and John Moores Comprehensive Cancer Center, University of California, San Diego, USA
| Accepted by: | ||
| /s/ Paul Scigalla | ||
| date | April 15, 2012 | |
March 1, 2018
MEMORANDUM OF UNDERSTANDING
This MEMORANDUM is intended to acknowledge, clarify and further amend the terms of the CONSULTING AGREEMENT (Agreement) entered into between GENELUX CORPORATION (Company) and PHARMACEUTICAL RESEARCH CONSULTING (Consultant) on September 1, 2011 (Exhibit 1), as amended by mutual agreement pursuant to letter dated April 9, 2012 from Aladar Szalay to Consultant (Exhibit 2).
| 1. | Notwithstanding the language in Exhibit 2, referencing an “employment” year, the relationship between Company and Consultant has always been, and remains, one of independent contractor, as set forth in section 7 of the Agreement. |
| 2. | The Agreement, as amended by Exhibit 2, is hereby extended to December 31, 2019, and will terminate on that date unless renewed or extended by written agreement. At any time prior to termination, the Company or Consultant may terminate the Agreement without cause upon 30 days’ notice to the other party. |
| 3. | Except as set forth herein, other terms of the Agreement as amended remain in full force and effect including, but not limited to, Consultant’s obligations under sections 3 through 8 of that agreement. |
| /s/ Thomas Zindrick | June 2, 2018 | |
| Thomas Zindrick | date | |
| President and CEO |
I understand and agree to the above terms,
| /s/ Paul Scigalla | June 2, 2018 | |
| Paul Scigalla | date | |
| Pharmaceutical Research Consulting |
- EXHIBIT 1 -
- EXHIBIT 2 -
EXTENSION OF MEMORANDUM OF UNDERSTANDING (MOU)
The MOU executed by the parties hereto on June 2, 2018, is hereby extended one year, through December 31, 2020, on the same terms and conditions contained in the MOU executed on June 2, 2018.
| /s/ Thomas Zindrick | 12-17-2019 | |
| Thomas Zindrick | date | |
| President and CEO |
| /s/ Paul Scigalla | ||
| Paul Scigalla | date | |
| Pharmaceutical Research Consulting |
2nd EXTENSION OF MEMORANDUM OF UNDERSTANDING (MOU)
The MOU executed by the parties hereto on June 2, 2018, and extended by mutual agreement on December 17, 2019, is hereby extended for an additional two years, through December 31, 2022, on the same terms and conditions contained in the MOU executed on June 2, 2018.
| /s/ Thomas Zindrick | June 29, 2022 | |
| Thomas Zindrick | date | |
| President and CEO |
| /s/ Paul Scigalla | June 28, 2022 | |
| Paul Scigalla | date | |
| Pharmaceutical Research Consulting |
THIRD EXTENSION OF CONSULTING AGREEMENT
This Third Extension of Consulting Agreement (this “Extension”) amends the terms of that certain Consulting Agreement by and between Genelux Corporation (the “Company”) and Pharmaceutical Research Consulting (the “CMO”) dated as of September 1, 2011 (as amended from time to time, the “Agreement”).
The parties to this Extension agree as follows:
| 1. | The term of the Agreement is hereby extended through December 31, 2024. | |
| 2. | The compensation of CMO shall be as set forth in Attachment 1 hereto. | |
| 3. | Except as set forth herein, the Agreement shall remain unmodified and in full force and effect. | |
| 4. | This Extension may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
| Acknowledged and agreed: | ||
| GENELUX CORPORATION | ||
| /s/ Thomas Zindrick, J.D. | 10/16/2024 | |
| Thomas Zindrick, J.D. | date | |
| President and CEO |
| PHARMACEUTICAL RESEARCH CONSULTING | ||
| /s/ Paul Scigalla, M.D., Ph.D. | 10/16/2024 | |
| Paul Scigalla, M.D., Ph.D. | date | |
| President and CEO |
Attachment 1
Cash Fee
$16,000.00 per month payable to [Paul Scigalla, M.D., Ph.D.]
Equity Fee
Subject to approval by the Board of Directors of Genelux Corporation (“Genelux”), Genelux anticipates granting Dr. Scigalla two options to purchase an aggregate of 33,332 shares of common stock of Genelux (the “Award”), pursuant to Genelux’s 2022 Equity Incentive Plan (as amended from time to time, the “Plan”). The vesting date and exercise prices of the shares subject to the Award are set forth hereinbelow. The terms of the Award, as well as all other matters related to the Award, will be governed by and subject to the terms and conditions set forth in the Plan, and a stock option agreement.
Stock Option Grants
| Exercise Price per Share | Number
of Shares | Option Type (ISO/NSO) | Vesting Schedule | |||||||
| $ | 6.00 | 16,666 | NSO | 100% vested on Grant Effective Date | ||||||
| $ | 6.00 | 16,666 | NSO | 100% vested on December 31, 2024 | ||||||
Reimbursement
Genelux shall also reimburse Dr. Scigalla for third-party expenses (at cost) that are directly attributable to work performed under the Agreement and pre-approved in writing by Genelux: e.g., travel expenses other than normal commuting, including meals, airfares, rental vehicles, and mileage at the IRS rate.
Payment terms: CMO will invoice Genelux monthly for third-party expenses and will provide such reasonable receipts or other documentation of expenses as Genelux might request.
Exhibit 10.32
May 21, 2023
Joseph Cappello, Ph.D.
[***]
[***]
| Re: | Employment Terms |
Dear Joe:
Genelux Corporation (the “Company”) is pleased to offer you continuing at-will employment in the position of Chief Technical Officer, on the terms and conditions set forth in this letter agreement (this “Agreement”).
1. Employment by the Company.
1.1 Effective Date. Your employment with the Company shall continue on the terms and conditions set forth herein effective as of April 1, 2023 (the “Effective Date”).
1.2 Position. This is an exempt regular, full-time position, and during your employment with the Company, you will devote your best efforts and substantially all of your business time and attention to the business of the Company, except for approved vacation periods and reasonable periods of illness or other incapacities permitted by the Company’s general employment policies. You shall perform such duties as are required by the Company’s President and Chief Executive Officer, to whom you will report. You represent to the Company that you have full authority to accept this position and perform the duties of the position and that you are not subject to or a party to any employment agreement, non-competition covenant, or other agreement that would be breached by, or prohibit you from, executing this Agreement and performing fully your duties and responsibilities hereunder.
1.3 Work Location. Your principal place of employment shall be the Company’s manufacturing facility located in San Diego, California. The Company reserves the right to reasonably require you to perform your duties at places other than your principal place of employment from time to time, and to require reasonable business travel. The Company may modify your job title and duties as it deems necessary and appropriate in light of the Company’s needs and interests from time to time.
2. Compensation.
As a full-time exempt employee, you will be expected to work the Company’s normal business hours as well as additional hours as required by the nature of your work assignments, and you will not be entitled to overtime compensation.
2.1 Base Salary. For services to be rendered hereunder, you shall receive a current base salary at the rate of $360,000.00 per year (the “Base Salary”), subject to standard payroll deductions and withholdings and payable in accordance with the Company’s regular payroll schedule.
2.2 Annual Bonus. During your employment, you will be eligible for an annual discretionary bonus with a target amount of up to 40% of your then current annual Base Salary, prorated for the number of days employed in a calendar year (the “Annual Bonus”). Whether you receive an Annual Bonus for any given year, and the amount of any such Annual Bonus, will be determined by the Board of Directors of the Company and/or its Compensation Committee (the “Board”) in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board. You must continue to be employed through the date the Annual Bonus is paid in order to earn such bonus. The Annual Bonus, if any, shall be paid to you in a lump sum no later than March 15th of the calendar year that follows the performance year, subject to applicable payroll deductions and withholdings.
2.3 Equity. You will be eligible for an annual discretionary option and/or other equity award grant covering the Company’s common stock which, for any given year, and the amount of any such grant, will be determined by the Board in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board (individually and collectively, the “Award”) pursuant to the Company’s 2022 Equity Incentive Plan (as amended from time to time, the “Plan”). The shares subject to the Award will vest over four years of continuous service to the Company, with twenty-five percent (25%) of the shares subject to the Award vesting on the first-year anniversary of the Effective Date, and the remaining shares vesting in equal monthly installments over the subsequent thirty-six (36) months of continuous service thereafter. The terms (including the exercise price of an option grant) of the Award, as well as all other matters related to the Award, will be governed by and subject to the terms and conditions set forth in the Plan, and the Agreement you will be required to execute.
2.4 Standard Company Benefits. While employed by the Company, you will be eligible to participate in the benefits of employment described in the Company’s Handbook and/or a separate summary (pursuant to the terms and conditions of the benefit plans and applicable policies). These benefits may be amended from time to time at the sole discretion of the Company. The Company reserves the right to cancel or change the benefit plans or programs it offers to its employees at any time. The Company may change your position, duties, work location, compensation and benefits from time to time in its discretion.
2.5 Reasonable Business Expenses. You will be eligible for reimbursement of all reasonable, necessary and documented out-of-pocket business, entertainment, and travel expenses incurred by you in connection with the performance of your duties hereunder in accordance with the Company’s expense reimbursement policies and procedures.
3. Company Policies. The employment relationship between the parties shall be governed by the general employment policies and practices of the Company, except that when the terms of this Agreement differ from or are in conflict with the Company’s general employment policies or practices, this Agreement shall control. You will be required to sign an acknowledgment that you have read and that you understand will abide by Company rules and policies (including but not limited to the Company’s Handbook), as adopted or modified by the Company from time to time.
4. At-Will Employment. Your employment relationship is at-will. Either you or the Company may terminate the employment relationship at any time, with or without cause or advance notice. Upon termination of your employment for any reason, you shall resign from all positions and terminate any relationships as an employee, advisor, officer or director with the Company and any of its affiliates, each effective on the date of termination.
5. Outside Activities During Employment. Except with the prior written consent of the Company’s Chief Executive Officer, or designee, you will not during the term of your employment with the Company undertake or engage in any other employment, occupation or business enterprise, other than ones in which you are a passive investor. You may engage in civic and not-for-profit activities so long as such activities do not materially interfere with the performance of your duties hereunder. You agree not to acquire, assume or participate in, directly or indirectly, any position, investment or interest known to be adverse or antagonistic to the Company, its business or prospects, financial or otherwise.
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6. Termination; Severance.
6.1 Term and Termination. The term of this Agreement shall be the period commencing on the Effective Date and ending on the date that this Agreement is terminated by either party pursuant to the provisions of this Agreement. You are employed at-will, meaning that, subject to the terms and conditions set forth herein, either the Company or you may terminate your employment at any time, with or without Cause.
6.2 Compensation upon Termination. Upon the termination of your employment for any reason, the Company shall pay you all of your accrued and unpaid wages earned through your last day of employment (the “Separation Date”).
6.3 Involuntary Termination Outside of Change in Control Period. If you are subject to an Involuntary Termination (that does not occur within the Change in Control Period (as defined below)), and provided that you remain in compliance with the terms of this Agreement (including the conditions described in Section 6.6 below), the Company shall provide you with the following benefits (the “Severance Benefits”):
(a) Payment of Continued Group Health Plan Benefits. If you are eligible for and timely elect continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) following your Separation Date, the Company will pay your COBRA group health insurance premiums for you and your eligible dependents directly to the insurer until the earliest of (A) the end of the period immediately following your Separation Date that is equal to twelve (12) months (the “COBRA Payment Period”), (B) the expiration of your eligibility for continuation coverage under COBRA, or (C) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by you under a Section 125 health care reimbursement plan under the Code. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then regardless of whether you elect continued health coverage under COBRA, and in lieu of providing the COBRA premiums, the Company will instead pay you on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the COBRA Payment Period or the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement (as discussed in Section 6.6), the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to you, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If you become eligible for coverage under another employer’s group health plan, you must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease.
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6.4 Involuntary Termination During Change in Control Period. If you are subject to an Involuntary Termination during the Change in Control Period, and provided that you remain in compliance with the terms of this Agreement (including the conditions described in Section 6.6 below), the Company shall provide you with the following benefits (the “CIC Severance Benefits”):
(a) CIC Severance. The Company shall pay you, as severance, the equivalent of twelve (12) months (the “CIC Severance Period”) of your Base Salary in effect as of the Separation Date and your full target annual bonus for the calendar year in which the Separation Date occurs, subject to standard payroll deductions and withholdings (the “CIC Severance”). The CIC Severance will be paid in a lump sum on the first regularly-scheduled payroll date after your Separation from Service (as defined in Section 7.7), provided the Separation Agreement has become effective.
(b) Payment of Continued Group Health Plan Benefits. If you are eligible for and timely elect continued group health plan coverage under COBRA following your Separation Date, the Company will pay your COBRA group health insurance premiums for you and your eligible dependents directly to the insurer until the earliest of (A) the end of the period immediately following your Separation Date that is equal to twelve (12) months (the “CIC COBRA Payment Period”), (B) the expiration of your eligibility for continuation coverage under COBRA, or (C) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by you under a Section 125 health care reimbursement plan under the Code. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then regardless of whether you elect continued health coverage under COBRA, and in lieu of providing the COBRA premiums, the Company will instead pay you on the last day of each remaining month of the CIC COBRA Payment Period, a fully taxable cash payment equal to the COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the CIC COBRA Payment Period or the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement, the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to you, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If you become eligible for coverage under another employer’s group health plan, you must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease.
For the avoidance of doubt, in no event shall you be entitled to benefits under both Section 6.3 and this Section 6.4. If you are eligible for benefits under both Section 6.3 and this Section 6.4, you shall receive the benefits set forth in this Section 6.4 and such benefits shall be reduced by any benefits previously provided to you under Section 6.3.
6.5 Termination for Cause; Resignation Without Good Reason; Death or Disability. If you resign without Good Reason, or the Company terminates your employment for Cause, upon dissolution or cessation of the Company, or upon your death or disability, then (a) you will no longer vest in the Award, (b) all payments of compensation by the Company to you hereunder will terminate immediately (except as to amounts already earned), and (c) you will not be entitled to any Severance Benefits or CIC Severance Benefits.
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6.6 Conditions to Receipt of Severance Benefits and CIC Severance Benefits. The receipt of the Severance Benefits and CIC Severance Benefits will be subject to you signing and not revoking a separation agreement and general release of claims in a form reasonably satisfactory to the Company (the “Separation Agreement”) by no later than the sixtieth (60th) day after the Separation Date (“Release Deadline”). No Severance Benefits or CIC Severance Benefits will be paid or provided until the Separation Agreement becomes effective. You shall also resign from all positions and terminate any relationships as an employee, advisor, officer or director with the Company and any of its affiliates, each effective on the Separation Date.
7. Definitions.
7.1 Cause. For purposes of this Agreement, “Cause” for termination means: (a) commission of any felony or crime involving dishonesty; (b) participation in any fraud against the Company; (c) material breach of your duties to the Company; (d) persistent unsatisfactory performance of job duties after written notice from the Board or Chief Executive Officer and an opportunity to cure (if deemed curable by the Company in its sole discretion); (e) intentional damage to any property of the Company; (f) misconduct, or other violation of Company policy that causes harm; (g) breach of this Agreement, the Confidentiality Agreement (as defined below), or any other written agreement with the Company; or (h) conduct by you which in the good faith and reasonable determination of the Board or Chief Executive Officer demonstrates gross unfitness to serve.
7.2 Change in Control. For purposes of this Agreement, a “Change in Control” shall have the meaning as set forth in the Company’s 2022 Equity Incentive Plan.
7.3 Change in Control Period. For purposes of this Agreement, the “Change in Control Period” means the period commencing three (3) months prior to a Change in Control and ending eighteen (18) months following a Change in Control.
7.4 Code. For purposes of this Agreement, “Code” means the U.S. Internal Revenue Code of 1986 (as it has been and may be amended from time to time) and any regulations and guidance that has been promulgated or may be promulgated from time to time thereunder and any state law of similar effect.
7.5 Good Reason. For purposes of this Agreement, you shall have “Good Reason” for resignation from employment with the Company if any of the following actions are taken by the Company without your prior written consent: (a) a material reduction in your Base Salary, which the parties agree is a reduction of at least 10% of your Base Salary (unless pursuant to a salary reduction program applicable generally to the Company’s similarly situated employees); (b) a material reduction in your duties (including responsibilities and/or authorities), provided, however, that a change in job position (including a change in title and/or change in the position to whom you directly report) shall not be deemed a “material reduction” in and of itself unless your new duties are materially reduced from the prior duties; or (c) relocation of your principal place of employment to a place that increases your one-way commute by more than fifty (50) miles as compared to your then-current principal place of employment immediately prior to such relocation. In order to resign for Good Reason, you must provide written notice to the Company’s Chief Executive Officer, or designee, within thirty (30) days after the first occurrence of the event giving rise to Good Reason setting forth the basis for your resignation, allow the Company at least thirty (30) days from receipt of such written notice to cure such event, and if such event is not reasonably cured within such period, you must resign from all positions you then hold with the Company not later than ninety (90) days after the expiration of the cure period.
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7.6 Involuntary Termination. For purposes of this Agreement, “Involuntary Termination” means a termination of your employment with the Company pursuant to either (i) a termination initiated by the Company without Cause, or (ii) your resignation for Good Reason, and provided in either case such termination constitutes a Separation from Service. An Involuntary Termination does not include any other termination of your employment, including a termination due to your death or disability.
7.7 Separation from Service. For purposes of this Agreement, “Separation from Service” means a “separation from service”, as defined under Treasury Regulation Section 1.409A- 1(h).
8. Proprietary Information Obligations. As a condition of your continuing employment with the Company, you shall execute and continue to abide by the Company’s standard form of Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”), attached as Exhibit A. In your work for the Company, you will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you will not bring onto Company premises any unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You also agree to honor all obligations to former employers during your employment with the Company. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company.
9. Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations Sections 1.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulations Sections 1.409A 2(b)(2)(i) and (iii)), your right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if you are deemed by the Company at the time of your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to you prior to the earliest of (i) the first date following expiration of the six-month period following the date of your Separation from Service with the Company, (ii) the date of your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to you, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of your Separation from Service, the Separation Agreement will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any severance benefits.
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10. Section 280G.
If any payment or benefit you will or may receive from the Company or otherwise (a “280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement or otherwise (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”).
Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for you as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A.
Unless you and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change in control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change in control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other reasonable time as requested by you or the Company.
If you receive a Payment for which the Reduced Amount was determined pursuant to clause (x) of the first paragraph of this Section and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax). For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.
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11. Arbitration of All Disputes.
11.1 Agreement to Arbitrate. To ensure the timely and economical resolution of disputes that may arise between you and the Company, both you and the Company mutually agree that pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by applicable law, you and the Company will submit solely to final, binding and confidential arbitration any and all disputes, claims, or causes of action arising from or relating to: (i) the negotiation, execution, interpretation, performance, breach or enforcement of this Agreement; or (ii) your employment with the Company (including but not limited to all statutory claims); or (iii) the termination of your employment with the Company (including but not limited to all statutory claims). BY AGREEING TO THIS ARBITRATION PROCEDURE, BOTH YOU AND THE COMPANY WAIVE THE RIGHT TO RESOLVE ANY SUCH DISPUTES THROUGH A TRIAL BY JURY OR JUDGE OR THROUGH AN ADMINISTRATIVE PROCEEDING.
11.2 Arbitrator Authority. The arbitrator shall have the sole and exclusive authority to determine whether a dispute, claim or cause of action is subject to arbitration under this Section and to determine any procedural questions which grow out of such disputes, claims or causes of action and bear on their final disposition.
11.3 Individual Capacity Only. All claims, disputes, or causes of action under this Section, whether by you or the Company, must be brought solely in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences in this Section are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration.
11.4 Arbitration Process. Any arbitration proceeding under this Section shall be presided over by a single arbitrator and conducted by JAMS in San Diego, California, or as otherwise agreed to by you and the Company, under the then applicable JAMS rules for the resolution of employment disputes (available upon request and also currently available at http://www.jamsadr.com/rules-employment-arbitration/). You and the Company both have the right to be represented by legal counsel at any arbitration proceeding, at each party’s own expense. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute; (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (iii) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS arbitration fees in excess of the amount of court fees that would be required of you if the dispute were decided in a court of law.
11.5 Excluded Claims. This Section shall not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law, including, without limitation, sexual assault disputes and sexual harassment disputes as defined in the Federal Arbitration Act (FAA), claims brought pursuant to the California Private Attorneys General Act of 2004, as amended, the California Fair Employment and Housing Act, as amended, and the California Labor Code, as amended to the extent such claims are not permitted by applicable law to be submitted to mandatory arbitration and are not preempted by the FAA (collectively, the “Excluded Claims”). In the event you intend to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration.
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11.6 Injunctive Relief and Final Orders. Nothing in this Section is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any final award in any arbitration proceeding hereunder may be entered as a judgment in the federal and state courts of any competent jurisdiction and enforced accordingly.
12. General Provisions. This Agreement, together with the Confidentiality Agreement, constitutes the entire agreement between you and the Company with regard to this subject matter and is the complete, final, and exclusive embodiment of the parties’ agreement with regard to this subject matter. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations, including your consulting agreement of January 23, 2012 and your offer letter of October 29, 2012 as subsequently modified on August 15, 2019, as may have been further amended from time to time. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion in this letter, must be made in a written agreement signed by you and the Company’s Chief Executive Officer. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction to the extent possible in keeping with the intent of the parties. Any waiver of any breach of any provisions of this Agreement must be in writing to be effective, and it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and their respective successors, assigns, heirs, executors and administrators. The Company may freely assign this Agreement, without your prior written consent. You may not assign any of your duties hereunder and you may not assign any of your rights hereunder without the written consent of the Company. This Agreement shall become effective as of the Effective Date and shall terminate upon your termination of employment with the Company. The obligations as forth under Sections 6, 6, 7, 8, 9, 10, and 12 will survive the termination of this Agreement. All questions concerning the construction, validity and interpretation of this Agreement will be governed by the laws of the State of California.
[Signature page to follow]
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This offer is subject to satisfactory proof of your identity and right to work in the United States and other applicable pre-employment screenings.
We look forward to your continuing employment with us. If you have any questions about this Agreement, please do not hesitate to call me.
| Best regards, | |
| Genelux Corporation | |
| /s/ Thomas Zindrick | |
| Thomas Zindrick | |
| President and Chief Executive Officer |
| Accepted and agreed: | |
| /s/ Joseph Cappello, Ph.D. | |
| Joseph Cappello, Ph.D. | |
| President and Chief Executive Officer |
| Date: | 26MAY2023 |
Attachment: Employee Confidential Information and Invention Assignment Agreement
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Exhibit A
[Confidential Information and Invention Assignment Agreement]
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Exhibit 10.33
May 21, 2023
Tony Yu, Ph.D.
[***]
[***]
| Re: | Employment Terms |
Dear Tony:
Genelux Corporation (the “Company”) is pleased to offer you continuing at-will employment in the position of Senior Vice President, Clinical Development, on the terms and conditions set forth in this letter agreement (this “Agreement”).
1. Employment by the Company.
1.1 Effective Date. Your employment with the Company shall continue on the terms and conditions set forth herein effective as of April 1, 2023 (the “Effective Date”).
1.2 Position. This is an exempt regular, full-time position, and during your employment with the Company, you will devote your best efforts and substantially all of your business time and attention to the business of the Company, except for approved vacation periods and reasonable periods of illness or other incapacities permitted by the Company’s general employment policies. You shall perform such duties as are required by the Company’s President and Chief Executive Officer, to whom you will report. You represent to the Company that you have full authority to accept this position and perform the duties of the position and that you are not subject to or a party to any employment agreement, non-competition covenant, or other agreement that would be breached by, or prohibit you from, executing this Agreement and performing fully your duties and responsibilities hereunder.
1.3 Work Location. Your principal place of employment shall be the Company’s facility located in San Diego, California. The Company reserves the right to reasonably require you to perform your duties at places other than your principal place of employment from time to time, and to require reasonable business travel. The Company may modify your job title and duties as it deems necessary and appropriate in light of the Company’s needs and interests from time to time.
2. Compensation.
As a full-time exempt employee, you will be expected to work the Company’s normal business hours as well as additional hours as required by the nature of your work assignments, and you will not be entitled to overtime compensation.
2.1 Base Salary. For services to be rendered hereunder, you shall receive a current base salary at the rate of $360,000 per year (the “Base Salary”), subject to standard payroll deductions and withholdings and payable in accordance with the Company’s regular payroll schedule.
2.2 Annual Bonus. During your employment, you will be eligible for an annual discretionary bonus with a target amount of up to 40% of your then current annual Base Salary, prorated for the number of days employed in a calendar year (the “Annual Bonus”). Whether you receive an Annual Bonus for any given year, and the amount of any such Annual Bonus, will be determined by the Board of Directors of the Company and/or its Compensation Committee (the “Board”) in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board. You must continue to be employed through the date the Annual Bonus is paid in order to earn such bonus. The Annual Bonus, if any, shall be paid to you in a lump sum no later than March 15th of the calendar year that follows the performance year, subject to applicable payroll deductions and withholdings.
2.3 Equity. You will be eligible for an annual discretionary option and/or other equity award grant covering the Company’s common stock which, for any given year, and the amount of any such grant, will be determined by the Board in its discretion based upon the achievement of corporate and/or individual objectives and milestones that are determined in the sole discretion of the Board (individually and collectively, the “Award”) pursuant to the Company’s 2022 Equity Incentive Plan (as amended from time to time, the “Plan”). The shares subject to the Award will vest over four years of continuous service to the Company, with twenty-five percent (25%) of the shares subject to the Award vesting on the first-year anniversary of the Effective Date, and the remaining shares vesting in equal monthly installments over the subsequent thirty-six (36) months of continuous service thereafter. The terms (including the exercise price of an option grant) of the Award, as well as all other matters related to the Award, will be governed by and subject to the terms and conditions set forth in the Plan, and the Award agreement you will be required to execute.
2.4 Standard Company Benefits. While employed by the Company, you will be eligible to participate in the benefits of employment described in the Company’s Handbook and/or a separate summary (pursuant to the terms and conditions of the benefit plans and applicable policies). These benefits may be amended from time to time at the sole discretion of the Company. The Company reserves the right to cancel or change the benefit plans or programs it offers to its employees at any time. The Company may change your position, duties, work location, compensation and benefits from time to time in its discretion.
2.5 Reasonable Business Expenses. You will be eligible for reimbursement of all reasonable, necessary and documented out-of-pocket business, entertainment, and travel expenses incurred by you in connection with the performance of your duties hereunder in accordance with the Company’s expense reimbursement policies and procedures.
3. Company Policies. The employment relationship between the parties shall be governed by the general employment policies and practices of the Company, except that when the terms of this Agreement differ from or are in conflict with the Company’s general employment policies or practices, this Agreement shall control. You will be required to sign an acknowledgment that you have read and that you understand will abide by Company rules and policies (including but not limited to the Company’s Handbook), as adopted or modified by the Company from time to time.
4. At-Will Employment. Your employment relationship is at-will. Either you or the Company may terminate the employment relationship at any time, with or without cause or advance notice. Upon termination of your employment for any reason, you shall resign from all positions and terminate any relationships as an employee, advisor, officer or director with the Company and any of its affiliates, each effective on the date of termination.
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5. Outside Activities During Employment. Except with the prior written consent of the Company’s Chief Executive Officer, or designee, you will not during the term of your employment with the Company undertake or engage in any other employment, occupation or business enterprise, other than ones in which you are a passive investor. You may engage in civic and not-for-profit activities so long as such activities do not materially interfere with the performance of your duties hereunder. You agree not to acquire, assume or participate in, directly or indirectly, any position, investment or interest known to be adverse or antagonistic to the Company, its business or prospects, financial or otherwise.
6. Termination; Severance.
6.1 Term and Termination. The term of this Agreement shall be the period commencing on the Effective Date and ending on the date that this Agreement is terminated by either party pursuant to the provisions of this Agreement. You are employed at-will, meaning that, subject to the terms and conditions set forth herein, either the Company or you may terminate your employment at any time, with or without Cause.
6.2 Compensation upon Termination. Upon the termination of your employment for any reason, the Company shall pay you all of your accrued and unpaid wages earned through your last day of employment (the “Separation Date”).
6.3 Involuntary Termination Outside of Change in Control Period. If you are subject to an Involuntary Termination (that does not occur within the Change in Control Period (as defined below)), and provided that you remain in compliance with the terms of this Agreement (including the conditions described in Section 6.6 below), the Company shall provide you with the following benefits (the “Severance Benefits”):
(a) Payment of Continued Group Health Plan Benefits. If you are eligible for and timely elect continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) following your Separation Date, the Company will pay your COBRA group health insurance premiums for you and your eligible dependents directly to the insurer until the earliest of (A) the end of the period immediately following your Separation Date that is equal to twelve (12) months (the “COBRA Payment Period”), (B) the expiration of your eligibility for continuation coverage under COBRA, or (C) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by you under a Section 125 health care reimbursement plan under the Code. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then regardless of whether you elect continued health coverage under COBRA, and in lieu of providing the COBRA premiums, the Company will instead pay you on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the COBRA Payment Period or the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement (as discussed in Section 6.6), the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to you, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If you become eligible for coverage under another employer’s group health plan, you must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease.
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6.4 Involuntary Termination During Change in Control Period. If you are subject to an Involuntary Termination during the Change in Control Period, and provided that you remain in compliance with the terms of this Agreement (including the conditions described in Section 6.6 below), the Company shall provide you with the following benefits (the “CIC Severance Benefits”):
(a) CIC Severance. The Company shall pay you, as severance, the equivalent of twelve (12) months (the “CIC Severance Period”) of your Base Salary in effect as of the Separation Date and your full target annual bonus for the calendar year in which the Separation Date occurs, subject to standard payroll deductions and withholdings (the “CIC Severance”). The CIC Severance will be paid in a lump sum on the first regularly-scheduled payroll date after your Separation from Service (as defined in Section 7.7), provided the Separation Agreement has become effective.
(b) Payment of Continued Group Health Plan Benefits. If you are eligible for and timely elect continued group health plan coverage under COBRA following your Separation Date, the Company will pay your COBRA group health insurance premiums for you and your eligible dependents directly to the insurer until the earliest of (A) the end of the period immediately following your Separation Date that is equal to twelve (12) months (the “CIC COBRA Payment Period”), (B) the expiration of your eligibility for continuation coverage under COBRA, or (C) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by you under a Section 125 health care reimbursement plan under the Code. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then regardless of whether you elect continued health coverage under COBRA, and in lieu of providing the COBRA premiums, the Company will instead pay you on the last day of each remaining month of the CIC COBRA Payment Period, a fully taxable cash payment equal to the COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the CIC COBRA Payment Period or the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement, the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to you, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If you become eligible for coverage under another employer’s group health plan, you must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease.
For the avoidance of doubt, in no event shall you be entitled to benefits under both Section 6.3 and this Section 6.4. If you are eligible for benefits under both Section 6.3 and this Section 6.4, you shall receive the benefits set forth in this Section 6.4 and such benefits shall be reduced by any benefits previously provided to you under Section 6.3.
6.5 Termination for Cause; Resignation Without Good Reason; Death or Disability. If you resign without Good Reason, or the Company terminates your employment for Cause, upon dissolution or cessation of the Company, or upon your death or disability, then (a) you will no longer vest in the Award, (b) all payments of compensation by the Company to you hereunder will terminate immediately (except as to amounts already earned), and (c) you will not be entitled to any Severance Benefits or CIC Severance Benefits.
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6.6 Conditions to Receipt of Severance Benefits and CIC Severance Benefits. The receipt of the Severance Benefits and CIC Severance Benefits will be subject to you signing and not revoking a separation agreement and general release of claims in a form reasonably satisfactory to the Company (the “Separation Agreement”) by no later than the sixtieth (60th) day after the Separation Date (“Release Deadline”). No Severance Benefits or CIC Severance Benefits will be paid or provided until the Separation Agreement becomes effective. You shall also resign from all positions and terminate any relationships as an employee, advisor, officer or director with the Company and any of its affiliates, each effective on the Separation Date.
7. Definitions.
7.1 Cause. For purposes of this Agreement, “Cause” for termination means: (a) commission of any felony or crime involving dishonesty; (b) participation in any fraud against the Company; (c) material breach of your duties to the Company; (d) persistent unsatisfactory performance of job duties after written notice from the Board or Chief Executive Officer and an opportunity to cure (if deemed curable by the Company in its sole discretion); (e) intentional damage to any property of the Company; (f) misconduct, or other violation of Company policy that causes harm; (g) breach of this Agreement, the Confidentiality Agreement (as defined below), or any other written agreement with the Company; or (h) conduct by you which in the good faith and reasonable determination of the Board or Chief Executive Officer demonstrates gross unfitness to serve.
7.2 Change in Control. For purposes of this Agreement, a “Change in Control” shall have the meaning as set forth in the Company’s 2022 Equity Incentive Plan.
7.3 Change in Control Period. For purposes of this Agreement, the “Change in Control Period” means the period commencing three (3) months prior to a Change in Control and ending eighteen (18) months following a Change in Control.
7.4 Code. For purposes of this Agreement, “Code” means the U.S. Internal Revenue Code of 1986 (as it has been and may be amended from time to time) and any regulations and guidance that has been promulgated or may be promulgated from time to time thereunder and any state law of similar effect.
7.5 Good Reason. For purposes of this Agreement, you shall have “Good Reason” for resignation from employment with the Company if any of the following actions are taken by the Company without your prior written consent: (a) a material reduction in your Base Salary, which the parties agree is a reduction of at least 10% of your Base Salary (unless pursuant to a salary reduction program applicable generally to the Company’s similarly situated employees); (b) a material reduction in your duties (including responsibilities and/or authorities), provided, however, that a change in job position (including a change in title and/or change in the position to whom you directly report) shall not be deemed a “material reduction” in and of itself unless your new duties are materially reduced from the prior duties; or (c) relocation of your principal place of employment to a place that increases your one-way commute by more than fifty (50) miles as compared to your then-current principal place of employment immediately prior to such relocation. In order to resign for Good Reason, you must provide written notice to the Company’s Chief Executive Officer, or designee, within thirty (30) days after the first occurrence of the event giving rise to Good Reason setting forth the basis for your resignation, allow the Company at least thirty (30) days from receipt of such written notice to cure such event, and if such event is not reasonably cured within such period, you must resign from all positions you then hold with the Company not later than ninety (90) days after the expiration of the cure period.
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7.6 Involuntary Termination. For purposes of this Agreement, “Involuntary Termination” means a termination of your employment with the Company pursuant to either (i) a termination initiated by the Company without Cause, or (ii) your resignation for Good Reason, and provided in either case such termination constitutes a Separation from Service. An Involuntary Termination does not include any other termination of your employment, including a termination due to your death or disability.
7.7 Separation from Service. For purposes of this Agreement, “Separation from Service” means a “separation from service”, as defined under Treasury Regulation Section 1.409A- 1(h).
8. Proprietary Information Obligations. As a condition of your continuing employment with the Company, you shall execute and continue to abide by the Company’s standard form of Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”), attached as Exhibit A. In your work for the Company, you will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you will not bring onto Company premises any unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You also agree to honor all obligations to former employers during your employment with the Company. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company.
9. Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations Sections 1.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulations Sections 1.409A 2(b)(2)(i) and (iii)), your right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if you are deemed by the Company at the time of your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to you prior to the earliest of (i) the first date following expiration of the six-month period following the date of your Separation from Service with the Company, (ii) the date of your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to you, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of your Separation from Service, the Separation Agreement will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any severance benefits.
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10. Section 280G.
If any payment or benefit you will or may receive from the Company or otherwise (a “280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement or otherwise (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”).
Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for you as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A.
Unless you and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change in control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change in control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other reasonable time as requested by you or the Company.
If you receive a Payment for which the Reduced Amount was determined pursuant to clause (x) of the first paragraph of this Section and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax). For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.
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11. Arbitration of All Disputes.
11.1 Agreement to Arbitrate. To ensure the timely and economical resolution of disputes that may arise between you and the Company, both you and the Company mutually agree that pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by applicable law, you and the Company will submit solely to final, binding and confidential arbitration any and all disputes, claims, or causes of action arising from or relating to: (i) the negotiation, execution, interpretation, performance, breach or enforcement of this Agreement; or (ii) your employment with the Company (including but not limited to all statutory claims); or (iii) the termination of your employment with the Company (including but not limited to all statutory claims). BY AGREEING TO THIS ARBITRATION PROCEDURE, BOTH YOU AND THE COMPANY WAIVE THE RIGHT TO RESOLVE ANY SUCH DISPUTES THROUGH A TRIAL BY JURY OR JUDGE OR THROUGH AN ADMINISTRATIVE PROCEEDING.
11.2 Arbitrator Authority. The arbitrator shall have the sole and exclusive authority to determine whether a dispute, claim or cause of action is subject to arbitration under this Section and to determine any procedural questions which grow out of such disputes, claims or causes of action and bear on their final disposition.
11.3 Individual Capacity Only. All claims, disputes, or causes of action under this Section, whether by you or the Company, must be brought solely in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences in this Section are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration.
11.4 Arbitration Process. Any arbitration proceeding under this Section shall be presided over by a single arbitrator and conducted by JAMS in San Diego, California, or as otherwise agreed to by you and the Company, under the then applicable JAMS rules for the resolution of employment disputes (available upon request and also currently available at http://www.jamsadr.com/rules-employment-arbitration/). You and the Company both have the right to be represented by legal counsel at any arbitration proceeding, at each party’s own expense. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute; (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (iii) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS arbitration fees in excess of the amount of court fees that would be required of you if the dispute were decided in a court of law.
11.5 Excluded Claims. This Section shall not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law, including, without limitation, sexual assault disputes and sexual harassment disputes as defined in the Federal Arbitration Act (FAA), claims brought pursuant to the California Private Attorneys General Act of 2004, as amended, the California Fair Employment and Housing Act, as amended, and the California Labor Code, as amended to the extent such claims are not permitted by applicable law to be submitted to mandatory arbitration and are not preempted by the FAA (collectively, the “Excluded Claims”). In the event you intend to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration.
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11.6 Injunctive Relief and Final Orders. Nothing in this Section is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any final award in any arbitration proceeding hereunder may be entered as a judgment in the federal and state courts of any competent jurisdiction and enforced accordingly.
12. General Provisions. This Agreement, together with the Confidentiality Agreement, constitutes the entire agreement between you and the Company with regard to this subject matter and is the complete, final, and exclusive embodiment of the parties’ agreement with regard to this subject matter. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations, including your offer letter of July 1, 2002 as subsequently modified on December 20, 2005, June 22, 2008, January 21, 2010, December 17, 2010 and August 15, 2019, as may have been further amended from time to time. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion in this letter, must be made in a written agreement signed by you and the Company’s Chief Executive Officer. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction to the extent possible in keeping with the intent of the parties. Any waiver of any breach of any provisions of this Agreement must be in writing to be effective, and it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and their respective successors, assigns, heirs, executors and administrators. The Company may freely assign this Agreement, without your prior written consent. You may not assign any of your duties hereunder and you may not assign any of your rights hereunder without the written consent of the Company. This Agreement shall become effective as of the Effective Date and shall terminate upon your termination of employment with the Company. The obligations as forth under Sections 6, 6, 7, 8, 9, 10, and 12 will survive the termination of this Agreement. All questions concerning the construction, validity and interpretation of this Agreement will be governed by the laws of the State of California.
[Signature page to follow]
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This offer is subject to satisfactory proof of your identity and right to work in the United States and other applicable pre-employment screenings.
We look forward to your continuing employment with us. If you have any questions about this Agreement, please do not hesitate to call me.
| Best regards, | |
| Genelux Corporation | |
| /s/ Thomas Zindrick | |
| Thomas Zindrick | |
| President and Chief Executive Officer |
| Accepted and agreed: | |
| /s/ Tony Yu, Ph.D. | |
| Tony Yu, Ph.D. | |
| May 21, 2023 |
| Date: |
Attachment: Employee Confidential Information and Invention Assignment Agreement
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Exhibit A
[Confidential Information and Invention Assignment Agreement]
| 11 |
Exhibit 31.1
CERTIFICATION PURSUANT TO RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED
I, Thomas Zindrick, J.D., certify that:
| 1. | I have reviewed this Annual Report on Form 10-K/A of Genelux Corporation; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: April 29, 2025
| /s/ Thomas Zindrick, J.D. | |
| Thomas Zindrick, J.D. | |
| President, Chief Executive Officer and Chairman | |
| (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION PURSUANT TO RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED
I, Matthew Pulisic, certify that:
| 1. | I have reviewed this Annual Report on Form 10-K/A of Genelux Corporation; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: April 29, 2025
| /s/ Matthew Pulisic | |
| Matthew Pulisic | |
| Chief Financial Officer | |
| (Principal Financial Officer) |