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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this "Agreement") is made and entered into as of May 18, 2016 (the "Effective Date")
by and between Kyle Guse, an individual ("Employee"), and Atossa Genetics Inc. a Delaware corporation, having
its principal office at 2300 Eastlake Ave. East, Suite 200, Seattle, WA 98102 (the "Company", and collectively
with Employee referred to herein as the "Parties," and individually, as a "Party").
Whereas, the Company is engaged in the development of pharmaceuticals
to treat breast conditions including breast cancer;
Whereas, Employee desires to be employed by Company and Company
desires to employ the Employee on the terms provided herein;
NOW, THEREFORE, in consideration of
the mutual promises and agreements contained herein, the Parties agree as follows:
The Company hereby hires and employs Employee as of the Effective Date as Chief Financial Officer, General Counsel and Secretary
of the Company and Employee hereby accepts such employment with the Company on the terms and conditions set forth herein.
(a) Employment Term. Employee's
employment will be "at-will," meaning that either Employee or the Company can terminate the employment relationship
at any time, with or without Cause, subject to the terms and conditions set forth in Section 7 of this Agreement. The term of Employee's
employment hereunder is referred to herein as the "Employment Term."
(b) Position. During the
Employment Term, Employee shall be the Chief Financial Officer, General Counsel and Secretary of the Company.
and Responsibilities. Employee shall serve the Company diligently and faithfully in the performance of his duties on the Company's
behalf, which shall include duties and responsibilities as the Company may from time to time reasonably prescribe consistent with
the duties and responsibilities of the Chief Financial Officer, General Counsel and Secretary of the Company. Employee shall report
to the Chief Executive Officer and the Board of Directors, which shall be responsible for strategy and tactics and for setting
corporate goals during the Employment Term, as and if appropriate.
For services to be rendered to the Company pursuant to this Agreement, Employee shall be entitled to receive the following cash
and equity compensation:
(a) Base Salary. Employee shall be entitled
to an initial base salary of $364,000 per year, payable biweekly in accordance with the Company's normal payroll practices.
(b) Annual Bonus. Employee shall
be eligible to receive an annual cash performance bonus in an amount of up to 45% of his then-current base salary, subject to the
achievement of goals established annually prospectively by the Compensation Committee of the board.
(c) Equity. The Company
will grant to Employee from time to time options and/or restricted stock awards as determined by the Compensation Committee of
the Board pursuant to the Company's 2010 Stock Option and Incentive Plan (the "Plan").
(d) Change in Control.
In the event of a Change in Control (as defined below), , Employee shall be entitled to receive the severance payments and benefits
set forth in Section 7(b) of this Agreement. For purposes hereof, a "Change in Control" shall mean:
(i) merger or consolidation in
which (A) the Company is a constituent party or (B) a Subsidiary of the Company is a constituent party and the Company issues shares
of its capital stock pursuant to such merger or consolidation, in each case except any such merger or consolidation involving the
Company or a Subsidiary in which the shares of capital stock of the Company outstanding immediately prior to such merger or consolidation
continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such
merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation
or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such
merger or consolidation, the parent corporation of such surviving or resulting corporation; or
(ii) the sale, lease, transfer,
exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any Subsidiary
of all or substantially all the assets of the Company and its Subsidiaries taken as a whole, except where such sale, lease, transfer,
exclusive license or other disposition is to a wholly-owned subsidiary of the Company.
Benefits. During the Employment Term, the Company agrees to make available the following fringe benefits to Employee in accordance
with the policies and plans adopted by the Company; said fringe benefits shall be no less favorable to the Employee than those
provided to other key employees and officers of the Company.
(a) Expenses. Employee
shall be expected to incur various business expenses and other out-of-pocket expenses customarily incurred by persons holding like
positions, including but not limited to traveling, entertainment and similar expenses incurred by Employee in the performance of
Employee's services for the benefit of the Company. Company shall reimburse Employee for all reasonable business expenses
incurred or paid by Employee upon presentation of documentation reasonably acceptable to the Company and subject to any reimbursement
policy adopted by the Company.
(b) Health Insurance.
Participation in health, hospitalization, disability, dental and other insurance plans that the Company may have in effect for
other executives, all of which shall be paid for by the Company with contribution by the Employee as set for the other executives,
as and if appropriate.
(c) Vacation. Employee
shall be entitled to four weeks of paid vacation per year for each full year of employment and pro rata for each partial year.
Vacation time not taken during a calendar year is not accrued to the next calendar year.
Either the Company or Employee may terminate Employee's employment by the Company, with or without "Cause"
or "Good Reason" (as such terms are defined below), in its or his sole discretion, upon ten (10) days'
prior written notice of termination or the payment of 10 days' salary in lieu of such notice. In addition, Employee's
employment by the Company shall terminate upon the death or Disability (as defined below) of Employee. For purposes of this Agreement,
in the case of a termination of Employee's employment hereunder, the following terms shall have the following meanings:
shall mean the Employee has complied with the Good Reason Process (as defined below) following the occurrence of any of the following
events: (i) a material diminution in Employee's responsibilities, authority or duties at the Company that constitutes a demotion,(ii)
a material diminution in Employee's base salary (other than a general reduction applicable to all executive employees of
the Company), or (iii) relocation of Employee's principal place of work more than 50 miles from the location as of the Effective
Date (each, a "Good Reason Condition").
(b) "Good Reason Process"
means that (i) Employee reasonably determines in good faith that a Good Reason Condition has occurred, (ii) Employee notifies the
Company in writing of the occurrence of the Good Reason Condition within 60 days after the first occurrence of such condition;
(iii) Employee cooperates in good faith with the Company's efforts, for a period not less than 30 days following such notice
(the "Cure Period"), to remedy the Good Reason Condition; (iv) notwithstanding such efforts, the Good Reason
Condition continues to exist; and (v) Employee terminates his employment within 60 days after the end of the Cure Period. If the
Company cures the Good Reason Condition during the Cure Period, Good Reason will be deemed not to have occurred.
shall mean: (A) Employee's willful and repeated failure reasonably to perform his duties hereunder or to comply with any
reasonable and proper direction given by the Board if such failure of performance or compliance is not cured within thirty (30)
days following receipt by Employee of written notice from the Company containing a description of such failures and non-compliance
and a demand for immediate cure thereof; (B) Employee being found guilty in a criminal court of an offense involving moral turpitude;
(C) Employee's commission of any material act of fraud or theft against the Company; or (D) Employee's material violation
of any of the material terms, covenants, representations or warranties contained in this Agreement if such violation is not cured
within thirty (30) days following receipt by Employee of written notice from the Company containing a description of the violation
and a demand for immediate cure thereof.
(d) "Disability" shall
mean total and permanent disability as defined in Section 22(e)(3) of the Code.
(a) Termination Absent a Change
of Control. Subject to Section 6 hereof, if (i) the Company terminates the employment of Employee without Cause, or (ii) Employee
terminates his employment for Good Reason, then Employee shall be entitled to receive all of his accrued and then-unpaid base salary,
any bonus cash compensation earned by Employee through the effective date of termination (determined at the maximum annual rate
for bonus cash compensation provided for above but on a pro-rated basis for the portion of the fiscal year that shall have elapsed
when the termination occurs). In addition, subject to Employee's execution and non-revocation of an agreement containing
a release of any and all legal claims and other termination-related provisions in a form acceptable to the Company (the "Separation