8-K
--12-31 false 0001720580 0001720580 2020-09-15 2020-09-15

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 15, 2020

 

 

Adicet Bio, Inc.

(Exact name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-38359   81-3305277

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

200 Constitution Drive

Menlo Park, California

94025

(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (857) 315-5528

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, par value $0.0001 per share   ACET   The Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

 

 

 


Explanatory Note

On September 15, 2020, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of April 28, 2020, by and among resTORbio, Inc. (the “Company”), Adicet Bio, Inc. (“Adicet”) and Project Oasis Merger Sub, Inc., a direct, wholly-owned subsidiary of the Company (“Merger Sub”), the Company completed the previously announced acquisition of Adicet, by means of a merger of Merger Sub with and into Adicet, with Adicet surviving such merger as a wholly owned subsidiary of the Company (the “Merger”).

 

Item 1.01

Entry into a Material Definitive Agreement.

Escrow Agreement

As previously disclosed, concurrently with the execution of the Merger Agreement, Adicet and the Company entered into a funding agreement (the “Funding Agreement”) with certain investors of Adicet (the “Investors”), pursuant to which the Investors committed to fund up to an aggregate of $15,000,000 (the “Funding Amount”) into an escrow account, which will be used to subscribe for shares of the Company’s common stock, par value $0.0001 per share (the “Company Common Stock”) in a concurrent private placement in connection with a private placement or public offering of Company Common Stock for aggregate gross proceeds (including the Funding Amount) to the Company of at least $30,000,000 (a “Qualified Financing”), on the same economic conditions (including the price per share paid by other investors in the Qualified Financing) and similar other terms and conditions as set forth in as set forth in the Funding Agreement the Qualified Financing. If the Company fails to consummate a Qualified Financing within twelve months of the closing of the Merger or certain other events occur, the Funding Amount will be distributed back to the Investors. Concurrently with the closing of the Merger, on September 15, 2020, the Company, the Investors and PNC Bank, National Association (the “Escrow Agent”) entered into an escrow agreement (the “Escrow Agreement”) pursuant to which the Funding Amount was deposited in an escrow account with the Escrow Agent in accordance with the terms of the Funding Agreement.

The foregoing description of the Escrow Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement, which is attached to this report as Exhibit 10.1, and is incorporated by reference in this Item 1.01.

Contingent Value Rights Agreement 

In connection with the Merger, the Company entered into a Contingent Value Rights Agreement (the “CVR Agreement”) with Computershare Inc. and Computershare Trust Company, N.A. as joint rights agent. The CVR Agreement entitles each holder of Company Common Stock as of immediately prior to the effective time of the Merger (the “Effective Time”) to receive substantially all of the net proceeds from the commercialization, if any,


received from a third party commercial partner of RTB101, a small molecule product candidate, previously developed by the Company, that is a potent inhibitor of target of rapamycin complex 1 (TORC1), for a COVID-19 related indication. The contingent value rights are not transferable, except in certain limited circumstances as provided in the CVR Agreement, will not be certificated or evidenced by any instrument and will not be registered with the Securities and Exchange Commission (“SEC”) or listed for trading on any exchange.

The foregoing description of the CVR Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement, which is attached to this report as Exhibit 10.2, and is incorporated by reference in this Item 1.01.

PacWest and Beech Hill Documents

In connection with the Merger, on September 14, 2020, Adicet and Pacific Western Bank (“PacWest”) entered into a Second Amendment (the “Second Amendment”) and, on September 15, 2020, a Third Amendment (the “Third Amendment” and, together with the Second Amendment, the “Amendments”) to that certain Loan and Security Agreement, dated April 28, 2020 (the “Loan Agreement”), by and among Adicet and PacWest. Pursuant to the Amendments and the Merger Agreement, the Company executed a secured guaranty agreement pursuant to which the Company granted PacWest a security interest in substantially all of its assets other than its intellectual property (the “Unconditional Secured Guaranty”) and the Company issued to PacWest a warrant to purchase up to 5,301 shares of Company Common Stock at an exercise price of $11.32 per share (the “PacWest Warrant”) to replace Adicet’s existing warrant with PacWest. The PacWest Warrant shall be exercisable for an additional number of shares of Company Common Stock equal to 1.00% of the aggregate original principal amount of all term loans made pursuant to the Loan Agreement (up to an aggregate maximum of 15,904 shares). The PacWest Warrant is immediately exercisable and expires on April 28, 2027.

In connection with the Merger and pursuant to the Merger Agreement, the Company also issued to Beech Hill Securities Inc. (“Beech Hill”) warrants to purchase 101,610 shares of Company Common Stock, 30,924 shares of Company Common Stock, 77,312 share of Company Common Stock and 11,044 shares of Company Common Stock, respectively, in each case at an exercise price of $11.32 per share (the “Beech Hill Warrants”), to replace Adicet’s existing warrants with Beech Hill. The Beech Hill Warrants are immediately exercisable and expire on July 25, 2026, August 21, 2026, September 19, 2026, and September 26, 2026, respectively.

The foregoing descriptions of the Second Amendment, the Third Amendment, the Unconditional Secured Guaranty, the PacWest Warrant and the Beech Hill Warrants are qualified in their entirety by reference to the full text of the agreements, which are attached to this report as Exhibits 10.3, 10.4, 10.5, 10.6 and 10.7, respectively, and are incorporated by reference in this Item 1.01.

 

Item 2.01

Completion of Acquisition or Disposition of Assets

On September 15, 2020, the Company completed the Merger pursuant to the Merger Agreement. In connection with the Merger, and immediately prior to the Effective Time, the Company effected a reverse stock split of the Company Common Stock at a ratio of 1-for-7 (the “Reverse Stock Split”). Also, in connection with the Merger, the Company changed its name from “resTORbio, Inc.” to “Adicet Bio, Inc.” (the “Name Change”), Adicet changed its name from “Adicet Bio, Inc.” to “Adicet Therapeutics, Inc.” and the business conducted by the Company became primarily the business conducted by Adicet, which is a biotechnology company discovering and developing allogeneic gamma delta T cell therapies for cancer and other diseases.

At the Effective Time, each outstanding share of Adicet capital stock was converted into the right to receive 0.1240 (the “Exchange Ratio”) shares of Company Common Stock, as set forth in the Merger Agreement. The Exchange Ratio was determined based on the total number of outstanding shares of Company Common Stock and Adicet capital stock, each on a fully diluted basis, and the respective valuations of Adicet and the Company at the time of execution of the Merger Agreement. In connection with the Merger, the Company also assumed certain outstanding Adicet warrants and Adicet stock options under Adicet’s 2015 Stock Incentive Plan (the “2015 Adicet Stock Incentive Plan”) and Adicet’s 2014 Share Option Plan (the “2014 Share Option Plan” and, together with the 2015 Adicet Stock Incentive Plan, the “Adicet Plans”), with such stock options and warrants henceforth representing the right to purchase a number of shares of Company Common Stock equal to the Exchange Ratio multiplied by the number of shares of Adicet’s capital stock previously represented by such stock options and warrants, as applicable, with a proportionate adjustment in exercise price. In connection with the Merger, the Company also assumed the Adicet Plans.


Immediately following the Effective Time, there were approximately 19,589,828 shares of Company Common Stock outstanding (post Reverse Stock Split). Immediately following the Effective Time, the former equityholders of Adicet held approximately 75% of the outstanding shares of Company Common Stock on a fully-diluted basis and the former equityholders of the Company held approximately 25% of the outstanding shares of Company Common Stock on a fully-diluted basis (in each case excluding equity incentives available for grant).

The shares of Company Common Stock listed on the Nasdaq Global Market, previously trading through the close of business on September 15, 2020 under the ticker symbol “TORC,” will commence trading on the Nasdaq Global Market, on a post-Reverse Stock Split adjusted basis, under the ticker symbol “ACET,” on September 16, 2020, at which time the Company Common Stock will be represented by a new CUSIP number, 007002108.

The issuance of the shares of Company Common Stock to the former equityholders of Adicet was registered with the SEC on a Registration Statement on Form S-4 (Reg. No. 333-239372) (the “Registration Statement”). The issuance of the shares of Company Common Stock to holders of stock options issued, or to be issued, under the Adicet Plans will be registered with the SEC on a Registration Statement on Form S-8.

The foregoing description of the Merger Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement that was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2020 and is incorporated herein by reference.

 

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information provided in Item 1.01 of this Current Report on Form 8-K regarding the Second Amendment, the Third Amendment, the Unconditional Secured Guaranty and the PacWest Warrant is hereby incorporated by reference in this Item 2.03.

 

Item 3.03

Material Modification to Rights of Security Holders

To the extent required by Item 3.03 of Form 8-K, the information contained in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.

As disclosed below under Item 5.07 of this Current Report on 8-K at the special meeting of the Company’s stockholders held on September 15, 2020 (the “Special Meeting”), the Company’s stockholders approved an amendment to the third amended and restated certificate of incorporation of the Company (the “Stock Split Amendment”) to effect the Reverse Stock Split.


On September 15, 2020, prior to the closing of the Merger, the Company filed the Stock Split Amendment with the Secretary of State of the State of Delaware to effect the Reverse Stock Split and the Company filed an amendment to the third amended and restated certificate of incorporation with the Secretary of State of the State of Delaware to effect the Name Change (the “Name Change Amendment”). As a result of the Reverse Stock Split, the number of issued and outstanding shares of Company Common Stock immediately prior to the Reverse Stock Split was reduced to a smaller number of shares, such that every seven shares of Company Common Stock held by a stockholder immediately prior to the Reverse Stock Split were combined and reclassified into one share of Company Common Stock.

No fractional shares were issued in connection with the Reverse Stock Split. Any fractional shares resulting from the Reverse Stock Split were rounded down to the nearest whole number, and each stockholder who would otherwise be entitled to a fraction of a share of Company Common Stock upon the Reverse Stock Split (after aggregating all fractions of a share to which such stockholder would otherwise be entitled) was, in lieu thereof, entitled to receive a cash payment determined by multiplying the average closing price per share of Company Common Stock on the Nasdaq Global Market on the 10 consecutive trading days prior to September 15, 2020, by the fraction of a share of Company Common Stock to which each stockholder would otherwise be entitled.

The foregoing descriptions of the Stock Split Amendment and the Name Change Amendment are not complete and are subject to and qualified in their entirety by reference to the Stock Split Amendment and the Name Change Amendment, copies of which are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.

 

Item 5.01

Changes in Control of Registrant

The information set forth in Item 2.01 of this Current Report on Form 8-K regarding the Merger and the information set forth in Item 5.02 of this Current Report on Form 8-K regarding the Company’s board of directors (the “Board”) and executive officers following the Merger are incorporated by reference into this Item 5.01.

 

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers

Resignation of Directors

In accordance with the Merger Agreement, Jonathan Silverstein, Chen Schor, Jeffrey Chodakewitz, David Steinberg, Paul Fonteyne, Lynne Sullivan and Michael Grissinger resigned from the Board and any respective committees of the Board of which they were members. The resignations were not the result of any disagreements with the Company relating to the Company’s operations, policies or practices.

Appointment of Directors

In accordance with the Merger Agreement, on September 15, 2020, effective immediately after the Effective Time, the following individuals were appointed to the Board as directors: Chen Schor, Jeffrey Chodakewitz, Erez Chimovits, Carl Gordon, Ph.D., Aya Jakobovits, Ph.D., Yair Schindel, M.D. and Steve Dubin.

Other than pursuant to the Merger Agreement, there were no arrangements or understandings between the Company’s newly appointed directors and any person pursuant to which they were elected. None of the Company’s newly appointed directors has a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

Class Designations

On September 15, 2020, the Board approved the reorganization of the classes of the Board as follows:

 

   

Class I Directors, whose terms expire at the Company’s 2022 Annual Meeting: Aya Jakobovits and Chen Schor

 

   

Class II Directors, whose terms expire at the Company’s 2023 Annual Meeting: Carl Gordon, Steve Dubin and Jeffrey Chodakewitz

 

   

Class III Directors, whose terms expire at the Company’s 2021 Annual Meeting: Yair Schindel and Erez Chimovits


Chen Schor, Chief Executive Officer, President, Secretary and Director 

Mr. Schor has served as the Company’s President and Chief Executive Officer and as a member of the Board since its incorporation in July 2016. Mr. Schor previously served as President, Chief Executive Officer and director of Synta Pharmaceuticals Corp. from May 2015 until its merger with Madrigal Pharmaceuticals in July 2016, and prior to that, from 2014 until 2016, Mr. Schor served as its Executive Vice President and Chief Operation Officer. From September 2012 to December 2014, Mr. Schor served as President and Chief Executive Officer of Novalere FP, Inc., a pre-commercial stage allergy therapeutics company. From September 2011 to October 2012, Mr. Schor served as Chief Business Officer of Eleven Biotherapeutics, an emerging therapeutics company. From March 2009 until September 2011, Mr. Schor served as Vice President of Business Development, global branded products at Teva Pharmaceuticals. Mr. Schor received his M.B.A. from Tel Aviv University, a B.A. in Economics and Accounting from Haifa University and a B.A. in Biology from Tel Aviv University. Mr. Schor was selected to serve on the Board due to his expected service as the President and Chief Executive Officer of the Company and his extensive industry knowledge.

Carl Gordon, Ph.D., Director

Dr. Gordon has served as a member of the Adicet Board of Directors (the “Adicet Board”) since August 2015. Dr. Gordon is a founding member, Managing Partner, and Co-Head of Global Private Equity at OrbiMed Advisors LLC, an investment firm. Dr. Gordon currently serves on the boards of directors of Turning Point Therapeutics, Inc., Keros Therapeutics, Inc., ORIC Pharmaceuticals, Inc., and Prevail Therapeutics, Inc. as well as several private companies. Dr. Gordon previously served on the boards of directors of Alector, Inc., X4 Pharmaceuticals, Inc. (formerly Arsanis, Inc.), Acceleron Pharma Inc., ARMO Biosciences, Inc., Intellia Therapeutics, Inc. Selecta Biosciences, Inc., Passage Bio, Inc., and SpringWorks Therapeutics Inc. Dr. Gordon received a B.A. in Chemistry from Harvard College and a Ph.D. in Molecular Biology from the Massachusetts Institute of Technology and was a Fellow at The Rockefeller University. Dr. Gordon was selected to serve as the initial Chairperson of the Board because of his venture capital experience, expertise in the scientific field of molecular biology and financial credentials.

Erez Chimovits, M.Sc., M.B.A., Director

Mr. Chimovits has served as a member of the Adicet Board since January 2016. Mr. Chimovits is a partner at OrbiMed Israel, a healthcare investment firm. He has extensive operational experience, including senior managerial experience at public companies. Prior to joining OrbiMed, he was Chief Executive Officer of NasVax Ltd. Previously, Mr. Chimovits served different roles at Compugen, as President of Compugen USA Inc. and as Executive Vice President in Commercial Operations. He currently serves as a member of the board of directors of LogicBio Therapeutics, Inc. and Novus Therapeutics, Inc. as well as several private companies. Mr. Chimovits earned his M.B.A., M.Sc. in Microbiology, and his B.Sc. from Tel Aviv University. Mr. Chimovits was selected to serve on the Board because of his venture capital experience, industry knowledge and extensive experience working for various pharmaceutical and biotechnology companies.

Steve Dubin, J.D., Director

Mr. Dubin was appointed to the Board in connection with the closing of the Merger. Since November 2011, Mr. Dubin has been a Principal in SDA Ventures LLC, a firm focused on assisting emerging growth and middle-market companies, primarily in the health & wellness and nutritional products markets, on matters including corporate development, business acquisition, customer relations, growth strategies and corporate finance. In connection with SDA Ventures LLC, Mr. Dubin acts as a Senior Advisor to Paine Schwartz Partners, LLC, a global private equity investment firm located in New York, and San Mateo, for the purpose of identifying and executing investment opportunities in the global human and animal food and nutritional products industries. From 2006 until its acquisition by Royal DSM N.V. in February 2011, Mr. Dubin served as Chief Executive Officer and a member of the board of directors of Martek Biosciences Corporation. He later served as President of DSM’s Nutritional Lipids Division from February 2011 through October 2011 and as a Senior Advisor to DSM Nutritional Products from November 2011 through October 2012.


After joining Martek in 1992 and serving in various management positions, including Chief Financial Officer, Treasurer, Secretary, General Counsel and Senior Vice President, Business Development, he served as President of Martek from 2003 to 2006. Mr. Dubin currently serves as a member of the board of directors of four privately held companies, Alcresta Therapeutics, Inc., The UCAN Company, Triton Algae Innovations, Ltd. and Phytolon LTD. From January 2014 to January 2018, Mr. Dubin served on the board of directors of Enzymotec Ltd. Mr. Dubin is a certified public accountant and a member of the Maryland Bar. He holds a bachelor’s degree in accounting from the University of Maryland and a J.D. from the National Law Center at George Washington University. Mr. Dubin was appointed to serve on the Board because of his accounting experience and extensive experience working with emerging growth and middle-market companies.

Aya Jakobovits, Ph.D., Director

Dr. Jakobovits founded Adicet, has served as a member of the Adicet Board since its incorporation in November 2014, and served as President and Chief Executive Officer of Adicet from its incorporation to February 2018. From February 2018 to February 2019, Dr. Jakobovits served as a senior strategic advisor to Adicet. Prior to starting Adicet, Dr. Jakobovits served as a Venture Partner with OrbiMed Advisors from 2011 to 2016. From September 2010 to December 2013, she served as President and Founding Chief Executive Officer of Kite Pharma Inc. From December 2007 to June 2010, she served as Executive Vice President, Head of Research and Development at Agensys Inc., an affiliate of Astellas Pharma, Inc. Before Agensys’ acquisition by Astellas, she served as Agensys’ Senior Vice President, Technology and Corporate Development and Chief Scientific Officer and led its research, development, clinical and corporate development operations from January 1999 to December 2007. Before Agensys, from 1966 to 1999, Dr. Jakobovits served as Director, Discovery Research and Principal Scientist at Abgenix Inc. which was spun out of Cell Genesys, Inc. in 1996 based on the XenoMouse® technology developed under her leadership. She joined Cell Genesys in 1989 and served ultimately as Director, Molecular Immunology. Dr. Jakobovits currently serves on the boards of directors of Dyve Biosciences Inc., Yeda Research and Development Co. Ltd. and the UCLA Technology Development Corporation. Dr. Jakobovits previously served on the boards of directors of cCAM therapeutics Ltd. from 2013 to 2015 and the Alliance for Cancer Gene Therapy from 2015 to 2019. Dr. Jakobovits received her B.Sc. from the Hebrew University of Jerusalem, her M.Sc. in Chemistry and Ph.D. in Life Sciences from the Weizmann Institute of Sciences, Israel, and was a postdoctoral fellow at University of California, San Francisco and at Genentech, Inc. Dr. Jakobovits was selected to serve on the Board because of her expertise, experience, and track record in forming and growing successful companies and in developing immunotherapy platform technologies and oncology products.

Yair Schindel, M.B.A., M.D., Director

Dr. Schindel has served as a member of the Adicet Board since September 2019. Dr. Schindel is the Managing Partner and Co-Founder of aMoon Fund, an investment house focused on accelerating cure in healthcare and life sciences. Prior to his time at aMoon, Dr. Schindel was the founding CEO of “Digital Israel”, the State of Israel’s National Digital Bureau which was setup at the Prime Minister’s Office to accelerate digital transformation nationally. Dr. Schindel was also the founder of the MAOZ Network, an NGO building collaboration between Israel’s most influential public leaders. Dr. Schindel earned his BSc and MD degrees at Ben-Gurion University Goldman Medical School and his MBA at Harvard Business School. Dr. Schindel was selected to serve on the Board because of his venture capital experience and his past experience in the development and business strategy of multiple companies in the life sciences sector.

Jeffrey Chodakewitz, M.D., Director

Dr. Chodakewitz has served as a member of the Board since August 2018. From April 2018 through March 2019, Dr. Chodakewitz served as Executive Vice President, Clinical Medicine and External Innovation, at Vertex Pharmaceuticals. Prior to that role, Dr. Chodakewitz held the roles of Chief Medical Officer and Executive Vice President, Global Medicines Development and Medical Affairs at Vertex from January 2014 to April 2018 and was a member of the Vertex Executive Committee. Prior to joining Vertex in January 2014, he spent over 20 years at Merck & Co., where he served in a number of positions including Head of Infectious Diseases and Vaccines Global Development from August 2013 to December 2013, Senior Vice President of Global Scientific Strategy (Infectious Disease, Respiratory & Immunology) from January 2013 to August 2013 and Senior Vice President of Late Stage


Development from March 2011 to January 2013. Dr. Chodakewitz is a Diplomate of the National Board of Medical Examiners and the American Board of Internal Medicine (both Internal Medicine and Infectious Disease). Dr. Chodakewitz currently serves on the board of Tetraphase Pharmaceuticals, Inc. and Freeline Therapeutics Ltd. He holds a B.S in Biochemistry cum laude from Yale University and an M.D. from the Yale University School of Medicine. Dr. Chodakewitz was selected to serve on the Board because of his extensive experience working for various pharmaceutical and biotechnology companies.

Committees

Audit Committee

In connection with the closing of the Merger, Steve Dubin, Jeffrey Chodakewitz and Yair Schindel were appointed to the audit committee of the Board, and Steve Dubin was appointed the chair of the audit committee.

Compensation Committee

In connection with the closing of the Merger, Carl Gordon, Aya Jakobovits and Jeffrey Chodakewitz were appointed to the compensation committee of the Board, and Carl Gordon was appointed the chair of the compensation committee.

Nominating and Corporate Governance Committee

In connection with the closing of the Merger, Erez Chimovits, Aya Jakobovits and Steve Dubin were appointed to the nominating and corporate governance committee of the Board, and Erez Chimovits was appointed the chair of the nominating and corporate governance committee.

Indemnification Agreements

On September 15, 2020, each of the newly appointed directors entered into the Company’s standard form of Indemnification Agreement, which is attached as Exhibit 10.8 to this Current Report on Form 8-K and incorporated herein by reference.

Appointment of Executive Officers

In accordance with the Merger Agreement and an action of the Board, on September 15, 2020, the Board appointed Chen Schor as the Company’s Chief Executive Officer, President, Secretary and Director, Stewart Abbot, M.D. as the Company’s Senior Vice President, Chief Scientific Officer and Chief Operating Officer, Francesco Galimi as the Company’s Senior Vice President and Chief Medical Officer, Lloyd Klickstein as the Company’s Chief Innovation Officer and Carrie Krehlik as the Company’s Senior Vice President and Chief Human Resource Officer, each effective as of the closing of the Merger and to serve at the discretion of the Board. Each of Mr. Schor, Mr. Abbot, Mr. Galimi, Mr. Klickstein and Ms. Krehlik have been determined by the Board to be executive officers of the Company.

On September 14, 2020, Joan Mannick, M.D. resigned from her position as the Chief Medical Officer of the Company. In connection with the Merger, she will become the Head of TORC1 Infectious Disease Program of the Company, effective as of the closing of the Merger. Dr. Mannick will no longer be an executive officer of the Company.

There are no family relationships among any of the Company’s newly appointed executive officers. None of the Company’s newly appointed executive officers has a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

Chen Schor. Mr. Schor’s biographical information is disclosed in the section above under the heading “Appointment of Directors.”

Stewart Abbot, Ph.D., Senior Vice President, Chief Scientific Officer and Chief Operating Officer

Dr. Abbot has served as Adicet’s Senior Vice President, Chief Scientific Officer and Chief Operating Officer since July 2018. From July 2015 to June 2018, Dr. Abbot served as the VP of Translational Research and Chief Development Officer of Fate Therapeutics, Inc., a clinical-stage biopharmaceutical company developing cellular immunotherapies for cancer and immune disorders. From June 2007 to July 2015, Dr. Abbot held multiple positions at Celgene Cellular Therapeutics, where he assisted with various cell therapy research and development programs. From October 2003 to June 2007, Dr. Abbot held various positions at GE Healthcare Biosciences and GE Global Research. Dr. Abbot received a B.Sc. in Biological Sciences from Edinburgh University, a M.Sc. in Biomedical Engineering from the University of Strathclyde, and a Ph.D. in Cell Biology and Pathology from the University of London.


Francesco Galimi, M.D., Ph.D., Senior Vice President and Chief Medical Officer

Dr. Galimi has served as Adicet’s Senior Vice President, Chief Medical Officer in September 2019. Prior to Adicet, Dr. Galimi worked at Amgen Inc., where he served as Global Program General Manager, Early Development from 2015 to 2019. During his tenure at Amgen, he was responsible for the cross-functional strategy and execution of a portfolio of oncology programs, from pre-IND to late-stage. From 2014 to 2015, Dr. Galimi was the Head of Clinical Development at Onyx Pharmaceuticals Inc., where he led the Oncology Clinical Development Group. From 2011 to 2014 he served in leadership roles at the Genomics Institute of the Novartis Research Foundation, leading the early development of a portfolio of oncology programs. Dr. Galimi holds a M.D. from the University of Torino Medical School with a specialty certification in Medical Oncology, and a Ph.D. from the University of Torino Medical School.

Lloyd Klickstein, M.D., Ph.D., Chief Innovation Officer

Dr. Klickstein has served as the Company’s Chief Scientific Officer since May 2019. Prior to joining the Company, Dr. Klickstein was Head of Translational Medicine for the New Indication Discovery Unit (NIDU) and the Exploratory Disease Area (Dax) at Novartis Institutes for Biomedical Research. Under his decade of leadership, NIDU & Dax teams carried multiple projects forward from target identification through clinical proof-of-concept in novel areas of drug development including liver disease, hearing loss and aging, among others. Prior to his 13 years at Novartis, Dr. Klickstein was an academic physician-scientist at Brigham & Women’s Hospital (BWH) in Boston, where he directed an NIH-funded basic research laboratory and maintained an active clinical practice in the Arthritis Center. Dr. Klickstein received his B.S. degree from Tufts University, his M.D. and Ph.D. degrees from Harvard University, completed post-graduate clinical training in Internal Medicine, Rheumatology & Immunology at BWH and a post-doctoral research fellowship at the Center for Blood Research in Boston.

Carrie Krehlik, M.B.A., Senior Vice President and Chief Human Resources Officer

Ms. Krehlik has served as Adicet’s Senior Vice President and Chief Human Resource Officer since November 2017. From July 2016 to November 2017, Ms. Krehlik served as a consultant to Blue Beyond Consulting. From July 2015 to June 2016, Ms. Krehlik served as the Vice President of Human Resources of ZS Pharma, Inc., a biopharmaceutical company developing therapies for ion imbalances. From December 2012 to March 2015, Ms. Krehlik served as the Vice President of Human Resources at InterMune, a biopharmaceutical company developing and commercializing therapies in pulmonology and orphan fibrotic diseases. Ms. Krehlik received a B.Sc. in Organizational Behavior from Miami University, and an MBA in International Business from San Francisco State University.

 

Item 5.03

Amendments to Certificate of Incorporation

The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

 

Item 5.07

Submission of Matters to a Vote of Security Holders

On September 15, 2020, the Company held its Special Meeting. The following is a brief description of the final voting results for each of the proposals submitted to a vote of the stockholders at the Special Meeting. The final voting results do not reflect the Reverse Stock Split.


(a) Proposal 1 — Approval of the Issuance of Common Stock in the Merger. Stockholders approved the issuance of Company Common Stock by the Company pursuant to the Merger Agreement and the resulting “change in control” of the Company under the rules of The Nasdaq Stock Market LLC, as follows:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

18,468,689

  328,511   18,560   9,089,725

(b) Proposal 2 — Approval of the Reverse Stock Split. The Stock Split Amendment was approved, as follows:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

27,120,195

  725,171   60,119   0

(c) Proposal 3 — Approval of the Amendment to the Company’s 2018 Stock Option and Incentive Plan. The stockholders approved the amendment to the Company’s 2018 Stock Option and Incentive Plan, as follows:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

12,687,459

  6,100,386   27,915   9,089,725

(h) Proposal 4 — Consider and Vote Upon an Adjournment of the Special Meeting. The adjournment of the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposals 1, 2 and/or 3 was approved, as follows:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

26,938,296

  843,843   123,346   0

 

Item 7.01

The Company from time to time presents and/or distributes to the investment community at various industry and other conferences slide presentations to provide updates and summaries of its business. A copy of its current corporate slide presentation is furnished herewith as Exhibit 99.1 and incorporated herein by reference. The Company undertakes no obligation to update, supplement or amend the materials furnished herewith as Exhibit 99.1.

 

Item 8.01

Other Events.

Adicet Therapeutics, Inc.’s Risk Factors, Adicet Therapeutics, Inc.’s Management’s Discussion and Analysis of Financial Condition and Results of Operations and Adicet Therapeutics, Inc.’s Business Section are filed herewith and attached hereto as Exhibits 99.2, 99.3 and 99.4 respectively, and incorporated herein by reference.

 

Item 9.01

Financial Statements and Exhibits

(a) Financial Statements of Businesses Acquired

The audited financial statements of Adicet Therapeutics, Inc. contemplated by this Item are filed as Exhibit 99.5 to this Current Report on Form 8-K and incorporated herein by reference.

The unaudited financial statements of Adicet Therapeutics, Inc. contemplated by this Item are filed as Exhibit 99.6 to this Current Report on Form 8-K and incorporated herein by reference.

(b) Pro Forma Financial Information.

The pro forma financial information contemplated by this Item is filed as Exhibit 99.7 to this Current Report on Form 8-K and incorporated herein by reference.

(d) Exhibits

Below is a list of exhibits included with this Current Report on Form 8-K.


Exhibit
No.
  

Document

    2.1    Agreement and Plan of Merger, dated as of April 28, 2020, by and among the Company (formerly resTORbio, Inc.), Adicet Therapeutics, Inc. (formerly Adicet Bio, Inc.) and Project Oasis Merger Sub, Inc. (incorporated by reference to Exhibit 2.1 of the Company’s Current Report on Form 8-K (File No. 001-38359) filed on April 29, 2020).
    3.1    Certificate of Amendment of Third Amended and Restated Certificate of Incorporation Of resTORbio, Inc. related to the Reverse Stock Split, dated September 15, 2020.
    3.2    Certificate of Amendment of Third Amended and Restated Certificate of Incorporation Of resTORbio, Inc. related to the Name Change, dated September 15, 2020.
  10.1    Escrow Agreement, dated as of September 15, 2020 by and among resTORbio, Inc. and the investors listed on the Schedule of Investors attached thereto.
  10.2+    Contingent Value Rights Agreement, dated as of September 15, 2020 by and among resTORbio, Inc., Computershare Inc. and Computershare Trust Company, N.A.
  10.3    Second Amendment to Loan and Security Agreement, dated as of September 14, 2020, by and between Pacific West Bank and Adicet Therapeutics, Inc.
  10.4    Third Amendment to Loan and Security Agreement, dated as of September 15, 2020, by and between Pacific West Bank and Adicet Therapeutics, Inc.
  10.5    Form of Warrant to Purchase Common Stock issued to Beech Hill Securities, dated September 15, 2020.
  10.6    Warrant to Purchase Common Stock issued to PacWest Bancorp, dated September 15, 2020.
  10.7    Unconditional Secured Guaranty, dated September 15, 2020.
  10.8#    Form of Director Indemnification Agreement (incorporated by reference to Exhibit 10.3 to the Company’s Registration Statement on Form S-1, as amended, (File No. 333-222373) filed with the SEC on January 16, 2018).
  10.9#    Transition Agreement, dated April 28, 2020, as amended, by and between Adicet Therapeutics, Inc. and Anil Singhal.
10.10#    Independent Contractor Services Agreement, dated as of April 28, 2020, by and between Adicet Therapeutics, Inc. and Anil Singhal.
10.11   

[Omitted]

10.12   

[Omitted]

10.13#    Adicet Therapeutics, Inc. 2015 Stock Incentive Plan
10.14#    Adicet 2015 Plan - Israeli Sub Plan


10.15#    Form of Adicet Therapeutics, Inc. 2015 Stock Incentive Plan Stock Option Agreement (Immediately Exercisable)
10.16#    Form of Adicet Therapeutics, Inc. 2015 Stock Incentive Plan Stock Option Agreement (Non-Immediately Exercisable)
10.17#    Form of Adicet Therapeutics, Inc. 2015 Stock Incentive Plan Stock Option Agreement (Israel 3(i))
10.18#    Form of Adicet Therapeutics, Inc. 2015 Stock Incentive Plan Stock Option Agreement (Israel - 102)
10.19#    Form of Adicet Therapeutics, Inc. 2015 Stock Incentive Plan Restricted Stock Purchase Award Agreement
10.20#    Adicet Therapeutics, Inc. Share Option Plan (2014)
10.21#    Amendment No. 1 to the Adicet Therapeutics, Inc. Share Option Plan (2014)
10.22#    Form of Adicet Therapeutics, Inc. Share Option Plan (2014) Stock Option Award Notice
10.23*    Lease Agreement, dated as of October 31, 2018, by and between Westport Office Park, LLC and Adicet Therapeutics, Inc.
10.24*    Business Park Lease, dated as of September 30, 2015, by and between Adicet Therapeutics, Inc. and David D. Bohannon Organization.
10.25*    Amendment to Business Park Lease, dated as of September 2019, between Adicet Therapeutics, Inc. and David D. Bohannon Organization.
10.26*    Loan and Security Agreement, dated as of April 28, 2020, between Adicet Therapeutics, Inc. and Pacific Western Bank.
10.27+*    Amended and Restated License Agreement, dated as of May 21, 2014, by and between Technion Research and Development Foundation Ltd., acting on behalf of itself and the Technion-Israel Institute of Technology, and Adicet Therapeutics, Inc. as successor in interest to Applied Immune Technology, Ltd.
10.28+*    Amendment No. 1 to Amended and Restated License Agreement, dated as of June 30, 2015, by and between Technion Research and Development Foundation Ltd., acting on behalf of itself and the Technion-Israel Institute of Technology, and Applied Immune Technology, Ltd.
10.29+*    Amendment No. 2 to Amended and Restated License Agreement, dated as of January 13, 2016, by and between Technion Research and Development Foundation Ltd., Applied Immune Technology, Ltd., and Adicet Therapeutics, Inc.
10.30+*    License and Collaboration Agreement, dated as of July 29, 2016, by and between Adicet Therapeutics, Inc. and Regeneron Pharmaceuticals, Inc.
10.31+*    Amendment No. 1 to License and Collaboration Agreement, dated as of April 24, 2019, by and between Adicet Therapeutics, Inc. and Regeneron Pharmaceuticals, Inc.
10.32*    Amendment No. 1 to Loan and Security Agreement, dated as of July 8, 2020, between Adicet Therapeutics, Inc. and Pacific Western Bank.
10.33#    First Amendment to the Adicet Bio, Inc. 2018 Stock Option and Incentive Plan.


23.1    Consent of PricewaterhouseCoopers LLP
99.1   

Corporate slide presentation of Adicet Bio, Inc., dated September 16, 2020.

99.2   

Adicet Therapeutics, Inc. Risk Factors

99.3   

Management’s Discussion and Analysis of Financial Condition and Results of Operations of Adicet Therapeutics, Inc.

99.4   

Business Section of Adicet Therapeutics, Inc.

99.5   

Consolidated financial statements of Adicet Therapeutics, Inc.

99.6   

Condensed Consolidated Financial Statements (Unaudited) of Adicet Therapeutics, Inc.

99.7   

Unaudited Pro Forma Condensed Combined Financial Information

104    Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

#

Indicates a management contract or any compensatory plan, contract or arrangement

+

Pursuant to Item 601(b)(10) of Regulation S-K, certain confidential portions of this exhibit were omitted by means of marking such portions with an asterisk because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.

*

Non-material schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplementally copies of any of the omitted schedules and exhibits upon request by the SEC.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Adicet Bio, Inc.
By:  

/s/ Chen Schor

Name:   Chen Schor
Title:   President and Chief Executive Officer

Date: September 16, 2020

EX-3.1

Exhibit 3.1

CERTIFICATE OF AMENDMENT OF THIRD

AMENDED AND RESTATED CERTIFICATE OF

INCORPORATION OF RESTORBIO, INC.

resTORbio, Inc., a Delaware corporation (the “Corporation”), hereby certifies as follows:

The Board of Directors of the Corporation (the “Board of Directors”), pursuant to Section 242 of the Delaware General Corporations Law (the “DGCL”), has duly adopted resolutions setting forth the following proposed amendment (the “Amendment”) to the Corporation’s third amended and restated certificate of incorporation as currently in effect (the “Certificate of Incorporation”) and declaring such amendment advisable, and the stockholders of the Corporation have duly approved and adopted the Amendment at the special meeting of stockholders called and held upon notice in accordance with Section 222 and Section 242 of the DGCL.

In order to effect such proposed amendment, ARTICLE IV of the Certificate of Incorporation is hereby amended so that the following paragraphs be inserted at the end of second full paragraph of such Article to read as follows:

“That, effective upon the filing of this Certificate of Amendment of the Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Effective Time”), each seven (7) (the “Conversion Number”) shares of the Common Stock (including treasury shares) issued and outstanding as of the Effective Time shall be combined into one validly issued, fully paid and non-assessable share of Common Stock, automatically and without any action by the holder thereof (the “Reverse Stock Split”). The par value of the Common Stock following the Reverse Stock Split shall remain at $0.0001 per share. No fractional shares of Common Stock shall be issued as a result of the Reverse Stock Split. In lieu of any fractional shares to which a stockholder would otherwise be entitled (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), the Corporation shall, upon surrender of such holder’s certificate(s) representing such fractional shares of Common Stock, pay cash in an amount equal to such fractional shares of Common Stock multiplied by the then fair value of the Common Stock as determined by the average last reported sales price of the Common Stock during the ten (10) consecutive trading days ending on the day prior to the Effective Time.

Each stock certificate or book entry share that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time into which the shares formerly represented by such certificate or book entry share have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time); provided, however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.”

IN WITNESS WHEREOF, this Certificate of Amendment has been executed by a duly authorized officer of the Corporation on this day 15th of September, 2020.

 

resTORbio, Inc.
By:  

/s/ Chen Schor

  Chen Schor
  President and Chief Executive Officer
EX-3.2

Exhibit 3.2

CERTIFICATE OF AMENDMENT OF THIRD

AMENDED AND RESTATED CERTIFICATE OF

INCORPORATION OF RESTORBIO, INC.

resTORbio, Inc., a Delaware corporation (the “Corporation”), hereby certifies as follows:

1.    The Board of Directors of the Corporation duly adopted resolutions declaring advisable the amendment of the Third Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) set forth in paragraph 3 of this Certificate of Amendment.

2.    The amendment to the Certificate of Incorporation set forth in paragraph 3 of this Certificate of Amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

3.    Article I of the Certificate of Incorporation is hereby deleted in its entirety and replaced by the following Article I in lieu thereof:

“The name of this corporation is Adicet Bio, Inc.”

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


IN WITNESS WHEREOF, this Certificate of Amendment has been executed by a duly authorized officer of the Corporation on this 15th day of September, 2020.

 

By:  

/s/ Chen Schor

Name:   Chen Schor
Title:   President and Chief Executive Officer

[Signature Page to Name Change Amendment]

EX-10.1

Exhibit 10.1

EXECUTION VERSION

ESCROW AGREEMENT

THIS ESCROW AGREEMENT (this “Escrow Agreement”) is entered into and effective as of this 15th day of September, 2020, by and among PNC Bank, National Association, a national banking association (the “Escrow Agent”), resTORbio, Inc., a Delaware corporation (“resTORbio”) and the investors listed on Schedule 1 hereto under the heading “Investors” (each of which is herein referred to as an “Investor” and collectively as the “Investors”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Funding Agreement (as defined below).

WHEREAS, resTORbio, Adicet Bio, Inc., a Delaware corporation (“Adicet”), and the Investors have entered into that certain Funding Agreement dated April 28, 2020, as amended, modified or restated from time to time (the “Funding Agreement”), in connection with a merger of Oasis Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of resTORbio (“Merger Sub”), with and into Adicet, with Adicet continuing as the surviving entity (the “Merger”), pursuant to an Agreement and Plan of Merger, dated April 28, 2020, by and among resTORbio, Adicet and Merger Sub, as amended, modified or restated from time to time.

WHEREAS, pursuant to the Funding Agreement, the Investors have agreed to deposit certain funds into an escrow account (the “Escrow Account”) immediately prior to the closing of the Merger (the “Merger Closing”) by wire transfer of immediately available cash funds, with such funds to be held, invested and disbursed by the Escrow Agent in accordance with the terms and conditions of this Escrow Agreement and the Funding Agreement.

WHEREAS, resTORbio, Adicet, and certain stockholders of Adicet (the “Non-Escrow Investors”) have entered into that certain Non-Escrow Funding Agreement, dated September 15, 2020, as amended, modified or restated from time to time (the “Non-Escrow Funding Agreement”), pursuant to which such Non-Escrow Investors have agreed to fund to resTORbio at the Concurrent Private Placement Closing (as defined in the Funding Agreement) the amount opposite such stockholders name on Schedule A thereto.

WHEREAS, the parties desire to set forth their understandings with regard to the Escrow Account established by this Escrow Agreement.

NOW, THEREFORE, in consideration of the premises herein, the parties hereto agree as follows:

I. Terms and Conditions

1.1.    Appointment of and Acceptance by Escrow Agent. resTORbio and each of the Investors hereby appoint the Escrow Agent to serve as escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment and agrees to perform its duties as provided herein.

1.2.    Establishment of Escrow. At or immediately prior to the Merger Closing, each Investor will deposit (or cause to be deposited) into the Escrow Account pursuant to the wire instructions set forth on Schedule A hereto, in immediately available funds, the amount set forth opposite such Investor’s respective name on Schedule 1 hereto, for a total aggregate amount of US$15,000,000.00, representing the Total Funding Amount referred to in the Funding Agreement (together with all interest and earnings thereon, and less any disbursements hereunder, the “Escrow Funds”).

1.3.    Application of the Escrow Funds. Subject to the terms, conditions and limitations contained herein and in the Funding Agreement, the Escrow Funds shall be available to be released in accordance with the Funding Agreement and this Escrow Agreement.


1.4.    Disbursements of the Escrow Funds. The Escrow Agent shall only disburse amounts from the Escrow Funds as follows:

(a)    Disbursement of the Escrow Funds.

i.    The Escrow Agent shall disburse amounts then held in the Escrow Account to the applicable party or parties upon receipt of, and in accordance with, a written notification, in the form of Exhibit B hereto, signed by an authorized representative (a list of whom are provided in Exhibit A-1 to Exhibit A-15) of each of resTORbio and Investors that funded in the aggregate two-thirds or more of the Total Funding Amount (the “Requisite Investors”) (a “Joint Written Direction”). resTORbio and each Investor agree solely as between themselves to act in good faith and cause the timely delivery of any applicable Joint Written Direction to effect the releases or other actions contemplated by the Funding Agreement and this Escrow Agreement in accordance with the timeframes set forth therein and herein.

ii.    Each of the parties hereto acknowledge and agree that, if one or more of the Non-Escrow Investors or their Affiliated Entities (as defined in the Funding Agreement), or any other existing investor in Adicet not listed on Schedule 1 (or such investor’s Affiliated Entities), fund into the Concurrent Private Placement (as defined in the Funding Agreement), a proportionate amount of funds will be released from the Escrow Funds back to the Investors set forth on Schedule 2 in accordance with their pro-rata respective percentages set forth on Schedule 2. Each of resTORbio and the Investors agree to timely execute a Joint Written Direction instructing the Escrow Agent to disburse the Escrow Funds in accordance with this Section 1.4(a)ii.

iii.    Notwithstanding the provisions of Section 1.4(a)i or Section 1.4(a)ii, in the event that the Escrow Agent receives a copy of a final, non-appealable award or order of a court of competent jurisdiction or arbitrator or arbitration panel forwarded by either resTORbio or the Requisite Investors, which award or order specifies the specific dollar amounts to be paid out of the Escrow Funds to resTORbio and/or the Investors, and to which such copy resTORbio or the Requisite Investors shall attach payment instructions (an “Demand Notice”), the Escrow Agent shall distribute (I) to resTORbio, out of the Escrow Funds, any amounts payable to resTORbio as set forth in the order or award and (II) to the Investors, any amounts payable to the Investors as set forth in the order or award in proportion to the percentages listed on Schedule 1 opposite each such Investor’s respective name; provided that the party delivering the Demand Notice to the Escrow Agent shall simultaneously provide a copy of such Demand Notice to the other party pursuant to Section 4.4 below (which “other party”, in the case of a Demand Notice from resTORbio, shall be all of the Investors).

(b)    Any final, non-appealable award or order of a court of competent jurisdiction or arbitrator or arbitration panel delivered under Section 1.4(a) shall be accompanied by a certificate of or on behalf of the presenting party that such order is final and non-appealable and from a court of competent jurisdiction or arbitrator or arbitration panel, upon which opinion the Escrow Agent shall be entitled to conclusively rely without further investigation. Any party requesting the disbursement of funds from the Escrow Account pursuant to a Demand Notice with respect to such an award or order shall include with its delivery of such Demand Notice to the Escrow Agent wire instructions to which the Escrow Agent is instructed to release the funds.

(c)    Notwithstanding anything to the contrary in this Escrow Agreement, if any amount to be released at any time or under any circumstances exceeds the balance in the Escrow Account, the Escrow Agent shall release the balance in the Escrow Account and shall have no liability or responsibility to any party for any deficiency.

 

2


(d)    The Escrow Agent will disburse any amounts from the Escrow Funds as required by this Section 1.4 within two (2) Business Days (as defined below) or as soon as commercially reasonable thereafter from the date of the Escrow Agent’s receipt of a Joint Written Direction or Demand Notice, as applicable.

II. Provisions as to the Escrow Agent

2.1.    Limited Duties of Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Escrow Agreement that shall be deemed purely ministerial in nature. Under no circumstance will the Escrow Agent be deemed to be a fiduciary to any party or any other person under this Escrow Agreement. This Escrow Agreement expressly and exclusively sets forth the duties of the Escrow Agent with respect to any and all matters pertinent hereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by, deemed to have knowledge of, or have any obligation to determine, make inquiry into or consider, any term or provision of any agreement between the Investors, resTORbio and/or any other third party or as to which the escrow relationship created by this Escrow Agreement relates, including without limitation the Funding Agreement or any other documents referenced in this Escrow Agreement.

2.2. Limitations on Liability of Escrow Agent.

(a)    In performing its duties under this Escrow Agreement, or upon the claimed failure to perform its duties, the Escrow Agent shall have no liability except for the Escrow Agent’s fraud, willful misconduct, bad faith or gross negligence. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action, other than resulting from the Escrow Agent’s fraud.

(b)    Except in cases of the Escrow Agent’s fraud, willful misconduct, bad faith or gross negligence, the Escrow Agent shall be fully protected (i) in acting in reliance upon any certificate, statement, request, notice, advice, instruction, direction, other agreement or instrument or signature reasonably and in good faith provided by any Investor or resTORbio with respect to such party’s information and believed by the Escrow Agent to be genuine, (ii) in assuming that any person purporting to give the Escrow Agent any of the foregoing in connection with either this Escrow Agreement or the Escrow Agent’s duties has been duly authorized to do so and (iii) in acting or failing to act in good faith in accordance with the terms of this Escrow Agreement on the advice of outside counsel retained by the Escrow Agent.

(c)    The Escrow Agent shall have no liability with respect to the transfer or distribution of any funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to the Escrow Agent in accordance with the provisions of this Escrow Agreement. The Escrow Agent shall be entitled to rely upon all bank and account information provided to the Escrow Agent by the applicable authorized representative of each of resTORbio and an Investor set forth on Exhibit A-1 to Exhibit A-15. The Escrow Agent shall have no duty to verify or otherwise confirm any written wire transfer instructions except as set forth in Section 2.3 below, but it may do so in its discretion on any occasion without incurring any liability to any party for failing to do so on any other occasion. The Escrow Agent shall process all wire transfers based on bank identification and account numbers rather than the names of the intended recipient of the funds, even if such numbers pertain to a recipient other than the recipient identified in the payment instructions. The Escrow Agent shall have no duty to detect any such inconsistencies and shall resolve any such inconsistencies by using the account number. In connection with any payments that the Escrow Agent is instructed to make by wire transfer, the Escrow Agent shall not be liable for the acts or omissions of (i) any Investor, resTORbio or other person providing such instructions, including without limitation errors

 

3


as to the amount, bank information or bank account number; or (ii) any other person or entity, including without limitation any Federal Reserve Bank, any transmission or communications facility, any funds transfer system, any receiver or receiving depository financial institution, and no such person or entity shall be deemed to be an agent of the Escrow Agent. Any wire transfers of funds made by the Escrow Agent pursuant to this Escrow Agreement will be made subject to and in accordance with the Escrow Agent’s usual and ordinary wire transfer procedures in effect from time to time.                

(d)    No provision of this Escrow Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Escrow Agreement. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with this Escrow Agreement or any property held hereunder or to appear in, prosecute or defend in any such legal action or proceedings.

2.3.    Security Procedure For Funds Transfers. The Escrow Agent shall confirm each funds transfer instruction received in the name of a party by telephone call-back to an Authorized Representative specified on Exhibit A-1 to Exhibit A-15 at the telephone number specified for such authorized person on Exhibit A-1 to Exhibit A-15, as applicable (“Authorized Representative”). Once delivered to the Escrow Agent, Exhibit A-1 to Exhibit A-15 may be revised or rescinded only by a writing signed by an Authorized Representative of the applicable party. Such revisions or rescissions shall be effective only after actual receipt and following such period of time as may be necessary to afford the Escrow Agent a reasonable opportunity to act on it. If a revised Exhibit A-1 to Exhibit A-15 or a rescission of an existing Exhibit A-1 to Exhibit A-15 is delivered to the Escrow Agent by an entity that is a successor-in-interest to such party, such document shall be accompanied by additional documentation satisfactory to the Escrow Agent showing that such entity has succeeded to the rights and responsibilities of the applicable authorized representative of each of resTORbio and any Investor under this Escrow Agreement. resTORbio and each Investor understand that the Escrow Agent’s inability to receive or confirm funds transfer instructions pursuant to the above security procedure may result in a delay in accomplishing such funds transfer, and agree that the Escrow Agent shall not be liable for any loss caused by any such delay.

2.4.    Depository Role. The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Escrow Agreement or any part thereof, or of any person executing or depositing such subject matter.

2.5.    No Duty to Notify. The Escrow Agent shall in no way be responsible for nor shall it be its duty to notify any party hereto or any other party interested in this Escrow Agreement of any payment required or maturity occurring under this Escrow Agreement or under the terms of any instrument deposited therewith unless such notice is explicitly provided for in this Escrow Agreement.

2.6.    Other Relationships. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent and its affiliates, and any of their respective directors, officers or employees may become pecuniarily interested in any transaction in which any of the other parties hereto may be interested and may contract and lend money to any such party and otherwise act as fully and freely as though it were not escrow agent under this Escrow Agreement. Nothing herein shall preclude the Escrow Agent or its affiliates from acting in any other capacity for any such party.

2.7.    Disputes.

(a)    In the event of any disagreement between resTORbio and any Investor, or between either of them and any other party, resulting in adverse claims or demands being made in connection with the

 

4


matters covered by this Escrow Agreement, or in the event that the Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any party for its failure or refusal to act, and the Escrow Agent shall be entitled to continue to refrain from acting until directed by (i) an order of a court of competent jurisdiction, or (ii) directed otherwise a Joint Written Direction. Notwithstanding the preceding, the Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court, whether with or without jurisdiction, or of an agency of the United States or any political subdivision thereof, or of any agency of any State of the United States or of any political subdivision thereof, and the Escrow Agent is hereby authorized in its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The Escrow Agent shall be under no duty to institute or defend any legal proceedings, although the Escrow Agent may, in its discretion and at the expense of resTORbio and the Investors as provided in the immediately following paragraph, institute or defend such proceedings. The rights of the Escrow Agent under this sub-paragraph are cumulative of all other rights which it may have by law or otherwise.

(b)    In the event of any disagreement or doubt, as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the election of the Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all funds, equity and property held under this Escrow Agreement, and the Escrow Agent shall have the right to take such other legal action as may be appropriate or necessary, in the sole discretion of the Escrow Agent. Upon acceptance of any such tender and transfer of all funds, equity and property held under this Escrow Agreement, resTORbio and the Investors agree that the Escrow Agent shall be discharged from all further duties under this Escrow Agreement.

2.8.    Indemnification. resTORbio and each Investor jointly and severally agree to defend, indemnify and hold harmless the Escrow Agent and each of the Escrow Agent’s officers, directors, agents and employees (the “Escrow Indemnified Parties”) from and against any and all losses, liabilities, claims, damages, expenses and costs (including, without limitation, attorneys’ fees and expenses) of every nature whatsoever (collectively, “Escrow Agent Losses”) which any such Escrow Indemnified Party may incur and which arise directly or indirectly from this Escrow Agreement or which arise directly or indirectly by virtue of the Escrow Agent’s undertaking to serve as the Escrow Agent hereunder; provided, however, that no Escrow Indemnified Party shall be entitled to indemnity with respect to Escrow Agent Losses that have been finally adjudicated by a court of competent jurisdiction to have been caused by such Escrow Indemnified Party’s fraud, gross negligence, bad faith or willful misconduct. resTORbio and each Investor agree solely between themselves, and without affecting any Escrow Indemnified Party’s right to indemnification hereunder, that (i) resTORbio and the Investors shall each be responsible for fifty percent (50%) of such indemnification obligations and shall have a right of contribution against the other to the extent that they pay more than their fifty percent (50%) share of such indemnification obligations and (ii) each Investor shall be responsible for the percentage of such indemnification obligations borne by the Investors set forth opposite such Investor’s respective name on Schedule 1 hereto and shall have a right of contribution against the other to the extent that such Investor pays more than its respective share of such indemnification obligations. The provisions of this section shall survive the termination of this Escrow Agreement and any resignation or removal of the Escrow Agent.

2.9.    Mergers, Consolidations, Etc. Any entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any entity to which all or substantially all the escrow business of the Escrow Agent may be transferred, shall be the successor Escrow Agent under this Escrow Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, in each case without the execution or filing of any instrument or paper or the performance of any further act (other than due notice to resTORbio and each Investor).

 

5


2.10.    Resignation; Removal.

(a)    The Escrow Agent may resign and be discharged from it duties and obligations at any time under this Escrow Agreement by providing written notice to resTORbio and each Investor and complying with the provisions of this Section 2.10(a). Such resignation shall be effective on later of the date set forth in such written notice, which shall be no earlier than thirty (30) days after such written notice has been furnished, and the date that a successor agent has been appointed or final sentence of this Section 2.10(a) has been complied with. Thereafter, the Escrow Agent shall have no further obligation except to hold the Escrow Funds as depository and cooperate reasonably in the transfer of the Escrow Funds to a successor escrow agent. resTORbio and the Requisite Investors shall promptly appoint a successor escrow agent. The Escrow Agent shall refrain from taking any action until it shall receive a Joint Written Direction designating the successor escrow agent. However, in the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all funds, equity and other property then held by the Escrow Agent hereunder and the Escrow Agent shall, upon acceptance of any such tender and transfer of all funds, equity and property held under this Escrow Agreement, be relieved of all further duties and obligations under this Escrow Agreement.

(b)    resTORbio and the Requisite Investors acting together shall have the right to terminate the appointment of the Escrow Agent upon thirty (30) days’ joint written notice to the Escrow Agent specifying the date upon which such termination shall take effect. Thereafter, the Escrow Agent shall have no further obligation except to hold the Escrow Funds as depository and cooperate reasonably in the transfer of the Escrow Funds to a successor escrow agent. The Escrow Agent shall refrain from taking any action until it shall receive a Joint Written Direction designating the successor escrow agent. However, in the event no successor escrow agent has been appointed on or prior to the date such termination is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all funds, equity and other property then held by the Escrow Agent hereunder and the Escrow Agent shall, upon acceptance of any such tender and transfer of all funds, equity and property held under this Escrow Agreement, be relieved of all further duties and obligations under this Escrow Agreement.

(c)    In the case of a resignation or removal of the Escrow Agent, the Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder. The successor escrow agent appointed by resTORbio and the Requisite Investors shall execute, acknowledge and deliver to the Escrow Agent and the other parties an instrument in writing accepting its appointment hereunder, and thereafter, the Escrow Agent shall deliver all of the then-remaining balance of the Escrow Funds, less any fees and expenses then incurred by and unpaid to the Escrow Agent, to such successor escrow agent in accordance with the Joint Written Direction of resTORbio and the Requisite Investors and upon receipt of the Escrow Funds, the successor escrow agent shall be bound by all of the provisions of this Escrow Agreement.

2.11.    Compensation of the Escrow Agent. [Reserved.]

III. Tax Matters

3.1. Tax Matters.

(a)    On or before the execution and delivery of this Escrow Agreement, each of resTORbio and each Investor shall provide to the Escrow Agent a completed IRS Form W-9 or Form W-8 (or, in each case, any successor form), as applicable, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate in any respect. The Escrow Agent shall have the right to request from any party to this Escrow Agreement, or any other person or entity entitled to payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Escrow Agent to satisfy its reporting and withholding obligations under the Internal Revenue Code of 1986, as amended (the

 

6


Code”) and applicable state and local income tax law. To the extent any such forms to be delivered under this Section 3.1(a) are not provided prior to the date hereof or by the time the related payment is required to be made or are determined by the Escrow Agent to be incomplete and/or inaccurate in any respect, the Escrow Agent shall be entitled to withhold (without liability) a portion of any interest or other income earned on the investment of the Escrow Funds or on any such payments hereunder to the extent withholding is required by law and shall remit such taxes to the appropriate authorities, and shall have no obligation to gross up any such payment. The Escrow Agent shall have the sole right to make the determination as to which payments hereunder are “reportable payments” or “withholdable payments” under the Code.

(b)    resTORbio and each Investor agree that, subject to the terms and conditions of this Escrow Agreement, the owners of the funds held in the Escrow Account (together with any interest or other income earned on the investment of the Escrow Funds) are the Investors (pro rata in proportion to the percentages listed on Schedule 1 opposite each such Investor’s respective name) for all tax purposes and the Escrow Agent shall report to the Internal Revenue Service (“IRS”), as of each calendar year-end, all income earned from the investment of any sum held in the Escrow Account (including income earned in respect of such earnings) as the income of the Investors for purposes of the Code and applicable state and local income tax law. The Escrow Agent is authorized and directed to report all interest and other income earned on the Escrow Funds in accordance with the IRS Form W-9 or Form W-8 provided to the Escrow Agent by the Investors. Each Investor shall report all interest or other income, if any, that is earned on the Escrow Funds as income in the taxable year or years in which such income is properly includable in such Investor’s gross income and shall pay any and all taxes attributable thereto.

(c)    Notwithstanding anything to the contrary herein provided, except for the delivery of IRS Form 1099, IRS Form 1042-S or other applicable tax form, the Escrow Agent shall have no duty to prepare or file any Federal or state tax report or return with respect to any funds or equity held pursuant to this Escrow Agreement or any income earned thereon other than such information reports as the Escrow Agent is required to prepare and file as required by applicable law. The Escrow Agent shall have no responsibility to report any payments from the Escrow Fund other than the interest or other income earned on the Escrow Fund as set forth in this Section 3.1.

(d)    resTORbio and each Investor jointly and severally, shall indemnify, defend and hold the Escrow Agent harmless from and against any tax, late payment, interest, penalty or other cost or expense that may be assessed against the Escrow Agent on or with respect to the funds and equity held under this Escrow Agreement or any earnings or interest thereon, unless such tax, late payment, interest, penalty or other cost or expense was finally adjudicated by a court of competent jurisdiction to have been directly caused by the fraud, gross negligence, bad faith or willful misconduct of the Escrow Agent or the failure of the Escrow Agent to follow the lawful instructions of resTORbio or any Investor. The indemnification provided in this section is in addition to the indemnification provided to the Escrow Agent elsewhere in this Escrow Agreement. resTORbio and each Investor agree solely between themselves, and without affecting the Escrow Agent’s right to indemnification hereunder, that (i) resTORbio and the Investors shall each be responsible for fifty percent (50%) of such indemnification obligations and shall have a right of contribution against the other to the extent that they pay more than their fifty percent (50%) share of such indemnification obligations and (ii) each Investor shall be responsible for the percentage of such indemnification obligations borne by the Investors set forth opposite such Investor’s respective name on Schedule 1 hereto and shall have a right of contribution against the other to the extent that such Investor pays more than its respective share of such indemnification obligations. The indemnification provided in this section is in addition to the indemnification provided in Section 2.8 and shall survive the resignation or removal of the Escrow Agent and the termination of this Escrow Agreement.

 

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IV. Miscellaneous

4.1.    Disbursements. The Escrow Agent shall make no disbursement, investment or other use of funds until and unless it has collected funds. The Escrow Agent shall not be liable for collection items until such proceeds have been received or the Federal Reserve has given the Escrow Agent credit for the funds.

4.2.    Permitted Investments. The Escrow Agent shall invest the Escrow Funds in a PNC Non-Interest Bearing Deposit Account, unless Schedule C is completed to provide direction for investment in the Money Market Deposit Account. Information relating to investment of Escrow Funds in a PNC Non-Interest Bearing Deposit Account or, if elected, the Money Market Deposit Account, are set forth on Schedule C. resTORbio and each Investor recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to the investment of moneys held hereunder or the purchase, sale, retention or other disposition of any investment, and the Escrow Agent shall not be liable to resTORbio or any Investor or any other person or entity for any loss incurred in connection with any such investment, including, without limitation, any loss due to interest rate fluctuation, early withdrawal penalty or the decline in value of any investment. Any investment earnings and income on the funds held in the Escrow Account shall become part of the Escrow Account and shall be disbursed in accordance with this Escrow Agreement. The Escrow Agent shall not be liable or responsible for any loss resulting from any deposits or investments made pursuant to this Section 4.2, other than as a result of the fraud, gross negligence, bad faith or willful misconduct of the Escrow Agent.

4.3.    Accounting. The Escrow Agent shall provide monthly reports of transactions and holdings to resTORbio and each Investor as of the end of each month, at the address provided by resTORbio and each Investor.

4.4.    Notices. Any notice, request for consent, report, or any other communication required or permitted in this Escrow Agreement shall be in writing and shall be deemed to have been given when delivered by electronic mail to the e-mail address given below, provided that written confirmation of receipt is obtained promptly from the recipient after completion of the electronic mail transmission.

If to the Escrow Agent:    

PNC Bank, National Association

Attn: Heather Kelly; Rachel Stastny

80 South 8th Street, Suite 3715

Minneapolis, Minnesota 55402

Email: hkelly @pnc.com; Rachel.stastny@pnc.com

            pncpaidadmin@pnc.com

Phone: 612-268-7307

If to resTORbio:    

resTORbio, Inc.

500 Boylston Street, 13th Floor

Boston, Massachusetts

Attention: Chen Schor

Email: cschor@restorbio.com

 

8


with a copy (which shall not constitute notice) to each of:

Morrison & Foerster LLP

12531 High Bluff Drive, Suite 100

San Diego, CA 92011

Attention: James M. Krenn

Email: jkrenn@mofo.com

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attention: Andrew H. Goodman

Email: agoodman@goodwinlaw.com

If to any Investor: To the email and address set forth on such Investor’s signature page hereto.

Any party may unilaterally designate a different address by giving notice of each change in the manner specified above to each other party. In all cases, the Escrow Agent shall be entitled to rely on a copy or electronic transmission of any document with the same legal effect as if it were the original of such document. “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which banking institutions located in Pennsylvania are authorized or obligated by law or executive order to close. The parties acknowledges that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the internet and Parties assumes such risks and acknowledges that the security procedures set forth herein are commercially reasonable.

4.5.    Governing Law. This Escrow Agreement shall be governed by and construed according to the laws of the State of Delaware, without regard to principles of conflicts of law. The parties hereto consent to the exclusive jurisdiction of the state and federal courts sitting in the state of Delaware and consent to personal jurisdiction of and venue in such courts with respect to any and all matters or disputes arising out of this Escrow Agreement.

4.6.    Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON OR IN CONNECTION WITH THIS ESCROW AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.6 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

4.7.    Assignment; Binding Effect. Except as permitted in Section 2.9, neither this Escrow Agreement nor any rights or obligations hereunder may be assigned by any party hereto without the express written consent of each of the other parties hereto. This Escrow Agreement shall inure to and be binding upon the parties hereto and their respective successors, heirs and permitted assigns.

4.8.    Amendment and Waiver. The terms of this Escrow Agreement may be altered, amended, modified or revoked only by an instrument in writing signed by the Escrow Agent, resTORbio and the Requisite Investors. No course of conduct shall constitute a waiver of any terms or conditions of this

 

9


Escrow Agreement, unless such waiver is specified in writing, and then only to the extent so specified. A waiver of any of the terms and conditions of this Escrow Agreement on one occasion shall not constitute a waiver of the other terms of this Escrow Agreement, or of such terms and conditions on any other occasion.

4.9.    Severability. If any provision of this Escrow Agreement shall be held or deemed to be or shall in fact, be illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative or unenforceable to any extent whatsoever.

4.10.    Further Assurances. If at any time the Escrow Agent shall determine or be advised that any further agreements, assurances or other documents are reasonably necessary or desirable to carry out the provisions of this Escrow Agreement and the transactions contemplated by this Escrow Agreement, the parties shall execute and deliver any and all such agreements or other documents and do all things reasonably necessary or appropriate to carry out fully the provisions of this Escrow Agreement.

4.11.    No Third Party Beneficiaries. This Escrow Agreement is for the sole benefit of the parties hereto, and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Escrow Agreement. Additionally, any permitted assignee must also satisfy the Escrow Agent’s requirements set forth in Section 2.9.

4.12.    Force Majeure. No party to this Escrow Agreement shall be liable to any other party hereto for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, interruption or malfunctions of communications or power supplies, labor difficulties, actions of public authorities or other similar causes reasonably beyond its control.

4.13.    Termination. This Escrow Agreement shall terminate upon the distribution by the Escrow Agent in accordance with this Escrow Agreement of all funds, equity and property held under this Escrow Agreement or upon the earlier Joint Written Direction.

4.14.    Titles and Headings. All titles and headings in this Escrow Agreement are intended solely for convenience of reference and shall in no way limit or otherwise affect the interpretation of any of the provisions hereof.

4.15.    Counterparts; Facsimile Execution. This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed signature page to this Escrow Agreement and agreements, certificates, instruments and documents entered into in connection herewith by facsimile or other electronic transmission (including Adobe PDF format) will be effective as delivery of a manually executed counterpart to this Escrow Agreement or such agreements, certificates, instruments and documents.

4.16.    Entire Agreement; Effect of Definitive. This Escrow Agreement constitutes the entire agreement between the Escrow Agent and resTORbio and the Investors in connection with the subject matter of this Escrow Agreement, and no other agreement entered into between resTORbio and any Investor, or either of them, including, without limitation, and the Funding Agreement, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be deposited with the Escrow Agent or the Escrow Agent may have knowledge thereof. The parties hereto acknowledge and agree that the Escrow Agent is not a party to, is not bound by, and has no duties or obligations under the Funding Agreement, that all references in this Escrow Agreement to the Funding Agreement are for convenience, and that the Escrow Agent shall have no implied duties beyond the express duties set forth in this Escrow Agreement.

 

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4.17.    Procedures for Opening a New Account. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. When a party opens an account, the Escrow Agent must obtain each party’s name, address, date of birth (as applicable), taxpayer or other government identification number or other appropriate information that will allow the Escrow Agent to identify such party. The Escrow Agent may also ask to see each party’s driver’s license, passport or other identifying documents. For parties that are business or other legal entities, the Escrow Agent may require such documents as it deems necessary to confirm the legal existence of the entity.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed as of the date first above written.

 

PNC BANK, NATIONAL ASSOCIATION, as the
Escrow Agent
By:  

/s/ Rachel Stastny

Name:  

Rachel Stastny

Title:  

Vice President

 

12


RESTORBIO, INC.
By:  

/s/ Chen Schor

Name:  

Chen Schor

Title:  

Chief Executive Officer

 

13


INVESTOR:
By:  
By:  
By:  

 

Name:  

 

Title:  

 

Address:  
 
Email:  

 

14

EX-10.2

Exhibit 10.2

CONTINGENT VALUE RIGHTS AGREEMENT

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.

This CONTINGENT VALUE RIGHTS AGREEMENT (this “Agreement”), dated as of September 15, 2020 (the “Effective Date”), is entered into by and between (i) resTORbio, Inc., a Delaware corporation (“Parent”), and (ii) Computershare Inc., a Delaware corporation and its wholly owned subsidiary, Computershare Trust Company, N.A., a national banking association, jointly as Rights Agent (as defined below). Parent and Rights Agent agree, for the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:

1.    DEFINITIONS.

Capitalized terms used but not otherwise defined herein will have the meanings ascribed to them in the Merger Agreement (as defined below). As used in this Agreement, the following terms will have the following meanings:

1.1    “Acting Holders” means, at the time of determination, Holders of at least 20% of the outstanding CVRs.

1.2    “Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) of any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting shares of the Person or actual control over the business and affairs of such Person.

1.3    “Budget” shall mean the budget attached hereto as Exhibit A.

1.4    “Calendar Quarter” means the successive periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 or December 31, for so long as this Agreement is in effect; provided, however that (a) the first Calendar Quarter shall commence on the Effective Date and shall end on the first September 30 thereafter, and (b) the last Calendar Quarter shall commence on the first day after the full Calendar Quarter immediately preceding the effective date of the termination or expiration of this Agreement and shall end on the effective date of the termination or expiration of this Agreement.

1.5    “Clinical Trial” means a clinical study conducted on certain numbers of human subjects (depending on the phase of the trial) that is designed to (a) establish that a pharmaceutical product is reasonably safe and tolerable for continued testing, (b) investigate the safety and efficacy of the pharmaceutical product for its intended use, and to define warnings, precautions and adverse reactions that may be associated with the pharmaceutical product in the dosage range to be prescribed, or (c) support Marketing Approval of such pharmaceutical product or label expansion of such pharmaceutical product.

1.6    “Clinical Trial Cap” means US [***] less any fully burdened costs accrued or incurred by Parent or its Affiliates in connection with the CVR Clinical Trial(s), in accordance with the Budget, between the date of the Merger Agreement Date and the Effective Date.


1.7    “Commercialize” means to market, promote, distribute, import, export, offer to sell and/or sell the CVR Product, and “Commercialization” means commercialization activities related to the CVR Product, including activities relating to marketing, promoting, distributing, importing, exporting, offering for sale and/or selling the CVR Product.

1.8    “Commercially Reasonable Efforts” means the level of efforts consistent with the efforts that a Third Party of similar size and with similar resources as Parent, in the biopharmaceutical industry, typically devotes to a similar product of similar market potential, at a similar stage in its development or product life, taking into account development, commercial, legal and regulatory factors, such as efficacy, safety, patent and regulatory exclusivity, product profile, cost and availability of supply, the time and cost required to complete development, the competitiveness of the marketplace (including the proprietary position and anticipated market share of the product), the patent position with respect to such product (including the ability to obtain or enforce, or have obtained or enforced, such patent rights), the third-party patent landscape relevant to the product, the regulatory structure involved, the likelihood of obtaining Marketing Approval, the anticipated or actual profitability of the applicable product (but without taking into account the amount of any potential CVR Payments), anticipated or approved labeling, present and future market potential, competitive products and market conditions, pricing and reimbursement considerations, costs for development and costs for obtaining, prosecuting, maintaining and licensing relevant intellectual property rights, and other technical, commercial, legal, scientific, regulatory, and medical considerations, all based on conditions then prevailing. Notwithstanding anything to the contrary in this Agreement, (a) a Party makes no guarantee, and Commercially Reasonable Efforts does not mean, that such Party will actually accomplish the applicable task or objective or complete any particular phases of development or commercialization within any particular time horizons, (b) the use of Commercially Reasonable Efforts may, under certain circumstances, be consistent with the termination of the development, manufacture and/or Commercialization of the CVR Product, and (c) in no event shall the use of Commercially Reasonable Efforts require Parent to take or omit to take any action (including, without limitation, entering into any CVR Commercial Agreement) the approval of which would violate any fiduciary duties of Parent’s board of directors, as determined by Parent’s board of directors, acting reasonably and in good faith.

1.9    “CVR(s)” means the rights of Holders to receive contingent cash payments pursuant to the Merger Agreement and this Agreement.

1.10    “CVR Clinical Trial(s)” means the Planned Clinical Trial and the Proposed Clinical Trial.

1.11    “CVR Commercial Agreement” means a transaction or series of transactions between Parent or its Affiliates and any Partner that meets all of the following requirements:

(a)    is memorialized in one or more binding, valid, and enforceable written agreements, the final form(s) of which (i) meets the requirements set forth in this Section 1.11 and are otherwise reasonably acceptable to Parent, and (ii) has been expressly approved by Parent’s board of directors, in its reasonable discretion;

(b)    is entered into on or before September 30, 2021;

 

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(c)    in which Parent or its Affiliate agrees to grant, sell, license or otherwise convey to Partner and/or its Affiliates the exclusive or co-exclusive rights to Commercialize the CVR Product in one or more fields of use in one or more countries or regions in the world;

(d)    in which no proprietary technology, products or intangible tangible assets of Parent or its Affiliates (other than such proprietary technology, products or intangible tangible assets of Parent or its Affiliates regarding the CVR Product existing as of the Merger Agreement Date or generated pursuant to the Planned Protocol or the Proposed Protocol), including any rights associated therewith, are granted, sold, or otherwise conveyed by Parent or its Affiliates to Partner pursuant to the transaction;

(e)    in which Partner or its Affiliate, collectively, is expressly obligated to reimburse Parent’s out-of-pocket and accrued costs and expenses incurred prior to the date of such transaction in connection with filing, prosecuting, and maintaining any patent rights relating to the CVR Product in the Partner Territory and in the Partner Field, to the extent such costs and expenses are not subject to reimbursement by any other Third Party;

(f)    in which, from and after the date of such transaction, Partner or its Affiliate, collectively, shall be responsible for (i) preparing, filing, and prosecuting applications to obtain Marketing Approval for the CVR Product in the Partner Territory and directly paying all future costs and expenses incurred in connection therewith together with all accrued expenses of Parent and its Affiliates to facilitate the foregoing, and (ii) prosecuting and maintaining any patent rights relating to the CVR Product, in the Partner Territory and in the Partner Field (other than such patent rights as Partner or Parent may elect to abandon), on its own account or for the benefit of Parent or its Affiliate, and directly paying all future costs and expenses incurred in connection therewith together with all accrued expenses of Parent and its Affiliates to facilitate the foregoing;

(g)    in which the payments received prior to the due date of the applicable Third-Party Payments by Parent from Partner or its Affiliate, collectively, for each CVR Payment Period shall not be less than the aggregate amounts of all Third-Party Payments owing for the same period;

(h)    in which, from and after the effective date of such transaction, Partner or its Affiliate, collectively, shall be responsible for the development, manufacture, Marketing Approval, and Commercialization of the CVR Product in the relevant Partner Territory and directly paying all costs and expenses incurred in connection therewith; and

(i)    in which the terms (i) provide that Parent and its Affiliates shall have no liability whatsoever regarding or in connection with the CVR Product or its the manufacture or use, (ii) make no representation and warranties on behalf of Parent and its Affiliates regarding or in connection with the CVR Product or its the manufacture or use, (iii) release Parent and its Affiliates from for all losses, liabilities, expenses, and damages incurred in connection with the CVR Product or its the manufacture or use, and (iv) require Partner to indemnify, defend, and hold harmless Parent and its Affiliates from any Third Party claims regarding or in connection with any of the foregoing.

1.12    “CVR Payment” means any payment under Section 2.4(a).

 

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1.13    “CVR Payment Period” means a period equal to a Calendar Quarter, prior to the expiration of the CVR Term, ending at any time after the effective date of the CVR Commercial Agreement.

1.14    “CVR Payment Statement” means, for a given CVR Payment Period during the CVR Term, a written statement of Parent, signed on behalf of Parent setting forth in reasonable detail the calculation of the applicable CVR Payment for such CVR Payment Period.

1.15    “CVR Product” means solely [***].

1.16    “CVR Register” has the meaning set forth in Section 2.3(b).

1.17    “CVR Term” means the period beginning on the Effective Date and ending upon (i) if a CVR Commercial Agreement is entered into prior to any expiration or termination of this Agreement, the latest date upon which Parent or any of its Affiliates is eligible to receive Gross Consideration under such CVR Commercial Agreement, or (ii) if a CVR Commercial Agreement is not entered into prior to any termination of this Agreement, the effective date of termination and/or expiration of this Agreement.

1.18    “DTC” means The Depository Trust Company or any successor thereto.

1.19    “Finder” means JMP Securities LLC or another Person that is a nationally recognized investment banking firm identified by the Company.

1.20    “Finder Agreement” means the Engagement Letter, dated as of September 10, 2020, between Parent and JMP Securities LLC, in the form agreed to with Company and Parent prior to the Effective Date.

1.21     “FTE” means the equivalent of one full-time employee or consultant of Parent or its Affiliate conducting the efforts described in Section 4.3(a) on behalf of Parent under this Agreement. In no event shall any one individual be counted as more than one (1) FTE.

1.22    “Gross Consideration” means the sum of all cash consideration actually received by Parent or its Affiliates during the CVR Term in consideration for the grant of rights to Commercialize the CVR Product under the CVR Commercial Agreement or any sublicense granted under such rights.

1.23    “Holder” means a Person in whose name a CVR is registered in the CVR Register at the applicable time.

1.24    “IND” means an investigational new drug application filed with the FDA for approval to commence Clinical Trials in the United States.

 

- 4 -


1.25    “Marketing Approval” means, with respect to a pharmaceutical product, the registrations, authorizations and approvals of the applicable Regulatory Authority or other Governmental Authority in a particular country or region in the world that are necessary to market and sell or otherwise Commercialize such pharmaceutical product in such country or region.

1.26    “Merger Agreement” means that certain Agreement and Plan of Merger, dated as of April 28, 2020 (the “Merger Agreement Date”), as amended or restated from time to time, by and among Parent, Project Oasis Merger Sub, Inc., and Adicet Bio, Inc. (the “Company”).

1.27    “Net Proceeds” means, for any CVR Payment Period, Gross Consideration minus Permitted Deductions, all as calculated in accordance with Parent’s accounting practices and annual audited financial statements. For clarity, to the extent Permitted Deductions exceed Gross Consideration for any CVR Payment Period, any excess Permitted Deductions shall be applied against Gross Consideration in subsequent CVR Payment Periods.

1.28     “Partner” means any Third Party that enters into a transaction with Parent or its Affiliates for the Commercialization of the CVR Product as described in Section 4.3(a).

1.29    “Partner Field” means the field(s) of use in which a Partner is authorized to Commercialize the CVR Product pursuant to a CVR Commercial Agreement.

1.30    “Partner Territory” means the country(ies) and/or region(s) of the world in which a Partner is authorized to Commercialize the CVR Product pursuant to a CVR Commercial Agreement.

1.31    “Party” means Parent or the Rights Agent.

1.32    “Payment Amount” means, with respect to each CVR Payment and each Holder, an amount equal to such CVR Payment divided by the total number of CVRs and then multiplied by the total number of CVRs held by such Holder as reflected on the CVR Register (rounded downwards to the nearest whole cent).

1.33    “Permitted Deductions” means the sum of:

(a)    applicable excise taxes, use taxes, tariffs, sales taxes and customs duties, and/or other government charges imposed on the Gross Consideration owed for the applicable CVR Payment Period;

(b)    any offsets, credits, deductions, refunds, and chargebacks actually granted, allowed or incurred in connection with the CVR Product during the applicable CVR Payment Period;

(c)    any applicable Third-Party Payments;

(d)    any reasonable and documented out of pocket costs and expenses incurred for any ongoing efforts described in Section 4.3(a);

 

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(e)    any reasonable and documented out-of-pocket costs incurred or accrued by Parent and its Affiliates in connection with the negotiation, entry into and closing of such CVR Commercial Agreement, including any accountant or attorney’s fees;

(f)    any aggregate losses, liabilities, damages, and expenses owing by Parent or its Affiliates arising out of any Third Party claims, demands, actions, or other proceedings relating to or in connection with the CVR Clinical Trial(s) and/or the CVR Product;

(g)    any amounts paid or reimbursed by Parent pursuant to Section 3.2(g) or 3.2(i) or otherwise by Parent to the Rights Agent pursuant to or in connection with this Agreement, or incurred pursuant to Section 2.4(c); and

(h)    an administration fee of 7.5% of all Gross Consideration received by Parent or its Affiliate for the applicable CVR Payment Period.

1.34    “Permitted Transfer” means a transfer of CVRs (a) upon death of a Holder by will or intestacy; (b) pursuant to a court order; (c) by operation of law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; or (d) in the case of CVRs held in book-entry or other similar nominee form, from a nominee to a beneficial owner and, if applicable, through an intermediary, to the extent allowable by DTC.

1.35    “Person” shall mean any individual, partnership, joint venture, limited liability company, firm, corporation, unincorporated association or organization, trust or other entity, and shall include any successor (by merger or otherwise) of any of the foregoing.

1.36    “Planned Clinical Trial” means [***].

1.37    “Planned Protocol” means the protocol entitled [***].

1.38    “Proposed Clinical Trial” means [***].

 

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1.39    “Proposed Protocol” means [***].

1.40    “Regulatory Authority” means any national, regional, state or local regulatory authority, department, bureau, commission, council or other Governmental Authority within any country or region in the world (including the FDA) that is responsible for overseeing the development, use, manufacture, transport, storage or commercialization of the CVR Product in such country or region.

1.41    “Rights Agent” means the Rights Agent named in the first paragraph of this Agreement or any direct or indirect successor Rights Agent designated in accordance with the applicable provisions of this Agreement.

1.42    “Third Party” means any Person other than Parent, Rights Agent or their respective Affiliates.

1.43    “Third-Party Payment(s)” means all amounts owing by Parent or its Affiliates, including any applicable fees, success-based payments, milestone payments and/or royalties related thereto, to a Third Party that are related to the development, Marketing Approval, manufacture, or commercialization of the CVR Product, including, without limitation, all amounts owing by Parent under the Finder Agreement.

 

2.

CONTINGENT VALUE RIGHTS.

2.1    CVRs. The CVRs represent the rights of Holders to receive contingent cash payments pursuant to this Agreement. The initial Holders will be the holders of Oasis Common Stock as of immediately prior to the Effective Time. One CVR will be issued with respect to each share of Oasis Common Stock that is outstanding as of immediately prior to the Effective Time (including, for the avoidance of doubt, those shares of Oasis Common Stock issued upon settlement of Oasis Restricted Stock Units pursuant to Section 6.8 of the Merger Agreement).

2.2    Nontransferable. The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer. The CVRs will not be listed on any quotation system or traded on any securities exchange.

 

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2.3    No Certificate; Registration; Registration of Transfer; Change of Address; CVR Distribution.

(a)    The CVRs will be issued in book-entry form only and will not be evidenced by a certificate or other instrument.

(b)    The Rights Agent shall create and maintain a register (the “CVR Register”) for the purpose of registering CVRs and Permitted Transfers. The CVR Register will be created, and CVRs will be distributed, pursuant to written instructions to the Rights Agent from Parent pursuant to Section 2.3(e). The CVR Register will initially show one position for Cede & Co. representing shares of Oasis Common Stock held by DTC on behalf of the street holders of the shares of Oasis Common Stock held by such holders as of immediately prior to the Effective Time. The Rights Agent will have no responsibility whatsoever directly to the street name holders with respect to transfers of CVRs. With respect to any payments to be made under Section 2.4 below, the Rights Agent will accomplish the payment to any former street name holders of shares Oasis Common Stock by sending one lump-sum payment to DTC. The Rights Agent will have no responsibilities whatsoever with regard to the distribution of payments by DTC to such street name holders.

(c)    Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument of transfer in form reasonably satisfactory to the Rights Agent pursuant to its guidelines, including a guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program, duly executed by the Holder thereof, the Holder’s attorney duly authorized in writing, the Holder’s personal representative or the Holder’s survivor, and setting forth in reasonable detail the circumstances relating to the transfer. Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), register the transfer of the CVRs in the CVR Register. Parent and Rights Agent may require payment of a sum sufficient to cover any stamp or other tax or charge that is imposed in connection with any such registration of transfer. The Rights Agent shall have no duty or obligation to take any action under any section of this Agreement that requires the payment by a Holder of a CVR of applicable taxes or charges unless and until the Rights Agent is satisfied that all such taxes or charges have been paid. All duly transferred CVRs registered in the CVR Register will be the valid obligations of Parent and will entitle the transferee to the same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor. No transfer of a CVR will be valid until registered in the CVR Register.

(d)    A Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register. The written request must be duly executed by the Holder. Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the written request is in proper form, promptly record the change of address in the CVR Register. The Acting Holders may, without duplication, make a written request to the Rights Agent for a list containing the names, addresses and number of CVRs of the Holders that are registered in the CVR Register. Upon receipt of such written request from the Acting Holders, the Rights Agent shall promptly deliver a copy of such list to the Acting Holders.

 

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(e)    Parent will provide written instructions to the Rights Agent for the distribution of CVRs to holders of Oasis Common Stock as of immediately prior to the Effective Time (the “Record Time”). Subject to the terms and conditions of this Agreement and upon receipt of such instructions, which shall include a statement that the Effective Time has occurred, the Rights Agent shall effect the distribution of the CVRs, less any applicable tax withholding, to each holder of Oasis Common Stock as of the Record Time by the mailing of a statement of holding reflecting such CVRs.

2.4     Payment Procedures.

(a)    Within sixty (60) days after the end of each CVR Payment Period during the CVR Term, commencing with the first CVR Payment Period in which Parent or its Affiliate receives Gross Consideration, Parent shall deliver to the Rights Agent a CVR Payment Statement for such CVR Payment Period. Concurrent with the delivery of each CVR Payment Statement, on the terms and conditions of this Agreement, Parent shall pay the Rights Agent in U.S. dollars an amount equal to one-hundred percent (100%) of the Net Proceeds (if any) for the applicable CVR Payment Period. For further clarity, any sale of CVR Products by Partner will not be included in Gross Consideration or Net Proceeds, and Parent shall not be obligated to make any payments to the Rights Agent regarding any proceeds based on such sales (it being understood that payments made by Partner to Parent or its Affiliates based on such sales will be included in Gross Consideration). Such amount of Net Proceeds will be transferred by wire transfer of immediately available funds to an account designated in writing by the Rights Agent not less than ten (10) Business Days prior to the date of the applicable payment. In the event that any Party determines that the calculation of Net Proceeds for a CVR Payment Period deviates from the amounts previously reported to the Rights Agent for any reason (such as, on account of additional amounts collected or product returns), Parent and the Rights Agent shall reasonably cooperate to reconcile any such deviations to the extent necessary under applicable legal or financial reporting requirements. Notwithstanding the foregoing and for the avoidance of doubt, the Rights Agent shall have no duty to verify the accuracy of any calculation by Parent of Net Proceeds for a CVR Payment Period, and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such calculation.

(b)    The Rights Agent shall be solely responsible for the delivery of CVR Payment Statements and CVR Payments to each Holder and Parent shall have no responsibility or liability therefor, provided that the Rights Agent receives such Payment Statements and CVR Payments from Parent as contemplated herein. The Rights Agent shall promptly, and in any event within ten (10) Business Days after receipt of a CVR Payment Statement under Section 2.4(a), send each Holder at its address set forth in the CVR Register a copy of such statement. If the Rights Agent also receives any CVR Payment, then within ten (10) Business Days after the receipt of each CVR Payment, the Rights Agent shall also pay to each Holder, by check mailed to the address of each Holder as reflected in the CVR Register as of the close of business on the date of the receipt of the CVR Payment Statement, such Holder’s Payment Amount.

(c)    All payments under this Agreement shall be made without any deduction or withholding for or on account of any tax or similar charge or levy, except as required by applicable law and as set forth in this Section 2.4(c). The Parties shall cooperate with one another and use

 

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reasonable efforts to minimize under applicable law obligations for any and all income or other taxes required by applicable law to be withheld or deducted from any payments made under this Agreement (“Withholding Taxes”), provided that notwithstanding anything to the contrary herein (i) the Rights Agent shall have no responsibilities with respect to tax withholding, reporting or payment except as required under applicable law or specifically instructed by Parent, and (ii) the Rights Agent shall be fully protected and incur no liability in relying on any instructions from Parent with respect to tax withholding, reporting or payment, or complying with its obligations under this Section 2.4(c). Parent shall, if required by applicable law, deduct or cause to be deducted from any amounts required to be paid under this Agreement an amount equal to such Withholding Taxes; provided that (i) Parent shall instruct the Rights Agent to solicit from each Holder an IRS Form W-9 or applicable IRS Form W-8 at such time or times as is necessary to permit any payment under this Agreement to be made without U.S. federal backup withholding, and (ii) in the event Parent becomes aware that a payment under this Agreement is subject to Withholding Taxes (other than U.S. federal backup withholding), Parent shall instruct the Rights Agent to use commercially reasonable efforts to provide written notice of such Withholding Taxes to the applicable Holders prior to paying such Withholding Taxes. For the avoidance of doubt, in the event that notice has been provided to an applicable Holder pursuant to clause (ii) of the immediately preceding sentence, no further notice shall be required to be given for any future payments of such Withholding Tax. Such Withholding Taxes shall be paid to the proper taxing authority by Parent for the applicable Holders’ account and, if available, evidence of such payment shall be secured and sent to the Rights Agent within thirty (30) days of such payment. Parent shall, at its sole cost and expense, as mutually agreed to with the other Parties, do all such lawful acts and things and sign all such lawful deeds and documents that Parent determines are reasonably necessary to enable Parent to avail itself of any applicable legal provision or any double taxation treaties with the goal of paying the sums due to the Holders hereunder without deducting any Withholding Taxes.

(d)    If any funds delivered to the Rights Agent for payment to Holders as CVR Payments remain undistributed to the Holders on the date that is six (6) months after the date of the applicable CVR Payment Statement to which such CVR Payment relates, the Rights Agent will deliver to Parent or its designee any funds which had been made available to the Rights Agent in connection with such CVR Payment and not disbursed to the Holders, and, thereafter, such Holders shall be entitled to look to Parent (subject to abandoned property, escheat and other similar Laws) only as general creditors thereof with respect to such CVR Payments that may be payable (without interest).

(e)    Neither Parent, the Rights Agent nor any of their affiliates shall be liable to any Holder for any CVR Payment delivered to a public official pursuant to any abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by such Holders at such time at which such amounts would otherwise escheat to or become property of any governmental body shall become, to the extent permitted by applicable laws, the property of Parent or its designee, free and clear of all claims or interest of any Person previously entitled thereto. In addition to and not in limitation of any other indemnity obligation herein, Parent agrees to indemnify and hold harmless the Rights Agent with respect to any liability, penalty, cost or expense the Rights Agent may incur or be subject to in connection with transferring such property to Parent in accordance with the foregoing and applicable laws and regulations, except to the extent the foregoing has been determined by a final, non-appealable judgment of a court of competent jurisdiction to be a result of the Rights Agent’s gross negligence, bad faith or willful or intentional misconduct. The indemnification provided by this Section 2.4(e) shall survive the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.

 

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2.5    No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent.

(a)    The CVRs will not have any voting or dividend rights, and interest will not accrue on any amounts payable on the CVRs to any Holder.

(b)    The CVRs will not represent any equity or ownership interest in Parent or in any constituent company to the Merger. It is hereby acknowledged and agreed that a CVR shall not constitute a security of Parent.

(c)    Nothing contained in this Agreement shall be construed as conferring upon any Holder, by virtue of the CVRs, any rights or obligations of any kind or nature whatsoever as a stockholder or member of Parent, the Company or any of their respective subsidiaries, as applicable, either at law or in equity. The rights of any Holder and the obligations of Parent and its Affiliates and their respective officers, directors and controlling Persons are contract rights limited to those expressly set forth in this Agreement.

 

3.

THE RIGHTS AGENT.

3.1    Appointment of Rights Agents; Certain Duties and Responsibilities. Parent hereby appoints the Rights Agent to act as agent for Parent in accordance with the express terms and conditions hereof, and the Rights Agent hereby accepts such appointment. The Rights Agent shall not have any liability for any actions taken or not taken in connection with this Agreement, except to the extent of its willful misconduct, bad faith or gross negligence (in each case as determined by a final, non-appealable judgment of a court of competent jurisdiction).

3.2    Limitation on Duties and Responsibilities of Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations will be read into this Agreement against the Rights Agent. In addition:

(a)    the Rights Agent may rely on and will be protected and incur no liability in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it in the absence of bad faith to be genuine and to have been signed or presented by the proper party or parties;

(b)    whenever the Rights Agent will deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may rely upon an officer’s certificate, which certificate shall be full authorization and protection to the Rights Agent, and the Rights Agent shall incur no liability and, except to the extent of its willful misconduct, bad faith or gross negligence as determined by a final, non-appealable judgment of a court of competent jurisdiction, be held harmless by Parent for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such certificate;

 

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(c)    the Rights Agent may engage and consult with counsel of its selection and the advice of such counsel or any opinion of counsel will be full and complete authorization and protection and will incur no liability in respect of any action taken, suffered or omitted by it hereunder in the absence of bad faith and in reliance thereon;

(d)    the permissive rights of the Rights Agent to do things enumerated in this Agreement will not be construed as a duty;

(e)    the Rights Agent will not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the premises;

(f)    the Rights Agent will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by Parent); nor shall it be responsible for any breach by Parent or any other Person of any covenant or condition contained in this Agreement;

(g)    Parent agrees to indemnify Rights Agent for, and hold Rights Agent harmless against, any loss, liability, damage, claim, judgment, fine, penalty, claim, demands, suits or expense (including the reasonable expenses and counsel fees and other disbursements) arising out of or in connection with Rights Agent’s preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder, including the costs and expenses of defending Rights Agent against any claims, charges, demands, suits or loss, except to the extent such loss has been determined by a final, non-appealable judgment of a court of competent jurisdiction to be a result of Rights Agent’s gross negligence, bad faith or willful or intentional misconduct. The reasonable out-of-pocket costs and expenses incurred by the Rights Agent in enforcing this right of indemnification shall be paid by Parent;

(h)    notwithstanding anything in this Agreement to the contrary, (i) the Rights Agent shall not be liable for special, punitive, indirect, incidental or consequential loss or damages of any kind whatsoever (including, without limitation, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damages, and regardless of the form of action, and (ii) any liability of the Rights Agent under this Agreement will be limited to the aggregate amount of fees (but not reimbursed expenses) paid or payable by Parent to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought;

(i)    Parent agrees to (i) pay the documented out-of-pocket fees and expenses of the Rights Agent in connection with this Agreement as agreed upon in writing by the Rights Agent and Parent on or prior to the date hereof, and (ii) reimburse the Rights Agent for all taxes and charges, reasonable expenses and other similar charges incurred by the Rights Agent in the execution of this Agreement (other than taxes imposed on or measured by the Rights Agent’s net income and franchise or similar taxes imposed on it). The Rights Agent will also be entitled to reimbursement from Parent for all reasonable and necessary out-of-pocket expenses paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder. No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or

 

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otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it;

(j)    the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to Parent, to the holders of the CVRs or any other Person resulting from any such act, omission, default, neglect or misconduct, absent gross negligence or bad faith in the selection and continued employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of a court of competent jurisdiction);

(k)    the Rights Agent and any stockholder, affiliate, member, director, officer, agent, representative or employee of the Rights Agent may buy, sell or deal in any of the securities of Parent or become pecuniarily interested in any transaction in which Parent may be interested, or contract with or lend money to Parent or otherwise act in accordance with applicable laws and regulations as fully and freely as though it were not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent or any such stockholder, affiliate, director, member, officer, agent, representative or employee from acting in any other capacity for Parent or for any other Person;

(l)    the Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall incur no liability for failing to take action in connection therewith, unless and until it has received such notice in writing;

(m)    the Rights Agent shall not be subject to, nor be required to comply with, or determine whether any Person has complied with, the Merger Agreement or any other agreement between or among Parent or any Holder, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement;

(n)    the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by Parent only;

(o)    the Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any Holder with respect to any action or default by Parent, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon Parent; and

(p)    the provisions of this Section 3.2 shall survive the expiration of the CVRs and the termination of this Agreement and the resignation, replacement or removal of the Rights Agent.

3.3    Resignation and Removal; Appointment of Successor.

 

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(a)    The Rights Agent may resign at any time by giving written notice thereof to Parent specifying a date when such resignation will take effect, which notice will be sent at least thirty (30) days prior to the date so specified. Parent may, in its sole discretion, remove the Rights Agent at any time by notice specifying a date when such removal will take effect. Such notice of removal will be given by Parent to the Rights Agent, which notice will be sent at least thirty (30) days prior to the date so specified.

(b)    If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, Parent shall as soon as is reasonably possible appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank. The successor Rights Agent so appointed will, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

(c)    Parent shall use commercially reasonable efforts to give written notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent to the Holders in accordance with Section 5.2. Each notice will include the name and address of the successor Rights Agent. If Parent fails to send such notice within ten days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent will cause the notice to be mailed.

3.4    Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder will execute, acknowledge and deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the retiring Rights Agent. On request of Parent or the successor Rights Agent, the retiring Rights Agent will execute and deliver an instrument transferring to the successor Rights Agent all the rights (except such rights of predecessor rights agent which survive pursuant to Section 3.2 of this Agreement), powers and trusts of the retiring Rights Agent.

 

4.

COVENANTS.

4.1    List of Holders. Parent shall furnish or cause to be furnished to the Rights Agent in such form as Parent receives from Parent’s transfer agent (or other agent performing similar services for Parent), the names and addresses of the Holders within thirty (30) Business Days of the Effective Time. Until such list of Holders is furnished to the Rights Agent, the Rights Agent shall have no duties, responsibilities or obligations with respect to such Holders.

4.2    CVR Clinical Trial(s).

(a)    From the Effective Date through September 30, 2021, and subject to any limitations set forth in this Agreement, Parent shall, or shall cause its Affiliates to, use Commercially Reasonable Efforts to perform the key tasks necessary to (i) continue the Planned Clinical Trial in strict accordance with the Planned Protocol, and (ii) conduct the Proposed Clinical Trial in strict accordance with the Proposed Protocol.

 

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(b)    Parent shall have no obligation to pay any fees and expenses for the CVR Clinical Trial(s) in the aggregate in excess of the Clinical Trial Cap. In the event that the total fees and expenses incurred by Parent to conduct the CVR Clinical Trials(s) exceed, in the aggregate, the Clinical Trial Cap, Parent may, in its sole discretion and upon written notice to the Rights Agent, terminate this Agreement without liability, whereupon Parent shall use commercially reasonable efforts to promptly notify the Holders in writing, and Parent shall be relieved of any and all obligations contained herein (other than obligations that expressly survive the termination of this Agreement). Without limiting the foregoing, in the event Parent anticipates that the total fees and expenses reasonably necessary to conduct the CVR Clinical Trial(s) will exceed, in the aggregate, the Clinical Trial Cap, Parent shall use commercially reasonable efforts to promptly notify the Rights Agent and the Holders in writing.

(c)    Parent has no obligation to conduct any tasks relating to the CVR Clinical Trial(s) after September 30, 2021. In the event (i) the CVR Clinical Trial(s) are not completed by September 30, 2021, for any reason, or (ii) an applicable Regulatory Authority requires or requests additional testing or information beyond that which is in the possession and control of Parent prior to the Merger Agreement Date or produced (or expected to be produced) after the Merger Agreement Date pursuant to the Planned Protocol or the Proposed Protocol; Parent may, in its sole discretion and upon written notice to the Rights Agent, terminate its obligations under this Agreement with respect to Section 4.2(a) without liability whereupon Parent shall use commercially reasonable efforts to promptly notify the Holders in writing, and Parent shall be relieved of any and all obligations contained in Section 4.2(a).

(d)    Parent has no obligation to make any modifications, improvements, alterations, or other changes to the CVR Product or the process of manufacture thereof. In the event the CVR Product or the process of manufacture thereof, requires any modifications, Parent may, in its sole discretion and upon written notice to the Rights Agent, terminate this Agreement without liability whereupon Parent shall use commercially reasonable efforts to promptly notify the Holders in writing, and Parent shall be relieved of any and all obligations contained herein (other than obligations that expressly survive the termination of this Agreement).

(e)    Subject to the terms and conditions of this Agreement Parent shall have no obligation under this Agreement to develop any additional technology, conduct any additional Clinical Trials, or be responsible for any filings, approvals, and requests for information from any Regulatory Authority, for any reason related to the CVR Product.

(f)    Parent shall have no obligation to take (or refrain from taking) any action which would trigger any payment owing to [***] or its Affiliates under that certain [***], between [***] and Parent, as may be amended from time to time, unless such payment is directly paid by a Partner or its Affiliates prior to the applicable due date.

4.3    CVR Commercial Agreement.

(a)    Subject to Parent’s termination rights set forth in this Agreement, Parent shall, or shall cause its Affiliates to, use Commercially Reasonable Efforts to, through September 30, 2021, reasonably support Finder pursuant to the Finder Agreement in Finder’s efforts to

 

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identify one or more Partners and negotiate and complete a CVR Commercial Agreement with such Partner for the Commercialization of the CVR Product by Partner in one or more countries or regions in the world. Parent shall have no obligation to enter into any agreement for the Commercialization of the CVR Product that is not a CVR Commercial Agreement or to commit the use, in connection with its activities under this Section 4.3(a), of more than the budgeted FTE(s) specified for such activities in the Budget.

(b)    Parent has no obligation to support Finder after September 30, 2021. If a CVR Commercial Agreement is not mutually agreed, duly executed, and delivered prior September 30, 2021, Parent may terminate, in its sole discretion and upon written notice to the Rights Agent, this Agreement without liability whereupon Parent shall use commercially reasonable efforts to promptly notify the Holders in writing, and Parent shall be relieved of any and all obligations contained herein (other than obligations that expressly survive the termination of this Agreement).

(c)    Notwithstanding anything contained herein to the contrary, Parent shall not, and shall not permit its Affiliates to: (i) amend any CVR Commercial Agreement, or waive any right thereunder if such amendment or waiver materially and adversely affects the rights of the Holders to receive the CVR Payment hereunder, unless the Acting Holders consent to each such amendment or waiver, which shall not be unreasonably withheld, delayed, or conditioned; (ii) assign any CVR Commercial Agreement without the consent of the Acting Holders, which shall not be unreasonably withheld, delayed, or conditioned, unless such assignee agrees to assume all obligations under, and agrees to be bound in writing to the terms of, the CVR Commercial Agreement and this Agreement; or (iii) intentionally take any action for the principal purpose of reducing the amount of CVR Payment payable under this Agreement; provided, however, that Parent shall have no obligation to enforce the terms of the CVR Commercial Agreement against Partner or take any legal action against Partner in the event of an actual or alleged breach by Partner of the CVR Commercial Agreement.

(d)    Prior to December 31, 2021 (the “Outside Date”), Parent shall not, and shall not permit its Affiliates to, grant, assign, transfer or otherwise convey any rights (including any option to obtain rights) to any Third Party to research, develop or Commercialize the CVR Product without obtaining the prior written consent of the Acting Holders, other than to (i) contract research, contract manufacturing and similar service providers engaged to perform services on Parent or its Affiliate’s behalf, (ii) a Partner pursuant to a CVR Commercial Agreement, or (iii) an Acquiror (as defined below) in connection with an Acquisition (as defined below).

(e)    Parent shall promptly notify the Rights Agent and shall use commercially reasonable efforts to notify the Holders in writing of the execution of any CVR Commercial Agreement together with the latest date upon which Parent or any of its Affiliates is eligible to receive Gross Consideration under such CVR Commercial Agreement to the extent known. The Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall not be deemed to have any knowledge of any CVR Commercial Agreement or whether Parent or any of its Affiliates is eligible to receive Gross Consideration under such CVR Commercial Agreement, unless and until it shall have received such notice.

 

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4.4    Books and Records. Parent shall, and shall cause its Affiliates to, keep true, complete and accurate records in sufficient detail to support the applicable Payment Amount payable hereunder in accordance with the terms specified in this Agreement.

4.5    Audits. Until the expiration or termination of this Agreement and for a period of one (1) year thereafter, Parent shall keep complete and accurate records in sufficient detail to support the accuracy of the payments due hereunder. The Acting Holders shall have the right to cause an independent internationally recognized accounting firm reasonably acceptable to Parent to audit such records for the sole purpose of confirming payments for a period covering not more than the preceding three (3) years. Parent may require such accounting firm to execute a reasonable confidentiality agreement with Parent prior to commencing the audit. The accounting firm shall disclose to the Acting Holders only whether the reports are correct or not and the specific details concerning any discrepancies. No other information shall be shared. Such audits may be conducted during normal business hours upon reasonable prior written notice to Parent, but no more than frequently than once per year. No accounting period of Parent shall be subject to audit more than one time hereunder unless after an accounting period has been audited by the Acting Holders, Parent restates its financial results for such accounting period, in which event the Acting Holders may conduct a second audit of such accounting period in accordance with this Section 4.5. Adjustments (including remittances of underpayments or overpayments disclosed by such audit) shall be made by the Parties to reflect the results of such audit, which adjustments shall be paid promptly following receipt of an invoice therefor. The Acting Holders causing such audit shall bear the full cost and expense of such audit unless such audit discloses an underpayment by Parent of twenty percent (20%) or more of the Payment Amount due under this Agreement, in which case Parent shall bear the full cost and expense of such audit.

5.    OTHER PROVISIONS OF GENERAL APPLICATION.

5.1    Notices to Rights Agent, Parent. All requests, notices or other communications required or permitted to be given to the Parties hereto shall be given in writing, shall expressly reference the section(s) of this Agreement to which they pertain, and shall be delivered to the other Party, effective on receipt, at the appropriate address as set forth below or to such other addresses as may be designated in writing by the Parties from time to time during the term of this Agreement:

If to the Rights Agent, to it at:

Computershare Trust Company, N.A.

Computershare Inc.

150 Royall Street

Canton, MA 02021

Attn: Corporate Actions

With a copy to:

Computershare Trust Company, N.A.

Computershare Inc.

150 Royall Street

Canton, MA 02021

Attn: Legal Department

 

- 17 -


If to Parent, to it at:

resTORbio, Inc.

500 Boylston Street, 13th Floor

Boston, Massachusetts 02116

Attn: Chen Schor, Chief Executive Officer

Email: cschor@restorbio.com

With copies to:

Goodwin Procter LLP

100 Northern Avenue Boston, Massachusetts 02210

Attn: Mitchel S. Bloom, Danielle M. Lauzon, Andrew H. Goodman

Email: mbloom@goodwinlaw.com, dlauzon@goodwinlaw.com,

agoodman@goodwinlaw.com

Morrison & Foerster LLP

12531 High Bluff Drive, Suite 100

San Diego, California 92130

Attention: James M. Krenn and John A. de Groot

Email: JKrenn@mofo.com, jdegroot@mofo.com

The Rights Agent or Parent may specify a different address or electronic mail address by giving notice in accordance with this Section 5.1.

5.2    Notice to Holders. Where this Agreement provides for notice to Holders, such notice will be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed first-class postage prepaid, or sent by email, to each Holder affected by such event, at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder will affect the sufficiency of such notice with respect to other Holders.

5.3    Parent Successors and Assigns; Merger of Rights Agent.

(a)    Parent may not assign this Agreement without the prior written consent of the Acting Holders, provided that (i) Parent may assign, in its sole discretion and without the consent of any other Party, any or all of its rights, interests and obligations hereunder to one or more Affiliates of Parent (each, an “Assignee”) provided that the Assignee agrees to assume and be bound by all of the terms of this Agreement, and (ii) Parent may assign this Agreement in its entirety without the consent of any other Party to its successor in interest in connection with the sale of all or substantially all of its assets or of its stock, or in connection with a merger, acquisition or similar transaction (such successor in interest, the “Acquiror”, and such transaction, the “Acquisition”). This Agreement will be binding upon, inure to the benefit of and be enforceable

 

- 18 -


by Parent’s successors, acquirers and each Assignee. Each reference to “Parent” in this Agreement shall be deemed to include Parent’s successors, acquirers and all Assignees. Each of Parent’s successors, acquirers and assigns shall expressly assume by an instrument supplemental hereto, executed and delivered to the Rights Agent, the due and punctual payment of the CVR Payments and the due and punctual performance and observance of all of the covenants and obligations of this Agreement to be performed or observed by Parent.

(b)    The Rights Agent may not assign this Agreement without the prior written consent of Parent, provided that the Rights Agent may assign this Agreement in its entirety without the consent of any other Parties to its successor in interest in connection with the sale of all or substantially all of its assets or of its stock, or in connection with a merger, acquisition or similar transaction. Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the stock transfer or other shareholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the Parties hereto, provided that such Person would be eligible for appointment as a successor Rights Agent under the provisions of the Agreement. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 5.3(b).

5.4    Benefits of Agreement. Nothing in this Agreement, express or implied, will give to any Person (other than the Rights Agent, Parent, Parent’s successors and assignees, and the Holders) any benefit or any legal or equitable right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the Rights Agent, Parent, Parent’s successors and assignees, and the Holders. The rights of Holders are limited to those expressly provided in this Agreement and the Merger Agreement. To the extent valid and binding under applicable law, all decisions of Acting Holders shall be final and binding on all Holders as if expressly confirmed and ratified by such Holders. Except for the rights of the Rights Agent set forth herein, the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to (i) institute any action or proceeding at law or in equity with respect to this Agreement, (ii) negotiate and settle any dispute that arises under this Agreement after the Effective Time, (iii) confirm the satisfaction of Parent’s obligations under this Agreement and (iv) negotiate and settle matters with respect to the amounts to be paid to the Holders pursuant to this Agreement. For the avoidance of doubt, no individual Holder or other group of Holders (other than the Acting Holders) will be entitled to exercise such rights listed in the preceding sentence. Any recovery in connection with any action instituted by the Acting Holders shall be for the proportionate benefit of all the Holders. Each Holder agrees that such Holder shall not challenge or contest any action, inaction, determination or decision of the Acting Holders or the authority or power of the Acting Holders and shall not threaten, bring, commence, institute, maintain, prosecute or voluntarily aid any action, which challenges the validity of or seeks to enjoin the operation of any provision of this Agreement, including, without limitation, the provisions related to the authority of the Acting Holders to act on behalf of such Holder and all Holders as set forth in this Agreement (including, without limitation, with respect to any conflict any such Holder may have). Parent and the Rights Agent shall be entitled to rely upon, without independent investigation, any act, notice, instruction or

 

- 19 -


communication from the Acting Holders and any document executed by the Acting Holders on behalf of any Holder and shall incur no liability in connection with any action or inaction taken or omitted to be taken in reliance thereon.

5.5    Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The Parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable provision; provided, however, that if such excluded provision shall affect the rights, immunities, liabilities, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately upon written notice to Parent.

5.6    Counterparts and Signature. This Agreement may be executed in two or more counterparts (including by electronic scan delivered by electronic mail), each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the Parties hereto and delivered to the other Party, it being understood that the Parties need not sign the same counterpart.

5.7    Termination. Unless otherwise terminated earlier in accordance with this termination rights set forth in this Agreement, this Agreement will expire and be of no force or effect, the Parties hereto will have no liability hereunder (other than with respect to monies due and owing by Parent to Rights Agent or any other rights of the Rights Agent which expressly survive the termination of this Agreement), and no additional payments will be required to be made, upon the expiration or termination of the CVR Term; provided that the following provisions shall survive any termination or expiration of this Agreement and shall remain fully effective and enforceable thereafter: Section 2.4(e), Section 3.2, Section 4.3(c) (clause (iii) only), Section 4.3(d) (until the Outside Date) and Section 4.5 (for the one (1) year period specified therein).

5.8    Entire Agreement. Notwithstanding the reference to any other agreement hereunder, this Agreement contains the entire understanding of the Parties hereto and thereto with reference to the transactions and matters contemplated hereby and thereby and supersedes all prior agreements, written or oral, among the Parties with respect hereto and thereto. If and to the extent that any provision of this Agreement is inconsistent or conflicts with the Merger Agreement, this Agreement will govern and control.

5.9    Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding between the Parties arising out of or relating to this Agreement, each Party: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, to the extent that neither of the foregoing courts has jurisdiction, the Superior Court of the State of Delaware; (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 5.9; (c) waives any objection to laying venue in any such action or proceeding in

 

- 20 -


such courts; (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any such Party; and (e) agrees that service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 5.1 or Section 5.2 of this Agreement. In any action or proceeding between or among the Parties arising out of relating to this Agreement, each Party irrevocably and unconditionally waives the right to trial by jury.

5.10    Amendments. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized signatories of Parent and the Rights Agent; provided, however, that Parent and the Rights Agent may (without the consent of any other Person) amend this Agreement: (a) as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue sky” laws; (b) to evidence the succession of another Person to Parent and the assumption by such successor of the covenants of Parent herein; (c) to evidence the succession of another Person as a successor Rights Agent and the assumption by such successor of the covenants and obligations of the Rights Agent herein; (d) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement; provided that, in each case, such provisions do not adversely affect the interests of the Holders; or (e) any other amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, unless such addition, elimination or change is adverse to the interests of the Holders. Promptly after the execution by Parent and the Rights Agent of any amendment pursuant to subsections (a)-(e) of this Section 5.10, Parent will (or will cause the Rights Agent to) use commercially reasonable efforts to notify the Holders in general terms of the substance of such amendment in accordance with Section 5.2. The failure to deliver such notice, or any defect in such notice, shall not impair or affect the validity of such amendment to this Agreement. Upon the execution of any amendment under this Section 5.10, this Agreement will be modified in accordance therewith, such amendment will form a part of this Agreement for all purposes and each party and every Holder will be bound thereby. In executing any amendment permitted by this Section 5.10, the Rights Agent will be entitled to receive, and will incur no liability in relying upon, an opinion of counsel of Parent stating that the execution of such amendment is authorized or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment that adversely affects the Rights Agent’s own rights, privileges, covenants or duties under this Agreement or otherwise. No supplement or amendment to this Agreement shall be effective unless duly executed by the Rights Agent.

5.11    Funds. All funds received by the Rights Agent under this Agreement that are to be distributed or applied by the Rights Agent in the performance of services hereunder (the “Funds”) shall be held by the Rights Agent as agent for Parent and deposited in one or more bank accounts to be maintained by the Rights Agent in its name as agent for Parent.    Until paid pursuant to the terms of this Agreement, the Rights Agent will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Rights Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Rights Agent in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other Third Party. The

 

- 21 -


Rights Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Rights Agent shall not be obligated to pay such interest, dividends or earnings to Parent, any Holder or any other party.

5.12    Further Assurances. Each Party agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be necessary to effectuate the provisions of this Agreement.

5.13    Rules of Construction. Except as otherwise explicitly specified to the contrary, (a) references to a Section means a Section of this Agreement unless another agreement is specified, (b) the word “including” (in its various forms) means “including without limitation,” (c) references to a particular statute or regulation include all rules and regulations thereunder and any successor statute, rules or regulation, in each case as amended or otherwise modified from time to time, (d) words in the singular or plural form include the plural and singular form, respectively, (e) references to a particular Person include such Person’s successors and assigns to the extent not prohibited by this Agreement and (f) all references to dollars or “$” refer to United States dollars.

5.14    Force Majeure. Notwithstanding anything to the contrary contained herein, neither of the Rights Agent or Parent will be liable for any delays or failures in performance resulting from acts beyond its reasonable control including acts of God, pandemics (including COVID-19), terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunctions of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war or civil unrest.

{Remainder of page intentionally left blank}

 

- 22 -


IN WITNESS WHEREOF, each of the Parties has caused this Contingent Value Rights Agreement to be executed on its behalf by its duly authorized officers, as of the day and year first above written.

 

RESTORBIO, INC.
By:  

/s/ Chen Schor

Name:  

Chen Schor

Title:  

Chief Executive Officer

COMPUTERSHARE TRUST COMPANY, N.A.

and COMPUTERSHARE INC.,

On behalf of both entities
By:  

/s/ Collin Ekeogu

Name:  

Collin Ekeogu

Title:  

Manager, Corporate Actions


Exhibit A

Budget

(Attached).

 

- 24 -


Exhibit B

Planned Protocol

(Attached).

 

- 25 -

EX-10.3

Exhibit 10.3

SECOND AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

This Second Amendment to Loan and Security Agreement (this “Amendment”) is made and entered into as of September 14, 2020, by and between PACIFIC WESTERN BANK, a California state chartered bank (“Bank”), and ADICET BIO, INC. (“Borrower”).

RECITALS

Borrower and Bank are parties to that certain Loan and Security Agreement dated as of April 28, 2020 (as amended from time to time, the “Agreement”). The parties desire to amend the Agreement in accordance with the terms of this Amendment.

NOW, THEREFORE, the parties agree as follows:

 

1)

The following defined term in Exhibit A to the Agreement is hereby amended and restated, as follows:

“Credit Card Line” means a Credit Extension of up to $250,000, to be used exclusively for the provision of Credit Card Services.

 

2)

Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement.

 

3)

Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment.

 

4)

This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.

 

5)

As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:

 

  a)

this Amendment, duly executed by Borrower;

 

  b)

payment for all Bank Expenses incurred through the date of this Amendment, including Bank’s expenses for the documentation of this Amendment and any UCC, good standing or intellectual property search or filing fees, which may be debited from any of Borrower’s accounts; and


  c)

such other documents and completion of such other matters, as Bank may reasonably deem necessary or appropriate.

[Signature Page Follows]

 

2


IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.

 

ADICET BIO, INC.    PACIFIC WESTERN BANK
By: /s/ Anil Singhal                                            By: /s/ Steve Kent                                        
Name: Anil Singhal                                            Name: Steve Kent                                        
Title: Chief Executive Officer                            Title: Vice President                                    

 

 

3

EX-10.4

Exhibit 10.4

THIRD AMENDMENT TO

LOAN AND SECURITY AGREEMENT

This Third Amendment to Loan and Security Agreement (this “Amendment”) is entered into as of September 15, 2020, by and between PACIFIC WESTERN BANK, a California state chartered bank (“Bank”) and ADICET THERAPEUTICS, INC., a Delaware corporation formerly known as Adicet Bio, Inc. (“Borrower”).

RECITALS

Borrower and Bank are parties to that certain Loan and Security Agreement dated as of April 28, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”). The parties desire to amend the Agreement in accordance with the terms of this Amendment.

NOW, THEREFORE, the parties agree as follows:

 

1)

Amendments.

 

  a)

A new Section 8.9 is added to the Agreement to read as follows:

8.9 Guaranty. If any guaranty of all or a portion of the Obligations, including, without limitation, the Parent Guaranty (a “Guaranty”), ceases for any reason to be in full force and effect, or any guarantor fails to perform any obligation under any Guaranty or a security agreement securing any Guaranty (collectively, the “Guaranty Documents”), or any event of default occurs under any Guaranty Document or any guarantor revokes or purports to revoke a Guaranty, or any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth in any Guaranty Document or in any certificate delivered to Bank in connection with any Guaranty Document, or if any of the circumstances described in Sections 8.3 through 8.9 occur with respect to any guarantor.

 

  b)

Exhibit A to the Agreement is amended by amending or restating, or adding, in appropriate alphabetical order, as applicable, the following defined terms to read as follows:

“Warrant” means that certain Warrant to Purchase Stock issued by Guarantor to Bank dated as of September 15, 2020.

“Guarantor” means Adicet Bio, Inc., a Delaware corporation formerly named resTORbio, Inc., and its successors and assigns.

“Parent Guaranty” means that certain Unconditional Secured Guaranty executed by Guarantor in favor of Bank dated as of September 15, 2020.

 

2)

Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its terms. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement and the security interest as granted as of the Closing Date continues without novation.

 

3)

Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct in all material respects as of the date of this Amendment (provided, that those representations and warranties expressly referring to another date shall be true and correct in all material respects as of such date, and provided further that any representation or warranty that contains a materiality qualification therein shall be true and correct in all respects). No Event of Default or failure of condition has occurred or exists, or


  would exist with notice or lapse of time or both under the Agreement or any other Loan Document. A true and correct copy of each of Borrower’s and Guarantor’s certificate of incorporation and bylaws, as in effect as of the date of this Amendment have been delivered to Bank.

 

4)

This Amendment and any documents executed in connection herewith or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Amendment; except that any financing statements or other agreements or instruments filed by Bank with respect to Borrower shall remain in full force and effect.

 

5)

This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.

 

6)

The terms of Article 11 of the Agreement are incorporated herein by this reference, mutatis mutandis.

 

7)

As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:

 

  a)

this Amendment, duly executed by Borrower and Bank;

 

  b)

the Warrant, duly executed by Guarantor and Bank;

 

  c)

the Parent Guaranty, duly executed by Guarantor, along with an officer’s certificate of Guarantor with respect to incumbency and resolutions authorizing the execution and delivery of the Parent Guaranty;

 

  d)

the Certificates for the Shares of Borrower, together with Assignment separate from Certificates, duly executed by Guarantor in blank;

 

  e)

duly executed copies of all agreements, documents and instruments entered in connection with that certain Agreement and Plan of Merger dated as of April 28, 2020;

 

  f)

a financing statement amendment (Form UCC-3) for Borrower;

 

  g)

a financing statement (Form UCC-1) for Guarantor;

 

  h)

updated Certificate of Incorporation and Bylaws for each of Borrower and Guarantor in connection with the name change;

 

  i)

payment of Bank Expenses, which may be debited from any of Borrower’s deposit account maintained with Bank; and

 

  j)

such other documents and completion of such other matters, as Bank may reasonably deem necessary or appropriate.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.

 

ADICET THERAPEUTICS, INC.       PACIFIC WESTERN BANK
By:  

/s/ Stewart Abbot

      By:  

/s/ Steve Kent

Name:  

Stewart Abbot

             Name:  

Steve Kent

Title:  

Chief Operating Officer and Chief Science Officer

      Title:  

Vice President

[SIGNATURE PAGE TO THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT]

EX-10.5

Exhibit 10.5

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.

Issue Date: September 15, 2020

FORM OF WARRANT TO PURCHASE STOCK

THIS WARRANT TO PURCHASE STOCK (this “Warrant”) CERTIFIES THAT, for good and valuable consideration, Beech Hill Securities, Inc. (together with any successor or permitted assignee or transferee of this Warrant or of any shares issued upon exercise hereof, “Holder”) is entitled to purchase [●] shares (the “Shares”) of common stock (“Common Stock”) of Adicet Bio, Inc. (f/k/a resTORbio, Inc.), a Delaware corporation (the “Company”) at an exercise price per share (the “Exercise Price”) equal to $[●] per Share, subject to the provisions and upon the terms and conditions set forth in this Warrant.

This Warrant is issued pursuant to (i) Section 2(b)(i)(2) of that certain letter agreement among the Company, RM Global Partners, LLC (“RMG”) and Holder, dated February 19, 2019 and (ii) in connection with that certain Agreement and Plan of Merger, dated April 28, 2020, by and between the Company, Adicet Therapeutics, Inc. (f/k/a Adicet Bio, Inc.), a Delaware corporation, and Project Oasis Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of resTORbio (the “Merger Agreement”).

SECTION 1.    EXERCISE.

1.1    Method of Exercise. Subject to the provisions hereof, Holder may at any time and from time to time exercise this Warrant during the Exercise Period (as defined below), in whole or in part:

 

  a.

Cash Exercise Election. By delivering to the Company the original copy of this Warrant together with a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 and a check, wire transfer of funds (to an account designated by the Company), or other form of payment acceptable to the Company in the amount obtained by multiplying the Exercise Price by the number of Shares being purchased as designated in the Notice of Exercise (the “Aggregate Exercise Price”). Such delivery shall be effective upon receipt by the Company.

 

  b.

Net Issue Election. Alternatively, in Holder’s sole discretion, by electing to receive, without payment by Holder of any additional consideration, shares of Common Stock equal to the value of the “spread” on the shares of Common Stock or any portion thereof by the surrender of this Warrant to the Company, together with a duly completed Net Issue Election Notice, in the form attached hereto as Appendix II, at the principal office of the Company, in which event the Company shall issue to Holder such number of shares of Common Stock as is computed using the following formula, rounded down to the nearest whole share:


X = Y (A – B)

A

 

Where:

   X=    The number of shares of Common Stock to be issued to Holder pursuant to the net issue election;
   Y=    The number of shares of Common Stock in respect of which the net issue election is made (inclusive of the shares of Common Stock surrendered to the Company in payment of the Aggregate Exercise Price);
   A=    The Fair Market Value (as determined below) of one share of Common Stock at the time the net issue election is made; and
   B=    The Exercise Price in effect under this Warrant as of the date of the net issue election.

For purposes of this Section 1.1, “Fair Market Value” shall mean (i) if the Common Stock is traded regularly in a public market, the closing price of the Common Stock reported for the business day immediately before Holder delivers its Net Issue Election Notice to the Company and (ii) if the Common Stock is not traded regularly in a public market, the value most recently determined by the Company’s Board of Directors (the “Board”) to represent the fair market value per share of Common Stock; and, if the Common Stock is not traded regularly in a public market, upon request of Holder, the Company shall promptly notify Holder of the Fair Market Value per share of the Common Stock subject to this Warrant. Notwithstanding the foregoing, if the Common Stock is not traded regularly in a public market and the Board has not made such a determination within the three-month period prior to the exercise date, then (1) the Board, in good faith, shall make a determination of the Fair Market Value per share of the Common Stock within 15 days of a request by Holder that it do so, and (2) the exercise of this Warrant pursuant to this Section 1.1(b) shall be delayed until such determination is made.

1.2    Exercise Period. Subject to the provisions hereof, this Warrant shall be exercisable at any time from and after the Issue Date listed above up to and including 5:00 p.m. (Pacific Time) on the first to occur of (a) the closing of any Acquisition, or (b) August 21, 2026 (such earlier date being referred to herein as the “Expiration Date” and such period, the “Exercise Period”). This Warrant shall terminate in its entirety on the Expiration Date. For the purposes of this Warrant, “Acquisition” means (a) any sale, license, or other disposition of all or substantially all of the assets (including intellectual property) of the Company and its subsidiaries taken as a whole, (b) any reorganization, consolidation, merger or sale of the voting securities of the Company or any other transaction where the holders of the Company’s securities before the transaction beneficially own less than 50% of the outstanding voting securities of (1) the Company; (2) the surviving or resulting entity; or (3) if the surviving entity is a wholly owned subsidiary of another entity immediately following such transaction, the parent entity of such surviving or resulting entity (other than a bona fide equity financing principally for capital raising purposes in which the Company sells and issues equity securities to investors).

 

2


1.3    Delivery of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1 above, the Company shall (a)(x) provided that the Company’s transfer agent is then participating in the Depository Trust Company (“DTC”) Deposit Withdrawal Agent Commission (“DWAC”) system, cause the Company’s transfer agent to credit the number of Shares acquired to Holder’s account with DTC or (y) if the Company’s transfer agent is not then participating in the DTC DWAC system, deliver to Holder a certificate representing the Shares issued to Holder upon such exercise and, if this Warrant has not been fully exercised and has not expired, a new warrant of like tenor representing the Shares not so acquired.

1.4    Replacement of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall, within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.

1.5    Restrictions on Exercise; Compliance with Securities Laws. Notwithstanding anything to the contrary herein, this Warrant may only be exercised if (a) such exercise complies with applicable securities laws and (b) at the time of such exercise, Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Act. Holder agrees to take such actions and execute such documents as reasonable requested by the Company to evidence the foregoing.

SECTION 2.    ADJUSTMENTS TO THE SHARES AND EXERCISE PRICE.

2.1    Stock Splits or Combinations. If the Company subdivides the outstanding shares of Common Stock by reclassification or otherwise into a greater number of shares, the number of Shares purchasable hereunder (the “Warrant Shares”) shall be proportionately increased and the Exercise Price shall be proportionately decreased. If the outstanding shares of Common Stock are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.

2.2    Reclassification, Exchange, Conversion or Substitution. Upon any event whereby all of the outstanding shares of Common Stock are reclassified, exchanged, converted, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from and after the consummation of such event, (i) this Warrant will be exercisable for the number, class and series of Company securities that Holder would have received had the Shares been outstanding on and as of the consummation of such event and (ii) if such event results in a change in the number of Company securities for which this Warrant is then exercisable into, the Exercise Price shall be proportionately adjusted, in each case subject to further adjustment thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly apply to successive reclassifications, exchanges, conversions, substitutions or other similar events.

 

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2.3    Stock Dividend. If the Company shall, at any time or from time to time after the Issue Date, pay a dividend or make any other distribution upon the Common Stock or any other capital stock of the Company payable in shares of Common Stock, the Exercise Price in effect immediately prior to any such dividend or distribution shall be proportionately reduced and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately increased. Any adjustment under this Section 2.3 shall become effective at the close of business on the date the dividend becomes effective.

2.4    Certain Events. If any event of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions occurs, then the Board shall make an appropriate adjustment in the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 2; provided, that no such adjustment pursuant to this Section 2.4 shall increase the Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 2.

2.5    No Fractional Share. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share.

2.6    Notice/Certificate as to Adjustments. Upon each adjustment of the Exercise Price and/or number of Shares, the Company shall notify Holder in writing within a reasonable time setting forth the adjustments to the Exercise Price and/or number of Shares and facts upon which such adjustment is based.

SECTION 3.    INVESTMENT REPRESENTATIONS.

Holder hereby represents and warrants to the Company:

3.1    Purchase for Own Account. Holder is acquiring this Warrant and all equity securities issuable, directly or indirectly, upon exercise of the Warrants (collectively, the “Securities”) for Holder’s own account not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that Holder has no present intention of selling, granting any participation in, or otherwise distributing the same. The acquisition by Holder of any of the Securities shall constitute confirmation of the representation by Holder that Holder does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Securities.

3.2    Disclosure of Information. Holder further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities and the business, properties, prospects and financial condition of the Company. With respect to any projections of its future operations provided to Holder by the Company, Holder acknowledges that the Company makes no representations or warranties.

3.3    Investment Experience. Holder is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities. Holder

 

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acknowledges that any investment in the Securities involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of its investment.

3.4    Accredited Investor. Holder is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect and, for the purpose of Section 25102(f) of the California Corporations Code, Holder is excluded from the count of “purchasers” pursuant to Rule 260.102.13 thereunder.

3.5    Restricted Securities. Holder understands that the Securities are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act of 1933, as amended (the “Securities Act”) only in certain limited circumstances. In this connection, Holder represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. HOLDER UNDERSTANDS AND ACKNOWLEDGES HEREIN THAT AN INVESTMENT IN THE COMPANY’S SECURITIES INVOLVES AN EXTREMELY HIGH DEGREE OF RISK AND MAY RESULT IN A COMPLETE LOSS OF HIS, HER OR ITS INVESTMENT. Holder understands that the Securities have not been and will not be registered under the Securities Act and have not been and will not be registered or qualified in any state in which they are offered, and thus Holder will not be able to resell or otherwise transfer his, her or its Securities unless they are registered under the Securities Act and registered or qualified under applicable state securities laws, or an exemption from such registration or qualification is available. Holder has no immediate need for liquidity in connection with this investment, does not anticipate that the Investor will be required to sell his, her or its Securities in the foreseeable future.

3.6    Reliance by Company. Holder understands that the representations, warranties, covenants and acknowledgements set forth in this Section 3 constitute a material inducement to the Company entering into this Warrant.

3.7    Foreign Investors. If Holder is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code), Holder hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Warrant, including (i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities. Holder’s subscription and payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of Holder’s jurisdiction.

3.8    Residence. If Holder is an individual, then Holder resides in the state or province identified in the address of Holder set forth on the signature pages hereto; if Holder is a partnership, corporation, limited liability company or other entity, then the office or offices of Holder in which its principal place of business is identified in the address or addresses of Holder set forth on the signature pages hereto.

 

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3.9    No Bad Actor Disqualification Events. Neither (i) Holder, (ii) any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members, nor (iii) any beneficial owner of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by Holder is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act.

SECTION 4.    MISCELLANEOUS.

4.1    [Reserved].

4.2    Governing Law. This Warrant is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties.

4.3    Dispute Resolution. The parties hereby irrevocably and unconditionally (a) submit to the jurisdiction of the federal and state courts located within the geographical boundaries of the United States District Court for the Northern District of California for the purpose of any suit, action or other proceeding arising out of or based upon this Warrant, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Warrant except in the federal and state courts located within the geographical boundaries of the United States District Court for the Northern District of California, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Warrant or the subject matter hereof may not be enforced in or by such court.

4.4    Waiver of Right to Jury Trial. EACH OF HOLDER AND THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE.

4.5    Counterparts. This Warrant may be executed in several 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, e.g., DocuSign) 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

4.6    Titles and Subtitles. The titles and subtitles used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant.

 

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4.7    Notices.

(a)    Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Warrant shall be in writing and shall be conclusively deemed to have been duly given (i) when hand delivered to the other party; (ii) when sent by facsimile to the number set forth below if sent between 8:00 a.m. and 5:00 p.m. recipient’s local time on a business day, or on the next business day if sent by facsimile to the number set forth below if sent other than between 8:00 a.m. and 5:00 p.m. recipient’s local time on a business day, or when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a business day, or on the next business day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time; (iii) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party at the address set forth below; or (iv) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth below with next business day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by facsimile or electronic mail shall promptly attempt to confirm by telephone to the person to whom such communication was addressed each communication made by it by facsimile or electronic mail pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 4.7 by giving the other party written notice of the new address in the manner set forth above.

(b)    The Company agrees to provide no less than fifteen (15) calendar days advance written notice to Holder of any Acquisition to enable Holder to elect to exercise this Warrant as provided herein.

4.8    Transfer. This Warrant and the Shares issuable upon exercise of this Warrant may not be transferred or assigned in whole or in part except (i) with the prior written consent of the Company; provided, that such consent shall not be required in connection with (a) a transfer to any affiliate of Holder, (b) a transfer to RMG or its affiliates or (c) subject to compliance with Section 4.1, a transfer of the Shares (or the securities issuable, directly or indirectly, upon conversion of the Shares, if any) following the Closing Date (as defined in the Merger Agreement) and (ii) in each case in compliance with applicable securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). Any subsequent transferee shall agree in writing with the Company to be bound by all of the terms and conditions of this Warrant and make to the Company each of the representations and warranties set forth in Section 3 of this Warrant as of the date of such transfer.

4.9    [Reserved].

4.10    Legends. The Securities shall have such legends as deemed required by the Company for applicable securities laws, the Company’s organizational documents, and any other agreement the Securities are subject to.

4.11    No Stockholder Rights. Holder, as a Holder of this Warrant, will not have any rights as a stockholder of the Company until the exercise of this Warrant.

 

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4.12    Modification and Waiver. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holder.

[Balance of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties have caused this Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.

 

COMPANY:
ADICET BIO, INC.
By:  

 

Name:   Chen Schor
Title:   Chief Executive Officer
Address:   200 Constitution Drive
  Menlo Park, CA 94025
  Attention: Chen Schor
Facsimile:  

 

Email:  

 


HOLDER:
BEECH HILL SECURITIES, INC.
By:  

 

Name:  

 

Title:  

 

Address:  

 

 

 

 

 

Email:  

 


APPENDIX 1

NOTICE OF EXERCISE

1.    The undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Adicet Bio, Inc. (f/k/a resTORbio, Inc.), a Delaware corporation (the “Company”) in accordance with the attached Warrant to Purchase Stock (the “Warrant”), and tenders payment of the Aggregate Exercise Price (as defined in the Warrant) for such shares as follows:

[    ]    check in the amount of $                     payable to order of the Company enclosed herewith.

[    ]    Wire transfer of immediately available funds to the Company’s account.

2.    By its execution below and for the benefit of the Company, Holder hereby restates each of the representations and warranties in Section 3 of the Warrant as of the date hereof.

 

HOLDER:  

 

By:  

 

Name:  

 

Title:  

 

Address:  

 

 

 

Date:  

 


APPENDIX II

NOTICE OF NET ISSUE ELECTION NOTICE

(To be signed only on net issue exercise of the Warrant)

1.    The undersigned, the holder of the within Warrant (as defined below), hereby irrevocably elects to exercise this Warrant with respect to                      shares of Common Stock of Adicet Bio, Inc. (f/k/a resTORbio, Inc.), a Delaware corporation (the “Company”), in accordance with the attached Warrant to Purchase Stock (the “Warrant”), and tenders payment of the Aggregate Exercise Price pursuant to the net issue election provisions set forth in Section 1.1(b) of the Warrant.

2.    By its execution below and for the benefit of the Company, Holder hereby restates each of the representations and warranties in Section 3 of the Warrant as of the date hereof.

 

HOLDER:  

 

By:  

 

Name:  

 

Title:  

 

Address:  

 

 

 

Date:  

 

EX-10.6

Exhibit 10.6

THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE TERMS OF THIS WARRANT AND APPLICABLE LAW.

WARRANT TO PURCHASE STOCK

 

Corporation:    ADICET BIO, INC.
Number of Shares:    See below.
Class of Stock:    Common Stock
Initial Exercise Price:    $11.32 per share
Issue Date:    September 15, 2020
Expiration Date:    April 28, 2027

THIS WARRANT CERTIFIES THAT, for good and valuable consideration, the receipt of which is hereby acknowledged, PACWEST BANCORP or its assignee or transferee (“Holder”) is entitled to purchase the number of fully paid and nonassessable shares of the class of securities (the “Shares”) of the corporation (the “Company”) at the initial exercise price per Share (the “Warrant Price”) all as set forth above and as adjusted pursuant to Article 2 of this warrant, subject to the provisions and upon the terms and conditions set forth in this warrant. This warrant shall be exercisable for 5,301 Shares on the Issue Date and shall be exercisable for an additional number of Shares equal to (a) 1.00% of the aggregate original principal amount of all Term Loans made pursuant to the Loan and Security Agreement (the “Loan Agreement”), dated as of April 28, 2020, between Adicet Therapeutics, Inc. (f/k/a Adicet Bio, Inc.) and Pacific Western Bank, as may be amended from time to time, divided by (b) the Warrant Price (subject to appropriate adjustment in the event of a stock dividend, stock split or other similar event affecting the Shares). For the avoidance of doubt, in no event shall this warrant be exercisable for more than 15,904 Shares (subject to appropriate adjustment in the event of a stock dividend, stock split or other similar event affecting the Shares).

ARTICLE 1

EXERCISE

1.1 Method of Exercise. Holder may exercise this warrant by delivering this warrant and a duly executed Notice of Exercise in substantially the form attached as Appendix 1 to the principal office of the Company. Unless Holder is exercising the conversion right set forth in Section 1.2, Holder shall also deliver to the Company a check, a wire transfer (to an account designated by the Company) or other form of payment acceptable to the Company for the aggregate Warrant Price for the Shares being purchased.

1.2 Conversion Right. In lieu of exercising this warrant as specified in Section 1.1, Holder may from time to time convert this warrant, in whole or in part, into a number of Shares determined by dividing (a) the aggregate fair market value of the Shares or other securities otherwise issuable upon exercise of this warrant minus the aggregate Warrant Price of such Shares by (b) the fair market value of one Share. The fair market value of the Shares shall be determined pursuant to Section 1.3.

 


1.3 Fair Market Value. If the Shares are traded regularly in a public market, the fair market value of the Shares shall be the closing price of the Shares reported for the business day immediately before Holder delivers its Notice of Exercise to the Company. If the Shares are not regularly traded in a public market, the Board of Directors of the Company shall determine fair market value in its reasonable good faith judgment.

1.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises or converts this warrant, the Company shall (a)(x) provided that the Company’s transfer agent is then participating in the Depository Trust Company (“DTC”) Deposit Withdrawal Agent Commission (“DWAC”) system, cause the Company’s transfer agent to credit the number of Shares acquired to Holder’s account with DTC or (y) if the Company’s transfer agent is not then participating in the DTC DWAC system, deliver to Holder certificates for the Shares acquired and (b) if this warrant has not been fully exercised or converted and has not expired, a new warrant representing the Shares not so acquired.

1.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this warrant, the Company at its expense shall execute and deliver, in lieu of this warrant, a new warrant of like tenor.

1.6 Treatment of Warrant Upon Acquisition of the Company.

1.6.1Acquisition.” For the purpose of this warrant, “Acquisition” means (a) any sale, license, or other disposition of all or substantially all of the assets (including intellectual property) of the Company, (b) any reorganization, consolidation, merger or sale of the voting securities of the Company or any other transaction where the holders of the Company’s securities before the transaction beneficially own less than 50% of the outstanding voting securities of (1) the Company; (2) the surviving or resulting entity; or (3) if the surviving entity is a wholly owned subsidiary of another entity immediately following such transaction, the parent entity of such surviving or resulting entity (other than a bona fide equity financing principally for capital raising purposes in which the Company sells and issues equity securities to investors).

1.6.2 Exercise Upon Acquisition. Upon the closing of any Acquisition, if the fair market value of the consideration per Share to be received by the Company’s stockholders consists of cash, marketable securities, or a combination of both cash and marketable securities (as determined pursuant to Section 1.3) and is greater than the Warrant Price, this warrant shall be deemed to have been automatically converted pursuant to Section 1.2, without any further action by the Holder, even if this warrant is not surrendered and without the issuance of any certificate for Shares hereunder, and thereafter Holder shall participate in the Acquisition on the same terms as other holders of the same class of securities of the Company; provided, however, that if the fair market value of the Shares, as determined pursuant to Section 1.3, in connection with such Acquisition is less than the aggregate Warrant Price, then this warrant shall terminate without exercise or conversion immediately prior, and subject, to the closing of such Acquisition.

 

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1.6.3 Assumption of Warrant. Upon the closing of any Acquisition not referred to in Section 1.6.2, the successor entity shall assume the obligations of this warrant, and this warrant shall thereafter be exercisable for the same securities and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this warrant as if such Shares were outstanding on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the provisions of this warrant.

1.7 Rule 144. With a view to making available to Holder the benefits of Rule 144 (or its successor rule) (“Rule 144”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”) to sell Shares delivered to Holder upon exercise of this warrant, the Company agrees, at the Company’s sole expense, to:

(a) use its commercially reasonable efforts to file with the SEC in a timely manner (or obtain extensions in respect thereof and file within the applicable grace period) all reports and other documents (other than Current Reports on Form 8-K) required of the Company under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) so long as (1) the Company remains subject to such requirements under Section 13 or 15(d) of the Exchange Act, (2) the filing of such reports and other documents is required to satisfy the current public information requirements of Rule 144(c)(1) and (3) and it is necessary for the Company to satisfy the current public information requirements of Rule 144(c)(1) for the Holder to offer, sell or otherwise transfer such Shares pursuant to Rule 144 (assuming the Holder is not an “affiliate” (as defined in Rule 144) of the Company’s, and that has not been an “affiliate” (as defined in Rule 144) of the Company’s during the immediately preceding three months);

(b) promptly upon request of the Holder furnish to Holder, (i) a written statement by the Company that it has complied in all material respects with the requirements of Rule 144(c)(1)(i) and (ii), and (ii) such other information, if any, as may be reasonably requested to permit Holder to sell such securities pursuant to Rule 144 without registration, in each case, so long as (1) Holder owns such Shares, (2) the Company is required to file with the SEC reports and other documents under Section 13 or 15(d) of the Exchange Act, (3) the filing of such reports and other documents is required to satisfy the current public information requirements of Rule 144(c)(1) and (4) and it is necessary for the Company to satisfy the current public information requirements of Rule 144(c)(1) for the Holder to offer, sell or otherwise transfer such Shares pursuant to Rule 144 (assuming the Holder is not an “affiliate” (as defined in Rule 144) of the Company’s, and that has not been an “affiliate” (as defined in Rule 144) of the Company’s during the immediately preceding three months); and

(c) take such additional action as is reasonably requested by Holder to enable Holder to sell the Shares pursuant to Rule 144, including, without limitation, delivering all such legal opinions consents, certificates, resolutions and instructions to the Company’s transfer agent as may be reasonably requested from time to time by Holder.

 

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ARTICLE 2

ADJUSTMENTS TO THE SHARES

2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on its common stock payable in common stock, or other securities, or subdivides the outstanding common stock into a greater amount of common stock, then upon exercise of this warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend or subdivision occurred.

2.2 Reclassification, Exchange or Substitution. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or conversion of this warrant (including, without limitation, in any Permitted Transaction (as defined in the Loan Agreement)), Holder shall be entitled to receive, upon exercise or conversion of this warrant, the number and kind of securities and property that Holder would have received for the Shares if this warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company, its parent entity or its successor shall promptly issue to Holder a new warrant for such new securities or other property. The new warrant shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 2 including, without limitation, adjustments to the Warrant Price and to the number of securities or property issuable upon exercise of the new warrant. The provisions of this Section 2.2 shall similarly apply to successive reclassifications, exchanges, substitutions, or other events as described in this Section 2.2.

2.3 Adjustments for Combinations, Etc. If the outstanding Shares are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be proportionately increased. If the outstanding Shares are combined or consolidated, by reclassification or otherwise, into a greater number of shares, the Warrant Price shall be proportionately decreased.

2.4 Certificate as to Adjustments. Upon each adjustment of the Warrant Price, the Company at its expense shall promptly compute such adjustment, and furnish Holder with a certificate of its Chief Financial Officer setting forth such adjustment and the facts upon which such adjustment is based. The Company shall, upon written request, furnish Holder a certificate setting forth the Warrant Price in effect upon the date thereof and the series of adjustments leading to such Warrant Price.

2.5 Fractional Shares. No fractional Shares shall be issuable upon exercise or conversion of the warrant and the Number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the warrant, the Company shall eliminate such fractional share interest by paying Holder the amount computed by multiplying the fractional interest by the fair market value of a full Share.

 

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ARTICLE 3

REPRESENTATIONS AND COVENANTS OF THE COMPANY

3.1 Representations and Warranties. The Company hereby represents and warrants to the Holder as follows:

(a) All Shares which may be issued upon the exercise of the purchase right represented by this warrant, and all securities, if any, issuable upon conversion of the Shares, shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal and state securities laws.

3.2 Notice of Certain Events. The Company shall provide Holder with not less than 10 days prior written notice of, including a description of the material facts surrounding, any of the following events: (a) declaration of any dividend or distribution upon its common stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) offering for subscription pro rata to the holders of any class or series of its stock any additional shares of stock of any class or series or other rights; (c) effecting any reclassification or recapitalization of common stock; or (d) the merger or consolidation with or into any other corporation, or sale, lease, license, or conveyance of all or substantially all of its assets, or liquidation, dissolution or winding up.

ARTICLE 4

REPRESENTATIONS AND COVENANTS OF HOLDER

Holder hereby represents, warrants and covenants to the Company:

4.1 Purchase for Own Account. Holder is acquiring this warrant and all equity securities issuable, directly or indirectly, upon exercise of the warrant (collectively, the “Securities”) for Holder’s own account not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that Holder has no present intention of selling, granting any participation in, or otherwise distributing the same.

4.2 Disclosure of Information. Holder further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities and the business, properties, prospects and financial condition of the Company. With respect to any projections of its future operations provided to Holder by the Company, Holder acknowledges that the Company makes no representations or warranties.

4.3 Investment Experience. Holder has experience as an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities. Holder acknowledges that any investment in the Securities involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of its investment.

 

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4.4 Accredited Investor. Holder is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect.

4.5 Restricted Securities. Holder understands that the Securities are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Holder represents that it is familiar with Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. Holder understands that the Securities have not been and will not be registered under the Securities Act and have not been and will not be registered or qualified in any state in which they are offered, and thus Holder will not be able to resell or otherwise transfer his, her or its Securities unless they are registered under the Securities Act and registered or qualified under applicable state securities laws, or an exemption from such registration or qualification is available.

4.6 Residence. If Holder is a partnership, corporation, limited liability company or other entity, then the office or offices of Holder in which its principal place of business is identified in the address or addresses of Holder set forth in Section 5.5 hereof.

ARTICLE 5

MISCELLANEOUS

5.1 Term: Exercise Upon Expiration. Subject to Section 1.6, this warrant is exercisable in whole or in part, at any time and from time to time on or before the Expiration Date set forth above. If this warrant has not been exercised prior to the Expiration Date, this warrant shall be deemed to have been automatically exercised on the Expiration Date by “cashless” conversion pursuant to Section 1.2.

5.2 Legends. This warrant and the Shares shall be imprinted with such legends as deemed required by the Company for applicable securities laws, the Company’s organizational documents, and any other agreements the Securities are subject to, including the following:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THIS WARRANT AND APPLICABLE LAW.

5.3 Compliance with Securities Laws on Transfer. This warrant and the Shares issuable upon exercise of this warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee. The Company shall not require Holder to provide an opinion of counsel if there is no material question as to the availability of current information as referenced in Rule 144(c), Holder

 

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represents that it has complied with Rule 144 (d) and (e) in reasonable detail, the selling broker represents that it has complied with Rule 144(f), and the Company is provided with a copy of Holder’s notice of proposed sale. Any subsequent transferee shall be bound by all of the terms and conditions of this warrant and make to the Company each of the representations, warranties and covenants set forth in Article 4 of this warrant as of the date of such transfer.

5.4 Transfer Procedure. Subject to the provisions of Section 5.3, Holder may transfer all or part of this warrant or the Shares issuable upon exercise of this warrant (or the securities issuable, directly or indirectly, upon conversion of the Shares, if any) by giving the Company notice of the portion of the warrant being transferred setting forth the name, address and taxpayer identification number of the transferee and surrendering this warrant to the Company for reissuance to the transferee(s) (and Holder, if applicable); provided, however, that Holder shall not transfer all or part of this warrant or the Shares issuable upon exercise of this warrant (or the securities issuable, directly or indirectly, upon conversion of the Shares, if any) to any Person who is a direct competitor of the Company, whether as an operating company or direct or indirect parent with voting control over such operating company. No surrender or reissuance shall be required for a transfer to any other affiliate of Holder

5.5 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally, emailed or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may be, in writing by the Company or such Holder from time to time. All notices to the Holder shall be addressed as follows:

PacWest Bancorp

Attn: Warrant Administrator

406 Blackwell Street, Suite 240

Durham, NC 27701

Email: warrants@pacwest.com

All notices to the Company shall be addressed as follows:

Adicet Bio, Inc.

Attention: Chen Schor, CEO

500 Boylston Street, 13th Floor

Boston, Massachusetts

Email: __________________

5.6 Amendments. This warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.

5.7 Attorneys’ Fees. In the event of any dispute between the parties concerning the terms and provisions of this warrant, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.

 

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5.8 No Stockholder Rights. Holder, as a Holder of this warrant, will not have any rights as a stockholder of the Company until the exercise of this warrant.

5.9 Governing Law. This warrant shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles regarding conflicts of law.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the undersigned has executed this Warrant to Purchase Stock as of the date set forth above.

 

ADICET BIO, INC.
By:  

/s/ Chen Schor

Name:  

Chen Schor

Title:  

Chief Executive Officer

Accepted and agreed:
PACWEST BANCORP
By:  

/s/ Jeff Krumpoch

Name:  

Jeff Krumpoch

Title:  

Senior Corporate Controller

[Signature Page to Warrant to Purchase Stock]


APPENDIX 1

NOTICE OF EXERCISE

1. The undersigned hereby elects to purchase ______________ shares of the ______________ stock of ADICET BIO, INC. pursuant to the terms of the attached warrant, and tenders herewith payment of the purchase price of such shares in full.

1. The undersigned hereby elects to convert the attached warrant into shares in the manner specified in the warrant. This conversion is exercised with respect to ______________ of the shares covered by the warrant.

[Strike paragraph that does not apply.]

2. Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name as is specified below:

 

 

(Holder’s Name)

 

 

(Address)

3. The undersigned hereby confirms that the representations and warranties set forth in Section 4 of the warrant are true and correct in all respects as of the date hereof.

 

PACWEST BANCORP or Registered Assignee

 

(Signature)

 

(Date)

EX-10.7

Exhibit 10.7

UNCONDITIONAL SECURED GUARANTY

In connection with the Loan and Security Agreement, dated as of April 28, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and between PACIFIC WESTERN BANK (“Bank”), and ADICET THERAPEUTICS, INC., a Delaware corporation formerly named Adicet Bio, Inc. (“Borrower”), ADICET BIO, INC., a Delaware corporation formerly named resTORbio, Inc. (“Guarantor”) hereby unconditionally and irrevocably guarantees (i) the prompt and complete payment of all Obligations (as defined in the Loan Agreement), and (ii) performance by Borrower of its obligations under the Loan Agreement, in each case in strict accordance with its terms (herein referred to as the “Guaranteed Obligations”). All terms used without definition in this Guaranty shall have the meaning assigned to them in the Loan Agreement or as defined in the Code. This Guaranty is executed effective as of September 15, 2020 (the “Effective Date”) and is a continuing guaranty, and the obligations guaranteed hereby include, without limitation, new obligations incurred by Borrower under the Loan Agreement after the Effective Date. Guarantor acknowledges it will receive a direct and material benefit from the loans made pursuant to the Loan Agreement and that Bank has required that this secured guaranty (as amended, restated, supplemented or otherwise modified, from time to time, this “Guaranty”) be entered into as a condition of the Loan Agreement.

1. Guaranty. If Borrower does not pay any amount or perform the Guaranteed Obligations, Guarantor shall immediately pay all amounts due under the Loan Agreement (including, without limitation, all principal, interest, and fees) and otherwise proceed to complete the same and satisfy all of Borrower’s Obligations under the Loan Agreement. The obligations hereunder are independent of the Obligations of Borrower and any other person or entity, and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or whether Borrower is joined in any such action or actions. Guarantor waives the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof, to the extent permitted by law. Guarantor’s liability under this Guaranty is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of the Guaranteed Obligations.

2. Grant of Security Interest. To secure its obligations under this Guaranty, Guarantor hereby grants Bank a security interest in the assets described on Exhibit A hereto (the “Collateral”). The security interest granted herein is and shall at all times continue to be a first-priority perfected security interest in the Collateral (other than Permitted Liens, to the extent applicable to Guarantor, or other Liens as set forth in the schedule to this Guaranty). If Guarantor acquires a commercial tort claim with a potential recovery reasonably expected to be in excess of Two Hundred Fifty Thousand Dollars ($250,000), Guarantor shall promptly notify Bank in writing and deliver such other information and documents as Bank may reasonably require to perfect Bank’s security interest in such commercial tort claim. Guarantor authorizes Bank to file at any time financing statements, continuation statements and amendments thereto with all appropriate jurisdictions to perfect or protect Bank’s interest or rights hereunder. Guarantor shall not, without at least ten (10) days prior written notice to Bank (i) change its jurisdiction of organization, chief executive office, legal name, or organizational number (if any) assigned by its jurisdiction of organization. Guarantor shall execute any further instruments and take further action as Bank reasonably requests to perfect or continue Bank’s Lien in the Collateral or to effect the purposes of this Guaranty.

3. Pledge of Shares. Guarantor hereby pledges, assigns and grants to Bank a security interest in all the issued and outstanding capital stock, membership units or other securities owned or held of record by Guarantor in Borrower (the “Shares”), together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the performance of the Guaranteed Obligations. On the Effective Date, the certificate or certificates for the Shares of Borrower will be delivered to Bank, accompanied by an instrument of assignment duly governing the Shares. Guarantor shall cause the books of Borrower and any transfer agent to reflect the pledge of the Shares. Upon the occurrence of an Event of Default hereunder, Bank may effect the transfer of any securities included in the Collateral (including but not limited to the Shares) into the name of Bank and cause new certificates representing such securities to be issued in the name of Bank or its transferee. Unless an Event of Default shall have occurred and be continuing, Guarantor shall be entitled to exercise any voting rights with respect to the Shares and to give consents, waivers and ratifications in respect thereof, provided that no vote shall be cast or consent, waiver or ratification given or action taken which would be inconsistent with any of the terms of this Guaranty or which would constitute or create any violation of any of such terms. All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and continuance of an Event of Default.

 

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4. Representations and Warranties. Guarantor represents and warrants to Bank that:

4.1 (i) Guarantor has taken all necessary and appropriate action to authorize the execution, delivery and performance of this Guaranty, (ii) the execution, delivery and performance of this Guaranty do not conflict with or result in a breach of or constitute a default under Guarantor’s organizational documents, nor will they constitute an event of default under any material agreement to which it is party or by which it is bound, (iii) after giving effect to this Guaranty, Guarantor is not insolvent or left with unreasonably small capital for the business or transactions in which Guarantor is presently engaged or plans to be engaged, and is able to pay its debts as they mature, and (iv) except as may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or in law), this Guaranty constitutes a valid and binding obligation, enforceable against Guarantor in accordance with its terms.

4.2 Guarantor has good title to, rights in, and the power to transfer each item of the Collateral upon which it purports to grant a Lien hereunder, free and clear of any and all Liens, except Permitted Liens, to the extent applicable to Guarantor, or as otherwise set forth in the schedule to this Guaranty.

4.3 The information with respect to Guarantor and the Collateral set forth in that certain Borrower Information Certificate dated as of July 7, 2020 is true and correct in all material respects as of such date.

4.4 As of the date hereof, no Collateral consisting of promissory notes or equity interests is evidenced by an original instrument or share certificate, as applicable, except to the extent delivered to Bank as possessory collateral with appropriate allonges or stock powers in form satisfactory to Bank.

5. Landlord Waiver. Within one hundred twenty (120) days of the Effective Date, provided that Guarantor has not vacated possession of such premises (whether in connection with the execution of a sublease or otherwise), Guarantor shall exercise commercially reasonable efforts to deliver to Bank in form and substance satisfactory to Bank a duly executed landlord waiver in favor of Bank for the rental property located at 500 Boylston Street, 13th Floor, Boston, Massachusetts.

6. Insurance. Guarantor, at its expense, shall (i) keep the Collateral insured against loss or damage, and (ii) maintain liability and other insurance, in each case as ordinarily insured against by other owners in businesses similar to Guarantor’s. All such policies of insurance shall be in such form, with such companies, and in such amounts reasonably satisfactory to Bank. All policies of property insurance shall contain a lender’s loss payable endorsement, in a form satisfactory to Bank, showing Bank as lender’s loss payee. All liability insurance policies shall show, or have endorsements showing, Bank as an additional insured. Any such insurance policies shall specify that the insurer must give at least twenty (20) days notice to Bank before canceling its policy for any reason. Within thirty (30) days of the Effective Date, Bank shall have received in form and substance reasonably satisfactory to Bank evidence that the insurance policies required by this Section 6 are in full force and effect. Within thirty (30) days of the Effective Date, Guarantor shall cause to be furnished to Bank a copy of its policies including any endorsements covering Bank or showing Bank as an additional insured. Proceeds payable under any casualty policy will, at Guarantor’s option, be payable to Guarantor to replace the property subject to the claim, provided that any such replacement property shall be deemed Collateral in which Bank has been granted a first priority security interest, provided that if an event of default has occurred and is continuing, all proceeds payable under any such policy shall, at Bank’s option, be payable to Bank to be applied on account of the Guaranteed Obligations.

7. Primary Depository. Within sixty (60) days of the Effective Date, Guarantor shall maintain, and shall (subject to Borrower’s obligations in Section 6.6 of the Loan Agreement) cause all of its Subsidiaries to maintain, all of its Cash in depository and operating accounts with Bank and all investment accounts with Bank or Bank’s affiliates; provided that prior to Guarantor maintaining any investment accounts with Bank’s affiliates, Guarantor, Bank, and any such affiliate shall have entered into a securities account control agreement with respect to any such investment accounts, in form and substance satisfactory to Bank, provided that, Guarantor shall be permitted to maintain an aggregate amount not to exceed $20,000 in one or more accounts outside of Bank.

8. Existing Letter of Credit. Notwithstanding anything herein to the contrary, Guarantor shall be permitted to maintain Guarantor’s existing cash collateral account at Wells Fargo Bank (the “Collateral Account”) securing that certain letter of credit for $245,442.50 in favor of 500 Boylston & 222 Berkeley Owner (DE) LLC (the “Letter of Credit”), provided that (x) the aggregate balance of the Collateral Account shall not exceed $245,442.50 at any time and (y) upon the earlier of (A) the outside expiration date of the Letter of Credit as of the Effective Date which is December 31, 2026, and (z) early termination of the Letter of Credit, the entire balance held in the Collateral Account shall immediately be transferred to Guarantor’s account at Bank. For the avoidance of doubt, the Letter of Credit shall not be renewed or extended so long as Bank shall have provided similar replacement letter of credit in favor of the existing beneficiary in such amount and on terms substantially similar to the terms of Letter of Credit, resulting in a replacement letter of credit that is reasonably acceptable to the applicable beneficiary.

 

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9. Affirmative Covenants. Until the final payment and performance in full of all of the Obligations (other than inchoate indemnification or reimbursement obligations), Guarantor shall do all of the following: (a) maintain its existence, remain in good standing in its jurisdiction of organization, and continue to qualify in its jurisdiction in which the failure to so qualify could have a material adverse effect on the financial condition, operations or business of Guarantor; (b) maintain in force all licenses, approvals and agreements, the loss of which could reasonably be expected have a material adverse effect on its financial condition, operations or business; (c) comply with all statutes, laws, ordinances, directives, orders, and government rules and regulations to which it is subject if non-compliance with such laws could reasonably be expected to have a material adverse effect on the financial condition, operations or business of Guarantor; and (d) at any time and from time to time Guarantor shall execute and deliver such further instruments and take such further action as may reasonably be requested by Bank to effect the purposes of this Guaranty.

10. Negative Covenants. Guarantor shall not do any of the following: (a) create, incur, assume or be or remain liable with respect to any Indebtedness, other than Permitted Indebtedness, to the extent applicable to Guarantor, or other Indebtedness as set forth in the Schedule to this Guaranty; (b) create, incur, assume or suffer to exist any Lien with respect to any of its property, other than Permitted Liens, to the extent applicable to Guarantor, or other Liens as set forth in the Schedule to this Guaranty; (c) transfer, assign, encumber, or otherwise dispose of any equity interest that Guarantor may now have or hereafter acquire in Borrower; and (d) dispose of any interest in the Collateral other than Permitted Transfers, to the extent applicable to Guarantor.

11. Waivers by Guarantor. Guarantor waives any right to require Bank to (a) proceed against Borrower, any guarantor, or any other person; (b) proceed against or exhaust any security held from Borrower; or (c) pursue any other remedy in Bank’s power whatsoever. Bank may, at each of its election, exercise or decline or fail to exercise any right or remedy it may have against Borrower or any security held by Bank, including without limitation the right to foreclose upon any such security by judicial or non-judicial foreclosure, without affecting or impairing in any way the liability of Guarantor hereunder. Guarantor waives any defense arising by reason of any disability or other defense of Borrower, or by reason of the cessation from any cause whatsoever of the liability of Borrower. Until all of the Guaranteed Obligations (other than inchoate indemnity obligations) have been paid in full, (a) Guarantor waives any defense that Guarantor may have against Bank arising out of the absence, impairment or loss of any right of reimbursement or subrogation or any other rights Guarantor has against Borrower, (b) Guarantor shall not exercise any rights against Borrower arising as a result of payment by Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise and (c) Guarantor waives any right to enforce any remedy that Bank now has or may hereafter have against Borrower and waives all rights to participate in any security now or hereafter held by Bank. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional indebtedness. Guarantor waives any setoff, defense or counterclaim that Borrower may have against Bank. Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Borrower and of all other circumstances bearing upon the risk of nonpayment of any indebtedness or nonperformance of any Obligation of Borrower and agrees that, absent a request for particular information by Guarantor, Bank shall not have any duty to advise Guarantor of information known to Bank regarding such condition or any such circumstances. Guarantor waives any defenses as a surety under applicable law, including without limitation, any suretyship defenses available to it under the Code or any other applicable law. Guarantor waives any benefits that it has that permit a subordinating creditor to assert suretyship or that give a subordinating creditor rights to require a senior creditor to marshal assets. Guarantor will not assert such a defense or right. In addition to the waivers set forth above, Guarantor expressly waives, to the extent permitted by North Carolina law, all of Guarantor’s rights under North Carolina General Statute Section 26-7 through Section 26-9, inclusive, or any similar or subsequent laws. Guarantor authorizes Bank, as applicable, in accordance with the terms of the Loan Agreement, without notice or demand and without affecting its liability hereunder, from time to time to, (a) renew, extend, or otherwise change the terms of the Loan Documents or any part hereof; (b) take and hold security for the payment of this Guaranty or the Guaranteed Obligations, and exchange, enforce, waive and release any such security; and (c) apply such security and direct the order or manner of sale thereof as provided in the Loan Agreement or, if not so provided, as Bank in its sole discretion may determine.

12. Borrowers Insolvency. If Borrower becomes insolvent or is adjudicated bankrupt or files a petition for reorganization, arrangement, composition or similar relief under any present or future provision of the United States Bankruptcy Code, or if such a petition is filed against Borrower, and in any such proceeding some or all of any indebtedness

 

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or obligations under the Loan Documents are terminated or rejected or any obligation of Borrower is modified or abrogated, or if Borrower’s obligations are otherwise avoided for any reason, Guarantor agrees that Guarantor’s liability hereunder shall not thereby be affected or modified and such liability shall continue in full force and effect as if no such action or proceeding had occurred. This Guaranty shall continue to be effective or be reinstated, as the case may be, if any payment must be returned by Bank upon the insolvency, bankruptcy or reorganization of Borrower, Guarantor, any other guarantor, or otherwise, as though such payment had not been made.

13. Subordination of Borrowers Indebtedness. Any indebtedness of Borrower now or hereafter held by Guarantor is hereby subordinated to the Guaranteed Obligations; and upon notice of Bank following the occurrence and during the continuation of an Event of Default, such indebtedness of Borrower to Guarantor shall be collected, enforced and received by Guarantor as trustee for Bank and be paid over to Bank on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.

14. Event of Default. Each of the following shall constitute an event of default under this Guaranty: if this Guaranty ceases to be in full force and effect for any reason; if any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation in this Guaranty; if Guarantor fails to perform any obligation required hereunder; if Guarantor purports to revoke or otherwise avoid any obligation under this Guaranty; or if an Event of Default occurs under the Loan Agreement.

15. Remedies and Related Provisions

15.1 Rights and Remedies. Upon the occurrence and during the continuance of an event of default under this Guaranty described in Section 14 hereof, Bank may, without notice or demand, do any or all of the following (in addition to any remedies pursuant to the Loan Agreement): (i) verify the amount of, demand payment of and performance under, and collect any Accounts and general intangibles, settle or adjust disputes and claims directly with account debtors for amounts on terms and in any order that Bank considers advisable, and notify any Person owing Guarantor money of Bank’s security interest in such funds; (ii) make any payments and do any acts it reasonably considers necessary or advisable to protect the Collateral and/or its security interest in the Collateral, and Guarantor shall assemble the Collateral if Bank requests and make it available as Bank designates, (iii) enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred, and in furtherance of the foregoing, Guarantor grants Bank a license to enter and occupy any of its premises, without charge, to exercise any of Bank’s rights or remedies; (iv) apply to the Obligations any (A) balances and deposits of Guarantor that Bank holds, or (B) amounts held by Bank owing to or for the credit or the account of Guarantor; (v) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell the Collateral, and solely in furtherance of the foregoing in connection with the exercise of its remedies hereunder, Guarantor hereby grants Bank a non-exclusive, royalty-free license or other right to use, without charge, Guarantor’s labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, and advertising matter, or any similar property as it pertains to the Collateral, completing production of, advertising for sale, and selling any Collateral and, in connection with Bank’s exercise of its rights hereunder, and any rights of Guarantor under all licenses and all franchise agreements inure to Bank’s benefit; (vi) place a “hold” on any account maintained with Bank or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any account control agreement or similar agreements providing control of any Collateral; (vii) demand and receive possession of any Guarantor’s books and records; and (viii) exercise all rights and remedies available to Bank at law or equity, including all remedies provided under the Code (including sale of the Collateral pursuant to the terms thereof).

15.2 Power of Attorney. Guarantor hereby irrevocably appoints Bank (and any of Bank’s partners, managers, officers, agents or employees) as its lawful attorney-in-fact, with full power of substitution, exercisable solely upon the occurrence and during the continuance of an Event of Default, to: (a) send requests for verification of Accounts or notify account debtors of Bank’s security interest and Liens in the Collateral; (b) endorse Guarantor’s name on any checks or other forms of payment or security; (c) sign Guarantor’s name on any invoice or bill of lading for any Account or drafts against account debtors schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) settle and adjust disputes and claims about the Accounts directly with account debtors, for amounts and on terms Bank determines reasonable; (e) make, settle, and adjust all claims under Guarantor’s insurance policies; (f) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; (g) transfer the Collateral into the name of Bank or a third party as the Code permits; and (h) dispose of the Collateral as the Code permits. Guarantor further hereby

 

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appoints Bank (and any of Bank’s partners, managers, officers, agents or employees) as its lawful attorney-in-fact, with full power of substitution, regardless of whether or not an Event of Default has occurred or is continuing to: (i) sign Guarantor’s name on any documents and other instrument necessary to perfect or continue the perfection of, or maintain the priority of, Bank’s security interest in the Collateral to the extent Guarantor does not promptly execute the same upon Bank’s written request, (ii) execute and do all such assurances, acts and things which Guarantor is required, but fails to do under the covenants and provisions hereof; (iii) take any and all such actions as Bank may reasonably determine to be necessary or advisable for the purpose of maintaining, preserving or protecting the Collateral or any of the rights, remedies, powers or privileges of Bank hereunder or the under the Loan Agreement. Bank’s foregoing appointment as Guarantor’s attorney in fact, and all of Bank’s rights and powers, coupled with an interest, are irrevocable until all Guaranteed Obligations (other than inchoate indemnity obligations) have been paid in full, in cash, and Bank is under no further obligation to make credit extensions to Borrower.

15.3 Protective Payments. If Guarantor fails to obtain the insurance required by this Guaranty or fails to pay any premium thereon or fails to pay any other amount which Guarantor is obligated to pay under this Guaranty, the Loan Agreement or which may be required to preserve the Collateral, Bank may obtain such insurance or make such payment, and all amounts so paid by Bank shall constitute Obligations and shall be immediately due and payable, bearing interest at the then highest rate applicable to the Obligations in accordance with the terms of the Loan Documents, and shall be secured by the Collateral. Bank will make reasonable efforts to provide Guarantor with notice of Bank obtaining such insurance at the time it is obtained or within a reasonable time thereafter. No payments by Bank are deemed an agreement to make similar payments in the future or Bank’s waiver of any event of default hereunder.

15.4 Banks Liability for Collateral. So long as Bank complies with commercially reasonable banking practices regarding the safekeeping of the Collateral in the possession or under the control of Bank, Bank shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person. Subject to the foregoing, Guarantor shall bear all risk of loss, damage or destruction of the Collateral.

16. Miscellaneous.

16.1 Guarantor agrees to pay reasonable attorneys’ fees and all other reasonable out-of-pocket costs and expenses which may be incurred by Bank in the enforcement of this Guaranty.

16.2 No terms or provisions of this Guaranty may be changed, waived, revoked or amended except by written agreement between Guarantor and Bank.

16.3 Should any provision of this Guaranty be determined by a court of competent jurisdiction to be unenforceable, all of the other provisions shall remain effective.

16.4 This Guaranty, together with any agreement executed in connection with this Guaranty, embodies the entire agreement between the parties hereto with respect to the matters set forth herein, and supersedes all prior agreements between the parties with respect to the matters set forth herein.

16.5 No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof. Bank’s failure, at any time or times, to require strict performance by Guarantor of any provision of this Guaranty or any other Loan Document shall not waive, affect, or diminish any right of Bank thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the party granting the waiver and then is only effective for the specific instance and purpose for which it is given. Bank’s rights and remedies under this Guaranty and the other Loan Documents are cumulative. Bank has all rights and remedies provided under the Code, by law, or in equity. Bank’s exercise of one right or remedy is not an election and shall not preclude Bank from exercising any other remedy under this Guaranty or other remedy available at law or in equity, and Bank’s waiver of any Event of Default is not a continuing waiver. Bank’s delay in exercising any remedy is not a waiver, election, or acquiescence.

16.6 There are no conditions to the full effectiveness of this Guaranty.

16.7 Bank may assign this Guaranty (or its rights thereunder) in connection with a permitted assignment of the Guaranteed Obligations in accordance with the Loan Agreement without in any way affecting Guarantor’s liability under it. This Guaranty shall inure to the benefit of Bank and its successors and assigns.

 

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16.8 This Guaranty may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one agreement. Executed copies of the signature pages of this Agreement sent by facsimile or transmitted electronically in Portable Document Format (“PDF”), or any similar format, shall be treated as originals, fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment.

16.9 Governing Law; Jurisdiction; Venue; Jury Trial Waiver. This Guaranty shall be governed by, and construed in accordance with, the internal laws of the State of North Carolina, without regard to principles of conflicts of law. Jurisdiction shall lie in the State of North Carolina. All disputes, controversies, claims, actions and similar proceedings arising with respect to Borrower’s account or any related agreement or transaction shall be brought in the General Court of Justice of North Carolina sitting in Durham County, North Carolina, or the United States District Court for the Middle District of North Carolina, except as provided below with respect to arbitration of such matters. BANK AND GUARANTOR EACH ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF THEM, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT, WITH COUNSEL OF THEIR CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY RELATED INSTRUMENT OR LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTION OF ANY OF THEM. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY BANK OR GUARANTOR, EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY EACH OF THEM. If the jury waiver set forth in this Section 16.9 is not enforceable, then any dispute, controversy, claim, action or similar proceeding arising out of or relating to this Guaranty, the Loan Documents or any of the transactions contemplated therein shall be settled by final and binding arbitration held in Durham County, North Carolina in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with those rules. The arbitrator shall apply North Carolina law to the resolution of any dispute, without reference to rules of conflicts of law or rules of statutory arbitration. Judgment upon any award resulting from arbitration may be entered into and enforced by any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section 16.9. The costs and expenses of the arbitration, including without limitation, the arbitrator’s fees and expert witness fees, and attorneys’ fees, incurred by the parties to the arbitration may be awarded to the prevailing party, in the discretion of the arbitrator, or may be apportioned between the parties in any manner deemed appropriate by the arbitrator. Unless and until the arbitrator decides that one party is to pay for all (or a share) of such costs and expenses, both parties shall share equally in the payment of the arbitrator’s fees as and when billed by the arbitrator.

16.10 Withholding. All payments made by Guarantor hereunder will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any governmental authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (excluding taxes imposed on or measured by the net income of Bank) and all interest, penalties or similar liabilities with respect thereto (all such taxes, levies, imposts, duties, fees, assessments or other charges and as required by any governmental authority, applicable law, regulation or international agreement being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, Guarantor agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Guaranty, after withholding or deduction for or on account of any Taxes, will not be less than the amount required to be paid with respect to the Guaranteed Obligations. Notwithstanding the foregoing, Guarantor need not make any withholding payment if the amount or validity of such withholding payment is contested in good faith by appropriate and timely proceedings and as to which payment in full is bonded or reserved against by Guarantor.

[SIGNATURE PAGE FOLLOWS]

 

 

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IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this Guaranty as of the date set forth above.

 

ADICET BIO, INC., a Delaware corporation
By:  

/s/ Chen Schor

Name:  

Chen Schor

Title:  

Chief Executive Officer


Exhibit A

Collateral Description

The Collateral consists of all of Guarantor’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising:

All goods, Accounts (including health-care receivables), Equipment, Inventory, Shares, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including goodwill and payment intangibles), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Guarantor’s books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing.

Notwithstanding the foregoing, the Collateral shall not include any of the intellectual property, in any medium, of any kind or nature whatsoever, now or hereafter owned or acquired or received by Guarantor, or in which Guarantor now holds or hereafter acquires or receives any right or interest (collectively, the “Intellectual Property”); provided, however, that the Collateral shall include all accounts and general intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the foregoing (the “Rights to Payment”).

Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of September 15, 2020 include the Intellectual Property to the extent and only to the extent necessary to permit perfection of Bank’s security interest in the Rights to Payment, and further provided, however, that Bank’s enforcement rights with respect to any security interest in the Intellectual Property shall be absolutely limited to the Rights to Payment only, and Bank shall have no recourse whatsoever with respect to the underlying Intellectual Property.


SCHEDULE OF EXCEPTIONS

Liens existing as of Effective Date – None.

Indebtedness existing as of the Effective Date – None.


RESOLUTIONS TO GUARANTY AND WARRANT

Guarantor: ADICET BIO, INC., a Delaware corporation formerly named resTORbio, Inc.

The undersigned is the duly elected and qualified Secretary of ADICET BIO, INC., a Delaware corporation formerly named resTORbio, Inc. (the “Guarantor”), does hereby certify that the following is a true and correct copy of the resolutions adopted by the Guarantor’s Board of Directors in accordance with applicable law and the Guarantor’s bylaws, and that such resolutions are now unmodified and in full force and effect:

BE IT RESOLVED, that

1) Any one (1) of the following named persons, whose actual signatures are shown below is authorized to act for, on behalf of, and in the name of the Guarantor in connection with the resolutions below:

 

Title

  

Name

  

Authorized Signature

 

  

 

  

 

 

  

 

  

 

 

  

 

  

 

In furtherance of the transactions contemplated by the Guaranty Documents (as defined below), such person, may, on behalf of the Guarantor and is hereby authorized and empowered to:

Guaranty Indebtedness. Guaranty all amounts borrowed from time to time from Bank by Borrower, pursuant to that certain Loan and Security Agreement between Borrower and Bank dated as of April 28, 2020 (the “Loan Agreement”), and any related agreements, each as amended from time to time.

Execute Guaranty. Execute and deliver to Bank that certain Unconditional Secured Guaranty of even date herewith in favor of Bank (the “Guaranty”), and any other agreement entered into between Guarantor and Bank in connection therewith, all as amended or extended from time to time (collectively, the “Guaranty Documents”), and also execute and deliver to Bank one or more affirmations, renewals, extensions, modifications, refinancings, consolidations, or substitutions for the Guaranty Documents, or any portion thereof.

Grant Security. Grant a security interest to Bank in the Collateral described in the Guaranty Documents, which security interest shall secure all of the Borrower’s Obligations (as defined in the Loan Agreement).

Warrants. Issue a warrant or warrants to purchase the Guarantor’s capital stock;

Further Acts. Do and perform such other acts and things, pay any and all fees and costs, and execute and deliver such other documents and agreements as he or she may in his or her discretion deem reasonably necessary or proper in order to carry into effect the foregoing.

2) Any and all acts authorized pursuant to these resolutions and performed prior to the passage of these resolutions are hereby ratified and approved, that these resolutions shall remain in full force and effect and Bank may rely on these Resolutions until written notice of their revocation shall have been delivered to Bank. Any such notice shall not affect any of the Guarantor’s agreements or commitments in effect at the time such notice is given.


3) The officers, employees, and agents named above are duly elected, appointed, or employed by or for the Guarantor, as the case may be, and occupy the positions set forth opposite their respective names; the foregoing resolutions now stand of record on the books of the Guarantor; and the resolutions are in full force and effect and have not been modified or revoked in any manner whatsoever.

IN WITNESS WHEREOF, I have affixed my name as Secretary on September 15, 2020 and attest that the signatures set opposite the names listed above are such individuals’ genuine signatures.

 

CERTIFIED TO AND ATTESTED BY:
By:  

             

Name:  

         

Title: Secretary
EX-10.9

Exhibit 10.9

Adicet Bio, Inc.

April 28, 2020

Anil Singhal

 

Re:

Transition Agreement

Dear Anil,

This letter (the “Transition Agreement”) confirms the agreement between you and Adicet Bio, Inc. (the “Company”) (collectively, the “parties”) regarding the transition of your position with the Company on the following terms:

1.    Transition. You acknowledge that, in the event that the proposed reverse triangular merger among the Company, a publicly traded company previously disclosed to you (“Parent”), and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which Merger Sub will merge with and into the Company with the Company surviving as a wholly owned subsidiary of Parent (the “Merger”) pursuant to an agreement and plan of merger anticipated to be entered into shortly following the date hereof (the “Merger Agreement”), is consummated (the “Closing”), your employment with the Company as Chief Executive Officer, President, Treasurer and Secretary shall end effective as of the Closing (such date, the “Resignation Date”). You further acknowledge that on your Resignation Date you will receive your final paycheck, which includes your final wages and pay for any accrued but unused vacation or personal days through your last day of employment, less withholdings. You agree to submit any claims for reimbursement for unreimbursed business expenses within 10 days of the Resignation Date in accordance with the Company’s normal procedures for reimbursement. The parties acknowledge that except as provided for in this Transition Agreement, all benefits and perquisites of employment cease as of your last day of employment, including any and all temporary housing and travel arrangements provided to you by the Company.

2.    Future Service. The parties wish to provide for a smooth succession, including providing the Company time for you and the Company to transition knowledge, relationships, and other matters that you acquired in your years with the Company. Accordingly, you agree that following your Resignation Date you will continue to assist the Company and Parent in the transition to new management (the “Services”) as set out in the Independent Contractor Services Agreement (set forth in Attachment A) (the “Independent Contractor Services Agreement”).

3.    Resignation. For purposes of this Transition Agreement, the parties acknowledge and agree that you have voluntarily elected to resign from your employment without Good Reason as defined in Section 3.c.iii of your Executive Employment Agreement, dated April 23, 2019, as amended, modified or restated from time to time (the “Employment Agreement”), and therefore you are not entitled to any Severance Benefits (as defined in the Employment Agreement), upon termination of your employment under Section 3.b of the Employment Agreement. You also acknowledge that effective as of the Resignation Date, you shall cease to hold, and be deemed to have resigned from (and hereby resign effective as of the Resignation Date from), any and all titles, positions and appointments you hold with the Company and/or any of its subsidiaries, whether as an officer, trustee, director, employee, trustee, committee member or otherwise. You further agree to execute any documents reasonably requested by the Company in connection with the actions contemplated by the preceding sentence. On and after your Resignation Date, you agree that you will not represent to anyone that you are still an employee or officer of the Company or any of its subsidiaries or affiliates or and you will not say or do anything purporting to bind the Company or any of its subsidiaries or affiliates.

 

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4.    Consideration. Although you are not otherwise entitled to receive any additional consideration from the Company under the circumstances of your resignation, subject to, and in consideration for your providing the Company with an executed copy of this Transition Agreement and the Independent Contractor Services Agreement, and provided you continue in service as an employee of the Company through the Resignation Date and comply with all of the terms and conditions of this Transition Agreement, the Independent Contractor Services Agreement, the Employee Proprietary Information and Invention Assignment Agreement entered into by and between you and the Company (the “Proprietary Information Agreement”) and all applicable Company policies, the Company will provide you with the following (“Consideration”): (a) the consulting relationship set forth in the Independent Contractor Services Agreement and (b) the payments and benefits set forth in Section 6 (subject to the terms and conditions thereof).

5.    Equity.

a.    You acknowledge and agree that (i) you currently own options to purchase (A) 3,128,049 shares of the Common Stock of the Company pursuant to that certain Notice of Stock Option Award and Stock Option Award Agreement (Award Number 118), dated as of May 22, 2019, by and between you and the Company and the Company’s 2015 Stock Incentive Plan, as amended (the “Plan”) and (B) 2,814,768 shares of the Common Stock of the Company pursuant to that certain Notice of Stock Option Award and Stock Option Award Agreement (Award Number 140), dated as of October 15, 2019, by and between you and the Company and the Plan (the “Existing Options”), (ii) you may become eligible to receive additional options to purchase up to 364,112 shares of the Common Stock of the Company in accordance with, and subject to the terms of the Employment Agreement (the “Milestone Options”) (the Existing Options and Milestone Options, collectively, the “Options” and the related option agreements for the Options, collectively, the “Option Agreements”) and (iii) other than the Options, and notwithstanding anything to the contrary, you do not have any right, title, claim or interest in or to any equity or other security of the Company, any security convertible or exercisable into any of the foregoing, or any right to purchase or receive any of the foregoing (whether presently, as a result of the passage of time or upon the occurrence of any events).

b.    You and the Company acknowledge and agree that, notwithstanding anything to the contrary, including your service to the Company pursuant to the Independent Contractor Services Agreement or in any other capacity: (i) your transition from an employee to a consultant of the Company as contemplated hereby will not be deemed to be a termination of your Continuous Service for purposes of the Option Agreements (other than as provided for in subsection (iii) below); (ii) following such transition, Continuous Service for purposes of the Option Agreements shall refer solely to your continued service to the Company or its affiliates (including Parent) as a consultant pursuant to the Independent Contractor Services Agreement; (iii) following such transition, your Continuous Service for purposes of the Option Agreement shall be deemed to have been terminated upon the earliest of (the “Vesting End Date”): (1) the termination of your services pursuant to the Independent Contractor Services Agreement or (2) May 7, 2021; (iv) in no event shall you vest in any further shares under the Options following the Vesting End Date (notwithstanding any continuation in your “Continuous Service” for purposes of the Options); provided, however, that if the Company terminates your service under the Independent Contractor Services Agreement without ICSA Cause (as defined below) prior to May 7, 2021, you shall vest in all then unvested shares subject to the Options (the “Unvested Shares”) that would have vested from the date of such termination without ICSA Cause through May 7, 2021; (v) all Unvested Shares (including, for the avoidance of doubt, the Milestone Options and other than any Unvested Shares you may potentially vest in as a result of your service prior to May 7, 2021 pursuant to the Independent Contractor

 

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Services Agreement or pursuant to clause (iv) above) shall be deemed forfeited as of the Resignation Date and (vi) the acceleration provisions set forth in the Option Agreements shall terminate on the Resignation Date and shall thereafter be null and void. The Option Agreements are hereby amended to the extent necessary to reflect the foregoing.

c.    “ICSA Cause” shall mean (i) your intentional performance of any act or failure to perform any act in bad faith and to the detriment of the Company or its affiliates, including, but not limited to, misappropriation of trade secrets, fraud or embezzlement; (ii) material breach by you of any written agreement with the Company or its affiliates; (iii) your conviction or plea of no-contest to any felony or any crime of moral turpitude, (iv) your willful refusal to implement or follow a lawful policy or directive of the Company or its affiliates; or (v) your engagement in misfeasance or malfeasance demonstrated by a pattern of failure to perform job duties diligently and professionally; provided, however, that except for an action, omission, failure, breach, refusal or other event which, by its nature, cannot reasonably be expected to be cured, you shall have twenty (20) days from the delivery of written notice by the Company within which to cure any acts constituting ICSA Cause; provided however, that, if the Company reasonably expects material injury from a delay of twenty (20) days, the Company may give you notice of such shorter period within which to cure as is reasonable under the circumstances, which may include the termination of the Independent Contractor Services Agreement without notice and with immediate effect.

d.    Your further acknowledge and agree that any unexercised Options that are incentive stock options shall cease to be treated as incentive stock options and shall be treated for tax purposes as non-statutory stock options upon the effective date of this Transition Agreement.

e.    The Options will remain subject to the terms and conditions of the following (as modified hereby, as applicable): (i) the Option Agreements, (ii) the Plan and (iii) the Company’s Bylaws, in each case, as may be amended, modified or restated from time to time (collectively, the “Equity Documents”). The Equity Documents will remain in full force and effect and, to the extent applicable, will govern any shares of the Company’s capital stock or other securities of the Company that you currently own or hereafter may acquire in the future (including, but not limited to, any shares you may receive upon exercise of the Options).

f.    You expressly acknowledge and agree that the Merger and the related transactions shall not constitute a “Liquidation” for purposes of the Employment Agreement or any of the Options. Further, you acknowledge and agree that (i) you understand and agree to the treatment of the Options pursuant to the Merger Agreement, a draft of which has been provided to you prior to the date hereof, (ii) the Milestone Options may be granted to you following consummation of the Merger and (iii) in such event, (A) the Milestone Options would be for shares of Parent’s common stock under a Parent equity incentive plan, (B) the Milestone Options would be subject to the terms of Parent’s standard stock option agreement, (C) the Milestone Options would have a per share exercise price equal to the per share fair market value of Parent’s common stock on the date of grant, as determined by the board of directors of Parent (D) an adjustment would be made to the number of shares subject to the Milestone Options above based on the terms of the Merger Agreement, (E) your service under the Independent Contractor Services Agreement will qualify for purposes of the Milestone Options as remaining in continuous service as the Company’s Chief Executive Officer.

6.    Termination Consideration. Solely if either: (i) you continue to provide services as an employee of the Company through the Resignation Date and the Closing occurs or (ii) the Company terminates your employment prior to your Resignation Date other than (a) for Cause (as defined in the Employment Agreement), (b) as a result of your death or (c) as a result of your Disability (as defined in the Employment Agreement), the Company will provide you with the payments and benefits listed in this

 

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Section 6 (the “Termination Consideration”), subject to and contingent upon Section 8 of this Transition Agreement:

a.    A payment of $470,000, payable in one lump sum within sixty (60) days following the Resignation Date.

b.    An amount equal to the prorated portion of $211,500 based on the ratio that the number of days elapsed in calendar year 2020 prior to the Resignation Date bears to 365 (the “2020 Bonus Payment”), payable in one lump sum within sixty (60) days following the Resignation Date.

c.    A payment of $250,000, payable in one lump sum on January 1, 2021.

d.    A payment of $24,000, payable in one lump sum within sixty (60) days following the Resignation Date.

e.    The vesting of all Options then held by you shall be accelerated such that all Options shall be deemed vested as if you had remained continuously employed for twelve (12) months following the Resignation Date.

f.    All vested Options then held by you as of the Resignation Date or that subsequently vest in accordance with Section 5 shall remain exercisable until the twelve (12) month anniversary of the termination of your services pursuant to the Independent Contractor Services Agreement; provided, however, that no such Option shall be exercisable after the expiration of its maximum term pursuant to the terms thereto.

g.    Reimbursement for up to $15,000 of your reasonable and documented legal expenses incurred in connection with this Transition Agreement.

7.    Early Resignation. You acknowledge and agree that if you resign from employment prior to the Resignation Date (an “Early Resignation”), you will not be entitled to any Termination Consideration, or any Severance Benefits under the Employment Agreement or any acceleration of vesting under any of the Options. You acknowledge and agree that, other than as set forth in Section 6 (and under the conditions set forth therein), you are not entitled to, or eligible for, any further bonus payment of any kind.

8.    Eligibility. Your eligibility for the Termination Consideration is conditioned on (a) you having resigned from the Board and from all positions that you are then serving as a director, officer or in another similar capacity at the Company’s direct and indirect subsidiaries and (b) you having first signed a release agreement in substantially the form attached as Attachment B, which may be adjusted by the Company in its discretion for changes in applicable laws, rules or regulations or customary practice (the “Release”) and such Release becoming effective pursuant to its terms no later than sixty (60) days following the date of termination of your employment (the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, you forfeit any rights to the Termination Consideration. In no event will any Termination Consideration be paid under this this Agreement until the Release becomes effective and irrevocable and the Termination Consideration will commence or be provided once the Release becomes effective and irrevocable. You agree that the Company shall have a right of offset against the foregoing for amounts owed to the Company by you (unless the amounts owed are subject to a good faith dispute) to the fullest extent not prohibited by law. The Termination Consideration shall be in lieu of any other severance payments, severance benefits, and severance protections to which you may be entitled under the Employment Agreement (including the Severance Benefits) or any severance or termination policy, plan, program, practice or arrangement of the Company and its affiliates.

 

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9.    Withholding. All amounts payable under this Transition Agreement shall be paid less all applicable state and federal tax withholdings and any other withholdings required by any applicable jurisdiction or authorized by you. You acknowledge and agree that other than (a) payment of salary and wages through the Resignation Date (the “Remaining Employment Compensation”) and (b) subject to the terms and conditions hereof and the payments and benefits set forth herein: (i) you have been timely paid all of your wages through the date hereof and, assuming the payment of the Remaining Employment Compensation, you will have been timely paid all of your wages earned through the Resignation Date, (ii) prior to the execution of this Transition Agreement, except for the Remaining Employment Compensation and standard employee benefits through the Resignation Date, you were not entitled to receive (or if entitled to receive, hereby waive, release and forever discharge) any further payments, equity grants, perks or benefits from the Company or any of its subsidiaries or affiliates and (iii) you are not entitled to (or if entitled, hereby waive, release and forever discharge) any further payments, equity grants, perks or benefits from the Company or any of its subsidiaries or affiliates after the Resignation Date (including, without limitation, under the Employment Agreement), except as set forth in this Transition Agreement and the Independent Contractor Services Agreement. You agree that you did not suffer an injury covered by workers’ compensation in the course and scope of your employment with the Company. You agree that, except as provided in this Transition Agreement, you are not and will not be entitled to any severance or acceleration benefits, including, without limitation, under the Option Agreements and the Employment Agreement, as a result of your resignation.

10.    Section 409A. It is intended that the terms of this Transition Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended, the final regulations and any guidance promulgated thereunder (collectively, “Section 409A”) or an exemption therefrom, and the terms of this Transition Agreement will be interpreted accordingly; provided, however, that the Company, its affiliates, and their respective employees, officers, directors, agents and representatives (including, without limitation, legal counsel) will not have any liability to you with respect to any taxes, penalties, interest or other costs or expenses you or any related party may incur with respect to or as a result of Section 409A or for damages for failing to comply with Section 409A. Notwithstanding any provision to the contrary in this Transition Agreement, with respect to any amounts under this Transition Agreement that are determined to be deferred compensation for purposes of Section 409A and payable as a result of your termination of employment, you shall not be deemed to have terminated employment unless and until you have experienced a “separation from service” (as that term is used in Section 409A). Payments pursuant to this Transition Agreement are intended to constitute separate payments for purposes of Section 409A. To the extent you are a “specified employee,” as defined in Section 409A and any elections made by the Company in accordance therewith, notwithstanding the timing of payment provided in any other section of this Transition Agreement, to the extent required by Section 409A, no payment, distribution or benefit under this Transition Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon “separation from service” (as that term is used in Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six (6) month period after separation from service, will be made during such six (6) month period, and any such payment, distribution or benefit will instead be paid on the first business day after such six (6) month period, provided, however, that if you die following the date of termination and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, such payments, distributions or benefits shall be paid or provided to the personal representative of your estate within thirty (30) days after the date of your death. To the extent that the payment of any amount hereunder constitutes “nonqualified deferred compensation” for purposes of Section 409A, if the applicable sixty (60) day period described in either Section 6 or Section 8 above spans calendar years, the payments will be made in the second calendar year. Any reimbursements or in-kind benefits provided to or for your benefit that constitute deferred compensation for purposes of Section 409A shall be provided in a manner that complies with Section 409A. Accordingly, (a) all such reimbursements will be made not later than the last day of the calendar year after the calendar year in which the expenses

 

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were incurred, (b) any right to such reimbursements or in-kind benefits will not be subject to liquidation or exchange for another benefit, and (c) the amount of the expenses eligible for reimbursement, or the amount of any in-kind benefit provided, during any taxable year will not affect the amount of expenses eligible for reimbursement, or the in-kind benefits provided, in any other taxable year.

11.    Release. In exchange for the agreements contained in this Transition Agreement, which you acknowledge exceeds any amounts to which you otherwise may be entitled under the Company’s policies and practices or applicable law, you on behalf of yourself and your heirs, executors, representatives and assigns, hereby fully acquits, releases, waives and discharges from and agree that you have not and will not file, cause to be filed or pursue against, the Company, its affiliates, related parties, parent or subsidiary companies, and its and their present and former directors, officers, employees, agents, committee members, attorneys and representatives, and each of the foregoing’s successors and assigns (including, without limitation, Parent) (the “Released Parties”) all claims obligations, liabilities, complaints, causes of action, charges, debts, and demands of any kind, known and unknown, in law or in equity, asserted or unasserted (“Claims”) which you may now have or have ever had against any of them, or arising out of your relationship with any of them, including all claims for compensation and bonuses, attorneys’ fees, and all claims arising from your employment with the Company or the termination of your employment, whether based on contract, tort, statute, local ordinance, rule, regulation or any comparable law in any jurisdiction (“Released Claims”).

Released Claims include, but are not limited to:

(i) all Claims arising from your employment with the Company or the termination of that employment, including Claims for wrongful termination or retaliation and the terms and conditions of employment;

(ii) all Claims related to your compensation or benefits from the Company, including salary, wages, bonuses, commissions, incentive compensation, profit sharing, retirement benefits, paid time off, vacation, sick leave, leaves of absence, expense reimbursements, equity, severance pay, and fringe benefits;

(iii) all Claims for breach of contract, breach of quasi-contract, promissory estoppel, detrimental reliance, and breach of the implied covenant of good faith and fair dealing;

(iv) all tort Claims, including Claims for fraud, defamation, slander, libel, disparagement, negligent or intentional infliction of emotional distress, personal injury, negligence, compensatory or punitive damages, negligent or intentional misrepresentation, and discharge in violation of public policy;

(v) all federal, state, and local statutory Claims, including Claims for discrimination, harassment, retaliation, attorneys’ fees, medical expenses, experts’ fees, costs and disbursements; and

(vi) any other Claims of any kind whatsoever, from the beginning of time until the date you sign this Transition Agreement, in each case whether based on contract, tort, statute, local ordinance, rule, regulation or any comparable law, public policy or common law in any jurisdiction.

By way of example and not limitation, Released Claims shall include any Claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1991; the Civil Rights Acts of 1866 and/or 1871, 42 U.S.C. Section 1981; the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; the Family Medical Leave Act, 29 U.S.C. § 2601 et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; the federal Worker Adjustment Retraining Notification Act, 29 U.S.C. § 2102 et seq., the California

 

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WARN Act, California Labor Code § 1400 et seq., the California Fair Employment and Housing Act, Cal. Gov. Code §12900 et seq., the California Labor Code, and the orders of the California Industrial Welfare Commission. The parties intend for this release to be enforced to the fullest extent permitted by law. You understand that you are not waiving any right or Claim that cannot be waived as a matter of law, such as workers’ compensation Claims, Claims for indemnification under California Labor Code Section 2802, Claims for unemployment insurance benefits, your right to vested equity or other vested benefits, or as otherwise set forth in this Transition Agreement. YOU UNDERSTAND AND AGREE THAT THIS TRANSITION AGREEMENT CONTAINS A GENERAL RELEASE OF ALL CLAIMS.

12.    ADEA. You further specifically unconditionally release and forever discharge the Released Parties from any and all Claims that you may have as of the date you sign this Transition Agreement arising under the ADEA. By signing this Transition Agreement, you acknowledge and confirm that: (a) you have been advised by the Company to consult with an attorney of your choice before signing this Transition Agreement; (b) you were given no fewer than twenty-one (21) days to consider the terms of this Transition Agreement, although you may sign it sooner if desired; (c) you are providing this release in exchange for consideration in addition to that which you are already entitled; (d) you have seven (7) days from the date of signing this Transition Agreement to revoke this Transition Agreement by providing the Company with a written notice of revocation to the Company’s Chairman of the Board at the Company’s principal executive office located at 200 Constitution Drive, Menlo Park, CA 94025, before the end of such seven-day period (“Revocation Period”); (e) this Transition Agreement will not become effective, and you will not be entitled to the benefits of this Transition Agreement, until the Revocation Period passes without you revoking this Transition Agreement; (f) the release contained in this paragraph does not apply to rights and claims that may arise after the date on which you sign this Transition Agreement, and (g) you knowingly and voluntarily accept the terms of this Transition Agreement. You further agree that any change to this Transition Agreement, whether material or immaterial, will not restart the twenty-one (21) day period for you to consider the terms of this Transition Agreement.

13.    Section 1542. You further agree that because this release specifically covers known and unknown claims, you waive your rights under Section 1542 of the California Civil Code, or under any comparable law of any other jurisdiction. Section 1542 states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

You intend for this release to be enforced to the fullest extent permitted by law. Notwithstanding the foregoing, you acknowledge and agree that you are not waiving or being required to waive any right that cannot be waived as a matter of law, including the right to file a charge, report an alleged violation of law or participate in an investigation by a governmental administrative agency, including your ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local government agency or commission (“Government Agencies”). You further understand that this General Release Agreement does not limit your ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company; provided, however, that you hereby disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge, report or investigation, except that you may receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. This General Release does not release any rights you may have pursuant to this Transition Agreement or Independent Contractor Services Agreement.

 

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14.    Confidentiality. You further agree to maintain this Transition Agreement and its contents in the strictest confidence and agree that you will not disclose the terms of this Transition Agreement to any third party (other than your legal and financial advisors) without the prior written consent of the Company, unless otherwise required by law. If you are obligated under law to disclose the contents of this Transition Agreement, you agree, to the extent possible, to provide the Company at least five (5) days prior written notice of such obligation. You also agree that during your continued services with the Company and for five (5) years thereafter, you will not make or publish, either orally or in writing, any disparaging statement regarding any Released Parties. The Company agrees that during such period it shall instruct its executive officers and directors to refrain from making or publishing, either orally or in writing, any disparaging statements concerning you to any third parties; provided, however, that the Company shall be permitted to (a) respond truthfully to reference requests from your potential future employers, and (b) disclose the reasons for your departure to current and prospective equityholders, officers, directors, investors, financing sources, underwriters, acquirors, strategic partners or any representative or affiliate or the foregoing, and both parties may make disclosures necessary or advisable to comply with applicable law, rule, regulation, securities exchange requirement or court order. The parties further agree that you will refer any third party reference requests to the Company’s Chief Human Resources Officer or the then highest ranking human resources employee, who will respond by confirming dates of employment and last position held.

15.    Cooperation. You agree to use reasonable efforts to cooperate with the Company in connection with any business matters in which you were involved or any existing or potential claims, investigations, administrative proceedings, lawsuits or other legal and business matters which arose during your employment or thereafter as part of the Services or involving matters of which you have knowledge due to your position as Chief Executive Officer, President, Treasurer or Secretary. This includes being available to provide information or explain documents as requested by the Company and its counsel as well as disclosing to the Company and its counsel any facts you know which might be relevant and cooperating fully so as to enable the Company and its counsel to present any claim or defense which it may have relating to such matters. In addition, you agree not to counsel or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges or complaints by any third party against the Company, unless under subpoena or other court or administrative order or legal process to do so.

16.    Right to Disclose. Notwithstanding any other provision of this Transition Agreement to the contrary, you have the right to (a) disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of the law or (b) disclose trade secrets in a document filed in a lawsuit or other proceeding so long as that filing is made under seal and protected from public disclosure. Nothing in this Transition Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

17.    Proprietary Information. You agree that, notwithstanding any other provision of this Transition Agreement to the contrary and without limiting in any manner the Proprietary Information Agreement, as a precondition of your eligibility for and receipt of the Consideration, you shall return to the Company all Company documents (and all copies thereof) and other Company property that you have had in your possession at any time, including, but not limited to, CD’s, electronic files and/or storage devices, presentations; Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property (including, but not limited to, computers, phones, credit cards, entry cards, identification badges and building and desk keys); and, any materials of

 

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any kind that contain or embody any proprietary or confidential information of the Company (and all reproductions thereof). You shall retain no copies of Company records after the date hereof. Any such records have been or will be returned to Company.

18.    Arbitration. You and the Company further agree that the sole remedy for any and all disputes arising out of or based on the terms, interpretation, application, or alleged breach of this Transition Agreement, including any of the Released Claims, shall be binding arbitration, which shall be conducted in San Mateo County, California, before a single arbitrator, in accordance with the then applicable rules of the Judicial Arbitration and Mediation Service (“JAMS”) or by a non-JAMS process to which the parties may otherwise agree. By agreeing to arbitrate, the parties are waiving their respective rights to a jury trial with regard to any of the above-referenced claims.

19.    Entire Agreement. This Transition Agreement constitutes the entire agreement and understanding between you and the Company concerning its subject matter, replaces and supersedes any and all prior agreements and understandings between us (other than the Proprietary Information Agreement, which shall remain in full force and effect), and may only be amended in writing signed by you and an authorized representative of the Company, and that, except for the Proprietary Information Agreement and the Independent Contractor Services Agreement, and except as otherwise expressly provided in this Transition Agreement, this Transition Agreement renders null and void any and all prior or contemporaneous representations, warranties or agreements between you and the Company or any affiliate of the Company. It is agreed that this Transition Agreement shall be governed by the laws of the State of California. If any provision of this Transition Agreement or the application thereof to any person, place, or circumstance shall be held by a court of competent jurisdiction or arbitrator to be invalid, unenforceable, or void, the remainder of this Transition Agreement and such provision as applied to other person, places, and circumstances shall remain in full force and effect. You understand and agree that this Transition Agreement is not an admission of guilt or wrongdoing by the Company and that the Company does not believe or admit that it has done anything wrong.

20.    Acknowledgement. Finally, by your signature below, you acknowledge each of the following: (a) that you have read this Transition Agreement or have been afforded every opportunity to do so; (b) that you are fully aware of this Transition Agreement’s contents and legal effect; (c) that you have reviewed, or have had the opportunity to review, this Transition Agreement with legal counsel of your choosing; and (d) that you have chosen to enter into this Transition Agreement freely, without coercion and based upon your own judgment and not in reliance upon any promises made by Company other than those contained in this Transition Agreement.

21.    Conditionality. Each party acknowledges and agrees that this Transition Agreement shall terminate in its entirety and be of no further force and effect if the Merger Agreement is: (a) not entered into prior to June 30, 2020 or (b) entered into and subsequently terminated prior to the Closing occurring.

[Remainder of Page Left Intentionally Blank]

 

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To accept this Transition Agreement, please sign and date this Transition Agreement and return it to me. Please indicate your agreement with the above terms by signing below.

 

Sincerely,
Adicet Bio Inc.
By:  

/s/ Donald Santel

Name:   Donald Santel
Title:   Executive Chairman
Address for Notices:
200 Constitution Drive
Menlo Park, CA 94025

My agreement with the terms of this Transition Agreement is signified by my signature below. I confirm and acknowledge that I am not entitled to any severance under my Employment Agreement. Furthermore, I acknowledge that I have read and understand this Transition Agreement and that I sign this release of all claims voluntarily, with full appreciation that at no time in the future may I pursue any of the rights I have waived in this Transition Agreement.

 

Signed  

/s/ Anil Singhal

    Dated: April 28, 2020
  Anil Singhal      

Address for Notices:

 

Attachment A:    Independent Contractor Services Agreement
Attachment B:    Form of Release


ATTACHMENT A

INDEPENDENT CONTRACTOR SERVICES AGREEMENT

[See Attached]


ATTACHMENT B

FORM OF RELEASE

[See Attached]


GENERAL RELEASE AGREEMENT

This General Release Agreement is executed by Anil Singhal (“you”), in accordance with your Transition Agreement, dated as of April 28, 2020, by and between you and Adicet Bio, Inc. (the “Company”), as amended, modified or restated from time to time (the “Transition Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Transition Agreement.

In accordance with the Transition Agreement, and in exchange for the Termination Consideration, which you acknowledge exceeds any amounts to which you otherwise may be entitled under the Company’s policies and practices or applicable law, you on behalf of yourself and your heirs, executors, representatives and assigns, hereby fully acquits, releases, waives and discharges from and agree that you have not and will not file, cause to be filed or pursue against, the Company, its affiliates, related, parent or subsidiary companies, and its and their present and former directors, officers, employees, agents, committee members, attorneys and representatives, and each of the foregoing’s successors and assigns (including, without limitation, Parent) (the “Released Parties”) all claims obligations, liabilities, complaints, causes of action, charges, debts, and demands of any kind, known and unknown, in law or in equity, asserted or unasserted (“Claims”) which you may now have or have ever had against any of them, or arising out of your relationship with any of them, including all claims for compensation and bonuses, attorneys’ fees, and all claims arising from your employment with the Company or the termination of your employment, whether based on contract, tort, statute, local ordinance, rule, regulation or any comparable law in any jurisdiction (“Released Claims”).

Released Claims include, but are not limited to:

(i) all Claims arising from your employment with the Company or the termination of that employment, including Claims for wrongful termination or retaliation and the terms and conditions of employment;

(ii) all Claims related to your compensation or benefits from the Company, including salary, wages, bonuses, commissions, incentive compensation, profit sharing, retirement benefits, paid time off, vacation, sick leave, leaves of absence, expense reimbursements, equity, severance pay, and fringe benefits;

(iii) all Claims for breach of contract, breach of quasi-contract, promissory estoppel, detrimental reliance, and breach of the implied covenant of good faith and fair dealing;

(iv) all tort Claims, including Claims for fraud, defamation, slander, libel, disparagement, negligent or intentional infliction of emotional distress, personal injury, negligence, compensatory or punitive damages, negligent or intentional misrepresentation, and discharge in violation of public policy;

(v) all federal, state, and local statutory Claims, including Claims for discrimination, harassment, retaliation, attorneys’ fees, medical expenses, experts’ fees, costs and disbursements; and

(vi) any other Claims of any kind whatsoever, from the beginning of time until the date you sign this General Release Agreement, in each case whether based on contract, tort, statute, local ordinance, rule, regulation or any comparable law, public policy or common law in any jurisdiction.

By way of example and not limitation, Released Claims shall include any Claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1991; the Civil Rights Acts of 1866 and/or 1871, 42 U.S.C. Section 1981; the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; the Family Medical Leave


Act, 29 U.S.C. § 2601 et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; the federal Worker Adjustment Retraining Notification Act, 29 U.S.C. § 2102 et seq., the California WARN Act, California Labor Code § 1400 et seq., the California Fair Employment and Housing Act, Cal. Gov. Code §12900 et seq., the California Labor Code, and the orders of the California Industrial Welfare Commission. The parties intend for this release to be enforced to the fullest extent permitted by law. You understand that you are not waiving any right or Claim that cannot be waived as a matter of law, such as workers’ compensation Claims, Claims for indemnification under California Labor Code Section 2802, Claims for unemployment insurance benefits, your right to vested equity or other vested benefits, or as otherwise set forth in this General Release Agreement. YOU UNDERSTAND AND AGREE THAT THIS GENERAL RELEASE AGREEMENT CONTAINS A GENERAL RELEASE OF ALL CLAIMS.

You further agree that because this release specifically covers known and unknown claims, you waive your rights under Section 1542 of the California Civil Code, or under any comparable law of any other jurisdiction. Section 1542 states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

You intend for this release to be enforced to the fullest extent permitted by law. Notwithstanding the foregoing, you acknowledge and agree that you are not waiving or being required to waive any right that cannot be waived as a matter of law, including the right to file a charge, report an alleged violation of law or participate in an investigation by a governmental administrative agency, including your ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local government agency or commission (“Government Agencies”). You further understand that this General Release Agreement does not limit your ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company; provided, however, that you hereby disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge, report or investigation, except that you may receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. This General Release does not release any rights you may have pursuant to the Transition Agreement or Independent Contractor Services Agreement.

You further specifically unconditionally release and forever discharge the Released Parties from any and all Claims that you may have as of the date you sign this General Release Agreement arising under the ADEA. By signing this General Release Agreement, you acknowledge and confirm that: (i) you have been advised by the Company to consult with an attorney of your choice before signing this General Release Agreement; (ii) you were given no fewer than [twenty-one (21) or forty-five (45)] days to consider the terms of this General Release Agreement, although you may sign it sooner if desired; (iii) you are providing this release in exchange for consideration in addition to that which you are already entitled; (iv) you have seven (7) days from the date of signing this General Release Agreement to revoke this General Release Agreement by providing the Company with a written notice of revocation to the current [Chairman of the Board of Directors of the Company] at the Company’s principal executive office located at [LOCATION], before the end of such seven-day period (“Revocation Period”); (v) this General Release Agreement will not become effective, and you will not be entitled to any Termination Consideration, until the Revocation Period passes without you revoking this General Release Agreement; (vi) the release contained in this


paragraph does not apply to rights and claims that may arise after the date on which you sign this General Release Agreement, and (vii) you knowingly and voluntarily accept the terms of this General Release Agreement. You further agree that any change to this General Release Agreement, whether material or immaterial, will not restart the [twenty-one (21) or forty-five (45)] day period for you to consider the terms of this General Release Agreement.

You affirm that you have not initiated, filed or caused to be filed and agree not to initiate, file or cause to be filed any Released Claims against any of the Released Parties. You further agree not to encourage any person, including any current or former Company employee, to file any kind of claim whatsoever against the Released Parties, or any of them, and not to solicit, assist, support or in any way cooperate in the initiation or prosecution of any action or proceeding brought against the Released Parties, or any of them, by a third party, except if compelled to do so by legal process which includes when compelled by court order, subpoena or written request by an administrative agency or the legislature to testify regarding alleged criminal conduct or alleged sexual harassment.

Notwithstanding anything to the contrary in this General Release Agreement, nothing in this General Release Agreement shall prohibit or interfere with you exercising protected rights to file a charge with or report to any Governmental Agency. You do not need the Company’s advance permission to file any such charge or report or to participate in any such investigation. You do, however, waive any right to receive any monetary award or benefit resulting from such a charge, report, or investigation related to any Released Claims, except that you may receive and fully retain a monetary award from a government-administered whistleblower award program. You further acknowledge and agree that this General Release Agreement shall not be construed as a waiver of any rights that are not subject to waiver by private agreement or otherwise cannot be waived as a matter of law.

You represent and warrant that you have returned to the Company—and have not retained any copies of—all Company property, including, without limitation, all documents and data in whatever form maintained, confidential information, computer hardware or software, files, papers, memoranda, correspondence, client lists, employee information, financial records and information, credit cards, keys, access cards, tape recordings, pictures and any other items of any nature which were or are the property of the Company. You understand that you will not be eligible for any Termination Consideration, until you return all Company property.

You agree to reasonably cooperate with the Company in any pending or future litigation and/or administrative investigation in which the Company is a party and/or is the subject of an administrative investigation where you have relevant knowledge or information.

You agree that the Transition Agreement and this General Release Agreement contain all of the agreements and understandings between you and the Company with respect to their subject matter, and may not be contradicted by evidence of any prior or contemporaneous agreement; provided, however, that, the Proprietary Information Agreement shall not be modified in any way by this General Release Agreement and shall continue in full force and effect in accordance with its terms. This General Release Agreement shall be governed by the laws of the State of California. If any provision of this General Release Agreement or its application to any person, place, or circumstance is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this General Release Agreement and such provision as applied to other person, places, and circumstances will remain in full force and effect. Nothing in this General Release Agreement shall be construed as an admission by any party of any wrongdoing, violation of the Company’s policies or procedures, or violations of any federal, state or local law.

Finally, by your signature below, you acknowledge each of the following: (a) you have read this General Release Agreement or have been afforded every opportunity to do so; (b) you are fully aware of this General


Release Agreement’s contents and legal effect; (c) you have reviewed, or have had the opportunity to review, this General Release Agreement with legal counsel of your choosing; and (d) you have chosen to enter into this General Release Agreement freely, without coercion and based upon your own judgment and not in reliance upon any promises made by the Company other than those contained in this General Release Agreement.

Please note that this General Release Agreement may be signed no earlier than your last date of employment with the Company, and that your eligibility for any Termination Consideration, is conditioned upon meeting the terms set forth in the Transition Agreement.

 

 

          Date:                                                    
Anil Singhal        
EX-10.10

Exhibit 10.10

INDEPENDENT CONTRACTOR SERVICES AGREEMENT

THIS INDEPENDENT CONTRACTOR SERVICES AGREEMENT (this “Agreement”) effective as of April 28, 2020 (the “Effective Date”), is entered into between Adicet Bio, Inc., a Delaware corporation (“Adicet”), and Anil Singhal (“Contractor”). The parties hereby agree as follows:

1.    Engagement for Services. Subject to and contingent upon Contractor providing services as an employee of Adicet through the Resignation Date and the Closing occurring (each as defined in that certain letter agreement, dated on or about the date hereof, by and between Contractor and Adicet, as amended, modified or restated from time to time (the “Transition Agreement”)), Adicet hereby engages Contractor to perform the services (the “Services”) described on Exhibit A on the terms and conditions of this Agreement from and after the Resignation Date (the “Start Date”). Contractor hereby accepts such engagement, and shall perform the Services and otherwise act in strict accordance with the terms and conditions of this Agreement. Contractor shall comply with all applicable Adicet policies and procedures in the performance of the Services. Contractor shall perform the Services in accordance with all applicable laws, regulations and the highest professional industry standards. Except as otherwise provided herein, Adicet shall not control the manner or means by which Contractor performs the Services.

2.    Place of Work. Contractor is generally free to perform Contractor’s Services at a location of Contractor’s choosing. Contractor understands that the Services must coordinate with Adicet’s established protocols and security requirements and may from time to time need to be performed at Adicet’s premises.

3.    Compensation. Adicet shall pay Contractor the compensation set forth in Exhibit A in accordance with the payment schedule set forth therein. If provided for in Exhibit A, Adicet shall reimburse Contractor’s reasonable expenses in accordance with, and subject to the terms and conditions set forth on, Exhibit A. Upon termination of this Agreement for any reason, Contractor shall be (a) paid fees on the basis set forth in Exhibit A and (b) reimbursed only for expenses that are incurred prior to termination of this Agreement and in accordance with this Agreement.

4.    Disclosure and Assignment of Work Product.

4.1    Work Product. “Work Product” shall mean all (a) deliverables, discoveries, inventions, designs, processes, formulae, developments, improvements, works of authorship, results, information, data, know-how, ideas, concepts, technology or intellectual property (in each case, whether or not protectable under patent, copyright or trade secret laws) and (b) patent rights, copyrights, trade secret rights, mask work rights, trademark rights, trade names, trade dress, trade secret rights, sui generis database rights and all other intellectual property rights of any sort throughout the world, in each case of any of the foregoing in (a) or (b), conceived, created, generated, made, derived, developed or reduced to practice, whether directly or indirectly or solely or jointly with others, from, using, or in connection with (i) the performance of the Services or (ii) any Confidential Information (as defined below).

4.2    Disclosure and Assignment of Work Product. Contractor shall maintain adequate and current records of all Work Product, which records shall be and remain the property of Adicet. Contractor shall promptly disclose and describe to Adicet all Work Product. Contractor shall, and hereby does, assign to Adicet, or Adicet’s designee, all of Contractor’s right, title and interest in and to any and all Work Product, all associated records, and all intellectual property rights therein and thereto. Contractor retains no rights to use the Work Product.

4.3    Further Assistance. Contractor shall perform, during and after the term of this Agreement, all acts that Adicet deems necessary or desirable to permit and assist Adicet in obtaining,

 

1


perfecting and enforcing the full benefits, enjoyment, rights and title throughout the world in the Work Product. Such assistance shall include, without limitation, the maintenance of adequate and current records of any and all Work Product, the disclosure of all pertinent information and data relating to Work Product, the execution of all applications, specifications, oaths, and assignments, and all other instruments and papers that Adicet shall deem necessary to apply for and to assign or convey to Adicet, its successors, and assigns or nominees, the sole and exclusive right, title, and interest in such Work Product. If Adicet is unable for any reason to secure Contractor’s signature to any document required to file, prosecute, register, enforce or memorialize the assignment of any rights under any Work Product, Contractor hereby irrevocably designates and appoints Adicet as Contractor’s agent and attorney-in-fact to act for and on Contractor’s behalf and instead of Contractor to take all lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance and enforcement of rights under such Work Product, all with the same legal force and effect as if executed by Contractor. The foregoing is deemed a power coupled with an interest and is irrevocable.

4.4    License. To the extent any of the rights, title and interest in and to any Work Product cannot be assigned by Contractor to Adicet, Contractor hereby unconditionally and irrevocably grants to Adicet and Adicet’s designees and successors in interest an exclusive (even as to Contractor), royalty-free, transferable, irrevocable, perpetual, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Adicet) all or any portion of such non-assignable rights, title and interest, in each case in any medium or format, whether now known or later developed, and in each case without notice to, the consent of, or accounting to Contractor. To the extent any of the rights, title and interest in and to any Work Product can neither be assigned nor licensed by Contractor to Adicet, Contractor hereby unconditionally and irrevocably waives and agrees never to assert such non-assignable and non-licensable rights, title and interest, and any associated claims or causes of action, against Adicet or any of Adicet’s designees or successors in interest. Contractor further waives any “moral” rights or other rights with respect to attribution of authorship or integrity of such Work Product that Contractor may have under any applicable law, whether under copyright, trademark, unfair competition, defamation, right of privacy, contract, tort or other legal theory.

4.5    Out-of-Scope Innovations. Contractor agrees not to use or incorporate into any Work Product any confidential or proprietary information, technology or intellectual property conceived, created, generated, made, derived, developed or reduced to practice (a) by Contractor other than in the course of performing the Services or (b) by any third party (collectively, the “Out-of-Scope Innovations”). To the extent Contractor uses, incorporates or permits to be incorporated into any Work Product any Out-of-Scope Innovations, then Contractor hereby grants to Adicet and Adicet’s designees and successors in interest a non-exclusive, royalty-free, transferable, irrevocable, perpetual, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Adicet) all or any portion of such Out-of-Scope Innovations, in each case in any medium or format, whether now known or later developed, and without notice to, the consent of, or accounting to Contractor. To the extent any of the rights, title and interest in and to any Out-of-Scope Innovations cannot be licensed by Contractor to Adicet, Contractor hereby unconditionally and irrevocably waives and agrees never to assert such non-licensable rights, title and interest, and any associated claims or causes of action, against Adicet or any of Adicet’s designee or successors in interest.

 

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5.    Confidentiality.

5.1    Confidential Information. “Confidential Information” shall mean (a) any and all data and information (and all tangible and intangible embodiments thereof), whether or not marked or identified as confidential or proprietary, of any type whatsoever, whether in writing, or in oral, graphic, electronic or any other form, related to Adicet, its technology, intellectual property, contracts, business relationships, products, product candidates, employees, business, assets, finances, operations or opportunities and/or the Services, (b) all Work Product and all associated records, (c) the existence of this Agreement and the nature and scope of the Services, the terms and conditions hereof and thereof, and the performance of the Services, and (d) any other data or information (and all tangible and intangible embodiments thereof), including any trade secrets, that may be provided, made accessible or made known to, Contractor from or in connection with the performance of the Services, including, without limitation, any such information that Adicet has received from others that Adicet is obligated to treat as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include (i) information that is or becomes publicly known through lawful means through no act or omission of Contractor; (ii) information that was rightfully known by Contractor without confidential or proprietary restriction before receipt from Adicet, as evidenced by Contractor’s contemporaneous written records; or (iii) information that is disclosed to Contractor without restriction by a third party who rightfully possesses the information and does not owe a duty of confidentiality to Adicet with respect to such information.

5.2    Nondisclosure and Nonuse. Except as permitted in this Section 5, Contractor shall maintain in confidence and not, directly or indirectly, use, disseminate or in any way disclose the Confidential Information to any third party, other than Adicet. Contractor may use the Confidential Information solely to perform the Services for the sole and exclusive benefit of Adicet and for no other purpose. Contractor shall treat all Confidential Information with the same degree of care as Contractor accords to Contractor’s own confidential information, but in no case shall Contractor use less than reasonable care. Contractor shall immediately give notice to Adicet of any unauthorized use or disclosure of the Confidential Information. Contractor shall assist Adicet in remedying any such unauthorized use or disclosure of the Confidential Information.

5.3    Permitted Disclosure. Contractor’s nondisclosure obligations under Section 5.2 shall not apply to the extent that Contractor is required to disclose information by applicable law, regulation or order of a governmental agency or a court of competent jurisdiction; provided, however, that Contractor shall provide advanced written notice thereof to Adicet, consult with Adicet with respect to such disclosure and provide Adicet sufficient opportunity to object to any such disclosure or to request confidential treatment thereof (if applicable) and reasonably cooperate with Adicet in objecting to or narrowing the scope of such disclosure and/or obtaining a protective order or confidential treatment of such disclosure.

5.4    Ownership and Return of Confidential Information and Adicet Property. All Confidential Information and any materials (including, without limitation, documents, drawings, papers, media, tapes, models, apparatus, sketches, designs and lists) relating thereto, as well as any other materials furnished by Adicet to Contractor in connection with this Agreement, and any copies or derivatives thereof (collectively, the “Adicet Property”), are and shall remain the sole and exclusive property of Adicet. Within five (5) days after any request by Adicet, Contractor shall destroy or deliver to Adicet, at Adicet’s option, (a) all Adicet Property and (b) all materials in Contractor’s possession or control that contain or disclose any Confidential Information. Nothing in this Section 5 is intended to limit any remedy of Adicet under the California Uniform Trade Secrets Act (California Civil Code Section 3426), or otherwise available under law.

5.5    Third Party Information. Contractor shall not disclose to Adicet, or bring onto Adicet’s premises or induce Adicet to use any confidential or proprietary information, technology or intellectual property that belongs to anyone other than Adicet or Contractor or otherwise take any action that may result in any Work Product being considered owned, in whole or in part, by any other third party.

 

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5.6    Privacy. Contractor acknowledges that Adicet may access all information and materials generated, received or maintained by or for Contractor on the premises or equipment of Adicet (including, without limitation, computer systems and electronic or voice mail systems), and Contractor hereby waives any privacy rights Contractor may have with respect to such information and materials. During the term of this Agreement and thereafter, Contractor shall adhere to any policies, guidelines or the like adopted by Adicet from time to time regarding treatment of personal information. Further, Contractor understands that there are laws in the United States and other countries that protect personal information, and agrees to comply with all applicable laws regarding the use and disclosure of any personal information.

6.    Waiver of Rights and Constructive Trust. Contractor hereby waives any and all rights Contractor may have or hereafter acquire in or to the Work Product, the Confidential Information or the Adicet Property, or any other work product derived directly or indirectly therefrom. Without limiting the generality of any other provision of this Agreement, Contractor shall not copy, disclose, publish or otherwise disseminate (including without limitation in the form of any book, movie, television show, video, article, interview, blog, tweet, website posting or other public disclosure or use of any type whatsoever) the Work Product, the Confidential Information or the Adicet Property, or any other work product derived directly or indirectly therefrom. Any and all proceeds (in cash, in kind or otherwise) directly or indirectly resulting from any violation of this Agreement shall be held in constructive trust for the sole and exclusive benefit of Adicet, and Contractor immediately shall pay or deliver to Adicet any and all of such proceeds.

7.    Independent Contractor Relationship. Contractor’s relationship with Adicet is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. Neither Contractor nor, if Contractor is an entity, any employee of Contractor (which for purposes of this Section 7 shall be included in the term “Contractor”) shall be entitled to any benefits accorded to Adicet’s employees, including workers’ compensation, disability insurance, retirement plans, or vacation or sick pay. Contractor’s exclusion from benefit programs maintained by Adicet is a material component of the terms of compensation negotiated by the parties, and is not premised on Contractor’s status as a non-employee with respect to Adicet. To the extent that Contractor may become eligible for any benefit programs maintained by Adicet (regardless of the timing of or reason for eligibility), Contractor hereby waives Contractor’s right to participate in the programs. Contractor’s waiver is not conditioned on any representation or assumption concerning Contractor’s status under the common law test. Consistent with Contractor’s independent contractor status, Contractor shall not apply for any government-sponsored benefits that are intended to apply to employees, including, without limitation, unemployment benefits. Contractor is not authorized to make any representation, contract or commitment on behalf of Adicet unless specifically requested or authorized in writing to do so by Adicet. Contractor is solely responsible for, and shall file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement, and shall provide Adicet with proof of payment on demand. Contractor is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement. No part of Contractor’s compensation shall be subject to withholding by Adicet for the payment of any social security, federal, state or any other employee payroll taxes. Contractor shall be responsible for providing, at Contractor’s expense and in Contractor’s name, disability, workers’ compensation, or other insurance as well as licenses and permits usual or necessary for performing the Services.

 

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8.    Term and Termination.

8.1    Term. This Agreement is effective as of the Effective Date set forth above and shall terminate on the one (1) year anniversary of the Closing, unless terminated earlier as set forth below.

8.2    Termination. Either party may terminate this Agreement at any time, without cause, on ten (10) days’ prior express written notice of termination. Either party may terminate this Agreement immediately upon any material breach by the other party by express written notice of such termination.

8.3    Merger Termination. Each party acknowledges and agrees that this Agreement shall terminate in its entirety and be of no further force and effect if the Merger Agreement (as defined in the Transition Agreement) is: (1) not entered into prior to June 30, 2020 or (ii) entered into and subsequently terminated prior to the Closing occurring.

8.4    Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Adicet shall pay Contractor for services performed under this Agreement as set forth in Section 2 and Exhibit A. The provisions of Sections 4, 5, 6, 7, 8.4, 10, 11 and 12 shall survive any termination or expiration of this Agreement.

9.    Other Services; No Conflict of Interest. Contractor may represent, perform services for, or be employed by such additional persons or companies as Contractor sees fit, except to the extent that doing so causes Contractor to breach Contractor’s obligations under this Agreement. During the term of this Agreement, Contractor shall not accept work, enter into a contract or accept an obligation inconsistent or incompatible with Contractor’s obligations, or the Services to be rendered to Adicet, under this Agreement. Contractor represents and warrants that Contractor does not presently perform consulting or other services for, or engage in an employment relationship with, companies whose business or proposed business in any way involve products or services which would be competitive with Adicet’s products or services, or those products or services proposed or in development by Adicet during the term of the Agreement. If, however, Contractor decides to do so, Contractor agrees that, (a) Contractor shall continue to abide by the terms of this Agreement, and (b) in advance of accepting such work, Contractor will promptly notify Adicet in writing, specifying the organization with which Contractor proposes to consult, provide services, or become employed by to allow Adicet to determine if such work would conflict with the terms of this Agreement, the interests of Adicet or further services which Adicet might request of Contractor hereunder and (c) Adicet shall have the right to immediately terminate this Agreement by written notice to Contractor.

10.    Contractors Representations and Warranties; Indemnification.

10.1    Contractor represents and warrants to Adicet that (a) Contractor has the qualifications and ability to perform the Services in accordance with the terms of this Agreement, without the advice, control or supervision of Adicet, (b) Contractor shall be solely responsible for the professional performance of the Services and shall receive no assistance, direction or control from Adicet, (c) Contractor has good title to any Work Product and the right to assign Work Product to Adicet free of any proprietary rights of any other party or any other encumbrance whatsoever, (d) neither the Work Product nor any element thereof will infringe or misappropriate any intellectual property or proprietary right of any person or entity, whether contractual, statutory or common law, (e) Contractor has never been debarred by the United States Food and Drug Administration, or other applicable governing health authority (or authorities), under any existing or prior law or regulation and (f) (i) Contractor has all necessary power and capacity (if Contractor is an individual) or authority (if Contractor is an entity) to enter into and perform this Agreement, (ii) this Agreement constitutes Contractor’s valid and binding obligation, enforceable in accordance with its terms, (iii) the execution and performance of this Agreement by Contractor do not (1) violate any

 

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provision of law applicable to Contractor, (2) conflict with or result in a default under any duty, document, agreement or instrument to which Contractor is a party or is otherwise subject to or (3) except for notices, approvals and consents that have been made or obtained, require that Contractor obtain any consent or approval of, or give notice to, any person. Contractor further represents and warrants that, following the Closing, Contractor will be engaged in an independently established trade, occupation, or business; maintains and operate or be employed by a business that is separate and independent from Adicet’s business; will hold himself or herself out to the public as independently competent and available to provide applicable services similar to the Services; may obtain and/or expect to obtain clients or customers other than Adicet for whom Contractor performs services or is employed; and will perform work for Adicet that Contractor understands is outside the usual course of Adicet’s business.

10.2    Contractor shall and does hereby indemnify, defend, and hold harmless Adicet, and Adicet’s officers, directors, equityholders, employees, agents, affiliates, subsidiaries, representatives, successors and assigns, from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, settlements, judgments, recoveries, and deficiencies, including, without limitation, interest, penalties, and reasonable attorney fees and costs, that Adicet may incur or suffer to the extent resulting from or relating to any breach or failure of Contractor to perform any of its representations, warranties, and covenants in this Agreement or any actual or alleged breach by Contractor of any contract with or duty to any third party.

11.    Non-Solicitation. Contractor acknowledges that, because of Contractor’s responsibilities at Adicet, Contractor will help to develop, and will be exposed to, Adicet’s business strategies, information on customers and clients, and other valuable Confidential Information and trade secrets, and that use or disclosure of such Confidential Information and trade secrets in breach of this Agreement would be extremely difficult to detect or prove. Contractor also acknowledges that Adicet’s relationships with its employees, customers, clients, vendors, and other persons are valuable business assets. Therefore, Contractor agrees that Contractor shall not, during Contractor’s engagement with Adicet pursuant to this Agreement, or for a period of one year following termination of Contractor’s engagement with Adicet for any reason, directly or indirectly solicit, induce, recruit, or encourage any officer, director, employee, independent contractor or consultant of Adicet who was employed by or affiliated with Adicet at the time of the termination of Contractor’s engagement with Adicet to leave Adicet or terminate his or her employment or relationship with Adicet.

12.    Miscellaneous.

12.1    Successors and Assigns. Contractor may not subcontract or otherwise assign, transfer or delegate Contractor’s rights or obligations under this Agreement without Adicet’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors, and permitted assigns, and shall not benefit any person or entity other than those enumerated above. Adicet may fully assign and transfer this Agreement in whole or part.

12.2    Counterparts; Signatures. This Agreement may be executed and delivered by 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. Any signature page delivered by facsimile or e-mail transmission of images in Adobe PDF or similar format shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto.

12.3    Injunctive Relief. Contractor’s obligations under this Agreement are of a unique character that gives them particular value; Contractor’s breach of any of such obligations shall result in irreparable and continuing damage to Adicet for which money damages are insufficient, and Adicet shall,

 

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in addition to any other remedies that may be available at law, in equity or otherwise, be entitled to injunctive relief and/or a decree for specific performance without the necessity of posting a bond. Contractor waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.

12.4    Attorneys’ Fees. If any legal action (including, without limitation, an action for arbitration or injunctive relief) is brought relating to this Agreement or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award in any such action shall be entitled to receive from the other party the reasonable attorneys’ fees (and all related costs and expenses), and all other costs and expenses paid or incurred by such prevailing party in connection with such action or proceeding and in connection with enforcing any judgment or order with respect to such matter.

12.5    Governing Law; Forum. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof. The parties hereby irrevocably and unconditionally (a) submit to the jurisdiction of the federal and state courts located within the geographical boundaries of the United States District Court for the Northern District of California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the federal and state courts located within the geographical boundaries of the United States District Court for the Northern District of California, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

12.6    Notices. All notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other party; (b) when sent by electronic mail to the address set forth on the signature pages hereto if sent between 8:00 am and 5:00 pm recipient’s local time on a business day, or on the next business day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time; (c) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party at the address set forth on the signature pages hereto; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth on the signature pages hereto with next business day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 11.7 by giving the other party written notice of the new address in the manner set forth above.

12.7    Further Assurances. Adicet and Contractor shall from time to time and at all times hereafter make, do, execute, or cause or procure to be made, done and executed such further acts, deeds, conveyances, consents and assurances without further consideration, which may reasonably be required to effect the transactions contemplated by this Agreement.

12.8    Enforceability; Severability. The parties hereto agree that each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If one or more provisions of this Agreement are held to be unenforceable under applicable law, (a) such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement, and (b) the balance of the Agreement shall be interpreted as if such provision were so modified and shall be enforceable in accordance with its terms.

 

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12.9    Amendments; Waivers. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instrument in writing executed by Contractor and a duly authorized representative of Adicet. No waiver by a party of a breach of or obligation under this Agreement shall constitute a waiver of any other or subsequent breach or obligation.

12.10    18 U.S.C. § 1833(b) Notice. Contractor understands that 18 U.S.C. § 1833(b) states as follows:

An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that-(A) is made-(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

Accordingly, notwithstanding anything to the contrary in this Agreement, Contractor understands that Contractor has the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. Contractor understands that Contractor also has the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Contractor understands and acknowledges that nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

12.11    Acknowledgement; Interpretation. The parties acknowledge that: (a) they have each had the opportunity to consult with independent counsel of their own choice concerning this Agreement and have done so to the extent they deem necessary, and (b) they each have read and understand the Agreement, are fully aware of its legal effect, and have entered into it voluntarily and freely based on their own judgment and not on any promises or representations other than those contained in the Agreement. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of this Agreement.

12.12    Entire Agreement. This Agreement, together with the Transition Agreement, constitute the entire agreement between the parties relating to this subject matter and supersede all prior or contemporaneous representations, warranties or agreements concerning such subject matter, written or oral; provided, however, that, notwithstanding the foregoing, this Agreement shall in no way supersede or effect the enforceability of that certain Employee Proprietary Information and Inventions Assignment Agreement, dated as of May 6, 2019, by and between Adicet and Contractor, which shall continue in full force and effect.

[Remainder of Page Left Intentionally Blank]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

 

ADICET BIO, INC.
By:  

/s/ Donald Santel

Name:   Donald Santel
Title:   Executive Chairman
Address for Notices:
200 Constitution Drive
Menlo Park, CA 94025
ANIL SINGHAL
By:  

/s/ Anil Singhal

Name:   Anil Singhal
Address for Notices:

 

SIGNATURE PAGE TO INDEPENDENT CONTRACTOR SERVICES AGREEMENT


EXHIBIT A

SERVICES AND COMPENSATION

Description of Services.

Contractor will serve as a senior advisor to Adicet and provide strategic advice and such other services, all as related to Adicet business, as requested by Adicet from time to time.

Contractor agrees to be available and to devote as requested up to 40 hours per month to performing Contractor’s obligations to Adicet pursuant to this Agreement (or such greater amount as mutually agreed to from time to time by Contractor and Adicet). Without Contractor’s consent, Contractor has no duty or obligation to ever work more than 40 hours in any given month.

Adicet shall not supervise Contractor in the day-to-day performance of the Services. All of the services to be performed by Contractor, including but not limited to the Services, will be as agreed between Contractor and the Board or the Board’s designee. Contractor will be required to report to the Board or the Board’s designee concerning the Services performed under this Agreement. The nature and frequency of these reports will be in the discretion of the Board or the Board’s designee.

Contractor shall be free to choose the location at which Contractor provides the Services; provided, however, that Contractor shall be available to provide the Services at Adicet’s San Francisco Bay Area offices at least one day a week if requested by the Board or the Board’s designee upon reasonable advance notice.

Compensation and Payment Terms.

Adicet shall pay Contractor $12,500.00 per month during the term of this Agreement commencing on the Start Date, pro-rated for any partial month of service hereunder. Such amounts shall be paid within thirty (30) days of the end of each month during the term of this Agreement. Any additional hours beyond 40 hours in any given month shall be compensated at the rate of $312.50 per hour, pro-rated for any partial hour of service hereunder.

Contractor shall not be authorized to incur on behalf of Adicet any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to in advance by the Board or the Board’s designee in writing (“Approved Expenses”). Adicet shall reimburse Approved Expenses no later than thirty (30) days after Adicet’s receipt of Contractor’s invoice, provided that reimbursement for Approved Expenses may be delayed until such time as Contractor has furnished reasonable documentation for Approved Expenses as Adicet may reasonably request. Contractor shall submit to Adicet all statements for Approved Expenses incurred on a monthly basis in a form prescribed by Adicet.

 

A-1

EX-10.13

Exhibit 10.13

ADICET BIO, INC.

2015 STOCK INCENTIVE PLAN

1.    Purposes of the Plan. The purposes of this Plan are to attract and retain the best available personnel, to provide additional incentives to Employees, Directors and Consultants and to promote the success of the Company’s business.

2.    Definitions. The following definitions shall apply as used herein and in the individual Award Agreements except as defined otherwise in an individual Award Agreement. In the event a term is separately defined in an individual Award Agreement, such definition shall supersede the definition contained in this Section 2.

(a)    “Administrator” means the Board or any of the Committees appointed to administer the Plan.

(b)    “Applicable Laws” means the legal requirements relating to the Plan and the Awards under applicable provisions of federal and state securities laws, the corporate laws of California and, to the extent other than California, the corporate law of the state of the Company’s incorporation, the Code, the rules of any applicable stock exchange or national market system, and the rules of any non-U.S. jurisdiction applicable to Awards granted to residents therein.

(c)    “Assumed” means that pursuant to a Corporate Transaction either (i) the Award is expressly affirmed by the Company or (ii) the contractual obligations represented by the Award are expressly assumed (and not simply by operation of law) by the successor entity or its Parent in connection with the Corporate Transaction with appropriate adjustments to the number and type of securities of the successor entity or its Parent subject to the Award and the exercise or purchase price thereof which at least preserves the compensation element of the Award existing at the time of the Corporate Transaction as determined in accordance with the instruments evidencing the agreement to assume the Award.

(d)    “Award” means the grant of an Option, SAR, Dividend Equivalent Right, Restricted Stock, Restricted Stock Unit or other right or benefit under the Plan.

(e)    “Award Agreement” means the written agreement evidencing the grant of an Award executed by the Company and the Grantee, including any amendments thereto.

(f)    “Board” means the Board of Directors of the Company.

(g)    “Cause” means, with respect to the termination by the Company or a Related Entity of the Grantee’s Continuous Service, that such termination is for “Cause” as such term (or word of like import) is expressly defined in a then-effective written agreement between the Grantee and the Company or such Related Entity, or in the absence of such then-effective written agreement and definition, is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act or failure to perform any act in bad faith and to the detriment of the Company or a Related Entity; (ii) dishonesty, intentional misconduct or material breach of any agreement with the Company or a Related Entity; or (iii) commission of a crime

 

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involving dishonesty, breach of trust, or physical or emotional harm to any person; provided, however, that with regard to any agreement that defines “Cause” on the occurrence of or in connection with a Corporate Transaction, such definition of “Cause” shall not apply until a Corporate Transaction actually occurs.

(h)    “Code” means the Internal Revenue Code of 1986, as amended.

(i)    “Committee” means any committee composed of members of the Board appointed by the Board to administer the Plan.

(j)    “Common Stock” means the common stock of the Company.

(k)    “Company” means Adicet Bio, Inc., a Delaware corporation, or any successor entity that adopts the Plan in connection with a Corporate Transaction.

(l)    “Consultant” means any person (other than an Employee or a Director, solely with respect to rendering services in such person’s capacity as a Director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity.

(m)    “Continuous Service” means that the provision of services to the Company or a Related Entity in any capacity of Employee, Director or Consultant is not interrupted or terminated. In jurisdictions requiring notice in advance of an effective termination as an Employee, Director or Consultant, Continuous Service shall be deemed terminated upon the actual cessation of providing services to the Company or a Related Entity notwithstanding any required notice period that must be fulfilled before a termination as an Employee, Director or Consultant can be effective under Applicable Laws. A Grantee’s Continuous Service shall be deemed to have terminated either upon an actual termination of Continuous Service or upon the entity for which the Grantee provides services ceasing to be a Related Entity. Continuous Service shall not be considered interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entity, or any successor, in any capacity of Employee, Director or Consultant, or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee, Director or Consultant (except as otherwise provided in the Award Agreement). Notwithstanding the foregoing, except as otherwise determined by the Administrator, in the event of any spin-off of a Related Entity, service as an Employee, Director or Consultant for such Related Entity following such spin-off shall be deemed to be Continuous Service for purposes of the Plan and any Award under the Plan. An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave. For purposes of each Incentive Stock Option granted under the Plan, if such leave exceeds three (3) months, and reemployment upon expiration of such leave is not guaranteed by statute or contract, then the Incentive Stock Option shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following the expiration of such three (3) month period.

(n)    “Corporate Transaction” means any of the following transactions, provided, however, that the Administrator shall determine under parts (iv) and (v) whether multiple transactions are related, and its determination shall be final, binding and conclusive:

(i)    a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Company is incorporated;

 

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(ii)    the sale, transfer or other disposition of all or substantially all of the assets of the Company;

(iii)    the complete liquidation or dissolution of the Company;

(iv)    any reverse merger or series of related transactions culminating in a reverse merger (including, but not limited to, a tender offer followed by a reverse merger) in which the Company is the surviving entity but (A) the shares of Common Stock outstanding immediately prior to such merger are converted or exchanged by virtue of the merger into other property, whether in the form of securities, cash or otherwise, or (B) in which securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from those who held such securities immediately prior to such merger or the initial transaction culminating in such merger, but excluding any such transaction or series of related transactions that the Administrator determines shall not be a Corporate Transaction; or

(v)    acquisition in a single or series of related transactions by any person or related group of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities but excluding any such transaction or series of related transactions that the Administrator determines shall not be a Corporate Transaction.

(o)    “Covered Employee” means an Employee who is a “covered employee” under Section 162(m)(3) of the Code.

(p)    “Director” means a member of the Board or the board of directors of any Related Entity.

(q)    “Disability” means as defined under the long-term disability policy of the Company or the Related Entity to which the Grantee provides services regardless of whether the Grantee is covered by such policy. If the Company or the Related Entity to which the Grantee provides service does not have a long-term disability plan in place, “Disability” means that a Grantee is unable to carry out the responsibilities and functions of the position held by the Grantee by reason of any medically determinable physical or mental impairment for a period of not less than ninety (90) consecutive days. A Grantee will not be considered to have incurred a Disability unless he or she furnishes proof of such impairment sufficient to satisfy the Administrator in its discretion.

(r)    “Dividend Equivalent Right” means a right entitling the Grantee to compensation measured by dividends paid with respect to Common Stock.

 

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(s)    “Employee” means any person, including an Officer or Director, who is in the employ of the Company or any Related Entity, subject to the control and direction of the Company or any Related Entity as to both the work to be performed and the manner and method of performance. The payment of a director’s fee by the Company or a Related Entity shall not be sufficient to constitute “employment” by the Company.

(t)    “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(u)    “Fair Market Value” means, as of any date, the value of Common Stock determined as follows:

(i)    If the Common Stock is listed on one or more established stock exchanges or national market systems, including without limitation The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market of The NASDAQ Stock Market LLC, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on the principal exchange or system on which the Common Stock is listed (as determined by the Administrator) on the date of determination (or, if no closing sales price or closing bid was reported on that date, as applicable, on the last trading date such closing sales price or closing bid was reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(ii)    If the Common Stock is regularly quoted on an automated quotation system (including the OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value shall be the closing sales price for such stock as quoted on such system or by such securities dealer on the date of determination, but if selling prices are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the date of determination (or, if no such prices were reported on that date, on the last date such prices were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or

(iii)    In the absence of an established market for the Common Stock of the type described in (i) and (ii), above, the Fair Market Value thereof shall be determined by the Administrator in good faith and in a manner consistent with Applicable Laws.

(v)    “Grantee” means an Employee, Director or Consultant who receives an Award under the Plan.

(w)    “Immediate Family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Grantee’s household (other than a tenant or employee), a trust in which these persons (or the Grantee) have more than fifty percent (50%) of the beneficial interest, a foundation in which these persons (or the Grantee) control the management of assets, and any other entity in which these persons (or the Grantee) own more than fifty percent (50%) of the voting interests.

(x)    “Incentive Stock Option” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.

 

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(y)    “Non-Qualified Stock Option” means an Option not intended to qualify as an Incentive Stock Option.

(z)    “Officer” means a person who is an officer of the Company or a Related Entity within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

(aa)    “Option” means an option to purchase Shares pursuant to an Award Agreement granted under the Plan.

(bb)    “Parent” means a “parent corporation”, whether now or hereafter existing, as defined in Section 424(e) of the Code.

(cc)    “Performance-Based Compensation” means compensation qualifying as “performance-based compensation” under Section 162(m) of the Code.

(dd)    “Plan” means this 2015 Stock Incentive Plan.

(ee)    “Post-Termination Exercise Period” means the period specified in the Award Agreement of not less than thirty (30) days commencing on the date of termination (other than termination by the Company or any Related Entity for Cause) of the Grantee’s Continuous Service, or such longer period as may be applicable upon death or Disability.

(ff)    “Registration Date” means the first to occur of: (i) the closing of the first sale to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended, of (A) the Common Stock or (B) the same class of securities of a successor corporation (or its Parent) issued pursuant to a Corporate Transaction in exchange for or in substitution of the Common Stock; or (ii) in the event of a Corporate Transaction, the date of the consummation of the Corporate Transaction if the same class of securities of the successor corporation (or its Parent) issuable in such Corporate Transaction shall have been sold to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended, on or prior to the date of consummation of such Corporate Transaction.

(gg)    “Related Entity” means any Parent or Subsidiary of the Company.

(hh)    “Replaced” means that pursuant to a Corporate Transaction the Award is replaced with a comparable stock award or a cash incentive program of the Company, the successor entity (if applicable) or Parent of either of them which preserves the compensation element of such Award existing at the time of the Corporate Transaction and provides for subsequent payout in accordance with the same (or a more favorable) vesting schedule applicable to such Award. The determination of Award comparability shall be made by the Administrator and its determination shall be final, binding and conclusive.

(ii)    “Restricted Stock” means Shares issued under the Plan to the Grantee for such consideration, if any, and subject to such restrictions on transfer, rights of first refusal, repurchase provisions, forfeiture provisions, and other terms and conditions as established by the Administrator.

 

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(jj)    “Restricted Stock Units” means an Award which may be earned in whole or in part upon the passage of time or the attainment of performance criteria established by the Administrator and which may be settled for cash, Shares or other securities or a combination of cash, Shares or other securities as established by the Administrator.

(kk)    “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor thereto.

(ll)    “SAR” means a stock appreciation right entitling the Grantee to Shares or cash compensation, as established by the Administrator, measured by appreciation in the value of Common Stock.

(mm)    “Share” means a share of the Common Stock.

(nn)    “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing, as defined in Section 424(f) of the Code.

3.    Stock Subject to the Plan.

(a)    Subject to the provisions of Section 10 below, the maximum aggregate number of Shares which may be issued pursuant to all Awards (including Incentive Stock Options) is 21,594,044 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock.

(b)    Any Shares covered by an Award (or portion of an Award) which is forfeited, canceled or expires (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes of determining the maximum aggregate number of Shares which may be issued under the Plan. Shares that actually have been issued under the Plan pursuant to an Award shall not be returned to the Plan and shall not become available for future issuance under the Plan, except that if unvested Shares are forfeited or repurchased by the Company, such Shares shall become available for future grant under the Plan. To the extent not prohibited by the listing requirements of The NASDAQ Stock Market LLC (or other established stock exchange or national market system on which the Common Stock is traded) or Applicable Laws, any Shares covered by an Award which are surrendered: (i) in payment of the Award exercise or purchase price (including pursuant to the “net exercise” of an option pursuant to Section 7(b)(vi)); or (ii) in satisfaction of tax withholding obligations incident to the exercise of an Award shall be deemed not to have been issued for purposes of determining the maximum number of Shares which may be issued pursuant to all Awards under the Plan, unless otherwise determined by the Administrator.

 

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4.    Administration of the Plan.

(a)    Plan Administrator.

(i)    Administration with Respect to Directors and Officers. Prior to the Registration Date, with respect to grants of Awards to Directors or Employees who are also Officers or Directors of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws. On or after the Registration Date, with respect to grants of Awards to Directors or Employees who are also Officers or Directors of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws and to permit such grants and related transactions under the Plan to be exempt from Section 16(b) of the Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board.

(ii)    Administration With Respect to Consultants and Other Employees. With respect to grants of Awards to Employees or Consultants who are neither Directors nor Officers of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board.

(iii)    Administration With Respect to Covered Employees. Notwithstanding the foregoing, as of and after the date that the exemption for the Plan under Section 162(m) of the Code expires, as set forth in Section 19 below, grants of Awards to any Covered Employee intended to qualify as Performance-Based Compensation shall be made only by a Committee (or subcommittee of a Committee) which is comprised solely of two or more Directors eligible to serve on a committee making Awards qualifying as Performance-Based Compensation. In the case of such Awards granted to Covered Employees, references to the “Administrator” or to a “Committee” shall be deemed to be references to such Committee or subcommittee.

(b)    Multiple Administrative Bodies. The Plan may be administered by different bodies with respect to Directors, Officers, Consultants, and Employees who are neither Directors nor Officers.

(c)    Powers of the Administrator. Subject to Applicable Laws and the provisions of the Plan (including any other powers given to the Administrator hereunder), and except as otherwise provided by the Board, the Administrator shall have the authority, in its discretion:

(i)    to select the Employees, Directors and Consultants to whom Awards may be granted from time to time hereunder;

(ii)    to determine whether and to what extent Awards are granted hereunder;

 

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(iii)    to determine the number of Shares or the amount of other consideration to be covered by each Award granted hereunder;

(iv)    to approve forms of Award Agreements for use under the Plan;

(v)    to determine the terms and conditions of any Award granted hereunder;

(vi)    to establish additional terms, conditions, rules or procedures to accommodate the rules or laws of applicable non-U.S. jurisdictions and to afford Grantees favorable treatment under such rules or laws; provided, however, that no Award shall be granted under any such additional terms, conditions, rules or procedures with terms or conditions which are inconsistent with the provisions of the Plan;

(vii)    to amend the terms of any outstanding Award granted under the Plan, provided that any amendment that would adversely affect the Grantee’s rights under an outstanding Award shall not be made without the Grantee’s written consent, provided, however, that an amendment or modification that may cause an Incentive Stock Option to become a Non-Qualified Stock Option shall not be treated as adversely affecting the rights of the Grantee. Notwithstanding the foregoing, (A) the reduction or increase of the exercise price of any Option awarded under the Plan and the base appreciation amount of any SAR awarded under the Plan and (B) canceling an Option or SAR at a time when its exercise price or base appreciation amount (as applicable) exceeds the Fair Market Value of the underlying Shares, in exchange for another Option, SAR, Restricted Stock, or other Award or for cash, in each case, shall not be subject to stockholder approval;

(viii)    to construe and interpret the terms of the Plan and Awards, including without limitation, any notice of award or Award Agreement, granted pursuant to the Plan; and

(ix)    to take such other action, not inconsistent with the terms of the Plan, as the Administrator deems appropriate.

The express grant in the Plan of any specific power to the Administrator shall not be construed as limiting any power or authority of the Administrator; provided that the Administrator may not exercise any right or power reserved to the Board. Any decision made, or action taken, by the Administrator or in connection with the administration of this Plan shall be final, conclusive and binding on all persons having an interest in the Plan.

(d)    Indemnification. In addition to such other rights of indemnification as they may have as members of the Board or as Officers or Employees of the Company or a Related Entity, members of the Board and any Officers or Employees of the Company or a Related Entity to whom authority to act for the Board, the Administrator or the Company is delegated shall be defended and indemnified by the Company to the extent permitted by law on an after-tax basis against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any Award granted

 

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hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by the Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim, investigation, action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct; provided, however, that within thirty (30) days after the institution of such claim, investigation, action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at the Company’s expense to defend the same.

5.    Eligibility. Awards other than Incentive Stock Options may be granted to Employees, Directors and Consultants. Incentive Stock Options may be granted only to Employees of the Company or a Parent or a Subsidiary of the Company. An Employee, Director or Consultant who has been granted an Award may, if otherwise eligible, be granted additional Awards. Awards may be granted to such Employees, Directors or Consultants who are residing in non-U.S. jurisdictions as the Administrator may determine from time to time.

6.    Terms and Conditions of Awards.

(a)    Types of Awards. The Administrator is authorized under the Plan to award any type of arrangement to an Employee, Director or Consultant that is not inconsistent with the provisions of the Plan and that by its terms involves or might involve the issuance of (i) Shares, (ii) cash or (iii) an Option, a SAR, or similar right with a fixed or variable price related to the Fair Market Value of the Shares and with an exercise or conversion privilege related to the passage of time, the occurrence of one or more events, or the satisfaction of performance criteria or other conditions. Such awards include, without limitation, Options, SARs, sales or bonuses of Restricted Stock, Restricted Stock Units or Dividend Equivalent Rights, and an Award may consist of one such security or benefit, or two (2) or more of them in any combination or alternative.

(b)    Designation of Award. Each Award shall be designated in the Award Agreement. In the case of an Option, the Option shall be designated as either an Incentive Stock Option or a Non-Qualified Stock Option. However, notwithstanding such designation, an Option will qualify as an Incentive Stock Option under the Code only to the extent the $100,000 limitation of Section 422(d) of the Code is not exceeded. The $100,000 limitation of Section 422(d) of the Code is calculated based on the aggregate Fair Market Value of the Shares subject to Options designated as Incentive Stock Options which become exercisable for the first time by a Grantee during any calendar year (under all plans of the Company or any Parent or Subsidiary of the Company). For purposes of this calculation, Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Shares shall be determined as of the grant date of the relevant Option. In the event that the Code or the regulations promulgated thereunder are amended after the date the Plan becomes effective to provide for a different limit on the Fair Market Value of Shares permitted to be subject to Incentive Stock Options, then such different limit will be automatically incorporated herein and will apply to any Options granted after the effective date of such amendment.

(c)    Conditions of Award. Subject to the terms of the Plan, the Administrator shall determine the provisions, terms, and conditions of each Award including, but not limited to,

 

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the Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions, form of payment (cash, Shares, or other consideration) upon settlement of the Award, payment contingencies, and satisfaction of any performance criteria. The performance criteria established by the Administrator may be based on any one of, or combination of, increase in share price, earnings per share, total stockholder return, return on equity, return on assets, return on investment, net operating income, cash flow, revenue, economic value added, personal management objectives, or other measure of performance selected by the Administrator. Partial achievement of the specified criteria may result in a payment or vesting corresponding to the degree of achievement as specified in the Award Agreement. In addition, the performance criteria shall be calculated in accordance with generally accepted accounting principles, but excluding the effect (whether positive or negative) of any change in accounting standards and any extraordinary, unusual or nonrecurring item, as determined by the Administrator, occurring after the establishment of the performance criteria applicable to the Award intended to be performance-based compensation. Each such adjustment, if any, shall be made solely for the purpose of providing a consistent basis from period to period for the calculation of performance criteria in order to prevent the dilution or enlargement of the Grantee’s rights with respect to an Award intended to be performance-based compensation.

(d)    Acquisitions and Other Transactions. The Administrator may issue Awards under the Plan in settlement, assumption or substitution for, outstanding awards or obligations to grant future awards in connection with the Company or a Related Entity acquiring another entity, an interest in another entity or an additional interest in a Related Entity whether by merger, stock purchase, asset purchase or other form of transaction.

(e)    Deferral of Award Payment. The Administrator may establish one or more programs under the Plan to permit selected Grantees the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election would entitle the Grantee to payment or receipt of Shares or other consideration under an Award. The Administrator may establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on amounts, Shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Administrator deems advisable for the administration of any such deferral program.

(f)    Separate Programs. The Administrator may establish one or more separate programs under the Plan for the purpose of issuing particular forms of Awards to one or more classes of Grantees on such terms and conditions as determined by the Administrator from time to time.

(g)    Individual Limitations on Awards.

(i)    Individual Option and SAR Limit. Following the date that the exemption from application of Section 162(m) of the Code described in Section 19 (or any exemption having similar effect) ceases to apply to Awards, the maximum number of Shares with respect to which Options and SARs may be granted to any Grantee in any calendar year shall be 4,000,000 Shares. In connection with a Grantee’s commencement of Continuous Service, a Grantee may be granted Options and SARs for up to an additional 100,000 Shares

 

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which shall not count against the limit set forth in the previous sentence. The foregoing limitations shall be adjusted proportionately in connection with any change in the Company’s capitalization pursuant to Section 10, below. To the extent required by Section 162(m) of the Code or the regulations thereunder, in applying the foregoing limitations with respect to a Grantee, if any Option or SAR is canceled, the canceled Option or SAR shall continue to count against the maximum number of Shares with respect to which Options and SARs may be granted to the Grantee. For this purpose, the repricing of an Option (or in the case of a SAR, the base amount on which the stock appreciation is calculated is reduced to reflect a reduction in the Fair Market Value of the Common Stock) shall be treated as the cancellation of the existing Option or SAR and the grant of a new Option or SAR.

(ii)    Individual Limit for Restricted Stock and Restricted Stock Units. Following the date that the exemption from application of Section 162(m) of the Code described in Section 19 (or any exemption having similar effect) ceases to apply to Awards, for awards of Restricted Stock and Restricted Stock Units that are intended to be Performance-Based Compensation, the maximum number of Shares with respect to which such Awards may be granted to any Grantee in any calendar year shall be 4,000,000 Shares. The foregoing limitation shall be adjusted proportionately in connection with any change in the Company’s capitalization pursuant to Section 10, below.

(h)    Early Exercise. The Award Agreement may, but need not, include a provision whereby the Grantee may elect at any time while an Employee, Director or Consultant to exercise any part or all of the Award prior to full vesting of the Award. Any unvested Shares received pursuant to such exercise may be subject to a repurchase right in favor of the Company or a Related Entity or to any other restriction the Administrator determines to be appropriate.

(i)    Term of Award. The term of each Award shall be the term stated in the Award Agreement, provided, however, that the term shall be no more than ten (10) years from the date of grant thereof. However, in the case of an Incentive Stock Option granted to a Grantee who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company, the term of the Incentive Stock Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement. Notwithstanding the foregoing, the specified term of any Award shall not include any period for which the Grantee has elected to defer the receipt of the Shares or cash issuable pursuant to the Award.

(j)    Transferability of Awards. Incentive Stock Options may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Grantee, only by the Grantee. Other Awards shall be transferable (i) by will and by the laws of descent and distribution and (ii) during the lifetime of the Grantee, to the extent and in the manner authorized by the Administrator by gift or pursuant to a domestic relations order to members of the Grantee’s Immediate Family. Notwithstanding the foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s Award in the event of the Grantee’s death on a beneficiary designation form provided by the Administrator.

 

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(k)    Time of Granting Awards. The date of grant of an Award shall for all purposes be the date on which the Administrator makes the determination to grant such Award, or such other later date as is determined by the Administrator.

7.    Award Exercise or Purchase Price, Consideration and Taxes.

(a)    Exercise or Purchase Price. The exercise or purchase price, if any, for an Award shall be as follows:

(i)    In the case of an Incentive Stock Option:

(A)    granted to an Employee who, at the time of the grant of such Incentive Stock Option owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company, the per Share exercise price shall be not less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant; or

(B)    granted to any Employee other than an Employee described in the preceding paragraph, the per Share exercise price shall be not less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(ii)    In the case of a Non-Qualified Stock Option, the per Share exercise price shall be not less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(iii)    In the case of SARs, the base appreciation amount shall not be less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(iv)    In the case of Awards intended to qualify as Performance-Based Compensation, the exercise or purchase price, if any, shall be not less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(v)    In the case of the sale of Shares, the per Share purchase price, if any, shall be such price as is determined by the Administrator.

(vi)    In the case of other Awards, such price as is determined by the Administrator.

(vii)    Notwithstanding the foregoing provisions of this Section 7(a), in the case of an Award issued pursuant to Section 6(d), above, the exercise or purchase price for the Award shall be determined in accordance with the provisions of the relevant instrument evidencing the agreement to issue such Award.

(b)    Consideration. Subject to Applicable Laws, the consideration to be paid for the Shares to be issued upon exercise or purchase of an Award including the method of payment, shall be determined by the Administrator. In addition to any other types of consideration the Administrator may determine, the Administrator is authorized to accept as consideration for Shares issued under the Plan the following provided that the portion of the

 

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consideration equal to the par value of the Shares must be paid in cash or other legal consideration permitted by the Delaware General Corporation Law:

(i)    cash;

(ii)    check;

(iii)    delivery of Grantee’s promissory note with such recourse, interest, security, and redemption provisions as the Administrator determines as appropriate (but only to the extent that the acceptance or terms of the promissory note would not violate an Applicable Law);

(iv)    surrender of Shares held for the requisite period, if any, necessary to avoid a charge to the Company’s earnings for financial reporting purposes, or delivery of a properly executed form of attestation of ownership of Shares as the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate exercise price of the Shares as to which said Award shall be exercised;

(v)    with respect to Options, if the exercise occurs on or after the Registration Date, payment through a broker-dealer sale and remittance procedure pursuant to which the Grantee (A) shall provide written instructions to a Company designated brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to the Company sufficient funds to cover the aggregate exercise price payable for the purchased Shares and (B) shall provide written directives to the Company to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction;

(vi)    with respect to Options, payment through a “net exercise” such that, without the payment of any funds, the Grantee may exercise the Option and receive the net number of Shares equal to (i) the number of Shares as to which the Option is being exercised, multiplied by (ii) a fraction, the numerator of which is the Fair Market Value per Share (on such date as is determined by the Administrator) less the exercise price per Share, and the denominator of which is such Fair Market Value per Share (the number of net Shares to be received shall be rounded down to the nearest whole number of Shares); or

(vii)    any combination of the foregoing methods of payment.

The Administrator may at any time or from time to time, by adoption of or by amendment to the standard forms of Award Agreement described in Section 4(c)(iv), or by other means, grant Awards which do not permit all of the foregoing forms of consideration to be used in payment for the Shares or which otherwise restrict one or more forms of consideration.

(c)    Taxes. No Shares shall be delivered under the Plan to any Grantee or other person until such Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of any non-U.S., federal, state, or local income and employment tax withholding obligations, including, without limitation, obligations incident to the receipt of Shares. Upon exercise or vesting of an Award the Company shall withhold or collect from the Grantee an amount sufficient to satisfy such tax obligations, including, but not limited to, by surrender of the whole number of Shares covered by the Award sufficient to satisfy

 

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the minimum applicable tax withholding obligations incident to the exercise or vesting of an Award (reduced to the lowest whole number of Shares if such number of Shares withheld would result in withholding a fractional Share with any remaining tax withholding settled in cash).

8.    Exercise of Award.

(a)    Procedure for Exercise; Rights as a Stockholder.

(i)    Any Award granted hereunder shall be exercisable at such times and under such conditions as determined by the Administrator under the terms of the Plan and specified in the Award Agreement.

(ii)    An Award shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Award by the person entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised has been made, including, to the extent selected, use of the broker-dealer sale and remittance procedure to pay the purchase price as provided in Section 7(b)(v).

(b)    Exercise of Award Following Termination of Continuous Service. In the event of termination of a Grantee’s Continuous Service for any reason other than Disability or death (but not in the event of a Grantee’s change of status from Employee to Consultant or from Consultant to Employee), such Grantee may, but only during the Post-Termination Exercise Period (but in no event later than the expiration date of the term of such Award as set forth in the Award Agreement), exercise the portion of the Grantee’s Award that was vested at the date of such termination or such other portion of the Grantee’s Award as may be determined by the Administrator. The Grantee’s Award Agreement may provide that upon the termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Award shall terminate concurrently with the termination of Grantee’s Continuous Service. In the event of a Grantee’s change of status from Employee to Consultant, an Employee’s Incentive Stock Option shall convert automatically to a Non-Qualified Stock Option on the day three (3) months and one day following such change of status. To the extent that the Grantee’s Award was unvested at the date of termination, or if the Grantee does not exercise the vested portion of the Grantee’s Award within the Post-Termination Exercise Period, the Award shall terminate.

(c)    Disability of Grantee. In the event of termination of a Grantee’s Continuous Service as a result of his or her Disability, such Grantee may, but only within twelve (12) months from the date of such termination (or such longer period as specified in the Award Agreement but in no event later than the expiration date of the term of such Award as set forth in the Award Agreement), exercise the portion of the Grantee’s Award that was vested at the date of such termination; provided, however, that if such Disability is not a “disability” as such term is defined in Section 22(e)(3) of the Code, in the case of an Incentive Stock Option such Incentive Stock Option shall automatically convert to a Non-Qualified Stock Option on the day three (3) months and one day following such termination. To the extent that the Grantee’s Award was unvested at the date of termination, or if Grantee does not exercise the vested portion of the Grantee’s Award within the time specified herein, the Award shall terminate.

 

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(d)    Death of Grantee. In the event of a termination of the Grantee’s Continuous Service as a result of his or her death, or in the event of the death of the Grantee during the Post-Termination Exercise Period or during the twelve (12) month period following the Grantee’s termination of Continuous Service as a result of his or her Disability, the Grantee’s estate or a person who acquired the right to exercise the Award by bequest or inheritance may exercise the portion of the Grantee’s Award that was vested as of the date of termination, within twelve (12) months from the date of death (or such longer period as specified in the Award Agreement but in no event later than the expiration of the term of such Award as set forth in the Award Agreement). To the extent that, at the time of death, the Grantee’s Award was unvested, or if the Grantee’s estate or a person who acquired the right to exercise the Award by bequest or inheritance does not exercise the vested portion of the Grantee’s Award within the time specified herein, the Award shall terminate.

(e)    Extension if Exercise Prevented by Law. Notwithstanding the foregoing, if the exercise of an Award within the applicable time periods set forth in this Section 8 is prevented by the provisions of Section 9 below, the Award shall remain exercisable until one (1) month after the date the Grantee is notified by the Company that the Award is exercisable, but in any event no later than the expiration of the term of such Award as set forth in the Award Agreement and only in a manner and to the extent permitted under Code Section 409A.

9.    Conditions Upon Issuance of Shares.

(a)    If at any time the Administrator determines that the delivery of Shares pursuant to the exercise, vesting or any other provision of an Award is or may be unlawful under Applicable Laws, the vesting or right to exercise an Award or to otherwise receive Shares pursuant to the terms of an Award shall be suspended until the Administrator determines that such delivery is lawful and shall be further subject to the approval of counsel for the Company with respect to such compliance. The Company shall have no obligation to effect any registration or qualification of the Shares under federal or state laws.

(b)    As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any Applicable Laws.

10.    Adjustments Upon Changes in Capitalization. Subject to any required action by the stockholders of the Company and Section 11 below, the number of Shares covered by each outstanding Award, and the number of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet been granted or which have been returned to the Plan, the exercise or purchase price of each such outstanding Award, the maximum number of Shares with respect to which Awards may be granted to any Grantee in any calendar year, as well as any other terms that the Administrator determines require adjustment shall be proportionately adjusted for: (i) any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, recapitalization, combination or reclassification of the Shares, or similar transaction affecting the Shares; (ii) any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company; or (iii) any

 

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other transaction with respect to Common Stock including a corporate merger, consolidation, acquisition of property or stock, separation (including a spin-off or other distribution of stock or property), reorganization, liquidation (whether partial or complete) or any similar transaction; provided, however that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” In the event of any distribution of cash or other assets to stockholders other than a normal cash dividend, the Administrator shall also make such adjustments as provided in this Section 10 or substitute, exchange or grant Awards to effect such adjustments (collectively “adjustments”). Any such adjustments to outstanding Awards will be effected in a manner that precludes the enlargement of rights and benefits under such Awards. In connection with the foregoing adjustments, the Administrator may, in its discretion, prohibit the exercise of Awards or other issuance of Shares, cash or other consideration pursuant to Awards during certain periods of time. Except as the Administrator determines, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason hereof shall be made with respect to, the number or price of Shares subject to an Award.

11.    Corporate Transactions.

(a)    Termination of Award to Extent Not Assumed in Corporate Transaction. Effective upon the consummation of a Corporate Transaction, all outstanding Awards under the Plan shall terminate. However, all such Awards shall not terminate to the extent they are Assumed in connection with the Corporate Transaction.

(b)    Acceleration of Award Upon Corporate Transaction. The Administrator shall have the authority, exercisable either in advance of any actual or anticipated Corporate Transaction or at the time of an actual Corporate Transaction and exercisable at the time of the grant of an Award under the Plan or any time while an Award remains outstanding, to provide for the full or partial automatic vesting and exercisability of one or more outstanding unvested Awards under the Plan and the release from restrictions on transfer and repurchase or forfeiture rights of such Awards in connection with a Corporate Transaction, on such terms and conditions as the Administrator may specify. The Administrator also shall have the authority to condition any such Award vesting and exercisability or release from such limitations upon the subsequent termination of the Continuous Service of the Grantee within a specified period following the effective date of the Corporate Transaction.

(c)    Effect of Acceleration on Incentive Stock Options. Any Incentive Stock Option accelerated under this Section 11 in connection with a Corporate Transaction shall remain exercisable as an Incentive Stock Option under the Code only to the extent the $100,000 limitation of Section 422(d) of the Code is not exceeded.

12.    Effective Date and Term of Plan. The Plan shall become effective upon the earlier to occur of its adoption by the Board or its approval by the stockholders of the Company. It shall continue in effect for a term of ten (10) years unless sooner terminated. Subject to Section 17 below, and Applicable Laws, Awards may be granted under the Plan upon its becoming effective.

 

16


13.    Amendment, Suspension or Termination of the Plan.

(a)    The Board may at any time amend, suspend or terminate the Plan. To the extent necessary to comply with Applicable Laws, the Company shall obtain stockholder approval of any Plan amendment in such a manner and to such a degree as required.

(b)    No Award may be granted during any suspension of the Plan or after termination of the Plan.

(c)    No suspension or termination of the Plan (including termination of the Plan under Section 12, above) shall adversely affect any rights under Awards already granted to a Grantee.

14.    Reservation of Shares.

(a)    The Company, during the term of the Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.

(b)    The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.

15.    No Effect on Terms of Employment/Consulting Relationship. The Plan shall not confer upon any Grantee any right with respect to the Grantee’s Continuous Service, nor shall it interfere in any way with his or her right or the right of the Company or any Related Entity to terminate the Grantee’s Continuous Service at any time, including, but not limited to, for Cause or without Cause, and with or without notice. The ability of the Company or any Related Entity to terminate the employment of a Grantee who is employed at will is in no way affected by its determination that the Grantee’s Continuous Service has been terminated for Cause for the purposes of this Plan.

16.    No Effect on Retirement and Other Benefit Plans. Except as specifically provided in a retirement or other benefit plan of the Company or a Related Entity, Awards shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Related Entity, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a “Pension Plan” or “Welfare Plan” under the Employee Retirement Income Security Act of 1974, as amended.

17.    Stockholder Approval. Continuance of the Plan shall be subject to approval by the stockholders of the Company within twelve (12) months before or after the date the Plan is adopted. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws. Any Award exercised before stockholder approval is obtained shall be rescinded if stockholder approval is not obtained within the time prescribed, and Shares issued on the exercise of any such Award shall not be counted in determining whether stockholder approval is obtained.

 

17


18.    Information to Grantees. To the extent required by Applicable Laws, the Company shall provide to each Grantee, during the period for which such Grantee has one or more Awards outstanding, copies of financial statements at least annually. The Company shall not be required to provide such information to persons whose duties in connection with the Company assure them access to equivalent information.

19.    Effect of Section 162(m) of the Code. Section 162(m) of the Code does not apply to the Plan prior to the Registration Date or such earlier time that the Company first becomes subject to the reporting obligations of Section 12 of the Exchange Act. Following the Registration Date or such earlier time that the Company first becomes subject to the reporting obligations of Section 12 of the Exchange Act, the Plan, and all Awards (except Awards of Restricted Stock that vest over time) issued thereunder, are intended to be exempt from the application of Section 162(m) of the Code, which restricts under certain circumstances the Federal income tax deduction for compensation paid by a public company to named executives in excess of $1 million per year. The exemption is based on Treasury Regulation Section 1.162-27(f), in the form existing on the effective date of the Plan, with the understanding that such regulation generally exempts from the application of Section 162(m) of the Code compensation paid pursuant to a plan that existed before a company becomes publicly held. Under such Treasury Regulation, this exemption is available to the Plan for the duration of the period that lasts until the earliest of (i) the expiration of the Plan, (ii) the material modification of the Plan, (iii) the exhaustion of the maximum number of shares of Common Stock available for Awards under the Plan, as set forth in Section 3(a), (iv) the first meeting of stockholders at which directors are to be elected that occurs after the close of the third calendar year following the calendar year in which the Company first becomes subject to the reporting obligations of Section 12 of the Exchange Act, or (v) such other date required by Section 162(m) of the Code and the rules and regulations promulgated thereunder. To the extent that the Administrator determines as of the date of grant of an Award that (i) the Award is intended to qualify as Performance-Based Compensation and (ii) the exemption described above is no longer available with respect to such Award, such Award shall not be effective until any stockholder approval required under Section 162(m) of the Code has been obtained.

20.    Unfunded Obligation. Grantees shall have the status of general unsecured creditors of the Company. Any amounts payable to Grantees pursuant to the Plan shall be unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974, as amended. Neither the Company nor any Related Entity shall be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Grantee account shall not create or constitute a trust or fiduciary relationship between the Administrator, the Company or any Related Entity and a Grantee, or otherwise create any vested or beneficial interest in any Grantee or the Grantee’s creditors in any assets of the Company or a Related Entity. The Grantees shall have no claim against the Company or any Related Entity for any changes in the value of any assets that may be invested or reinvested by the Company with respect to the Plan.

 

18


21.    Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

22.    Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board, the submission of the Plan to the stockholders of the Company for approval, nor any provision of the Plan will be construed as creating any limitations on the power of the Board to adopt such additional compensation arrangements as it may deem desirable, including, without limitation, the granting of Awards otherwise than under the Plan, and such arrangements may be either generally applicable or applicable only in specific cases.

 

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EX-10.14

Exhibit 10.14

ADICET BIO, INC.

ISRAELI SUB-PLAN

TO THE ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

 

1.

GENERAL.

This Adicet Bio, Inc. Israeli Sub-Plan (this “Sub-Plan”) is to be read as an integral part of the Adicet Bio, Inc. 2015 Stock Incentive Plan (the “Company”, and the “Plan” respectively), and the Plan together with this Sub-Plan shall be deemed one integrated document. The provisions of the Plan shall apply to Awards (as defined below) granted under this Sub-Plan, subject to the modifications set forth below. In the event of any conflict between the Plan and this Sub-Plan, the terms of this Sub-Plan shall govern with respect to Awards granted to Israeli Grantees (as defined below). This Sub-Plan shall only apply to, and modify Awards granted to, Israeli Grantees so that such Awards will be governed by the terms of this Sub-Plan and comply with the requirements of Israeli law generally, and specifically with the provisions of Section 102 and Section 3(i) of the Ordinance (as defined below). For the avoidance of doubt, this Sub-Plan shall not modify the Plan with respect of any other category of Grantees.

Unless otherwise defined in this Sub-Plan, all capitalized terms used herein shall have the meaning given to them in the Plan. Capitalized terms used herein that are the plural forms or singular forms of defined terms shall have the corresponding plural or singular meanings of the corresponding defined terms. The following terms shall have the meanings set forth below, unless the context clearly requires a different meaning:

(a)    “3(i) Award” means an Award granted pursuant to Section 3(i) of the Ordinance to any person who is an Israeli Non-Employee Grantee.

(b)    “102 Award” means an Award granted pursuant to Section 102 of the Ordinance to any person who is an Israeli Employee Grantee.

(c)    “102 Capital Gains Award” means a Trustee 102 Award elected and designated by the Employing Company to qualify for Capital Gains tax treatment in accordance with the provisions of Section 102(b)(2) of the Ordinance.

(d)    “102 Ordinary Income Award” means a Trustee 102 Award elected and designated by the Employing Company to qualify for ordinary income tax treatment in accordance with the provisions of Section 102(b)(1) of the Ordinance.

(e)    “Affiliate” means any “employing company” within the meaning of Section 102(a) of the Ordinance.

(f)    “Approved 102 Award” means an Award granted pursuant to Section 102(b) of the Ordinance and held in trust by a Trustee for the benefit of an Employee.

(g)     “Award” means the grant of an Option, SAR, Dividend Equivalent Right, Restricted Stock, Restricted Stock Unit or other right or benefit under the Plan.

(h)    “Award Agreement” means the written agreement evidencing the grant of an Award executed by the Company and the Grantee, including any amendments thereto.


(i)    “Board” means the Board of Directors of the Company.

(j)    “Controlling Shareholder shall have the meaning ascribed to it in Section 32(9) of the Ordinance.

(k)    “Committee” means any committee composed of members of the Board appointed by the Board to administer the Plan.

(l)    “Employing Company” shall have the meaning ascribed to it in Section 102(a) of the Ordinance.

(m)    “Israeli Employee Grantee” means a person who is a resident of the state of Israel or who is deemed to be a resident of the state of Israel for the payment of tax, and who is an employee or an Office Holder (“Noseh Missra”) of the Company, or any Affiliate of the Company, in each case excluding a person who is a Controlling Shareholder prior to the issuance of the relevant Award or as a result thereof.

(n)    “Israeli Non-Employee Grantee” means a person who is a resident of the state of Israel or who is deemed to be a resident of the state of Israel for the payment of tax, and who is (i) a consultant, adviser or service provider of the Company, or any Affiliate of the Company, who is not an Israeli Employee Grantee, or (ii) a Controlling Shareholder (whether or not an employee of the Company or any Affiliate of the Company).

(o)    “Israeli Grantee means Israeli Employee Grantees and Israeli Non-Employee Grantees.

(p)    “ITA” means the Israeli Income Tax Authorities.

(q)    “Lockup Period” means the requisite period prescribed by the Ordinance and the Rules, or such other period as may be required by the ITA, with respect to 102 Trustee Grants, during which Awards or Shares issued thereunder, and all rights resulting from them, including bonus Shares, must be held by the Trustee.

(r)    “Non-Trustee 102 Award” means an Award granted to an Israeli Grantee pursuant to Section 102(c) of the Ordinance, which is not required to be held in trust by a Trustee.

(s)    “Ordinance” means the Income Tax Ordinance [New Version] 5721-1961 or any successor statute, as amended from time to time.

(t)    “Rules” means the Income Tax Rules (Tax Relief in the Issuance of Shares to Employees), 5763-2003.

(u)    “Section 102” means Section 102 of the Ordinance and any regulations, rules, orders or procedures promulgated thereunder as now in effect or as amended or replaced from time to time.

(v)    “Tax” means any tax (including, without limitation, any income tax, capital gains tax, value added tax, sales tax, property tax, gift tax, or estate tax), levy, assessment, tariff, duty (including any customs duty), deficiency, or other fee, and any related charge or amount (including any fine, penalty, interest, linkage differentials or addition to tax), imposed, assessed, or collected by or under the authority of any governmental body.

 

2


(w)    “Trustee” means any person or entity appointed by the Company or any of its Affiliates, as applicable, and approved by the ITA, to serve as a trustee, all in accordance with the provisions of Section 102(a) of the Ordinance.

(x)    “Trustee 102 Award” means an Award granted pursuant to Section 102(b) of the Ordinance which is held in trust by a Trustee for the benefit of the Grantee.

(y)    “Unapproved 102 Award” means an Award granted pursuant to Section 102(c) of the Ordinance which is not held in trust by a Trustee.

 

2.

ISSUANCE OF AWARDS.

(a)    (i) Israeli Employee Grantees may be granted only 102 Awards; and (ii) Israeli Non-Employee Grantees may be granted only 3(i) Awards. In each case, such Awards shall be subject to the terms and conditions of the Ordinance.

(b)    The Employing Company may, pursuant to Section 102, designate 102 Awards granted to Israeli Employee Grantees as Non-Trustee 102 Awards or as Trustee 102 Awards. The Employing Company may seek any tax ruling as it may reasonably consider in connection with the application of Section 102 on any Awards granted by the Company.

(c)    The Employing Company shall have the absolute discretion to decide whether Awards granted pursuant to Section 3(i) of the Ordinance shall be held by the Trustee for any period.

(d)    Any trustee, including, without limitation, the Trustee, holding Awards or Shares issued upon the exercise thereof, or rights resulting therefrom, including bonus Shares, shall not be liable for any good faith determination, act or omission in connection with the Plan, any Sub-Plan, any Award or any agreement entered into between such Trustee and the Company or any Affiliate.

(e)    The grant of Approved 102 Awards shall be made under this Sub-Plan not earlier than 30 days from the date it was submitted to the ITA.

(f)    Approved 102 Awards may either be classified as 102 Capital Gains Award or 102 Ordinary Income Award.

(g)    No Approved 102 Awards may be granted under this Sub-Plan to any eligible Israeli Employee Grantee, unless and until, the Company’s election of the type of Approved 102 Awards as 102 Capital Gains Award or as 102 Ordinary Income Award granted to Israeli Employee Grantee (the “Election”), is appropriately filed with the ITA. Such Election shall become effective as of the date of grant of an Approved 102 Award under this Sub-Plan and shall remain in effect until the end of the year following the year during which the Company first granted Approved 102 Awards. The Election shall obligate the Company to grant only the type of Approved 102 Award it has elected, and shall apply to all Israeli Grantees who were granted Approved 102 Awards during the period indicated herein above, all in accordance with the provisions of Section 102(g) of the Ordinance. For the avoidance of doubt, such Election shall not prevent the Company from granting Unapproved 102 Awards or 3(i) Awards simultaneously.

(h)    All Approved 102 Awards must be held in trust by a Trustee, as described in Section 3 below.

 

3


(i)    For the avoidance of doubt, the designation of Unapproved 102 Awards and Approved 102 Awards shall be subject to the terms and conditions set forth in Section 102.

 

3.

TRUSTEE 102 AWARDS.

(a)    Awards granted pursuant to this Section are intended to constitute Trustee 102 Awards and are subject to the provisions of Section 102 and the general terms and conditions specified in the Plan, except for such provisions of the Plan applying to Awards under a different tax law or regulation.

(b)    Trustee 102 Awards may be granted only to Israeli Employee Grantees.

(c)    Trustee 102 Awards shall be classified as either 102 Capital Gains Awards or 102 Ordinary Income Awards, subject to the terms and conditions of Section 102 and the provisions of the Plan and this Sub-Plan.

(d)    No Trustee 102 Awards may be granted under this Sub-Plan, unless and until the Election is appropriately filed with the ITA. The Board or the Committee, as the case may be, shall have the right to determine whether the Election of the Trustee 102 Awards be 102 Capital Gains Awards or 102 Ordinary Income Awards. After the Election is made, the Company may grant only the type of Trustee 102 Awards it had elected (i.e., 102 Capital Gains Awards or 102 Ordinary Income Awards), and the Election shall apply to all grants to Israeli Employee Grantees of Trustee 102 Awards until such Election is changed pursuant to the provisions of Section 102(g) of the Ordinance. The Employing Company may change such Election only after the lapse of the minimum time period prescribed by Section 102. For the avoidance of doubt, such Election shall not prevent the Company from granting Non-Trustee 102 Awards or 3(i) Awards.

(e)    The grant of Trustee 102 Awards shall be conditioned upon the approval (or the deemed approval pursuant to the provisions of Section 102(a) of the Ordinance) of the Plan, this Sub-Plan and the Trustee by the ITA.

(f)    Trustee 102 Awards may be granted only after the passage of thirty days (or a shorter period as, and if, approved by the ITA) following the delivery by the appropriate Employing Company to the ITA of a request for approval of the Plan (including this Sub-Plan) and the Trustee in accordance with Section 102. Notwithstanding the foregoing paragraph and pursuant to any applicable law, if within ninety (90) days of delivery of the abovementioned request, the appropriate ITA officer notifies the Employing Company of his or her decision not to approve the Plan (including this Sub-Plan) or the Trustee, then the Awards that were intended to be granted as a Trustee 102 Awards shall be deemed to be Non-Trustee 102 Awards, unless (i) otherwise determined by the ITA officer or (ii) pursuant to applicable law, elected otherwise by the Company.

(g)    Anything herein to the contrary notwithstanding, all Trustee 102 Awards granted under this Plan shall be granted or issued to a Trustee. The Trustee shall hold each such Trustee 102 Award, all Shares issued upon exercise thereof, and all other rights resulting from such Trustee 102 Award or Shares, including bonus Shares, in trust for the benefit of the Israeli Employee Grantee to which such Award was granted. All certificates representing Awards or Shares issued to the Trustee under the Plan shall be issued in the Trustee’s name, deposited with the Trustee, and shall be held by the Trustee until such time that such Awards or Shares are released from the trust.

 

4


(h)    With respect to 102 Capital Gains Awards and 102 Ordinary Income Awards, such Awards or any Shares issued upon the exercise thereof and all rights resulting from such Awards or Shares, including bonus Shares, will be held by the Trustee, from the date such Awards or Shares were deposited with the Trustee until the end of the applicable Lockup Period (currently at least 24 months in case of 102 Capital Gains Awards and 12 months in case of 102 Ordinary Income Awards) or such shorter period as approved by the ITA, under the terms set forth in Section 102.

(i)    Notwithstanding anything to the contrary, the Trustee shall not release any Shares allocated or issued upon exercise or vesting of Approved 102 Awards prior to the full payment of the Israeli Employee Grantee’s tax liabilities, if any, or to the full satisfaction of the trustee that such applicable tax payments will be made, arising from Approved 102 Awards which were granted to him or her and/or any Shares allocated or issued upon exercise or vesting of such Awards.

(j)     In accordance with Section 102, the Israeli Employee Grantee shall not sell, cause the release from trust, or otherwise dispose of, any Trustee 102 Award, any Share issued upon the exercise thereof, or any rights resulting from such Award or Share, including bonus Shares, until the end of the applicable Lockup Period. Notwithstanding the foregoing but without derogating from the provisions of the Plan and the terms and conditions set forth in the Award Agreement, if any such sale, release, or disposition occurs during the Lockup Period, then the provisions of Section 102 relating to non-compliance with the Lockup Period will apply and all sanctions and liability under Section 102 shall be borne by the Israeli Employee Grantee. The Israeli Employee Grantee will indemnify the Company, the Trustee and any other party which incurs any liability as a result of such sale, release or disposition.

(k)    In the event that the requirements for the Trustee 102 Awards are not met, then the Trustee 102 Awards shall be deemed Non-Trustee 102 Awards.

(l)    Upon receipt of a Trustee 102 Award, the Israeli Employee Grantee will sign an Award Agreement under which such Grantee will agree to be subject to the trust agreement between the Company or its Affiliate and the Trustee, stating, inter alia, that the Trustee will be released from any liability in respect of any action or decision taken or executed in good faith with respect to this Sub-Plan, or any Trustee 102 Award or Share issued to him or her thereunder, or right resulting therefrom, including bonus Shares.

(m)    The validity of any order given to the Trustee by an Israeli Employee Grantee shall be subject to the approval of the Employing Company. The Employing Company shall render its decision regarding whether to approve orders given by any Israeli Employee Grantee to the Trustee within a reasonable period of time. The Employing Company shall not be required to approve any order which is incomplete, is not in accordance with the provisions of the Plan, this Sub-Plan and the applicable Award Agreement or which the Employing Company believes should not be executed for any reasonable reason. The Employing Company shall notify the Israeli Employee Grantee of the reason for not approving his order. Approval by the Employing Company of any order given to the Trustee by an Israeli Employee Grantee shall not constitute proof of the Employing Company’s recognition of any right of such Israeli Employee Grantee.

(n)    Without derogating from the above, the Employing Company shall have the authority to determine the specific procedures and conditions of the trusteeship with the Trustee in a separate agreement between the Employing Company and the Trustee.

 

5


(o)    In the case of 102 Awards, the Trustee shall have no rights as a Shareholder of the Company with respect to the Shares covered by such Award until the Trustee becomes the record holder of such Shares for the Israeli Employee Grantee’s benefit, and the Israeli Employee Grantee shall have no rights as a Shareholder of the Company with respect to the Shares covered by the Award until the date of the release of such Shares from the Trustee to the Israeli Employee Grantee and the transfer of record ownership of such Shares to the Israeli Employee Grantee.

 

4.

NON-TRUSTEE 102 AWARDS.

(a)    Awards granted pursuant to this Section are intended to constitute Non-Trustee 102 Awards and are subject to the provisions of Section 102 and the general terms and conditions specified in the Plan, except for such provisions of the Plan applying to Awards granted under a different tax law or regulations.

(b)    Non-Trustee 102 Awards may be granted only to Israeli Employee Grantees.

(c)    Non-Trustee 102 Awards that shall be granted pursuant to the Plan and may be issued directly to the Israeli Employee Grantee or to a trustee appointed by the Board or the Committee, as the case may be, in the Board or the Committee, as the case may be, at their sole discretion. In the event that the Board or the Committee, as the case may be, determines that Non-Trustee 102 Awards, or Shares issued upon the exercise thereof, or rights resulting therefore, including bonus Shares, shall be deposited with a trustee, the provisions of Section (f) of this Sub-Plan shall apply, mutatis mutandis.

(d)    In the event that an Israeli Employee Grantee was granted a Non-Trustee 102 Award and thereafter such Israeli Employee Grantee’s employment by the Company, or any Affiliate thereof, terminates for any reason, such Israeli Employee Grantee will be obligated to provide his or her employer, upon the termination of employment, with a security or guarantee to cover any future tax obligation resulting from the grant, exercise or disposition of the Award, the Shares issuable upon the exercise thereof, or any rights resulting therefrom, in a form satisfactory to such employer in such employer’s sole discretion.

 

5.

3(I) AWARDS.

(a)    Awards granted pursuant to this Section are intended to constitute 3(i) Awards and are subject to the provisions of Section 3(i) of the Ordinance and the general terms and conditions specified the Plan, except for provisions of the Plan applying to Awards granted under a different tax law or regulations.

(b)    3(i) Awards may be granted only to Israeli Non-Employee Grantees.

(c)    3(i) Awards that shall be granted pursuant to the Plan and may be issued directly to the Israeli Non-Employee Grantee or to a trustee appointed by the Board or the Committee, as the case may be, in their sole discretion. In the event that the Board or the Committee, as the case may be, determines that 3(i) Awards or Shares issued upon the exercise thereof, or rights resulting therefrom, including bonus Shares, shall be deposited with a trustee, the provisions of Section 3 of this Sub-Plan shall apply, mutatis mutandis.

(d)    In the event that an Israeli Non-Employee Grantee was granted a 3(i) Award and thereafter such Israeli Non-Employee Grantee’s employment by the Company, or any Affiliate thereof, terminates for any reason, such Israeli Non-Employee Grantee will be obligated to

 

6


provide his or her employer, upon the termination of his or her employment, with a security or guarantee to cover any future tax obligation resulting from the grant, exercise or disposition of the Award, the Shares issuable upon the exercise thereof, or any rights resulting therefrom, in a form satisfactory to such employer in such employer’s sole discretion.

 

6.

THE AWARD AGREEMENT.

The terms and conditions upon which the Awards shall be issued and exercised shall be as specified in an Award Agreement to be executed pursuant to the Plan and this Sub-Plan. Each Award Agreement shall state, inter alia, the number of Shares granted under the Award, the type of Award granted thereunder (whether such Award is a Trustee 102 Award, and if so, whether it is a 102 Capital Gains Award or 102 Ordinary Income Award, or a Non-Trustee 102 Award, or a 3(i) Award), the vesting provisions, the term of the Award, and the exercise price. Any grant of Awards shall be conditioned upon the Israeli Grantee’s undertaking to be subject to the provisions of Section 102 or Section 3(i) of the Ordinance, as applicable.

 

7.

FAIR MARKET VALUE FOR ISRAELI TAX PURPOSES.

Without derogating from Section 1(u) of the Plan and solely for the purpose of determining the tax liability pursuant to Section 102(b)(3) of the Ordinance, if at the date of grant of a 102 Capital Gains Award the Company’s Shares are listed on any established stock exchange or anational market system, or if the Company’s Shares are registered for trading within ninety (90) days following the date of grant of the 102 Capital Gains Award, the fair market value of the Shares at the date of grant shall be determined in accordance with the average value of theCompany’s Shares on the thirty (30) trading days preceding the date of grant or on the thirty (30) trading days following the date of registration for trading, as the case may be.

 

8.

EXERCISE OF AWARDS.

Awards that represent options to purchase Shares shall be exercised by the Israeli Grantee by giving a written or electronic notice to the Company and/or to any third party designated by the Company (the “Representative”), in such form and method as may be determined by the Company and, when applicable, by the Trustee, in accordance with the requirements of Section 102 or Section 3(i), which exercise shall be effective upon receipt of such notice by the Company and/or the Representative and the payment of the exercise price for the number of Shares with respect to which the Award is being exercised and the payment of the tax, at the Company’s or the Representative’s principal office. The notice shall specify the number of Shares with respect to which the Award is being exercised.

Other Awards shall be exercised in such form and method as may be determined by the Company and, when applicable, by the Trustee, in accordance with the requirements of Section 102 or Section 3(i), which exercise shall be effective upon receipt of the payment of the tax in case of exercise of 3(i) Awards.

For the avoidance of doubt it is hereby clarified that no exercise of 3(i) Awards shall be affective if the applicable tax was not paid to the Company or its Representative.

 

7


9.

INTEGRATION OF SECTION 102 AND TAX ASSESSING OFFICERS PERMIT.

(a)    With respect to Trustee 102 Awards, the provisions of the Plan, this Sub-Plan and the Award Agreement shall be subject to the provisions of Section 102 and the Tax Assessing Officer’s permit (to the extent that such permit is issued) and/or any pre-ruling obtained by the ITA (the “Permit”), and the provisions of the Permit shall be deemed integrated with, and a part of, the Plan, this Sub-Plan and the Award Agreement.

(b)    Any provision of Section 102 or the Permit which is necessary in order to obtain or preserve any tax benefit pursuant to Section 102, which is not expressly specified in the Plan, this Sub-Plan, or the Award Agreement, shall be deemed to have been automatically incorporated into this Sub-Plan and binding upon the Company and the Grantees who are Israeli Grantees.

 

10.

DIVIDENDS.

Without derogating from the provisions of the Plan, an Israeli Grantee shall be entitled to receive dividends with respect to Shares issued upon the exercise of his or her Awards, whether such Shares are held by the Israeli Grantee or by the Trustee (entitled dividends with respect to Shares held by the Trustee, shall be received by the Trustee) for his or her benefit, in accordance with the provisions of the Company’s Certificate of Incorporation (including all amendments thereto), subject to any applicable taxation on distribution of dividends and, when applicable, subject to the provisions of Section 102.

 

11.

TAX CONSEQUENCES.

(a)    Any liability for any Tax arising with respect to the Awards and the Shares, including, but not limited to, as a result of the grant of Awards, the exercise of an Award for Shares, the receipt of cash, the transfer, waiver, or expiration of Awards or Shares or the disposal of Shares, shall be borne solely by the Israeli Grantees, and in the event of their death, by their estates or heirs. Neither the Company nor any Affiliate nor the Trustee shall be required to pay such Taxes, directly or indirectly, nor shall they be required to gross up such Taxes in the Israeli Grantees’ salaries or remuneration. The applicable Tax may be deducted from any cash to be provided to the Israeli Grantee or from the proceeds of the disposal of the Shares or shall be paid to the Trustee or to the Company or its Affiliates by the Israeli Grantees at their request, or may be provided via any combination of the above.

(b)    The Company, its Affiliates and the Trustee shall be entitled to withhold Taxes according to the requirements of any applicable laws, rules, and regulations, including by withholding Taxes at source and specifically under Rule 7(b) of the Rules.

(c)    The Israeli Grantees undertake to indemnify the Company, its Affiliates and the Trustee, immediately upon their request, for any Tax for which the Israeli Grantee is liable under any applicable law, under the Plan or this Sub-Plan, and which was paid by the Company or the Trustee, or which the Company or the Trustee are required to pay and hold them harmless against and from any and all liability for any such tax or interest or penalty or indexation thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withhold any such tax from payments made to the Israeli Grantee. The Company may exercise its right to such indemnification by deducting the Tax subject to indemnification from Grantee’s salary or remuneration.

 

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(d)    The Board (or the Committee, as the case may be), or when applicable, the Trustee shall not be required to release any Awards, Shares, rights resulting therefrom, including bonus Shares, or share certificates, to an Israeli Grantee until all required Tax payments and other payments to be borne by such Israeli Grantee have been fully made.

(e)    Notwithstanding any other provision no Israeli Grantee shall have any of the rights of a Shareholder with respect to any Shares until Grantee pays all payments (including Tax) required to be paid under this Section with respect to such Shares.

(f)    The ramifications of any future modification of any applicable law with respect to the taxation of Awards or Shares granted to Grantees shall apply to the Israeli Grantees accordingly and the Israeli Grantees shall bear the full cost thereof, unless such laws, as modified, mandatorily provide otherwise. For the avoidance of doubt, should the applicability of such taxing arrangements to the Plan, this Sub-Plan or to securities issued hereunder or thereunder be conditioned on a decision by the Company or by the Trustee that such arrangements shall apply, the Company shall be entitled to decide, at its absolute discretion, whether to apply such taxing arrangements and to instruct the Trustee to act accordingly.

(g)    With respect to Unapproved 102 Award, if the Israeli Grantee ceases to be employed by the Company or any Affiliate, the Israeli Grantee shall extend to the Company and/or its Affiliate a security or guarantee for the payment of tax due at the time of sale of Shares, all in accordance with the provisions of Section 102 and the rules, regulation or orders promulgated thereunder.

(h)    Each Grantee agrees to, and undertakes to comply with, any ruling, settlement, closing agreement or other similar agreement or arrangement with any tax authority in connection with the foregoing which is approved by the Company.

 

12.

VOTING RIGHTS.

SUBJECT TO THE PROVISIONS OF THE PLAN, FOR AS LONG AS ANY SHARES ARE ISSUED TO THE TRUSTEE ON BEHALF OF AN ISRAELI GRANTEE UNDER THIS SUB-PLAN, SUCH SHARES SHALL BE VOTED BY THE TRUSTEE, UNLESS THE TRUSTEE IS DIRECTED OTHERWISE BY THE BOARD OR THE COMMITTEE, AS THE CASE MAY BE, IN THE SAME PROPORTION AS THE RESULT OF THE SHAREHOLDER VOTE AT THE SHAREHOLDERS MEETING OR WRITTEN CONSENT IN RESPECT OF WHICH THE SHARES HELD BY THE TRUSTEE ARE BEING VOTED. HOWEVER, THE TRUSTEE SHALL NOT BE OBLIGATED TO EXERCISE SUCH VOTING RIGHTS NOR NOTIFY THE ISRAELI GRANTEE OF ANY MEETING OF THE COMPANY’S SHAREHOLDERS.

 

13.

GOVERNING LAW & JURISDICTION.

THIS SUB-PLAN SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ISRAEL, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS. THE COMPETENT COURTS IN TEL-AVIV SHALL HAVE SOLE JURISDICTION IN ANY MATTERS PERTAINING TO THIS SUB-PLAN.

* * *

 

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EX-10.15

Exhibit 10.15

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

NOTICE OF STOCK OPTION AWARD

 

Grantee’s Name and Address:

   

 

   

 

   

 

You (the “Grantee”) have been granted an option to purchase shares of Common Stock, subject to the terms and conditions of this Notice of Stock Option Award (the “Notice”), the Adicet Bio, Inc. 2015 Stock Incentive Plan, as amended from time to time (the “Plan”) and the Stock Option Award Agreement (the “Option Agreement”) attached hereto, as follows. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice.

 

Award Number

                                                                                                                                                                                      

Date of Award

                                                                                                                                                                                      

Vesting Commencement Date

                                                                                                                                                                                      

Exercise Price per Share

  $                                                                                                                                                                                  

Total Number of Shares Subject to the Option (the “Shares”)

                                                                                                                                                                                      

Total Exercise Price

  $                                                                                                                                                                                  

Type of Option:

                Incentive Stock Option
                Non-Qualified Stock Option

Expiration Date:

                                                                                                                                                                                      

Post-Termination Exercise Period:

  Three (3) Months

Vesting Schedule:

This Option is immediately exercisable although the Shares issued upon exercise of the Option will be subject to the restrictions on transfer and a right of repurchase at the Exercise Price per Share, in favor of the Company, as described in Section 16 of the Option Agreement (the “Repurchase Right”). For purposes of this Notice and the Option Agreement, the term “vest” shall mean, with respect to any Shares, that such Shares (whether subject to the Option or acquired upon exercise of the Option) are no longer subject to the Repurchase Right, provided, however, that such Shares shall remain subject to other restrictions on transfer set forth in the Option Agreement or the Plan. Shares that have not vested are deemed “Restricted Shares. If the Grantee would become vested in a fraction of a Share, such Share shall not vest until the Grantee becomes vested in the entire Share.

 

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Subject to the Grantee’s Continuous Service and the other limitations set forth in this Notice, the Plan and the Option Agreement, the Repurchase Right shall lapse in accordance with the following schedule:

[25% of the Shares subject to the Option shall vest twelve (12) months after the Vesting Commencement Date, and 1/36th of the remaining unvested Shares subject to the Option shall vest on each of the next thirty-six (36) monthly anniversaries of the Vesting Commencement Date thereafter.]1

[1/48th of the Shares subject to the Option shall vest on each monthly anniversary of the Vesting Commencement Date.]2

During any authorized leave of absence, the vesting of the Shares shall be suspended after the leave of absence exceeds a period of three (3) months. Vesting of the Shares shall resume upon the Grantee’s termination of the leave of absence and return to Continuous Service. The Vesting Schedule of the Shares shall be extended by the length of the suspension.

In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall terminate concurrently with the termination of the Grantee’s Continuous Service, except as otherwise determined by the Administrator.

[Remainder of Page Left Intentionally Blank]

 

 

1 

Insert for new-hire grants.

2 

Insert for refresh grants.

 

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IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Option is to be governed by the terms and conditions of this Notice, the Plan, and the Option Agreement.

 

ADICET BIO, INC.,
a Delaware corporation
By:  

                                         

Name:  

                     

Title:  

 

[Remainder of Page Left Intentionally Blank]

 

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THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THE OPTION SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE OPTION AGREEMENT, OR THE PLAN SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE COMPANY OR RELATED ENTITY TO WHICH THE GRANTEE PROVIDES SERVICES TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.

The Grantee acknowledges receipt of a copy of the Plan and the Option Agreement, and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Option subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Plan, and the Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice, and fully understands all provisions of this Notice, the Plan and the Option Agreement. The Grantee hereby agrees that all questions of interpretation and administration relating to this Notice, the Plan and the Option Agreement shall be resolved by the Administrator in accordance with Section 23 of the Option Agreement. The Grantee further agrees to the venue selection in accordance with Section 24 of the Option Agreement. The Grantee further agrees to notify the Company upon any change in the residence address indicated in this Notice.

 

Dated:                                                                  Signed:                                                                                  
   Grantee

 

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Award Number:                    

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

IMMEDIATELY EXERCISABLE STOCK OPTION AWARD AGREEMENT

1.    Grant of Option. Adicet Bio, Inc., a Delaware corporation (the “Company”), hereby grants to the Grantee (the “Grantee”) named in the Notice of Stock Option Award (the “Notice”), an option (the “Option”) to purchase the Total Number of Shares of Common Stock subject to the Option (the “Shares”) set forth in the Notice, at the Exercise Price per Share set forth in the Notice (the “Exercise Price”) subject to the terms and provisions of the Notice, this Stock Option Award Agreement (the “Option Agreement”) and the Company’s 2015 Stock Incentive Plan, as amended from time to time (the “Plan”), which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement.

If designated in the Notice as an Incentive Stock Option, the Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. However, notwithstanding such designation, the Option will qualify as an Incentive Stock Option under the Code only to the extent the $100,000 dollar limitation of Section 422(d) of the Code is not exceeded. The $100,000 limitation of Section 422(d) of the Code is calculated based on the aggregate Fair Market Value of the Shares subject to options designated as Incentive Stock Options which become exercisable for the first time by the Grantee during any calendar year (under all plans of the Company or any Parent or Subsidiary of the Company). For purposes of this calculation, Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the shares subject to such options shall be determined as of the grant date of the relevant option.

2.    Exercise of Option.

(a)    Right to Exercise. The Option shall be immediately exercisable during its term in accordance with the applicable provisions of the Plan and this Option Agreement. The Option shall be subject to the provisions of Section 11 of the Plan relating to the exercisability or termination of the Option in the event of a Corporate Transaction. The Grantee shall be subject to reasonable limitations on the number of requested exercises during any monthly or weekly period as determined by the Administrator. In no event shall the Company issue fractional Shares.

(b)    Method of Exercise. The Option shall be exercisable by delivery of an exercise notice (a form of which is attached as Exhibit A) or by such other procedure as specified from time to time by the Administrator which shall state the election to exercise the Option, the whole number of Shares in respect of which the Option is being exercised, and such other provisions as may be required by the Administrator. The exercise notice shall be delivered in person, by certified mail, or by such other method (including electronic transmission) as determined from time to time by the Administrator to the Company accompanied by payment of the Exercise Price and all applicable income and employment taxes required to be withheld. The

 

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Option shall be deemed to be exercised upon receipt by the Company of such notice accompanied by the Exercise Price and all applicable withholding taxes, which, to the extent selected, shall be deemed to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in Section 4(d), below, to the extent such procedure is available to the Grantee at the time of exercise and such an exercise would not violate any Applicable Law.

(c)    Taxes. No Shares will be delivered to the Grantee or other person pursuant to the exercise of the Option until the Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of applicable income tax and employment tax withholding obligations, including, without limitation, such other tax obligations of the Grantee incident to the receipt of Shares. Upon exercise of the Option, the Company or the Grantee’s employer may offset or withhold (from any amount owed by the Company or the Grantee’s employer to the Grantee) or collect from the Grantee or other person an amount sufficient to satisfy such tax withholding obligations. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the Option, the Grantee agrees to pay the Company the amount of such deficiency in cash within five (5) days after receiving a written demand from the Company to do so, whether or not the Grantee is an employee of the Company at that time.

3.    Grantee’s Representations. The Grantee understands that neither the Option nor the Shares exercisable pursuant to the Option have been registered under the Securities Act of 1933, as amended or any United States securities laws. In the event the Shares purchasable pursuant to the exercise of the Option have not been registered under the Securities Act of 1933, as amended, at the time the Option is exercised, the Grantee shall, if requested by the Company, concurrently with the exercise of all or any portion of the Option, deliver to the Company his or her Investment Representation Statement in the form attached hereto as Exhibit B.

4.    Method of Payment. Payment of the Exercise Price shall be made by any of the following, or a combination thereof, at the election of the Grantee; provided, however, that such exercise method does not then violate any Applicable Law and, provided further, that the portion of the Exercise Price equal to the par value of the Shares must be paid in cash or other legal consideration permitted by the Delaware General Corporation Law:

(a)    cash;

(b)    check;

(c)    if the exercise occurs on or after the Registration Date, surrender of Shares held for the requisite period, if any, necessary to avoid a charge to the Company’s earnings for financial reporting purposes, or delivery of a properly executed form of attestation of ownership of Shares as the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate Exercise Price of the Shares as to which the Option is being exercised; or

(d)    if the exercise occurs on or after the Registration Date, payment through a broker-dealer sale and remittance procedure pursuant to which the Grantee (i) shall provide

 

2


written instructions to a Company-designated brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to the Company sufficient funds to cover the aggregate exercise price payable for the purchased Shares and (ii) shall provide written directives to the Company to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction.

5.    Restrictions on Exercise. The Option may not be exercised if the issuance of the Shares subject to the Option upon such exercise would constitute a violation of any Applicable Laws. In addition, the Option may not be exercised until such time as the Plan has been approved by the stockholders of the Company. If the exercise of the Option within the applicable time periods set forth in Sections 6, 7 and 8 of this Option Agreement is prevented by the provisions of this Section 5, the Option shall remain exercisable until one (1) month after the date the Grantee is notified by the Company that the Option is exercisable, but in any event no later than the Expiration Date set forth in the Notice.

6.    Termination or Change of Continuous Service. In the event the Grantee’s Continuous Service terminates, other than for Cause, the Grantee may, but only during the Post-Termination Exercise Period, exercise the portion of the Option that was vested at the date of such termination (the “Termination Date”). The Post-Termination Exercise Period shall commence on the Termination Date. In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall, except as otherwise determined by the Administrator, terminate concurrently with the termination of the Grantee’s Continuous Service (also the “Termination Date”). In no event, however, shall the Option be exercised later than the Expiration Date set forth in the Notice. In the event of the Grantee’s change in status from Employee, Director or Consultant to any other status of Employee, Director or Consultant, the Option shall remain in effect and the Option shall continue to vest in accordance with the Vesting Schedule set forth in the Notice; provided, however, with respect to any Incentive Stock Option that shall remain in effect after a change in status from Employee to Director or Consultant, such Incentive Stock Option shall cease to be treated as an Incentive Stock Option and shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following such change in status. Except as provided in Sections 7 and 8 below, to the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the Post-Termination Exercise Period, the Option shall terminate.

7.    Disability of Grantee. In the event the Grantee’s Continuous Service terminates as a result of his or her Disability, the Grantee may, but only within twelve (12) months commencing on the Termination Date (but in no event later than the Expiration Date), exercise the portion of the Option that was vested on the Termination Date; provided, however, that if such Disability is not a “disability” as such term is defined in Section 22(e)(3) of the Code and the Option is an Incentive Stock Option, such Incentive Stock Option shall cease to be treated as an Incentive Stock Option and shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following the Termination Date. To the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the time specified herein, the Option shall terminate. Section 22(e)(3) of the Code provides that an individual is permanently and totally disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

 

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8.    Death of Grantee. In the event of the termination of the Grantee’s Continuous Service as a result of his or her death, or in the event of the Grantee’s death during the Post-Termination Exercise Period or during the twelve (12) month period following the Grantee’s termination of Continuous Service as a result of his or her Disability, the person who acquired the right to exercise the Option pursuant to Section 9 may exercise the portion of the Option that was vested at the date of termination within twelve (12) months commencing on the date of death (but in no event later than the Expiration Date). To the extent that the Option was unvested on the date of death, or if the vested portion of the Option is not exercised within the time specified herein, the Option shall terminate.

9.    Transferability of Option. The Option, if an Incentive Stock Option, may not be transferred in any manner other than by will or by the laws of descent and distribution and may be exercised during the lifetime of the Grantee only by the Grantee. The Option, if a Non-Qualified Stock Option, may not be transferred in any manner other than by will or by the laws of descent and distribution, provided, however, that a Non-Qualified Stock Option may be transferred during the lifetime of the Grantee by gift or pursuant to a domestic relations order to members of the Grantee’s Immediate Family to the extent and in the manner determined by the Administrator. Notwithstanding the foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s Incentive Stock Option or Non-Qualified Stock Option in the event of the Grantee’s death on a beneficiary designation form provided by the Administrator. Following the death of the Grantee, the Option, to the extent provided in Section 8, may be exercised (a) by the person or persons designated under the deceased Grantee’s beneficiary designation or (b) in the absence of an effectively designated beneficiary, by the Grantee’s legal representative or by any person empowered to do so under the deceased Grantee’s will or under the then applicable laws of descent and distribution. The terms of the Option shall be binding upon the executors, administrators, heirs, successors and transferees of the Grantee.

10.    Term of Option. The Option must be exercised no later than the Expiration Date set forth in the Notice or such earlier date as otherwise provided herein. After the Expiration Date or such earlier date, the Option shall be of no further force or effect and may not be exercised.

11.    Transfer Restrictions for Unvested Shares. The Shares sold to the Grantee hereunder may not be sold, transferred by gift, pledged, hypothecated, or otherwise transferred or disposed of by the Grantee prior to the date that the Shares become vested pursuant to the Vesting Schedule set forth in the Notice. Any attempt to transfer Shares in violation of this Section 11 will be null and void and will be disregarded. After the Shares vest, the Shares will remain subject to the Company’s Right of First Refusal as set forth in Section 12.

12.    Companys Right of First Refusal. The Grantee acknowledges and agrees that the Shares are subject to a right of first refusal (“Right of First Refusal”) as set forth in the Bylaws of the Company, which Right of First Refusal is incorporated herein by reference irrespective of whether the Bylaws are amended at some future date to remove the Right of First Refusal therefrom, and that, except in compliance with such Right of First Refusal, neither the Grantee nor a transferee (either being sometimes referred to herein as the “Holder”) shall sell, hypothecate, encumber or otherwise transfer any Shares or any right or interest therein.

 

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13.    Escrow of Stock. For purposes of facilitating the enforcement of the provisions of this Option Agreement, the Grantee agrees, immediately upon receipt of the certificate(s) for the Shares, to deliver such certificate(s), together with an Assignment Separate from Certificate in the form attached hereto as Exhibit C, executed in blank by the Grantee with respect to each such stock certificate, to the Secretary or Assistant Secretary of the Company, or their designee, to hold in escrow for so long as such Shares have not vested pursuant to the Vesting Schedule set forth in the Notice or are subject to the Company’s Right of First Refusal, with the authority to take all such actions and to effectuate all such transfers and/or releases as may be necessary or appropriate to accomplish the objectives of this Option Agreement in accordance with the terms hereof. The Grantee hereby acknowledges that the appointment of the Secretary or Assistant Secretary of the Company (or their designee) as the escrow holder hereunder with the stated authorities is a material inducement to the Company to make this Option Agreement and that such appointment is coupled with an interest and is accordingly irrevocable. The Grantee agrees that the Restricted Shares may be held electronically in a book entry system maintained by the Company’s transfer agent or other third-party and that all the terms and conditions of this Section 13 applicable to certificated Restricted Shares will apply with the same force and effect to such electronic method for holding the Restricted Shares. The Grantee agrees that such escrow holder shall not be liable to any party hereto (or to any other party) for any actions or omissions unless such escrow holder is grossly negligent relative thereto. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. Upon the vesting of all Shares and termination of the Company’s Right of First Refusal, the escrow holder will, upon request, transmit to the Grantee the certificate evidencing such Shares.

14.    Additional Securities. Any securities or cash received (other than a regular cash dividend) as the result of ownership of the Shares (the “Additional Securities”), including, but not by way of limitation, warrants, options and securities received as a stock dividend or stock split, or as a result of any transaction described in Section 10 or 11 of the Plan, shall be subject to the same conditions and restrictions as the Shares with respect to which they were issued, including, without limitation, the Vesting Schedule set forth in the Notice, Right of First Refusal and the Repurchase Right and retained in escrow in the same manner as the Shares with respect to which they relate. The Grantee shall be entitled to direct the Company to exercise any warrant or option received as Additional Securities upon supplying the funds necessary to do so, in which event the securities so purchased shall constitute Additional Securities, but the Grantee may not direct the Company to sell any such warrant or option. If Additional Securities consist of a convertible security, the Grantee may exercise any conversion right, and any securities so acquired shall constitute Additional Securities. Appropriate adjustments to reflect the distribution of Additional Securities shall be made to the price per share to be paid upon the exercise of the Repurchase Right in order to reflect the effect of any such transaction upon the Company’s capital structure. In the event of any change in certificates evidencing the Shares or the Additional Securities by reason of any recapitalization, reorganization or other transaction that results in the creation of Additional Securities, the escrow holder is authorized to deliver to the issuer the certificates evidencing the Shares or the Additional Securities in exchange for the certificates of the replacement securities.

 

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15.    Distributions. Subject to Section 14 and Section 16(e), the Company shall disburse to the Grantee all regular cash dividends with respect to the Shares and Additional Securities (whether vested or not), less any applicable withholding obligations.

16.    Companys Repurchase Right.

(a)    Grant of Repurchase Right. The Company is hereby granted the right (the “Repurchase Right”), exercisable at any time during the nine (9) month period following the Termination Date, to repurchase all or any portion of the Shares that have not vested pursuant to the terms of the Vesting Schedule purchased upon exercise of the Option (the “Share Repurchase Period”).

(b)    Exercise of the Repurchase Right. The Repurchase Right shall be exercisable by written notice delivered to the Grantee prior to the expiration of the Share Repurchase Period. The notice shall indicate the number of Shares to be repurchased and the date on which the repurchase is to be effected, such date to be not later than the last day of the Share Repurchase Period. On the date on which the repurchase is to be effected, the Company and/or its assigns shall pay to the Grantee in cash or cash equivalents (including the cancellation of any purchase-money indebtedness) an amount equal to the lesser of the Exercise Price per Share previously paid by the Grantee to the Company for such Shares and the Fair Market Value per Share on the date on which the repurchase is to be effected. Upon such payment or deposit into escrow for the benefit of the Grantee, the Company and/or its assigns shall become the legal and beneficial owner of the Shares being repurchased and all rights and interest thereon or related thereto, and the Company shall have the right to transfer to its own name or its assigns the number of Shares being repurchased, without further action by the Grantee.

(c)    Assignment. Whenever the Company shall have the right to purchase Shares under this Repurchase Right, the Company may designate and assign one or more employees, officers, directors or stockholders of the Company or other persons or organizations, to exercise all or a part of the Company’s Repurchase Right.

(d)    Termination of the Repurchase Right. The Repurchase Right shall terminate with respect to any Shares for which it is not timely exercised.

(e)    Additional Shares or Substituted Securities. In the event of any transaction described in Sections 10 or 11 of the Plan, the Repurchase Right shall apply to the new capital stock or other property (including cash paid other than as a regular cash dividend) received in exchange for the Shares in consummation of any such transaction and such stock or property shall be deemed Additional Securities for purposes of this Option Agreement, but only to the extent the Shares are at the time covered by such Repurchase Right. Appropriate adjustments shall be made to the price per share payable upon exercise of the Repurchase Right to reflect the effect of any such transaction.

17.    Stop-Transfer Notices. In order to ensure compliance with the restrictions on transfer set forth in this Option Agreement, the Notice or the Plan, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

 

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18.    Refusal to Transfer. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Option Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

19.    Tax Consequences.

(a)    The Grantee may incur tax liability as a result of the Grantee’s purchase or disposition of the Shares. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.

(b)    Notwithstanding the Company’s good faith determination of the Fair Market Value of the Company’s Common Stock for purposes of determining the Exercise Price Per Share of the Option as set forth in the Notice, the taxing authorities may assert that the Fair Market Value of the Common Stock on the Date of Award was greater than the Exercise Price Per Share. If designated in the Notice as an Incentive Stock Option, the Option may fail to qualify as an Incentive Stock Option if the Exercise Price Per Share of the Option is less than the Fair Market Value of the Common Stock on the Date of Award. In addition, under Section 409A of the Code, if the Exercise Price Per Share of the Option is less than the Fair Market Value of the Common Stock on the Date of Award, the Option may be treated as a form of deferred compensation and the Grantee may be subject to an acceleration of income recognition, an additional 20% tax, plus interest and possible penalties. The Company makes no representation that the Option will comply with Section 409A of the Code and makes no undertaking to prevent Section 409A of the Code from applying to the Option or to mitigate its effects on any deferrals or payments made in respect of the Option. The Grantee is encouraged to consult a tax adviser regarding the potential impact of Section 409A of the Code.

20.    Lock-Up Agreement.

(a)    Agreement. The Grantee, if requested by the Company and the lead underwriter of any public offering of the Common Stock (the “Lead Underwriter”), hereby irrevocably agrees not to sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in, make any short sale of, pledge or otherwise transfer or dispose of any interest in any Common Stock or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire Common Stock (except Common Stock included in such public offering or acquired on the public market after such offering) during the 180-day period following the effective date of a registration statement of the Company filed under the Securities Act of 1933, as amended, or such shorter or longer period of time as the Lead Underwriter shall specify. The Grantee further agrees to sign such documents as may be requested by the Lead Underwriter to effect the foregoing and agrees that the Company may impose stop-transfer instructions with respect to such Common Stock subject to the lock-up period until the end of such period. The Company and the Grantee acknowledge that each Lead Underwriter of a public offering of the Company’s stock, during the period of such offering and for the lock-up period thereafter, is an intended beneficiary of this Section 20.

 

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(b)    No Amendment Without Consent of Underwriter. During the period from identification of a Lead Underwriter in connection with any public offering of the Company’s Common Stock until the earlier of (i) the expiration of the lock-up period specified in Section 20(a) in connection with such offering or (ii) the abandonment of such offering by the Company and the Lead Underwriter, the provisions of this Section 20 may not be amended or waived except with the consent of the Lead Underwriter.

21.    Entire Agreement: Governing Law. The Notice, the Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. Nothing in the Notice, the Plan and this Option Agreement (except as expressly provided therein) is intended to confer any rights or remedies on any persons other than the parties. The Notice, the Plan and this Option Agreement are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of the Notice, the Plan or this Option Agreement be determined to be illegal or unenforceable, such provision shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain effective and shall remain enforceable.

22.    Construction. The captions used in the Notice and this Option Agreement are inserted for convenience and shall not be deemed a part of the Option for construction or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

23.    Administration and Interpretation. Any question or dispute regarding the administration or interpretation of the Notice, the Plan or this Option Agreement shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator shall be final and binding on all persons.

24.    Venue. The Company, the Grantee, and the Grantee’s assignees pursuant to Section 9 (the “parties”) agree that any suit, action, or proceeding arising out of or relating to the Notice, the Plan or this Option Agreement shall be brought in the United States District Court for the Northern District of California (or should such court lack jurisdiction to hear such action, suit or proceeding, in a California state court in the County of San Francisco) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. If any one or more provisions of this Section 24 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.

25.    Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an

 

8


internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown in these instruments, or to such other address as such party may designate in writing from time to time to the other party.

26.    Confidentiality. To the extent required by Applicable Law, the Company shall provide to the Grantee, during the period the Option is outstanding, copies of financial statements of the Company at least annually. The Grantee understands and agrees that such financial statements are confidential and shall not be disclosed by the Grantee, to any entity or person, for any reason, at any time, without the prior written consent of the Company, unless required by law. If disclosure of such financial statements is required by law, whether through subpoena, request for production, deposition, or otherwise, the Grantee promptly shall provide written notice to Company, including copies of the subpoena, request for production, deposition, or otherwise, within five (5) business days of their receipt by the Grantee and prior to any disclosure so as to provide Company an opportunity to move to quash or otherwise to oppose the disclosure. Notwithstanding the foregoing, the Grantee may disclose the terms of such financial statements to his or her spouse or domestic partner, and for legitimate business reasons, to legal, financial, and tax advisors.

END OF AGREEMENT

 

9


EXHIBIT A

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

EXERCISE NOTICE

[COMPANY ADDRESS]

Attention: Secretary

1.    Effective as of today,                      the undersigned (the “Grantee”) hereby elects to exercise the Grantee’s option to purchase                      shares of the Common Stock (the “Shares”) of Adicet Bio, Inc. (the “Company”) under and pursuant to the Company’s 2015 Stock Incentive Plan, as amended from time to time (the “Plan”) and the [    ] Incentive [    ] Non-Qualified Stock Option Award Agreement (the “Option Agreement”) and Notice of Stock Option Award (the “Notice”) dated                     . Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Exercise Notice.

2.    Representations of the Grantee. The Grantee acknowledges that the Grantee has received, read and understood the Notice, the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.

3.    Rights as Stockholder. Until the stock certificate evidencing such Shares is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 10 of the Plan.

The Grantee shall enjoy rights as a stockholder until such time as the Grantee disposes of the Shares or the Company and/or its assignee(s) exercises the Right of First Refusal or the Repurchase Right. Upon such exercise, the Grantee shall have no further rights as a holder of the Shares so purchased except the right to receive payment for the Shares so purchased in accordance with the provisions of the Option Agreement, and the Grantee shall forthwith cause the certificate(s) evidencing the Shares so purchased to be surrendered to the Company for transfer or cancellation.

4.    Delivery of Payment. The Grantee herewith delivers to the Company the full Exercise Price for the Shares, which, to the extent selected, shall be deemed to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in Section 4(d) of the Option Agreement.

5.    Tax Consultation. The Grantee understands that the Grantee may suffer adverse tax consequences as a result of the Grantee’s purchase or disposition of the Shares. The Grantee represents that the Grantee has consulted with any tax consultants the Grantee deems advisable in connection with the purchase or disposition of the Shares and that the Grantee is not relying on the Company for any tax advice.

 

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6.    Tax Election; Taxes. The Grantee shall provide the Company with a copy of any timely filed 83(b) Election relating to the purchase of the Shares. If the Grantee makes a timely 83(b) Election, the Grantee shall immediately pay the Company (or the Related Entity that employs the Grantee) the amount necessary to satisfy any applicable federal, state, and local income and employment tax withholding obligations. If the Grantee does not make a timely 83(b) Election, the Grantee shall, either at the time that the restrictions lapse under the Option Agreement and the Plan or at the time withholding is otherwise required by Applicable Law, pay the Company (or the Related Entity that employs the Grantee) the amount necessary to satisfy any applicable federal, state, and local income and employment tax withholding obligations. In addition, the Grantee agrees to satisfy all other applicable federal, state and local income and employment tax withholding obligations and herewith delivers to the Company the full amount of such obligations or has made arrangements acceptable to the Company to satisfy such obligations. In the case of an Incentive Stock Option, the Grantee also agrees, as partial consideration for the designation of the Option as an Incentive Stock Option, to notify the Company in writing within thirty (30) days of any disposition of any shares acquired by exercise of the Option if such disposition occurs within two (2) years from the Date of Award or within one (1) year from the date the Shares were transferred to the Grantee.

7.    Restrictive Legends. The Grantee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER, A RIGHT OF FIRST REFUSAL AND A REPURCHASE RIGHT HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE OPTION AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS, RIGHT OF FIRST REFUSAL AND REPURCHASE RIGHT ARE BINDING ON TRANSFEREES OF THESE SHARES.

8.    Successors and Assigns. The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this agreement shall inure to the benefit of

 

2


the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Grantee and his or her heirs, executors, administrators, successors and assigns.

9.    Construction. The captions used in this Exercise Notice are inserted for convenience and shall not be deemed a part of this agreement for construction or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

10.    Administration and Interpretation. The Grantee hereby agrees that any question or dispute regarding the administration or interpretation of this Exercise Notice shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator shall be final and binding on all persons.

11.    Governing Law; Severability. This Exercise Notice is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of this Exercise Notice be determined by a court of law to be illegal or unenforceable, such provision shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain effective and shall remain enforceable.

12.    Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown below beneath its signature, or to such other address as such party may designate in writing from time to time to the other party.

13.    Further Instruments. The parties agree to execute such further instruments and to take such further action as may be reasonably necessary to carry out the purposes and intent of this agreement.

14.    Entire Agreement. The Notice, the Plan and the Option Agreement are incorporated herein by reference and together with this Exercise Notice constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. Nothing in the Notice, the Plan, the Option Agreement and this Exercise Notice (except as expressly provided therein) is intended to confer any rights or remedies on any persons other than the parties.

[Remainder of Page Left Intentionally Blank]

 

3


Submitted by:   Accepted by:
GRANTEE:     ADICET BIO, INC.
By:  

                                                                                       

    By:  

 

Name:  

 

    Name:  

                                                                               

      Title:  

 

Address:   Address:

                                                                                                  

   

                                                                                                      

                                                                                                  

   

                                                                                                      

                                                                                                  

   

                                                                                                       

 

4


EXHIBIT B

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

INVESTMENT REPRESENTATION STATEMENT

 

GRANTEE:   

 

  
COMPANY:    ADICET BIO, INC.   
SECURITY:    COMMON STOCK   
NUMBER OF SHARES:   

 

                       
DATE:   

 

  

In connection with the purchase of the above-listed Securities, the undersigned Grantee represents to the Company the following:

(a)    Grantee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. Grantee is acquiring these Securities for investment for Grantee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).

(b)    Grantee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon among other things, the bona fide nature of Grantee’s investment intent as expressed herein. Grantee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Grantee further acknowledges and understands that the Company is under no obligation to register the Securities. Grantee understands that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel satisfactory to the Company.

(c)    Grantee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Grantee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, except in the case of affiliates, such Securities may be resold subject to the satisfaction of the applicable conditions specified by Rule 144, including: (1) the availability of certain public information about the Company, (2) the amount of Securities being sold during any three month period not exceeding specified limitations, (3) the resale being made in an unsolicited “broker’s transaction,” in transactions directly with a “market maker” or “riskless principal transactions” (as said terms are defined under the Securities Exchange Act of 1934) and (4) the timely filing of a Form 144, if applicable.

 

1


In the event that the Company does not qualify under Rule 701 at the time of the grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which may require: the availability of current public information about the Company; the resale to occur more than a specified period after the purchase and full payment (within the meaning of Rule 144) for the Securities; and, in the case of the sale of Securities by an affiliate, the satisfaction of the conditions set forth in sections (2), (3) and (4) of the paragraph immediately above.

(d)    Grantee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. Grantee understands that no assurances can be given that any such other registration exemption will be available in such event.

(e)    Grantee represents that Grantee is a resident of the state of                     .

 

Signature of Grantee:
By:                                                                         
Date:                                                                       

 

2


EXHIBIT C

STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE

[Please sign this document but do not date it. The date and information of the transferee will be completed if and when the shares are assigned.]

FOR VALUE RECEIVED,                      hereby sells, assigns and transfers unto                     ,                      (        ) shares of the Common Stock of Adicet Bio, Inc., a Delaware corporation (the “Company”), standing in his name on the books of, represented by Certificate No.              herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company attorney to transfer the said stock in the books of the Company with full power of substitution.

DATED:                                                      

 

By:                                                                               
(Signature)

 

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EXHIBIT D

ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE OF 1986

The undersigned taxpayer hereby elects, pursuant to the Internal Revenue Code, to include in gross income for calendar year              the amount of any compensation taxable in connection with the taxpayer’s receipt of the property described below:

1.    The name, address, taxpayer identification number and taxable year of the undersigned are:

 

TAXPAYER’S NAME

                                                                                     

TAXPAYER’S SOCIAL SECURITY NO.:

                                                                                     

TAXABLE YEAR:

   Calendar Year             

ADDRESS:

                                                                                     
                                                                                     
                                                                                     

2.    The property which is the subject of this election is                      shares of common stock of Adicet Bio, Inc.

3.    The property was transferred to the undersigned on                     ,             .

4.    The property is subject to the following restrictions: The property is subject to a repurchase right pursuant to which the issuer has the right to acquire the property at the lesser of the original purchase price or the fair market value of the property if for any reason taxpayer’s employment or service with the issuer is terminated. The issuer’s repurchase right lapses in a series of periodic installments.

5.    The fair market value of the property at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is: $         per share x                     shares = $        .

6.    The undersigned paid $         per share x             shares for the property transferred or a total of $        .

The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned’s receipt of the above-described property. The undersigned taxpayer is the person performing the services in connection with the transfer of said property.

The undersigned will file this election with the Internal Revenue Service office to which the undersigned files the undersigned’s annual income tax return not later than 30 days after the date of transfer of the property. Additionally, the undersigned will include a copy of the election with the undersigned’s income tax return for the taxable year in which the property is transferred.

 

Dated:                                                                          

 

    Taxpayer

 

1


The property described in the above Section 83(b) election is comprised of shares of common stock acquired pursuant to the exercise of an incentive stock option under Section 422 of the Internal Revenue Code (the “Code”). Accordingly, the purpose of this election is to have the alternative minimum taxable income attributable to the purchased shares measured by the amount by which the fair market value of such shares at the time of their transfer to the Taxpayer exceeds the purchase price paid for the shares. In the absence of this election, such alternative minimum taxable income would be measured by the spread between the fair market value of the purchased shares and the purchase price which exists on the various lapse dates in effect for the forfeiture restrictions applicable to such shares.

THIS PAGE 2 IS TO BE ATTACHED TO ANY SECTION 83(b) ELECTION FILED IN CONNECTION WITH THE EXERCISE OF AN INCENTIVE STOCK OPTION.

 

2

EX-10.16

Exhibit 10.16

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

NOTICE OF STOCK OPTION AWARD

 

  Grantee’s Name and Address:

                                                                                                                                       
                                                                                                                                       
                                                                                                                                       

You (the “Grantee”) have been granted an option to purchase shares of Common Stock, subject to the terms and conditions of this Notice of Stock Option Award (the “Notice”), the Adicet Bio, Inc. 2015 Stock Incentive Plan, as amended from time to time (the “Plan”) and the Stock Option Award Agreement (the “Option Agreement”) attached hereto, as follows. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice.

 

Award Number

                                                                                                                                       

Date of Award

                                                                                                                                       

Vesting Commencement Date

                                                                                                                                       

Exercise Price per Share

  $                                                                                                                                   

Total Number of Shares Subject to the Option (the “Shares”)

                                                                                                                                       

Total Exercise Price

  $                                                                                                                                   

Type of Option:

                                                             Incentive Stock Option  
                                                    Non-Qualified Stock Option  

Expiration Date:

                                                                                                                                       

Post-Termination Exercise Period:          Three (3) Months

 

Vesting Schedule:

Subject to the Grantee’s Continuous Service and the other limitations set forth in this Notice, the Plan and the Option Agreement, the Option may be exercised, in whole or in part, in accordance with the following schedule:

[25% of the Shares subject to the Option shall vest twelve (12) months after the Vesting Commencement Date, and 1/36th of the remaining unvested Shares subject to the Option shall vest on each of the next thirty-six (36) monthly anniversaries of the Vesting Commencement Date thereafter.]1

[1/48th of the Shares subject to the Option shall vest on each monthly anniversary of the Vesting Commencement Date.]2

 

 

1 

Insert for new-hire grants.

2 

Insert for refresh grants.

 

1


During any authorized leave of absence, the vesting of the Shares shall be suspended after the leave of absence exceeds a period of three (3) months. Vesting of the Shares shall resume upon the Grantee’s termination of the leave of absence and return to Continuous Service. The Vesting Schedule of the Shares shall be extended by the length of the suspension.

In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall terminate concurrently with the termination of the Grantee’s Continuous Service, except as otherwise determined by the Administrator.

[Remainder of Page Left Intentionally Blank]

 

2


IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Option is to be governed by the terms and conditions of this Notice, the Plan, and the Option Agreement.

 

ADICET BIO, INC.,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 

[Remainder of Page Left Intentionally Blank]

 

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THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THE OPTION SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE OPTION AGREEMENT, OR THE PLAN SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE COMPANY OR RELATED ENTITY TO WHICH THE GRANTEE PROVIDES SERVICES TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.

The Grantee acknowledges receipt of a copy of the Plan and the Option Agreement, and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Option subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Plan, and the Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice, and fully understands all provisions of this Notice, the Plan and the Option Agreement. The Grantee hereby agrees that all questions of interpretation and administration relating to this Notice, the Plan and the Option Agreement shall be resolved by the Administrator in accordance with Section 18 of the Option Agreement. The Grantee further agrees to the venue selection in accordance with Section 19 of the Option Agreement. The Grantee further agrees to notify the Company upon any change in the residence address indicated in this Notice.

 

Dated:                         Signed:                                                              
                                        Grantee

 

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Award Number:                     

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

STOCK OPTION AWARD AGREEMENT

1.    Grant of Option. Adicet Bio, Inc., a Delaware corporation (the “Company”), hereby grants to the Grantee (the “Grantee”) named in the Notice of Stock Option Award (the “Notice”), an option (the “Option”) to purchase the Total Number of Shares of Common Stock subject to the Option (the “Shares”) set forth in the Notice, at the Exercise Price per Share set forth in the Notice (the “Exercise Price”) subject to the terms and provisions of the Notice, this Stock Option Award Agreement (the “Option Agreement”) and the Company’s 2015 Stock Incentive Plan, as amended from time to time (the “Plan”), which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement.

If designated in the Notice as an Incentive Stock Option, the Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. However, notwithstanding such designation, the Option will qualify as an Incentive Stock Option under the Code only to the extent the $100,000 dollar limitation of Section 422(d) of the Code is not exceeded. The $100,000 limitation of Section 422(d) of the Code is calculated based on the aggregate Fair Market Value of the Shares subject to options designated as Incentive Stock Options which become exercisable for the first time by the Grantee during any calendar year (under all plans of the Company or any Parent or Subsidiary of the Company). For purposes of this calculation, Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the shares subject to such options shall be determined as of the grant date of the relevant option.

2.    Exercise of Option.

(a)    Right to Exercise. The Option shall be exercisable during its term in accordance with the Vesting Schedule set out in the Notice and with the applicable provisions of the Plan and this Option Agreement. The Option shall be subject to the provisions of Section 11 of the Plan relating to the exercisability or termination of the Option in the event of a Corporate Transaction. The Grantee shall be subject to reasonable limitations on the number of requested exercises during any monthly or weekly period as determined by the Administrator. In no event shall the Company issue fractional Shares.

(b)    Method of Exercise. The Option shall be exercisable by delivery of an exercise notice (a form of which is attached as Exhibit A) or by such other procedure as specified from time to time by the Administrator which shall state the election to exercise the Option, the whole number of Shares in respect of which the Option is being exercised, and such other provisions as may be required by the Administrator. The exercise notice shall be delivered in person, by certified mail, or by such other method (including electronic transmission) as determined from time to time by the Administrator to the Company accompanied by payment of the Exercise Price and all applicable income and employment taxes required to be withheld. The

 

1


Option shall be deemed to be exercised upon receipt by the Company of such notice accompanied by the Exercise Price and all applicable withholding taxes, which, to the extent selected, shall be deemed to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in Section 4(d) below to the extent such procedure is available to the Grantee at the time of exercise and such an exercise would not violate any Applicable Law.

(c)    Taxes. No Shares will be delivered to the Grantee or other person pursuant to the exercise of the Option until the Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of applicable income tax and employment tax withholding obligations, including, without limitation, such other tax obligations of the Grantee incident to the receipt of Shares. Upon exercise of the Option, the Company or the Grantee’s employer may offset or withhold (from any amount owed by the Company or the Grantee’s employer to the Grantee) or collect from the Grantee or other person an amount sufficient to satisfy such tax withholding obligations. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the Option, the Grantee agrees to pay the Company the amount of such deficiency in cash within five (5) days after receiving a written demand from the Company to do so, whether or not the Grantee is an employee of the Company at that time.

3.    Grantee’s Representations. The Grantee understands that neither the Option nor the Shares exercisable pursuant to the Option have been registered under the Securities Act of 1933, as amended or any United States securities laws. In the event the Shares purchasable pursuant to the exercise of the Option have not been registered under the Securities Act of 1933, as amended, at the time the Option is exercised, the Grantee shall, if requested by the Company, concurrently with the exercise of all or any portion of the Option, deliver to the Company his or her Investment Representation Statement in the form attached hereto as Exhibit B.

4.    Method of Payment. Payment of the Exercise Price shall be made by any of the following, or a combination thereof, at the election of the Grantee; provided, however, that such exercise method does not then violate any Applicable Law and, provided further, that the portion of the Exercise Price equal to the par value of the Shares must be paid in cash or other legal consideration permitted by the Delaware General Corporation Law:

(a)    cash;

(b)    check;

(c)    if the exercise occurs on or after the Registration Date, surrender of Shares held for the requisite period, if any, necessary to avoid a charge to the Company’s earnings for financial reporting purposes, or delivery of a properly executed form of attestation of ownership of Shares as the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate Exercise Price of the Shares as to which the Option is being exercised; or

(d)    if the exercise occurs on or after the Registration Date, payment through a broker-dealer sale and remittance procedure pursuant to which the Grantee (i) shall provide

 

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written instructions to a Company-designated brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to the Company sufficient funds to cover the aggregate exercise price payable for the purchased Shares and (ii) shall provide written directives to the Company to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction.

5.    Restrictions on Exercise. The Option may not be exercised if the issuance of the Shares subject to the Option upon such exercise would constitute a violation of any Applicable Laws. In addition, the Option may not be exercised until such time as the Plan has been approved by the stockholders of the Company. If the exercise of the Option within the applicable time periods set forth in Sections 6, 7 and 8 of this Option Agreement is prevented by the provisions of this Section 5, the Option shall remain exercisable until one (1) month after the date the Grantee is notified by the Company that the Option is exercisable, but in any event no later than the Expiration Date set forth in the Notice.

6.    Termination or Change of Continuous Service. In the event the Grantee’s Continuous Service terminates, other than for Cause, the Grantee may, but only during the Post-Termination Exercise Period, exercise the portion of the Option that was vested at the date of such termination (the “Termination Date”). The Post-Termination Exercise Period shall commence on the Termination Date. In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall, except as otherwise determined by the Administrator, terminate concurrently with the termination of the Grantee’s Continuous Service (also the “Termination Date”). In no event, however, shall the Option be exercised later than the Expiration Date set forth in the Notice. In the event of the Grantee’s change in status from Employee, Director or Consultant to any other status of Employee, Director or Consultant, the Option shall remain in effect and the Option shall continue to vest in accordance with the Vesting Schedule set forth in the Notice; provided, however, with respect to any Incentive Stock Option that shall remain in effect after a change in status from Employee to Director or Consultant, such Incentive Stock Option shall cease to be treated as an Incentive Stock Option and shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following such change in status. Except as provided in Sections 7 and 8 below, to the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the Post-Termination Exercise Period, the Option shall terminate.

7.    Disability of Grantee. In the event the Grantee’s Continuous Service terminates as a result of his or her Disability, the Grantee may, but only within twelve (12) months commencing on the Termination Date (but in no event later than the Expiration Date), exercise the portion of the Option that was vested on the Termination Date; provided, however, that if such Disability is not a “disability” as such term is defined in Section 22(e)(3) of the Code and the Option is an Incentive Stock Option, such Incentive Stock Option shall cease to be treated as an Incentive Stock Option and shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following the Termination Date. To the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the time specified herein, the Option shall terminate. Section 22(e)(3) of the Code provides that an individual is permanently and totally disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

 

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8.    Death of Grantee. In the event of the termination of the Grantee’s Continuous Service as a result of his or her death, or in the event of the Grantee’s death during the Post-Termination Exercise Period or during the twelve (12) month period following the Grantee’s termination of Continuous Service as a result of his or her Disability, the person who acquired the right to exercise the Option pursuant to Section 9 may exercise the portion of the Option that was vested at the date of termination within twelve (12) months commencing on the date of death (but in no event later than the Expiration Date). To the extent that the Option was unvested on the date of death, or if the vested portion of the Option is not exercised within the time specified herein, the Option shall terminate.

9.    Transferability of Option. The Option, if an Incentive Stock Option, may not be transferred in any manner other than by will or by the laws of descent and distribution and may be exercised during the lifetime of the Grantee only by the Grantee. The Option, if a Non-Qualified Stock Option, may not be transferred in any manner other than by will or by the laws of descent and distribution; provided, however, that a Non-Qualified Stock Option may be transferred during the lifetime of the Grantee by gift or pursuant to a domestic relations order to members of the Grantee’s Immediate Family to the extent and in the manner determined by the Administrator. Notwithstanding the foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s Incentive Stock Option or Non-Qualified Stock Option in the event of the Grantee’s death on a beneficiary designation form provided by the Administrator. Following the death of the Grantee, the Option, to the extent provided in Section 8, may be exercised (a) by the person or persons designated under the deceased Grantee’s beneficiary designation or (b) in the absence of an effectively designated beneficiary, by the Grantee’s legal representative or by any person empowered to do so under the deceased Grantee’s will or under the then applicable laws of descent and distribution. The terms of the Option shall be binding upon the executors, administrators, heirs, successors and transferees of the Grantee.

10.    Term of Option. The Option must be exercised no later than the Expiration Date set forth in the Notice or such earlier date as otherwise provided herein. After the Expiration Date or such earlier date, the Option shall be of no further force or effect and may not be exercised.

11.    Company’s Right of First Refusal. The Grantee acknowledges and agrees that the Shares are subject to a right of first refusal (“Right of First Refusal”) as set forth in the Bylaws of the Company, which Right of First Refusal is incorporated herein by reference irrespective of whether the Bylaws are amended at some future date to remove the Right of First Refusal therefrom, and that, except in compliance with such Right of First Refusal, neither the Grantee nor a transferee (either being sometimes referred to herein as the “Holder”) shall sell, hypothecate, encumber or otherwise transfer any Shares or any right or interest therein.

12.    Stop-Transfer Notices. In order to ensure compliance with the restrictions on transfer set forth in this Option Agreement, the Notice or the Plan, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

 

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13.    Refusal to Transfer. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Option Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

14.    Tax Consequences.

(a)    The Grantee may incur tax liability as a result of the Grantee’s purchase or disposition of the Shares. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.

(b)    Notwithstanding the Company’s good faith determination of the Fair Market Value of the Company’s Common Stock for purposes of determining the Exercise Price Per Share of the Option as set forth in the Notice, the taxing authorities may assert that the Fair Market Value of the Common Stock on the Date of Award was greater than the Exercise Price Per Share. If designated in the Notice as an Incentive Stock Option, the Option may fail to qualify as an Incentive Stock Option if the Exercise Price Per Share of the Option is less than the Fair Market Value of the Common Stock on the Date of Award. In addition, under Section 409A of the Code, if the Exercise Price Per Share of the Option is less than the Fair Market Value of the Common Stock on the Date of Award, the Option may be treated as a form of deferred compensation and the Grantee may be subject to an acceleration of income recognition, an additional 20% tax, plus interest and possible penalties. The Company makes no representation that the Option will comply with Section 409A of the Code and makes no undertaking to prevent Section 409A of the Code from applying to the Option or to mitigate its effects on any deferrals or payments made in respect of the Option. The Grantee is encouraged to consult a tax adviser regarding the potential impact of Section 409A of the Code.

15.    Lock-Up Agreement.

(a)    Agreement. The Grantee, if requested by the Company and the lead underwriter of any public offering of the Common Stock (the “Lead Underwriter”), hereby irrevocably agrees not to sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in, make any short sale of, pledge or otherwise transfer or dispose of any interest in any Common Stock or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire Common Stock (except Common Stock included in such public offering or acquired on the public market after such offering) during the 180-day period following the effective date of a registration statement of the Company filed under the Securities Act of 1933, as amended, or such shorter or longer period of time as the Lead Underwriter shall specify. The Grantee further agrees to sign such documents as may be requested by the Lead Underwriter to effect the foregoing and agrees that the Company may impose stop-transfer instructions with respect to such Common Stock subject to the lock-up period until the end of such period. The Company and the Grantee acknowledge that each Lead Underwriter of a public offering of the Company’s stock, during the period of such offering and for the lock-up period thereafter, is an intended beneficiary of this Section 15.

 

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(b)    No Amendment Without Consent of Underwriter. During the period from identification of a Lead Underwriter in connection with any public offering of the Company’s Common Stock until the earlier of (i) the expiration of the lock-up period specified in Section 15(a) in connection with such offering or (ii) the abandonment of such offering by the Company and the Lead Underwriter, the provisions of this Section 15 may not be amended or waived except with the consent of the Lead Underwriter.

16.    Entire Agreement: Governing Law. The Notice, the Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. Nothing in the Notice, the Plan and this Option Agreement (except as expressly provided therein) is intended to confer any rights or remedies on any persons other than the parties. The Notice, the Plan and this Option Agreement are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of the Notice, the Plan or this Option Agreement be determined to be illegal or unenforceable, such provision shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain effective and shall remain enforceable.

17.    Construction. The captions used in the Notice and this Option Agreement are inserted for convenience and shall not be deemed a part of the Option for construction or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

18.    Administration and Interpretation. Any question or dispute regarding the administration or interpretation of the Notice, the Plan or this Option Agreement shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator shall be final and binding on all persons.

19.    Venue. The Company, the Grantee, and the Grantee’s assignees pursuant to Section 9 (the “parties”) agree that any suit, action, or proceeding arising out of or relating to the Notice, the Plan or this Option Agreement shall be brought in the United States District Court for the Northern District of California (or should such court lack jurisdiction to hear such action, suit or proceeding, in a California state court in the County of San Francisco) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. If any one or more provisions of this Section 19 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.

20.    Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an

 

6


internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown in these instruments, or to such other address as such party may designate in writing from time to time to the other party.

21.    Confidentiality. To the extent required by Applicable Law, the Company shall provide to the Grantee, during the period the Option is outstanding, copies of financial statements of the Company at least annually. The Grantee understands and agrees that such financial statements are confidential and shall not be disclosed by the Grantee, to any entity or person, for any reason, at any time, without the prior written consent of the Company, unless required by law. If disclosure of such financial statements is required by law, whether through subpoena, request for production, deposition, or otherwise, the Grantee promptly shall provide written notice to Company, including copies of the subpoena, request for production, deposition, or otherwise, within five (5) business days of their receipt by the Grantee and prior to any disclosure so as to provide Company an opportunity to move to quash or otherwise to oppose the disclosure. Notwithstanding the foregoing, the Grantee may disclose the terms of such financial statements to his or her spouse or domestic partner, and for legitimate business reasons, to legal, financial, and tax advisors.

END OF AGREEMENT

 

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EXHIBIT A

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

EXERCISE NOTICE

[COMPANY ADDRESS]

Attention: Secretary

1.    Effective as of today,                     , the undersigned (the “Grantee”) hereby elects to exercise the Grantee’s option to purchase                  shares of the Common Stock (the “Shares”) of Adicet Bio, Inc., (the “Company”) under and pursuant to the Company’s 2015 Stock Incentive Plan, as amended from time to time (the “Plan”) and the [    ] Incentive [    ] Non-Qualified Stock Option Award Agreement (the “Option Agreement”) and Notice of Stock Option Award (the “Notice”) dated                     . Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Exercise Notice.

2.    Representations of the Grantee. The Grantee acknowledges that the Grantee has received, read and understood the Notice, the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.

3.    Rights as Stockholder. Until the stock certificate evidencing such Shares is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 10 of the Plan.

The Grantee shall enjoy rights as a stockholder until such time as the Grantee disposes of the Shares or the Company and/or its assignee(s) exercises the Right of First Refusal. Upon such exercise, the Grantee shall have no further rights as a holder of the Shares so purchased except the right to receive payment for the Shares so purchased in accordance with the provisions of the Option Agreement, and the Grantee shall forthwith cause the certificate(s) evidencing the Shares so purchased to be surrendered to the Company for transfer or cancellation.

4.    Delivery of Payment. The Grantee herewith delivers to the Company the full Exercise Price for the Shares, which, to the extent selected, shall be deemed to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in Section 4(d) of the Option Agreement.

5.    Tax Consultation. The Grantee understands that the Grantee may suffer adverse tax consequences as a result of the Grantee’s purchase or disposition of the Shares. The Grantee represents that the Grantee has consulted with any tax consultants the Grantee deems advisable in connection with the purchase or disposition of the Shares and that the Grantee is not relying on the Company for any tax advice.

 

1


6.    Taxes. The Grantee agrees to satisfy all applicable federal, state and local income and employment tax withholding obligations and herewith delivers to the Company the full amount of such obligations or has made arrangements acceptable to the Company to satisfy such obligations. In the case of an Incentive Stock Option, the Grantee also agrees, as partial consideration for the designation of the Option as an Incentive Stock Option, to notify the Company in writing within thirty (30) days of any disposition of any shares acquired by exercise of the Option if such disposition occurs within two (2) years from the Date of Award or within one (1) year from the date the Shares were transferred to the Grantee.

7.    Restrictive Legends. The Grantee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE OPTION AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.

8.    Successors and Assigns. The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Grantee and his or her heirs, executors, administrators, successors and assigns.

9.    Construction. The captions used in this Exercise Notice are inserted for convenience and shall not be deemed a part of this agreement for construction or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

 

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10.    Administration and Interpretation. The Grantee hereby agrees that any question or dispute regarding the administration or interpretation of this Exercise Notice shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator shall be final and binding on all persons.

11.    Governing Law; Severability. This Exercise Notice is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of this Exercise Notice be determined by a court of law to be illegal or unenforceable, such provision shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain effective and shall remain enforceable.

12.    Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown below beneath its signature, or to such other address as such party may designate in writing from time to time to the other party.

13.    Further Instruments. The parties agree to execute such further instruments and to take such further action as may be reasonably necessary to carry out the purposes and intent of this agreement.

14.    Entire Agreement. The Notice, the Plan and the Option Agreement are incorporated herein by reference and together with this Exercise Notice constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. Nothing in the Notice, the Plan, the Option Agreement and this Exercise Notice (except as expressly provided therein) is intended to confer any rights or remedies on any persons other than the parties.

[Remainder of Page Left Intentionally Blank]

 

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Submitted by:     Accepted by:
GRANTEE:     ADICET BIO, INC.
By:  

                    

    By:  

                    

Name:  

                                         

   

Name:

 

                                         

      Title:  

                    

Address:       Address:  

 

   

 

 

 

   

 

 

 

   

 

 

 

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EXHIBIT B

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

INVESTMENT REPRESENTATION STATEMENT

 

GRANTEE:                                                                        
COMPANY:   ADICET BIO, INC.
SECURITY:   COMMON STOCK
NUMBER OF SHARES:                                                                        
DATE:                                                                        

In connection with the purchase of the above-listed Securities, the undersigned Grantee represents to the Company the following:

(a)    Grantee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. Grantee is acquiring these Securities for investment for Grantee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).

(b)    Grantee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon among other things, the bona fide nature of Grantee’s investment intent as expressed herein. Grantee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Grantee further acknowledges and understands that the Company is under no obligation to register the Securities. Grantee understands that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel satisfactory to the Company.

(c)    Grantee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Grantee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, except in the case of affiliates, such Securities may be resold subject to the satisfaction of the applicable conditions specified by Rule 144, including: (1) the availability of certain public information about the Company, (2) the amount of Securities being sold during any three month period not exceeding specified limitations, (3) the resale being made in an unsolicited “broker’s transaction,” in transactions directly with a “market maker” or “riskless principal transactions” (as said terms are defined under the Securities Exchange Act of 1934) and (4) the timely filing of a Form 144, if applicable.

 

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In the event that the Company does not qualify under Rule 701 at the time of the grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which may require: the availability of current public information about the Company; the resale to occur more than a specified period after the purchase and full payment (within the meaning of Rule 144) for the Securities; and, in the case of the sale of Securities by an affiliate, the satisfaction of the conditions set forth in sections (2), (3) and (4) of the paragraph immediately above.

(d)    Grantee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. Grantee understands that no assurances can be given that any such other registration exemption will be available in such event.

(e)    Grantee represents that Grantee is a resident of the state of                     .

 

Signature of Grantee:
By:  

    

Date:  

    

 

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EX-10.17

Exhibit 10.17

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

NOTICE OF STOCK OPTION AWARD

 

Grantee’s Name and Address:

 

 

  
 

 

  
 

 

  

You (the “Grantee”) have been granted an option to purchase shares of Common Stock, subject to the terms and conditions of this Notice of Stock Option Award (the “Notice”), the Adicet Bio, Inc. 2015 Stock Incentive Plan, as amended from time to time (the “Plan”), the Adicet Bio, Inc. Israeli Sub-Plan to the Plan (the “Israeli Sub-Plan”) and the Stock Option Award Agreement (the “Option Agreement”) attached hereto, as follows. Unless otherwise defined herein, the terms defined in the Plan or in the Israeli Sub-Plan, as the case may be, shall have the same defined meanings in this Notice.

 

Award Number

 

 

  

Date of Award

 

 

  

Vesting Commencement Date

 

 

  

Exercise Price per Share

  $                                                                                             

Total Number of Shares Subject to the Option (the “Shares”)

 

 

  

Total Exercise Price

  $                                                                                             

Tax Route:

                                             Section 3(i) of the Ordinance

Expiration Date:

 

 

  

Post-Termination Exercise Period:

  Three (3) Months   

Vesting Schedule:

Subject to the Grantee’s Continuous Service and the other limitations set forth in this Notice, the Plan and the Option Agreement, the Option may be exercised, in whole or in part, in accordance with the following schedule:

[25% of the Shares subject to the Option shall vest twelve (12) months after the Vesting Commencement Date, and 1/36th of the remaining unvested Shares subject to the Option shall vest on each of the next thirty-six (36) monthly anniversaries of the Vesting Commencement Date thereafter.]1

 

 

1 

Insert for new-hire grants.

 

1


[1/48th of the Shares subject to the Option shall vest on each monthly anniversary of the Vesting Commencement Date.]2

During any authorized leave of absence, the vesting of the Shares shall be suspended after the leave of absence exceeds a period of three (3) months. Vesting of the Shares shall resume upon the Grantee’s termination of the leave of absence and return to Continuous Service. The Vesting Schedule of the Shares shall be extended by the length of the suspension.

In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall terminate concurrently with the termination of the Grantee’s Continuous Service, except as otherwise determined by the Administrator.

[Remainder of Page Left Intentionally Blank]

 

 

2 

Insert for refresh grants.

 

2


IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Option is to be governed by the terms and conditions of this Notice, the Plan, the Israeli Sub-Plan and the Option Agreement.

 

ADICET BIO, INC.,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 

[Remainder of Page Left Intentionally Blank]

 

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THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THE OPTION SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE OPTION AGREEMENT, OR THE PLAN (INCLUDING THE ISRAELI SUB-PLAN) SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE COMPANY OR RELATED ENTITY TO WHICH THE GRANTEE PROVIDES SERVICES TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.

The Grantee acknowledges receipt of a copy of the Plan, the Israeli Sub-Plan, the trust agreement between the Company and the Trustee (the “Trust Agreement”), the Option Agreement, and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Option subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Plan, the Israeli Sub-Plan and the Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice, and fully understands all provisions of this Notice, the Plan, the Israeli Sub-Plan and the Option Agreement. The Grantee hereby agrees that all questions of interpretation and administration relating to this Notice, the Plan and the Option Agreement shall be resolved by the Administrator in accordance with Section 18 of the Option Agreement. The Grantee further agrees to the venue selection in accordance with Section 19 of the Option Agreement. The Grantee further agrees to notify the Company upon any change in the residence address indicated in this Notice.

Grantee represents that Grantee is a resident of the State of Israel for tax purposes on the date of allocation and agrees to notify the Company upon any change in the residence address indicated above and acknowledges that if Grantee ceases to be an Israeli resident or if Grantee’s engagement with the Company is terminated, the Option and/or Shares shall remain subject to Section 3(i) of the Ordinance, the Trust Agreement, the Plan, the Israeli Sub-Plan and this Option Agreement.

Grantee declares that she/he is familiar with Section 3(i) of the Ordinance and the regulations and rules promulgated thereunder, including without limitations the provisions of the applicable tax route, and agrees to comply with such provisions, as amended from time to time. The Grantee authorizes the Company to provide the trustee with any information required for the purpose of executing its obligations under the Ordinance, including without limitation information about the Option and the Shares, income tax rates, salary bank account, contact details and identification number. The Grantee warrants and undertakes that at the time of grant of the Option herein, or as a consequence of the grant, the Grantee is not and will not become a holder of a “controlling interest” in the Company, as such term is defined in Section 32(9) of the Ordinance.

 

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Dated:                          Signed:  

                                                              

      Grantee

 

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Award Number:                     

ADICET BIO, INC. 2015 STOCK INCENTIVE PLAN

STOCK OPTION AWARD AGREEMENT

1.    Grant of Option. Adicet Bio, Inc., a Delaware corporation (the “Company”), hereby grants to the Grantee (the “Grantee”) named in the Notice of Stock Option Award (the “Notice”), an option (the “Option”) to purchase the Total Number of Shares of Common Stock subject to the Option (the “Shares”) set forth in the Notice, at the Exercise Price per Share set forth in the Notice (the “Exercise Price”) subject to the terms and provisions of the Notice, this Stock Option Award Agreement (the “Option Agreement”) and the Company’s 2015 Stock Incentive Plan, as amended from time to time (the “Plan”) and the Adicet Bio, Inc. Israeli Sub-Plan to the Plan (the Israeli Sub-Plan), which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan and/or in the Israeli Sub-Plan, as the case may be, shall have the same defined meanings in this Option Agreement.

Your Option shall be issued to a trustee. The trustee will hold in trust the Options, the Shares and all other securities received following any exercise or realization of rights, including bonus stock, dividend (whether in cash or in kind), or other rights issued or distributed in connection with the Option or the Shares, until the full payment of all requisite taxes by you, as shall be determined by the Company and the trustee in their sole discretion.

2.    Exercise of Option.

(a)    Right to Exercise. The Option shall be exercisable during its term in accordance with the Vesting Schedule set out in the Notice and with the applicable provisions of the Plan and this Option Agreement. The Option shall be subject to the provisions of Section 11 of the Plan relating to the exercisability or termination of the Option in the event of a Corporate Transaction. The Grantee shall be subject to reasonable limitations on the number of requested exercises during any monthly or weekly period as determined by the Administrator. In no event shall the Company issue fractional Shares.

(b)    Method of Exercise. The Option shall be exercisable by delivery of an exercise notice (a form of which is attached as Exhibit A) or by such other procedure as specified from time to time by the Administrator which shall state the election to exercise the Option, the whole number of Shares in respect of which the Option is being exercised, and such other provisions as may be required by the Administrator. The exercise notice shall be delivered in person, by certified mail, or by such other method (including electronic transmission) as determined from time to time by the Administrator to the Company accompanied by payment of the Exercise Price and all applicable income and employment taxes required to be withheld. The Option shall be deemed to be exercised upon receipt by the Company of such notice accompanied by the Exercise Price and all applicable withholding taxes, which, to the extent selected, shall be deemed to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in Section 4(d) below to the extent such procedure is available to the Grantee at the time of exercise and such an exercise would not violate any Applicable Law.

 

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(c)    Taxes. Subject to the approval of the Israeli Sub-Plan by the ITA, you shall be taxed in Israel in accordance with the provisions under Section 3(i) of the Ordinance, including the provisions the regulations and any tax ruling or agreement obtained by the Company with regard to the Plan. No Shares will be delivered to the Grantee or other person pursuant to the exercise of the Option until the Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of applicable income tax and employment tax withholding obligations, including, without limitation, such other tax obligations of the Grantee incident to the receipt of Shares. Upon exercise of the Option, the Company or the Grantee’s employer may offset or withhold (from any amount owed by the Company or the Grantee’s employer to the Grantee) or collect from the Grantee or other person an amount sufficient to satisfy such tax withholding obligations. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the Option, the Grantee agrees to pay the Company the amount of such deficiency in cash within five (5) days after receiving a written demand from the Company to do so, whether or not the Grantee is an employee of the Company at that time.

3.    Grantee’s Representations. The Grantee understands that neither the Option nor the Shares exercisable pursuant to the Option have been registered under the Securities Act of 1933, as amended or any United States securities laws. In the event the Shares purchasable pursuant to the exercise of the Option have not been registered under the Securities Act of 1933, as amended, at the time the Option is exercised, the Grantee shall, if requested by the Company, concurrently with the exercise of all or any portion of the Option, deliver to the Company his or her Investment Representation Statement in the form attached hereto as Exhibit B.

4.    Method of Payment. Payment of the Exercise Price shall be made by any of the following, or a combination thereof, at the election of the Grantee; provided, however, that such exercise method does not then violate any Applicable Law (including the Ordinance) and, provided further, that the portion of the Exercise Price equal to the par value of the Shares must be paid in cash or other legal consideration permitted by the Delaware General Corporation Law:

(a)    cash;

(b)    check;

(c)    if the exercise occurs on or after the Registration Date, surrender of Shares held for the requisite period, if any, necessary to avoid a charge to the Company’s earnings for financial reporting purposes, or delivery of a properly executed form of attestation of ownership of Shares as the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate Exercise Price of the Shares as to which the Option is being exercised; or

(d)    if the exercise occurs on or after the Registration Date, payment through a broker-dealer sale and remittance procedure pursuant to which the Grantee (i) shall provide written instructions to a Company-designated brokerage firm to effect the immediate sale of

 

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some or all of the purchased Shares and remit to the Company sufficient funds to cover the aggregate exercise price payable for the purchased Shares and (ii) shall provide written directives to the Company to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction.

5.    Restrictions on Exercise. The Option may not be exercised if the issuance of the Shares subject to the Option upon such exercise would constitute a violation of any Applicable Laws. In addition, the Option may not be exercised until such time as the Plan has been approved by the stockholders of the Company, and the Israeli Sub-Plan has been approved by the ITA. If the exercise of the Option within the applicable time periods set forth in Sections 6, 7 and 8 of this Option Agreement is prevented by the provisions of this Section 5, the Option shall remain exercisable until one (1) month after the date the Grantee is notified by the Company that the Option is exercisable, but in any event no later than the Expiration Date set forth in the Notice.

6.    Termination or Change of Continuous Service. In the event the Grantee’s Continuous Service terminates, other than for Cause, the Grantee may, but only during the Post-Termination Exercise Period, exercise the portion of the Option that was vested at the date of such termination (the “Termination Date”). The Post-Termination Exercise Period shall commence on the Termination Date. In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right to exercise the Option shall, except as otherwise determined by the Administrator, terminate concurrently with the termination of the Grantee’s Continuous Service (also the “Termination Date”). In no event, however, shall the Option be exercised later than the Expiration Date set forth in the Notice. In the event of the Grantee’s change in status from Employee, Director or Consultant to any other status of Employee, Director or Consultant, the Option shall remain in effect and the Option shall continue to vest in accordance with the Vesting Schedule set forth in the Notice; provided, however, that the Option may be subject to a different tax route, following such change in status. Except as provided in Sections 7 and 8 below, to the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the Post-Termination Exercise Period, the Option shall terminate.

7.    Disability of Grantee. In the event the Grantee’s Continuous Service terminates as a result of his or her Disability, the Grantee may, but only within twelve (12) months commencing on the Termination Date (but in no event later than the Expiration Date), exercise the portion of the Option that was vested on the Termination Date. To the extent that the Option was unvested on the Termination Date, or if the Grantee does not exercise the vested portion of the Option within the time specified herein, the Option shall terminate. Section 22(e)(3) of the Code provides that an individual is permanently and totally disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

8.    Death of Grantee. In the event of the termination of the Grantee’s Continuous Service as a result of his or her death, or in the event of the Grantee’s death during the Post-Termination Exercise Period or during the twelve (12) month period following the Grantee’s termination of Continuous Service as a result of his or her Disability, the person who acquired the right to exercise the Option pursuant to Section 9 may exercise the portion of the Option that

 

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was vested at the date of termination within twelve (12) months commencing on the date of death (but in no event later than the Expiration Date). To the extent that the Option was unvested on the date of death, or if the vested portion of the Option is not exercised within the time specified herein, the Option shall terminate.

9.    Transferability of Option. Prior to the payment of the tax applicable under law, including under Section 3(i) of the Ordinance (the “Applicable Tax”), the Options and/or the Shares or rights arising therefrom shall not be transferable or assignable, shall not be subject to any mortgage, liens, attachment or other encumbrance, and no power or attorney or note of transfer shall be issued in respect thereof, whether such instrument enter into force immediately or at future date, excluding transfer by power of a last will or under law and all subject to the terms of the Plan and the Israeli Sub-Plan. Should the Options or Shares have been transferred pursuant to the provisions of a last testamentary instrument or under applicable law, Section 3(i) of the Ordinance shall apply to the heirs or transferees of the deceased Grantee. Notwithstanding the foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s Option in the event of the Grantee’s death on a beneficiary designation form provided by the Administrator. Following the death of the Grantee, the Option, to the extent provided in Section 8, may be exercised (a) by the person or persons designated under the deceased Grantee’s beneficiary designation or (b) in the absence of an effectively designated beneficiary, by the Grantee’s legal representative or by any person empowered to do so under the deceased Grantee’s will or under the then applicable laws of descent and distribution. Notwithstanding the foregoing, no Option may be transferred in violation of Applicable Law, including any applicable securities exemption. The terms of the Option shall be binding upon the executors, administrators, heirs, successors and transferees of the Grantee.

10.    Term of Option. The Option must be exercised no later than the Expiration Date set forth in the Notice or such earlier date as otherwise provided herein. After the Expiration Date or such earlier date, the Option shall be of no further force or effect and may not be exercised.

11.    Company’s Right of First Refusal. The Grantee acknowledges and agrees that the Shares are subject to a right of first refusal (“Right of First Refusal”) as set forth in the Bylaws of the Company, which Right of First Refusal is incorporated herein by reference irrespective of whether the Bylaws are amended at some future date to remove the Right of First Refusal therefrom, and that, except in compliance with such Right of First Refusal, neither the Grantee nor a transferee (either being sometimes referred to herein as the “Holder”) shall sell, hypothecate, encumber or otherwise transfer any Shares or any right or interest therein.

12.    Stop-Transfer Notices. In order to ensure compliance with the restrictions on transfer set forth in this Option Agreement, the Notice or the Plan, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

13.    Refusal to Transfer. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Option Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

 

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14.    Tax Consequences.

(a)    The Grantee may incur tax liability as a result of the Grantee’s purchase or disposition of the Shares. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.

(b)    Notwithstanding the Company’s good faith determination of the Fair Market Value of the Company’s Common Stock for purposes of determining the Exercise Price Per Share of the Option as set forth in the Notice, the taxing authorities may assert that the Fair Market Value of the Common Stock on the Date of Award was greater than the Exercise Price Per Share. Under Section 409A of the Code, if the Exercise Price Per Share of the Option is less than the Fair Market Value of the Common Stock on the D