| | | | | 1 | | | |
| | | | | 1 | | | |
| | | | | 3 | | | |
| | | | | 15 | | | |
| | | | | 43 | | | |
| | | | | 43 | | | |
| | | | | 43 | | | |
| | | | | 44 | | | |
| | | | | 51 | | | |
| | | | | A-1 | | | |
| | | | | B-1 | | |
Name
|
| |
Position
|
|
David Coman
|
| | Chief Executive Officer and Director | |
Mike Zaranek
|
| | Chief Financial Officer | |
Jonathan Cotliar
|
| | Chief Medical Officer | |
Darcy Forman
|
| | Chief Delivery Officer | |
Christine Pellizzari
|
| | Chief Legal and Human Resources Officer | |
Michael Shipton
|
| | Chief Commercial Officer | |
Name of Executive Officer or Director
|
| |
Shares
Owned (#) |
| |
Total Cash
Consideration for Shares ($) |
| ||||||
Executive Officers | | | | | | | | | | | | | |
David Coman
|
| | | | 53,834 | | | | | $ | 309,546 | | |
Mike Zaranek
|
| | | | 9,070 | | | | | $ | 52,153 | | |
Jonathan Cotliar
|
| | | | 41,891 | | | | | $ | 240,873 | | |
Darcy Forman
|
| | | | 15,752 | | | | | $ | 90,574 | | |
Christine Pellizzari
|
| | | | 14,579 | | | | | $ | 83,829 | | |
Michael Shipton
|
| | | | 3,540 | | | | | $ | 20,355 | | |
Directors | | | | | | | | | | | | | |
Bhooshitha B. De Silva
|
| | | | — | | | | | $ | — | | |
Robert Faulkner(1)
|
| | | | 2,050 | | | | | $ | 11,788 | | |
John W. Hubbard
|
| | | | 2,050 | | | | | $ | 11,788 | | |
Emily Rollins
|
| | | | 2,050 | | | | | $ | 11,788 | | |
Neil Tiwari
|
| | | | 2,050 | | | | | $ | 11,788 | | |
Paul von Autenried
|
| | | | 2,302 | | | | | $ | 13,237 | | |
Name of Executive Officer or Director
|
| |
Number of Shares
Subject to In-the-Money Company Options (#) |
| |
Cash Amount for
In-the-Money Company Options ($) |
| ||||||
Executive Officers | | | | | | | | | | | | | |
David Coman
|
| | | | 192,427 | | | | | $ | 28,864 | | |
Mike Zaranek
|
| | | | 45,746 | | | | | $ | 6,862 | | |
Jonathan Cotliar
|
| | | | — | | | | | $ | — | | |
Darcy Forman
|
| | | | 3,404 | | | | | $ | 821 | | |
Christine Pellizzari
|
| | | | — | | | | | $ | — | | |
Michael Shipton
|
| | | | — | | | | | $ | — | | |
Directors | | | | | | | | | | | | | |
Bhooshitha B. De Silva
|
| | | | — | | | | | $ | — | | |
Robert Faulkner
|
| | | | — | | | | | $ | — | | |
John W. Hubbard
|
| | | | 20,195 | | | | | $ | 4,873 | | |
Emily Rollins
|
| | | | — | | | | | $ | — | | |
Neil Tiwari
|
| | | | — | | | | | $ | — | | |
Paul von Autenried
|
| | | | — | | | | | $ | — | | |
Name of Executive Officer or Director
|
| |
Number of Shares
Subject to Company RSUs (#) |
| |
Cash Amount for
Company RSUs ($) |
| ||||||
Executive Officers | | | | | | | | | | | | | |
David Coman
|
| | | | 80,293 | | | | | $ | 461,685 | | |
Mike Zaranek
|
| | | | 47,833 | | | | | $ | 275,040 | | |
Jonathan Cotliar
|
| | | | 35,952 | | | | | $ | 206,724 | | |
Darcy Forman
|
| | | | 53,541 | | | | | $ | 307,861 | | |
Christine Pellizzari
|
| | | | 72,337 | | | | | $ | 415,938 | | |
Michael Shipton
|
| | | | 60,881 | | | | | $ | 350,066 | | |
Directors | | | | | | | | | | | | | |
Bhooshitha B. De Silva
|
| | | | — | | | | | $ | — | | |
Robert Faulkner(1)
|
| | | | 24,742 | | | | | $ | 142,267 | | |
John W. Hubbard
|
| | | | 24,742 | | | | | $ | 142,267 | | |
Emily Rollins
|
| | | | 24,742 | | | | | $ | 142,267 | | |
Neil Tiwari
|
| | | | 24,742 | | | | | $ | 142,267 | | |
Paul von Autenried
|
| | | | 24,742 | | | | | $ | 142,267 | | |
($ in millions)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |
2026E
|
| |
2027E
|
| |
2028E
|
| ||||||||||||||||||
Revenue | | | | $ | 59.6 | | | | | $ | 66.9 | | | | | $ | 102.4 | | | | | $ | 134.9 | | | | | $ | 163.7 | | | | | $ | 191.8 | | |
YoY %
|
| | | | (15.1)% | | | | | | 12.3% | | | | | | 53.1% | | | | | | 31.7% | | | | | | 21.4% | | | | | | 17.2% | | |
Adjusted Gross Profit(1)
|
| | | $ | 20.5 | | | | | $ | 28.5 | | | | | $ | 46.1 | | | | | $ | 61.2 | | | | | $ | 75.3 | | | | | $ | 88.2 | | |
% Margin
|
| | | | 34.4% | | | | | | 42.5% | | | | | | 45.0% | | | | | | 45.4% | | | | | | 46.0% | | | | | | 46.0% | | |
Adjusted EBIDTA(2)
|
| | | $ | (32.2) | | | | | $ | (8.2) | | | | | $ | 9.1 | | | | | $ | 21.8 | | | | | $ | 32.1 | | | | | $ | 39.3 | | |
% Margin
|
| | | | N/A | | | | | | N/A | | | | | | 8.9% | | | | | | 16.2% | | | | | | 19.6% | | | | | | 20.5% | | |
Capital Expenditures
|
| | | $ | 23.6 | | | | | $ | 6.7 | | | | | $ | 6.2 | | | | | $ | 6.4 | | | | | $ | 6.4 | | | | | $ | 7.3 | | |
% of Revenue
|
| | | | 39.6% | | | | | | 10.1% | | | | | | 6.1% | | | | | | 4.8% | | | | | | 3.9% | | | | | | 3.8% | | |
Change in Net Working Capital
|
| | | $ | 0.8 | | | | | $ | 4.8 | | | | | $ | 4.6 | | | | | $ | (0.9) | | | | | $ | 2.5 | | | | | $ | 8.1 | | |
($ in millions)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |
2026E
|
| |
2027E
|
| |
2028E
|
| ||||||||||||||||||
Revenue | | | | $ | 59.6 | | | | | $ | 66.9 | | | | | $ | 84.7 | | | | | $ | 97.7 | | | | | $ | 112.9 | | | | | $ | 127.2 | | |
YoY %
|
| | | | (15.1)% | | | | | | 12.3% | | | | | | 26.6% | | | | | | 15.3% | | | | | | 15.6% | | | | | | 12.6% | | |
Adjusted Gross Profit(1)
|
| | | $ | 20.5 | | | | | $ | 28.5 | | | | | $ | 37.6 | | | | | $ | 43.4 | | | | | $ | 50.4 | | | | | $ | 57.0 | | |
% Margin
|
| | | | 34.4% | | | | | | 42.5% | | | | | | 44.4% | | | | | | 44.5% | | | | | | 44.6% | | | | | | 44.8% | | |
Adjusted EBIDTA(2)
|
| | | $ | (32.2) | | | | | $ | (8.2) | | | | | $ | 1.4 | | | | | $ | 5.1 | | | | | $ | 11.0 | | | | | $ | 16.1 | | |
% Margin
|
| | | | N/A | | | | | | N/A | | | | | | 1.6% | | | | | | 5.2% | | | | | | 9.8% | | | | | | 12.6% | | |
Capital Expenditures
|
| | | $ | 23.6 | | | | | $ | 6.7 | | | | | $ | 6.2 | | | | | $ | 6.4 | | | | | $ | 6.4 | | | | | $ | 7.3 | | |
% of Revenue
|
| | | | 39.6% | | | | | | 10.1% | | | | | | 7.4% | | | | | | 6.6% | | | | | | 5.7% | | | | | | 5.7% | | |
Change in Net Working Capital
|
| | | $ | 0.8 | | | | | $ | 4.8 | | | | | $ | 3.1 | | | | | $ | (0.1) | | | | | $ | (3.0) | | | | | $ | 1.0 | | |
($ in millions)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |
2026E
|
| |
2027E
|
| |
2028E
|
| ||||||||||||||||||
Revenue | | | | $ | 59.3 | | | | | $ | 51.5 | | | | | $ | 63.7 | | | | | $ | 77.8 | | | | | $ | 95.6 | | | | | $ | 117.6 | | |
YoY %
|
| | | | (15.4)% | | | | | | (13.1)% | | | | | | 23.6% | | | | | | 22.1% | | | | | | 22.8% | | | | | | 23.0% | | |
Adjusted Gross Profit(1)
|
| | | $ | 20.4 | | | | | $ | 21.4 | | | | | $ | 28.5 | | | | | $ | 34.9 | | | | | $ | 43.0 | | | | | $ | 53.2 | | |
% Margin
|
| | | | 34.3% | | | | | | 41.5% | | | | | | 44.7% | | | | | | 44.9% | | | | | | 45.0% | | | | | | 45.2% | | |
Adjusted EBIDTA(2)
|
| | | $ | (30.4) | | | | | $ | (6.0) | | | | | $ | 0.5 | | | | | $ | 3.3 | | | | | $ | 7.0 | | | | | $ | 10.7 | | |
% Margin
|
| | | | N/A | | | | | | N/A | | | | | | 0.9% | | | | | | 4.2% | | | | | | 7.3% | | | | | | 9.1% | | |
Capital Expenditures
|
| | | $ | 19.7 | | | | | $ | 4.6 | | | | | $ | 6.1 | | | | | $ | 6.1 | | | | | $ | 6.1 | | | | | $ | 6.9 | | |
% of Revenue
|
| | | | 33.3% | | | | | | 9.0% | | | | | | 9.6% | | | | | | 7.9% | | | | | | 6.4% | | | | | | 5.9% | | |
Change in Net Working Capital
|
| | | $ | (4.1) | | | | | $ | 0.6 | | | | | $ | 4.0 | | | | | $ | 5.6 | | | | | $ | 0.7 | | | | | $ | 1.2 | | |
| | |
Implied
Premium at $5.75/share |
| |
Premiums Paid Data Percentile
|
| | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Period
|
| |
10th
|
| |
20th
|
| |
30th
|
| |
40th
|
| |
50th
|
| |
60th
|
| |
70th
|
| |
80th
|
| |
90th
|
| | | | |||||||||||||||||||||||||||||||||
One Day Prior
|
| | | | 21.3% | | | | | | 0.3% | | | | | | 11.9% | | | | | | 20.1% | | | | | | 27.5% | | | | | | 35.7% | | | | | | 43.5% | | | | | | 54.4% | | | | | | 69.5% | | | | | | 100.0% | | | | ||
One Week Prior
|
| | | | 8.3% | | | | | | 1.7% | | | | | | 12.6% | | | | | | 22.0% | | | | | | 29.0% | | | | | | 37.8% | | | | | | 45.5% | | | | | | 56.9% | | | | | | 73.4% | | | | | | 103.0% | | | | ||
One Month Prior
|
| | | | (1.0)% | | | | | | 3.0% | | | | | | 15.0% | | | | | | 24.6% | | | | | | 31.3% | | | | | | 39.0% | | | | | | 49.4% | | | | | | 62.2% | | | | | | 75.9% | | | | | | 107.4% | | | |
Exhibit No.
|
| |
Description
|
|
(e)(19) | | | Executive Employment Agreement, effective September 12, 2022, between Michael Shipton and Science 37, Inc. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Science 37 Holdings, Inc. on September 12, 2022). | |
(e)(20) | | | | |
(e)(21) | | | | |
(e)(22) | | | | |
(e)(23) | | | | |
(e)(24) | | | |
| By: | | |
/s/ David Coman
|
|
| Name: | | | David Coman | |
| Title: | | | Chief Executive Officer and Director | |
Exhibit (e)(2)
[SNCE LETTERHEAD]
November 13, 2023
eMed LLC
990 Biscayne Blvd., Suite 1501
Miami, Florida 33132
Attention: Michael Cole, President and Chief Financial Officer
Re: Confidentiality Agreement
Ladies and Gentlemen:
In connection with the consideration by eMed LLC, a Delaware limited liability company (“you” or “your”) of a possible negotiated acquisition of (a “Possible Transaction”) Science 37 Holdings, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such subsidiaries, affiliates and divisions, the “Company”), the Company or its Representatives (as hereinafter defined) may make available to you and your Representatives (as hereinafter defined) certain information concerning the business, financial condition, operations, assets and liabilities of the Company. As a condition to such information being furnished to you and your Representatives, you agree that you will, and will cause your Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this letter agreement and take or abstain from taking certain other actions as set forth herein.
As used in this letter agreement, (i) the term “affiliates” has the meaning given to it under the Securities Exchange Act of 1934, as amended (the “1934 Act”), (ii) the term “person” as used in this letter agreement shall be broadly interpreted to include the media and any corporation, limited liability company, trust, partnership, group, individual or other entity and (iii) the term “Representatives” means, with respect to any person, such person’s affiliates, officers, managers, directors, general partners, employees, outside counsel, accountants and consultants; provided, however, that, your Representatives shall not include your financial advisors and potential sources of equity or debt financing without the prior written consent of the Company and compliance by you with Section 2 below.
1. Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto, as well as, for the avoidance of doubt, any information delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits.
Notwithstanding the foregoing, the term “Evaluation Material” shall not include any information that (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (iii) becomes available to you or any of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, so long as such source is not known by you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated by you or your Representatives to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.
2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and the damage that would result to the Company if any information contained therein is disclosed to any person in violation hereof. You hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material will not be used in any way detrimental to the Company, that the Evaluation Material will be kept strictly confidential and that you and your Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the Evaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be disclosed to your Representatives (a) who have been informed of the confidential nature of the Evaluation Material, (b) whose review of or access to the Evaluation Material is necessary for your evaluation of a Possible Transaction, and (c) who are actively and directly participating in your evaluation of a Possible Transaction or who otherwise have a good faith need to know such information for the purpose of evaluating a Possible Transaction and are advised by you of, and agree to comply with, the confidentiality and other restrictions set forth in this letter agreement. You shall maintain a list of those Representatives to whom Evaluation Material has been disclosed (which list shall be presented to the Company upon request). In any event, you agree to undertake, and will require all of your Representatives to undertake, commercially reasonable precautions to safeguard and protect the confidentiality of the Evaluation Material that are no less protective than the precautions employed by you to protect the confidentiality of your own confidential or proprietary information. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (including any action or omission taken or failed to be taken by your Representatives that would be in violation of any directive given hereunder).
Notwithstanding anything to the contrary herein, you shall not, without the prior written consent of the Company, permit any of your personnel or other Representatives access to any Highly Confidential Information (as defined below) or disclose any such Highly Confidential Information to any of your personnel or other Representatives, in each case other than those persons identified on Exhibit A hereto (the “Specified Individuals”). As used in this letter agreement, “Highly Confidential Information” means Evaluation Material that refers to, consists of or contains pricing information (including, without limitation, rates, fees and other pricing information contained in the Company’s agreements with its customers), product-specific costs or margins, teaming agreements, pending or anticipated bids or responses to any request for proposal (“RFP”) for products or services sold by any business of the Company. You represent and warrant to the Company that none of the Specified Individuals has responsibility for or with respect to, or the power or authority to make, influence or have input on or with respect to, decisions by you or your affiliates relating to pricing, costs, and/or margins with respect to any products or services of you or your affiliates or bids or responses to RFPs with respect thereto, in any such case with respect to any line of business conducted by the Company. Notwithstanding anything to the contrary contained herein, you agree to abide by any applicable antitrust or competition regulations or obligations in reviewing any Evaluation Material that is or may be competitively sensitive in nature, including considering a request to enter into a clean team agreement under such terms and conditions, if agreed, to which the parties to this letter agreement then mutually agree.
You hereby acknowledge and agree that, without the prior written consent of the Company, no person who is a potential source of equity capital or equity or debt financing or financial advice with respect thereto shall be considered your Representative for any purpose hereunder. Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your Representatives will not, directly or indirectly, consult or share Evaluation Material with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-bidder, co-investor, source of equity financing or other similar person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will make a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. In addition, you agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly, enter into any agreement, arrangement or understanding with any other person that has or would have the effect of requiring such person to provide you with financing or other potential sources of capital or financial advisory services on an exclusive basis in connection with a Possible Transaction or that would be reasonably expected to, legally or contractually, limit, restrict or otherwise impair in any manner, directly or indirectly, such source from consummating a transaction involving the Company or acting as a potential source of capital or financial advisory services to any other party with respect to a potential transaction with the Company. Notwithstanding the foregoing, any financing sources or financial advisors otherwise permitted to receive Evaluation Material hereby may establish an industry standard “tree” system whereby separate groups or “trees” will be formed and dedicated to you and any other party, respectively, involved in a similar transaction and, for the avoidance of doubt, such system will not violate this letter agreement.
3. Discussion Information. You agree that, without the prior written consent of the Company, you and your Representatives will not disclose to any other person the fact that you or your Representative have received Evaluation Material or that Evaluation Material has been made available to you or your Representative, that investigations, discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status thereof and the identity of the parties thereto, or any information that would reasonably be expected to enable a third person to identify the parties thereto or any of their respective affiliates as a party to any discussions or negotiations concerning a Possible Transaction (collectively, the “Discussion Information”). For the avoidance of doubt, “Evaluation Material” shall include all “Discussion Information” for all purposes hereunder.
4. Legally Compelled Disclosure. In the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar compulsory process) to disclose any of the Evaluation Material, you shall, to the extent not legally prohibited under the circumstances, provide the Company with prompt written notice of any such request or requirement and the documents or information requested thereby so that the Company may in its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement, and you will cooperate with the Company, at the Company’s expense, to obtain any such protective order or other remedy. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives are nonetheless, based upon the advice of outside legal counsel, legally compelled to disclose Evaluation Material to the tribunal or governmental authority requiring or requesting such information, you or your Representatives to whom such request is directed may, without liability hereunder, disclose to such tribunal or governmental authority only that portion of the Evaluation Material which, based upon the advice of outside legal counsel, is legally required to be disclosed, provided, that you use your reasonable best efforts, at the Company’s expense, to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal or governmental authority; and provided, further, that, to the extent not legally prohibited under the circumstances, you shall promptly notify the Company, in advance of such disclosure, of (i) your determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.
5. Return and Destruction of Evaluation Material. In the event that you decide not to proceed with a Possible Transaction, you will promptly inform the Company in writing of that decision. In that case, or at any time upon the request of the Company in its sole discretion and for any reason, you will promptly (and in any case within seven days of the Company’s request), at your option, deliver, at your expense, to the Company or destroy (including deleting or expunging from any electronic storage device) all Evaluation Material (and any copies thereof in whatever form or medium, including electronic copies) furnished to you or your Representatives by or on behalf of the Company or its Representatives. In the event of such a decision or request, one of your authorized officers supervising such return or destruction shall provide the Company with prompt (and in any case within seven days of the Company’s request) written certification of your and your Representatives’ compliance with this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your obligations of confidentiality and other obligations and agreements hereunder. Notwithstanding the foregoing, (a) you and your Representatives may keep an archival copy of such of the Evaluation Material to meet legal, regulatory and accounting requirements and (b) you and your Representatives may retain copies of the Evaluation Material to the extent required by automatic data back-up systems in accordance with your or your Representatives’ security and/or disaster recovery procedures or any bona fide document retention policy in effect as of the date hereof, in each case, in the ordinary course of business; provided, however, that any retained Evaluation Material shall not be accessible other than by individuals responsible for information technology or records maintenance (in each case, solely to the extent reasonably necessary for the performance of their respective duties (e.g., for purposes of system recovery)); provided further, that any such retained copies of the Evaluation Material shall be kept confidential in accordance with, and shall otherwise remain subject to, the provisions hereof for so long as such copies of Evaluation Material are retained (notwithstanding any prior termination hereof).
6. Designated Contact Person; Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company in connection with a Possible Transaction shall be made through its Chief Financial Officer. Neither you nor any of your Representatives will contact, directly or indirectly, any third party with whom the Company or any of its subsidiaries has a business or other relationship (including without limitation any director, officer, employee, customer, supplier, stockholder, insurance carrier or creditor of the Company or any of its subsidiaries) regarding a Possible Transaction, the Evaluation Material or the Company without the Company’s prior written consent.
7. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of eighteen months from the date hereof, neither you nor any of your affiliates, nor any of your or their respective Representatives or any other person acting on behalf of or in concert with you or any of your affiliates or Representatives will, without the prior written consent of the Company, directly or indirectly, solicit or employ any of the officers or senior-level employees (i.e., Vice President-level or above) of the Company (i) with whom you have had contact during your evaluation of a Possible Transaction or (ii) who became known to you by the Company or any of its or your Representatives or about whom you or your Representatives received Evaluation Material (other than solely through rosters or lists of employees) during your evaluation of a Possible Transaction; provided, however, that the foregoing shall not prevent you from (a) engaging in general solicitations for employees in the ordinary course of business so long as such solicitations are not specifically directed towards officers or employees of the Company or (b) soliciting or employing any who respond to solicitations made in accordance with the foregoing clause (a) or whose employment with the Company has been terminated for a period of at least twelve months. In addition, in consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two years from the date hereof, you and your Representatives will not (i) solicit any existing customers of the Company for purchases of products, information, or services that are within the scope of the business, customer, supplier activities of the Company, (ii) divert or attempt to divert any business, supplier, account or customer of the Company (or otherwise cause such business, supplier, account or customer to curtail, reduce or terminate their business relationship with the Company) or (iii) take any other action that is reasonable likely to cause injury to the relationship between the Company, and its employees, customers, accounts, suppliers or other business associates.
8. Absence of Representations or Warranties. You acknowledge and agree that the Company shall have the right in its sole discretion to determine what Evaluation Material to make available to you and your Representatives and what information it will withhold, as well as the times at which it will make information available, and further reserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material. The Company and its Representatives have no obligation to supplement or update any information that has been or is provided to you or your Representatives. You understand, acknowledge and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied, herein as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have any liability to you or to any of your Representatives (or any of their respective affiliates, partners, members, stockholders, lenders, directors, officers, employees or Representatives) hereunder relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom including, without limitation, in contract, tort or under federal or state securities laws. Only those representations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such limitations and restrictions as may be specified therein, may be relied on by you or will have any legal effect. Without limiting the generality of this Section 8, you acknowledge and agree that: (i) the Evaluation Material does not purport to be complete or all inclusive, (ii) the Evaluation Material is provided to assist you and other interested parties in making independent evaluations of the Company and a Possible Transaction, (iii) the Evaluation Material is not a substitute for your independent evaluation and analysis and (iv) none of the Company or any of its Representatives has any obligation to update or supplement the Evaluation Material.
9. Material Non-Public Information. You acknowledge and agree that you are aware (and that your Representatives are aware or, upon receipt of any Evaluation Material, will be advised by you) that (i) the Evaluation Material being furnished to you or your Representatives contains material, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons who have material, nonpublic information concerning the matters which are the subject of this letter agreement, including the Discussion Information, from purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this letter agreement or from communicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon such information. Nothing herein will be deemed to constitute an admission by the Company or any of its Representatives that any Evaluation Material in fact contains material non-public information concerning the Company. You also acknowledge and agree that you will comply (and will ensure that your affiliates and Representatives comply) with such securities laws.
10. Standstill. You hereby represent and warrant to the Company that neither you, nor any of your affiliates or any of your Representatives acting on your behalf, has beneficial ownership of any securities of the Company as of the date hereof. You agree that, for a period of eighteen months from the date of this letter agreement (the “Restricted Period”), unless specifically invited in writing by the Board of Directors of the Company (the “Board”), neither you nor any of your affiliates or Representatives acting on your behalf will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material assets, indebtedness or businesses of the Company or any of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or affiliates or assets of the Company or the subsidiaries or affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company, including consents or actions with respect to the calling of a special meeting of the Company’s shareholders or to advise or influence any person with respect to the voting of any voting securities or interests of the Company; (b) deposit any voting securities of the Company in a voting trust or subject voting securities of the Company to a voting agreement or any other arrangement or understanding with respect to the voting of such securities; (c) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the Company or otherwise act in concert with any person in respect of any such securities; (d) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the Board, governing instruments, affairs or policies of the Company or to obtain representation on the Board; (e) disclose or direct any person to disclose, any intention, plan or arrangement inconsistent with the foregoing; (f) take any action which would or would reasonably be expected to result in a request by a court of competent jurisdiction or by a governmental body to disclose, or cause or require you or the Company to disclose or make a public announcement regarding, any part of the information contained in the Evaluation Material or any matter of the types set forth in this Section 10; (g) make, engage in, or in any way participate in, directly or indirectly, any request for, or effort to obtain, an inspection of the Company’s books and records; or (h) advise, assist or encourage or direct any person to advise, assist or encourage any other persons in connection with any of the foregoing; provided, however, that the foregoing shall not prevent or otherwise limit you from initiating or continuing any non-public discussions, requests or communications with the Company (including the Board) and its financial and legal advisors (including any non-public request to amend or waive any provision of this Section 10 (including this sentence) or making any non-public offer or proposal to the Company or the Board relating to the Possible Transaction or another potential transaction. Notwithstanding the foregoing, the Restricted Period will terminate immediately upon any person or group of persons (other than you) (a) entering into a definitive agreement with the Company providing for (i) a tender or exchange offer, merger or other business combination or extraordinary transaction providing for such third party’s acquisition of the Company or (ii) a sale, lease, exchange or other disposition of all or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis), or (b) commencing, or announcing the commencement of, a tender or exchange offer with respect to all or a majority of the outstanding common stock of the Company which offer has not been publicly rejected by the Board within ten (10) business days of the public announcement or commencement of such tender or exchange offer.
11. No Agreement; Procedures. You understand and agree that no contract or agreement providing for any Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive written agreement has been executed and delivered between you and the Company after the date hereof, and you will not have any claim whatsoever against the Company or any of its Representatives arising out of or relating to any Possible Transaction involving the Company, nor will you have any claim against any third party with respect to a Possible Transaction is entered into, other than pursuant to the provisions of any such final definitive written agreement, if any, and, to the extent that such a definitive written agreement is entered into, any such claim may only be brought strictly in accordance with and subject to the terms and conditions of such definitive written agreement. For avoidance of doubt, for purposes of this letter agreement, the term “final definitive written agreement” does not include an executed non-binding letter of intent or any other preliminary, non-binding written agreement, nor does it include any oral acceptance of an offer or bid. You also agree that unless and until a final definitive written agreement regarding a Possible Transaction has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to determine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any time, and to conduct, directly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any other person). For the avoidance of doubt, this letter agreement shall not constitute an agreement or an obligation to discuss, negotiate or enter into any Possible Transaction, or to conduct or continue any negotiations in good faith or otherwise.
12. No Waiver of Rights. It is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. No Waiver of Privilege. To the extent that any Evaluation Material may include materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, or any other matters, you understand and agree that the parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the sharing of such materials is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine.
14. Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be entitled to seek equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such actual or potential breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the Company. You further agree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter agreement is or would be compensable by an award of money damages, and you agree to waive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this letter agreement, the non-prevailing party in any such litigation (based upon a judgment of a court of competent jurisdiction not subject to further appeal or for which the time for appeal has expired shall be liable and pay to the prevailing party the reasonable and documented legal fees incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
15. Governing Law. This letter agreement is for the benefit of the Company (and its subsidiaries and affiliates) and its Representatives, and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of New York, without regard to the conflict of law provisions thereof that would result in the application of the laws of any other jurisdiction. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York located in the County of New York and of the United States District Court for the State of New York located in the Southern District of Manhattan for any actions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection which you may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this letter agreement or the transactions contemplated hereby in the courts of the State of New York located in the County of New York or the United States District Court for the State of New York located in the Southern District of Manhattan, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
16. Entire Agreement. This letter agreement contains the entire agreement between you and the Company regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions between you and the Company regarding such subject matter, and shall not be subsequently limited, modified or amended by any “click-through” agreement relating to the confidentiality of the Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.
17. No Modification. No provision in this letter agreement can be waived, modified or amended except by written consent of you and the Company, which consent shall specifically refer to the provision to be waived, modified or amended and shall explicitly make such waiver, modification or amendment.
18. Counterparts. This letter agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument.
19. Severability. If any provision of this letter agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
20. Other Obligations. Without limiting anything contained in this letter agreement, you acknowledge and agree that your and your Representatives’ obligations hereunder are in addition to, and no in substitution or limitation of, any other confidentiality, non-use and/or other obligations pursuant to any applicable laws, rules binding professionals or any other agreement not related to the Possible Transaction to which you or any of your Representatives is a party or by which you or any of your Representatives is bound.
21. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the Company and its successors and assigns. This letter agreement may not be assigned by you without the prior written consent of the Company.
22. Third Party Beneficiaries. You agree and acknowledge that this letter agreement is being entered into by and on behalf of the Company and its affiliates, subsidiaries and divisions and that they shall be third party beneficiaries hereof, having all rights to enforce this letter agreement. You further agree that, except for such parties, nothing herein expressed or implied is intended to confer upon or give any rights or remedies to any other person under or by reason of this letter agreement.
24. Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement, together with their Representatives. Accordingly, the parties hereto further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
25. Ownership of Evaluation Material; No License. You agree that the Company is and shall remain the exclusive owner of the Evaluation Material made available by the Company and its Representatives, including, without limitation, all patent, copyright, trade secret, trademark, domain name and other intellectual property rights therein. No license or conveyance of any Evaluation Material made available by or on behalf of the Company or its Representatives, or any portions thereof, to you or any of your Representatives is granted under this letter agreement, whether directly or by implication, estoppel or otherwise..
26. Term. Except as otherwise provided herein, this letter agreement will terminate two years from the date hereof; provided, that the obligations of you and your Representatives shall survive thereafter for so long as any Evaluation Materials are retained by you or any of your Representatives. Notwithstanding the foregoing, for all Evaluation Material that constitutes a trade secret (as such term is defined under the Uniform Trade Secrets Act), the confidentiality obligations hereunder shall survive until such information is no longer deemed a trade secret.
[Signature page follows]
Please confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you and the Company.
Very truly yours, | ||
SCIENCE 37 HOLDINGS, INC. | ||
By: | /s/ Christine Pellizzari | |
Name: Christine Pellizzari | ||
Title: Chief Legal Officer |
CONFIRMED AND AGREED
as of the date written above:
EMED, LLC
By: | /s/ Michael Cole | |
Name: Michael Cole | ||
Title: President & Chief Financial Officer |
Exhibit (e)(3)
eMed, LLC
990 Biscayne Blvd.
Suite 1501
Miami, FL 33132
December 20, 2023 |
Confidential
Science 37 Holdings, Inc.
800 Park Offices Drive
Suite 3606
Research Triangle Park, NC 27709
Re: Proposed Transaction
Ladies and Gentlemen:
This letter agreement (this “Letter Agreement”) is entered into by (i) eMed, LLC (“eMed”), and (ii) Science 37 Holdings, Inc. (“Science 37”). Each of eMed and Science 37 is referred to herein as a “Party” and, together, the “Parties”.
The Parties are entering into this Letter Agreement in connection with the consideration of a possible transaction (the “Proposed Transaction”) under which eMed would acquire the outstanding capital stock of Science 37 on the terms set forth in the indication of interest letter provided to Science 37 by eMed on December 19, 2023 (the “Proposal Letter”) and/or such other terms as the Parties shall mutually agree, and in recognition of eMed’s expenditure of financial resources, time and effort in the due diligence evaluation of the Proposed Transaction and the negotiation of the Definitive Agreements (as defined below).
In connection with the Proposed Transaction, the Parties would enter into a merger agreement and such other agreements that are necessary or customary for a transaction of this type (collectively, the “Definitive Agreements”).
1. Exclusivity. During the Exclusivity Period (as defined below), Science 37 shall not (and shall procure that no affiliate, adviser or agent of Science 37 shall), directly or indirectly:
(1) enter into, continue or participate in discussions or negotiations with anyone except eMed relating to the acquisition by any party of any shares in the capital stock of Science 37, or the sale, divestment or out-licensing of, the grant of an option to acquire, right of first refusal to acquire, right of first negotiation, lien or security interest in, or any other grant of rights to acquire or grant of any interest to acquire, all or a substantial part of the assets of Science 37 (a “Competing Transaction”); provided that the foregoing definition shall not include the issuance of common stock of Science 37 pursuant to the exercise of currently outstanding stock options or settlement of current outstanding restricted stock units;
(2) solicit, facilitate or knowingly encourage any proposals which may reasonably be expected to lead to discussions or negotiations with, or lead to a proposal, offer or other inquiry from, anyone except eMed relating to or in contemplation of a Competing Transaction;
(3) provide any nonpublic information to anyone except eMed relating to or in contemplation of a Competing Transaction;
(4) enter into any agreement, arrangement or understanding (including, for the avoidance of doubt, any letter of intent, term sheet or nondisclosure or confidentiality agreement) with any person (other than eMed) with respect to a Competing Transaction;
(5) terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into in respect or in contemplation of any Competing Transaction; or
(6) agree to, accept, recommend or endorse (or publicly propose or announce any intention or desire to agree to, accept, recommend or endorse) any Competing Transaction.
If, during the Exclusivity Period, Science 37 receives an unsolicited proposal, offer or other inquiry from anyone except eMed relating to or in contemplation of a potential Competing Transaction, Science 37 shall:
(1) notify eMed promptly (but in any event in no less than twenty-four (24) hours) in writing of the material terms of that proposal, offer or inquiry and the identity of the sender of the proposal, offer or inquiry (or, if the sender is not the principal party to the transaction or matter which is the subject of the proposal, offer or inquiry, then the identity of such principal party) (unless, and solely to the extent, that providing the identity of the sender of the proposal is specifically prohibited by a confidentiality agreement that has been entered into prior to the date hereof); and
(2) take no steps to respond to such proposal, offer or inquiry without the prior written consent of eMed; provided that the Company may issue a “no comment” statement or otherwise indicate that it cannot discuss a Competing Proposal at such time.
For purposes hereof, “Exclusivity Period” shall mean the period beginning on the date of this Letter Agreement and ending on the earlier to occur of: (a) the execution by the Parties of the Definitive Agreements, (b) 11:59 p.m. (New York Time) on January 8, 2024, (c) the time at which eMed notifies Science 37 that eMed has determined not to proceed with the Proposed Transaction, (d) the time of entry with eMed of a definitive agreement with respect to the Proposed Transaction or the publication or commencement of a public offer by eMed to acquire securities of Science 37, and (e) such earlier time and date as eMed and Science 37 mutually agree to discontinue discussions of the Proposed Transaction.
2. Definitive Agreements. The Parties acknowledge that the execution and delivery of this Letter Agreement does not create any legally binding obligations between the Parties relating to the Proposed Transaction or any other transaction except those specifically set forth herein. Such an obligation will arise only upon the execution and delivery of the Definitive Agreements.
3. Governing Law; Jurisdiction; Waiver of Jury Trial. This Letter Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws rules thereof. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this Letter Agreement and the Proposed Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF.
4. Specific Enforcement. The Parties acknowledge that a breach of this Letter Agreement could cause irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, the Parties hereby agree that each Party shall be entitled to seek equitable relief in the event of any breach or threatened breach of this Letter Agreement, including injunctive relief against any breach thereof and specific performance of any provision thereof, in addition to any other remedy to which the relevant Party may be entitled, as may be granted by a court of competent jurisdiction.
5. Counterparts; Parties; No Assignment. This Letter Agreement may be executed by scanned pdf/e-mail and by any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement. This Letter Agreement is for the sole benefit of the Parties and nothing herein, express or implied, shall give or be construed to give any other person any legal or equitable rights hereunder. This Letter Agreement shall not be assignable without the prior written consent of the non-assigning Party.
6. Notices. All notices or reports permitted or required under this Letter Agreement will be in writing and will be sent by e-mail, confirmed by telephone or return e-mail. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth above or such other address as either Party may specify in writing.
7. Amendment; Entire Agreement. This Letter Agreement may only be amended with the prior written consent of eMed and Science 37. This Letter Agreement, together with the Proposal Letter and the confidentiality agreement by and between eMed and Science 37, dated November 13, 2023 (the “Confidentiality Agreement”), is the complete and exclusive agreement of the Parties with respect to the subject matter hereof.
[signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Letter Agreement to be executed by their duly authorized representatives.
EMED, LLC | SCIENCE 37 HOLDINGS, INC. | |||
By: | /s/ Michael Cole | By: | /s/ Christine Pellizzari | |
Name: Michael Cole | Name: Christine Pellizzari | |||
Title: President & Chief Financial Officer | Title: Chief Legal and Human Resources Officer |
eMed, LLC
990 Biscayne Blvd.
Suite 1501
Miami, FL 33132
January 8, 2024
Confidential
Science 37 Holdings, Inc.
800 Park Offices Drive
Suite 3606
Research Triangle Park, NC 27709
Re: Amendment to Letter Agreement regarding Proposed Transaction
Ladies and Gentlemen:
Reference is hereby made to that certain letter agreement, dated as of December 20, 2023, by and between (i) eMed, LLC (“eMed”), and (ii) Science 37 Holdings, Inc. (“Science 37”) (the “Letter Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Letter Agreement.
In recognition of the ongoing discussions with Science 37 regarding the Proposed Transaction (and in recognition of the time and effort that eMed is expending and the expenses that eMed is incurring in pursuing these discussions and in investigating the business of Science 37 and its Subsidiaries), the Parties desire to enter into this letter agreement (this “Agreement”) to extend the term of the Exclusivity Period. In connection with the foregoing, each party hereby agrees that the definition of “Exclusivity Period” set forth in the last sentence of Section 1 of the Letter Agreement shall be amended and restated in its entirety as follows:
“For purposes hereof, “Exclusivity Period” shall mean the period beginning on the date of this Letter Agreement and ending on the earlier to occur of: (a) the execution by the Parties of the Definitive Agreements, (b) 11:59 p.m. (New York Time) on January 14, 2024, (c) the time at which eMed notifies Science 37 that eMed has determined not to proceed with the Proposed Transaction, (d) the time of entry with eMed of a definitive agreement with respect to the Proposed Transaction or the publication or commencement of a public offer by eMed to acquire securities of Science 37, and (e) such earlier time and date as eMed and Science 37 mutually agree to discontinue discussions of the Proposed Transaction.”
Other than as specifically set forth in this Agreement, the Letter Agreement is not amended, supplemented or modified in any respect and shall remain in full force and effect. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws rules thereof. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF. This Agreement may be executed by scanned pdf/e-mail and by any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement.
[signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
EMED, LLC | SCIENCE 37 HOLDINGS, INC. | |||
By: | /s/ Michael Cole | By: | /s/ Christine Pellizzari | |
Name: Michael Cole | Name: Christine Pellizzari | |||
Title: President and Chief Financial Officer | Title: CLO |
eMed, LLC
990 Biscayne Blvd.
Suite 1501
Miami, FL 33132
January 14, 2024
Confidential
Science 37 Holdings, Inc.
800 Park Offices Drive
Suite 3606
Research Triangle Park, NC 27709
Re: Amendment No. 2 to Letter Agreement regarding Proposed Transaction
Ladies and Gentlemen:
Reference is hereby made to that certain letter agreement, dated as of December 20, 2023, by and between (i) eMed, LLC (“eMed”), and (ii) Science 37 Holdings, Inc. (“Science 37”), as amended on January 8, 2024 (together, the “Letter Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Letter Agreement.
In recognition of the ongoing discussions with Science 37 regarding the Proposed Transaction (and in recognition of the time and effort that eMed is expending and the expenses that eMed is incurring in pursuing these discussions and in investigating the business of Science 37 and its Subsidiaries), the Parties desire to enter into this letter agreement (this “Agreement”) to extend the term of the Exclusivity Period. In connection with the foregoing, each party hereby agrees that the definition of “Exclusivity Period” set forth in the last sentence of Section 1 of the Letter Agreement shall be amended and restated in its entirety as follows:
“For purposes hereof, “Exclusivity Period” shall mean the period beginning on the date of this Letter Agreement and ending on the earlier to occur of: (a) the execution by the Parties of the Definitive Agreements, (b) 11:59 p.m. (New York Time) on January 15, 2024, (c) the time at which eMed notifies Science 37 that eMed has determined not to proceed with the Proposed Transaction, (d) the time of entry with eMed of a definitive agreement with respect to the Proposed Transaction or the publication or commencement of a public offer by eMed to acquire securities of Science 37, and (e) such earlier time and date as eMed and Science 37 mutually agree to discontinue discussions of the Proposed Transaction.”
Other than as specifically set forth in this Agreement, the Letter Agreement is not amended, supplemented or modified in any respect and shall remain in full force and effect. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws rules thereof. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF. This Agreement may be executed by scanned pdf/e-mail and by any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement.
[signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
EMED, LLC | SCIENCE 37 HOLDINGS, INC. | |||
By: | /s/ Michael Cole | By: | /s/ Christine Pellizzari | |
Name: Michael Cole | Name: Christine Pellizzari | |||
Title: President and Chief Financial Officer | Title: Chief Legal and Human Resources Officer |
[Signature Page to Exclusivity Agreement (Extension Amendment)]
eMed, LLC
990 Biscayne Blvd.
Suite 1501
Miami, FL 33132
January 23, 2024
Confidential
Science 37 Holdings, Inc.
800 Park Offices Drive
Suite 3606
Research Triangle Park, NC 27709
Re: Amendment No. 3 to Letter Agreement regarding Proposed Transaction
Ladies and Gentlemen:
Reference is hereby made to that certain letter agreement, dated as of December 20, 2023, by and between (i) eMed, LLC (“eMed”), and (ii) Science 37 Holdings, Inc. (“Science 37”), as amended on January 8, 2024 and January 14, 2024 (collectively, the “Letter Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Letter Agreement.
In recognition of the ongoing discussions with Science 37 regarding the Proposed Transaction (and in recognition of the time and effort that eMed is expending and the expenses that eMed is incurring in pursuing these discussions and in investigating the business of Science 37 and its Subsidiaries), the Parties desire to enter into this letter agreement (this “Agreement”) to extend the term of the Exclusivity Period. In connection with the foregoing, each party hereby agrees that the definition of “Exclusivity Period” set forth in the last sentence of Section 1 of the Letter Agreement shall be amended and restated in its entirety as follows:
“For purposes hereof, “Exclusivity Period” shall mean the period beginning on the date of this Letter Agreement and ending on the earlier to occur of: (a) the execution by the Parties of the Definitive Agreements, (b) 11:59 p.m. (New York Time) on January 28, 2024, (c) the time at which eMed notifies Science 37 that eMed has determined not to proceed with the Proposed Transaction, (d) the time of entry with eMed of a definitive agreement with respect to the Proposed Transaction or the publication or commencement of a public offer by eMed to acquire securities of Science 37, and (e) such earlier time and date as eMed and Science 37 mutually agree to discontinue discussions of the Proposed Transaction.”
Other than as specifically set forth in this Agreement, the Letter Agreement is not amended, supplemented or modified in any respect and shall remain in full force and effect. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws rules thereof. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF. This Agreement may be executed by scanned pdf/e-mail and by any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement.
[signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
EMED, LLC | SCIENCE 37 HOLDINGS, INC. | |||
By: | /s/ Michael Cole | By: | /s/ Christine Pellizzari | |
Name: Michael Cole | Name: Christine Pellizzari | |||
Title: President and Chief Financial Officer | Title: Chief Legal and Human Resources Officer |
[Signature Page to Exclusivity Agreement (Extension Amendment)]
Exhibit (e)(20)
12121 Bluff Creek Drive, Suite 100
Los Angeles, CA 90094
Phone: 984.377.3737
Fax: 888.534.6531
February 20, 2020
Mike Zaranek
[*]
Re: Offer of Employment
Dear Mike:
On behalf of Science 37, Inc. (“Science 37”), I am pleased to offer you employment in the position of Chief Financial Officer, reporting to David Coman, Chief Executive Officer. Your responsibilities in this position would include but not be limited to: developing and managing Science 37’s financial strategy and capital planning; advising the CEO and other core leaders on the company’s budgeting, investment priorities, and cash flow; developing and implementing financial and operating policies and procedures; and representing Science 37 externally, as necessary, in banking and other finance-related negotiations. This letter sets out the terms of your employment with Science 37, which will start on or before April 29, 2020 should you accept this offer.
If you decide to join us, your initial salary will be $27,083.33 per month, which annualizes to $325,000 per year, less applicable tax and other withholdings, paid in accordance with Science 37’s normal payroll practices. In addition, you will eligible to receive an annual discretionary bonus of up to 30% of your annualized base salary. This bonus, if any, will be based on mutually agreed company goals and overall company performance, and will be subject to the discretion of and approval by the Board of Directors. Future adjustments in compensation, if any, will be made by Science 37 in its sole and absolute discretion. This position is an exempt position, which means you are paid for the job and not by the hour. Accordingly, you will not receive overtime pay if you work more than 8 hours in a workday or 40 hours in a workweek.
In addition, you will be eligible to participate in Science 37’s fringe benefit plans, including health insurance premium contributions, vacation program, and 401(k) retirement savings plan in accordance with the benefit plan requirements. Science 37 may change its benefit plans from time to time in accordance with applicable laws. You may also be eligible to participate in any incentive compensation plan that may be established by Science 37 during your employment.
You will work remotely out of North Carolina and will be expected to spend time in our Los Angeles office regularly. Science 37 will cover your commuting costs (airfare, lodging, and local transportation) according to Science 37 policy, during this period of time.
Subject to the approval of the Board of Directors or its Compensation Committee, you will be granted an option to purchase a number of shares of Science 37’s Common Stock equal to 1% of Science 37’s fully-diluted capitalization calculated as of your employment start date (the “Initial Option”). The exercise price per share of the Initial Option will be equal to the then-current fair market value of one share of the Common Stock of Science 37 on the date of grant, as determined by the Board of Directors or the Compensation Committee when the Initial Option is granted, as is required by law. The Initial Option will be subject to the terms and conditions applicable to options granted under the Science 37, Inc. 2015 Stock Plan (as amended from time to time, the “Plan”), as described in the Plan and the applicable Stock Option Agreement. You will vest in 25% of the shares subject to the Initial Option after 12 months of continuous employment with Science 37 from your employment start date (the “Initial Vesting Date”), and the balance will vest in equal monthly installments over the 36 month period of continuous service from and after the Initial Vesting Date, as described in the applicable Stock Option Agreement.
In addition, subject to your continuous employment with Science 37, on or around the twelve (12) month anniversary date of your employment start date (the “Anniversary Date”) with Science 37, you will receive an additional grant of an option to purchase shares of Science 37 common stock (“Additional Option” and together with the Initial Option, the “Options”) in the amount that equals one-half percent (0.5%) of the Company’s fully-diluted, as-converted capitalization calculated as of your employment start date. The Additional Option will be issued to you pursuant to the Plan and subject to your continuous service with the Company, will vest over a forty-eight (48) month period, with twenty-five percent (25%) vesting on the first year anniversary of the Anniversary Date and the remainder vesting in equal monthly installments over the subsequent thirty-six (36) month period. The Additional Option will have an exercise price per share equal to the fair market value of one share of Science 37 common stock on the date of the grant, as determined by the Board of Directors.
If you accept this offer, your employment with Science 37 will be “at will.” This means it is not for any specific period of time and can be terminated by you at any time for any reason. Likewise, Science 37 can terminate the employment relationship at any time, with or without cause or advance notice. In addition, Science 37 reserves the right to modify your compensation, position, duties or reporting relationship to meet business needs and use its managerial discretion in deciding on appropriate discipline.
This offer is contingent upon you: 1) signing Science 37’s standard form of Employee Proprietary Information and Inventions Agreement (a copy of which is enclosed) and Mutual Arbitration Agreement (a copy of which is enclosed); 2) affirming that you have not been not been excluded, suspended, or debarred from participation in any Federal Health Care Program or in Federal contracts; and 3) and timely providing Science 37 with appropriate documents establishing your identity and right to work in the United States.
This letter, the Employee Proprietary Information and Inventions Agreement, and the Mutual Arbitration Agreement constitute the entire agreement between you and Science 37 regarding the terms and conditions of your employment, and supersede all negotiations, representations or agreements, whether prior or contemporaneous, written or oral, between you and Science 37 on this subject. The provisions of this agreement regarding “at will” employment may only be modified by a document signed by you and an authorized representative of Science 37.
You and Science 37 are entering this agreement based on the mutual understanding that your former employer, IQVIA, will not take action against Science 37 in connection with any anti-competitive provisions in your IQVIA employment agreement. Mutually, we hereby agree that, should IQVIA take any such action: (a) you will indemnify Science 37 against any and all costs associated with defending any claims brought by IQVIA against Science 37; and (b) Science 37 may immediately terminate your employment with Science 37 and, should Science 37 do so, all severance obligations stated herein shall be waived. Nothing in the foregoing is intended to change the at-will status of your employment with Science 37.
Mike, we look forward to working with you at Science 37. This offer will remain open until February 21, 2020. Please sign and date this letter on the spaces provided below to acknowledge your acceptance of Science 37’s offer on the terms set forth in this letter.
Sincerely, | ||
Science 37, Inc. | ||
By | /s/ Adriana Centeno | |
Adriana Centeno | ||
Vice President, Administration |
I agree to and accept employment with Science 37 on the terms and conditions set forth in this agreement. I affirm that I have not been excluded, suspended, or debarred from participation in any Federal Health Care Program or in Federal contracts. I understand and agree that my employment with Company is at-will.
Date: | April 6, 2020 | /s/ Mike Zaranek | |
Mike Zaranek |
Exhibit (e)(21)
SCIENCE 37 HOLDINGS, INC.
Second Amended and Restated Executive Severance Policy
I. | Overview |
The Executive Severance Policy (the “Policy”) established by Science 37 Holdings, Inc. (the “Company”) and approved by the Company’s Board of Directors, effective as of October 7, 2021, amended and restated as of April 18, 2023, is hereby amended and restated as set forth herein as the Policy, effective as of January 12, 2024 (the “Effective Date”). This Policy is an “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) and a “top hat” welfare plan for a select group of management or highly compensated employees under Section 2520.104-24 of ERISA. This Policy supersedes all severance plans, policies or practices of the Company and its Subsidiaries for Participants (but excluding, for clarity, any Individual Agreement (as defined below)). Capitalized terms used in this Policy are defined in Section IX below.
II. | Eligibility |
This Policy applies to any employee of the Company or any Subsidiary who is, at the time of his or her termination of employment, (a) the Chief Executive Officer of the Company (the “CEO”) and the members of the Company’s senior executive team as listed on Schedule I attached hereto (each, an “Executive Participant”), (b) the full-time employees of the Company as listed on Schedule II attached hereto (each, an “Other Employee Participant”, and, together with the Executive Participants, “Participants”) or (c) any full-time employee of the Company who is recommended by the CEO to the Administrator (as defined below) to be a key employee who should be eligible to participate in the Policy. This Policy does not apply to employees whose employment terminates for any reason other than due to a Qualifying Termination (as defined below).
III. | Severance Payments and Benefits |
A. Outside of the Change in Control Period.
Employees who qualify as Executive Participants and who incur a Qualifying Termination outside of the Change in Control Period will receive the following severance benefits (the “Non-CIC Severance Benefits for Executive Participants”):
Cash Severance | COBRA | Equity Awards |
1. 12 months of his or her annual base salary 2. Any Prior-Year Bonus 3. Pro-Rated Bonus
|
1. 12 months Company-subsidized COBRA continuation | 1. Equity Awards will be treated as set forth in the Plan and award agreements governing such Equity Awards |
Employees who qualify as Other Employee Participants and who incur a Qualifying Termination outside of the Change in Control Period will receive the following severance benefits (the “Non-CIC Severance Benefits for Other Employee Participants”):
Cash Severance | COBRA | Equity Awards |
1. 6 months of his or her annual base salary 2. Any Prior-Year Bonus 3. Pro-Rated Bonus |
1. 6 months Company-subsidized COBRA continuation | 1. Equity Awards will be treated as set forth in the Plan and award agreements governing such Equity Awards |
B. Within the Change in Control Period.
Each employee who qualifies as an Executive Participant and who incurs a Qualifying Termination within the Change in Control Period will receive the following severance benefits (the “CIC Severance Benefits for Executive Participants”):
Cash Severance | COBRA | Equity Awards |
1. 18 months of his or her annual base salary 2. Any Prior-Year Bonus 3. Pro-Rated Bonus 4. Target Bonus |
1. 18 months Company-subsidized COBRA continuation |
1. All equity Awards will vest in full (to the extent then-unvested) irrespective of a Qualifying Termination
|
Each employee who qualifies as an Other Employee Participant and who incurs a Qualifying Termination within the Change in Control Period will receive the following severance benefits (the “CIC Severance Benefits for Other Employee Participants”):
Cash Severance | COBRA | Equity Awards |
1. 12 months of his or her annual base salary 2. Any Prior-Year Bonus 3. Pro-Rated Bonus 4. Target Bonus |
1. 12 months Company-subsidized COBRA continuation |
1. All equity Awards will vest in full (to the extent then-unvested) irrespective of a Qualifying Termination
|
C. Payment Timing and Mechanics. The Non-CIC Severance Benefits and/or CIC Severance Benefits, for Executive Participants or Other Employee Participants, as applicable (together, the “Severance Benefits”), will be paid or provided as follows:
1) Any annual base salary will be paid in installments in accordance with the Company’s regular payroll practices during the period commencing on the date of the Qualifying Termination and ending on the six (6)-month (for Non-CIC Severance Benefits for Other Employee Participants), twelve (12)-month (for Non-CIC Severance Benefits for Executive Participants and for CIC Severance Benefits for Other Employee Participants) or eighteen (18)-month (for CIC Severance Benefits for Executive Participants) anniversary thereof; provided, that no such payments will be made prior to the date on which the Release (as defined below) becomes effective and irrevocable and, if the aggregate period during which the applicable Participant is entitled to consider and/or revoke the Release spans two calendar years, no payments under this clause (1) will be made prior to the beginning of the second such calendar year (and any payments otherwise payable prior thereto (if any) will instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year (or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable).
2) Any Prior-Year Bonus, any Target Bonus and any Pro-Rated Bonus will be paid in a single lump-sum amount within seventy (70) days following the date of the Qualifying Termination, except that if such seventy (70)-day period spans two calendar years, then such amount will instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year (or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable)..
3) With respect to Company-subsidized COBRA, if (and only if) the Participant timely and properly elects continuation coverage under COBRA, then during the period commencing on the date of the Qualifying Termination and ending on the earlier of (A) the six (6)-month (for Non-CIC Severance Benefits for Other Employee Participants), twelve (12)-month (for Non-CIC Severance Benefits for Executive Participants and for CIC Severance Benefits for Other Employee Participants) or eighteen (18)-month (for CIC Severance Benefits for Executive Participants) anniversary thereof or (B) the date on which the Participant becomes covered by a group health insurance program provided by a subsequent employer (in any case, the “COBRA Period”), the Company shall reimburse the Participant for the Participant’s and his or her eligible dependents with coverage under its group health plans at the same levels and the same cost to the Participant as would have applied if the Participant’s employment had not been terminated based on the Participant’s elections in effect on the Qualifying Termination date, provided, however, that (x) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (y) the Company is otherwise unable to continue to cover the Participant under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in either case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Participant in substantially equal monthly installments over the COBRA Period (or the remaining portion thereof).
4) Any accelerated vesting of Equity Awards will occur effective immediately prior to the consummation of the Change in Control, irrespective of a Qualifying Termination.
D. Other Benefits. If, in connection with any Participant’s Qualifying Termination that entitles him or her to Severance Benefits under this Section III, such Participant also becomes entitled to receive severance payments and/or benefits under any Individual Agreement or, if the Participant resides outside of the United States, under the laws of his or her country of residence (in either case, the “Individual Severance”) and the Individual Severance (or any component thereof) is more favorable to the Participant than the Severance Benefits (or any component thereof), then such Participant will be entitled to receive the greater of the Individual Severance (or such component thereof) or the Severance Benefits (or such component thereof), provided that the Participant may not receive a duplication of benefits. By way of example only, if a Participant’s Individual Severance consists of a Prior-Year Bonus, 12 months’ annual base salary, and 6 months’ accelerated vesting of Equity Awards and such Participant incurs a Qualifying Termination outside of the Change in Control Period entitling him or her to the Non-CIC Severance Benefits for Executive Participants, then such Participant will be eligible to receive severance consisting of (i) a Prior Year Bonus, (ii) a pro-rated bonus (iii) 12 months’ annual base salary, (iv) 12 months’ Company-subsidized COBRA and (v) 6 months’ accelerated vesting of Equity Awards.
IV. | Conditions to Receipt of Severance |
In order to be eligible to receive any Severance Benefits under this Policy (other than accelerated vesting of Equity Awards due to a Change in Control), a Participant must (i) execute and return to the Company a general release of claims in favor of the Company and its Subsidiaries in the form attached hereto as Exhibit A (a “Release”), which Release becomes effective and irrevocable in accordance with its terms, and (ii) continue to comply with the terms of all applicable restrictive covenants (including confidentiality, non-compete and non-solicit provisions) in favor of the Company and its Subsidiaries to which the Participant is bound. If, at any time during which severance payments and benefits are being provided to the Participant, the Participant breaches his or her Release and/or applicable restrictive covenants, all Severance Benefits (other than accelerated vesting of Equity Awards due to a Change in Control) will immediately cease to be paid or provided.
V. | Non-COMPETITION AND NON- SOLICITATION. |
As a condition to becoming a Participant in the Plan, during a Participant’s employment and for one (1) year following the termination of the Participant’s employment for any reason (including a Qualifying Termination) (such date, the “Separation Date”), the Participant agrees not to, without the prior written consent of the Committee:
(a) directly or indirectly, engage in, or assist any other person or entity to engage in, any business that competes with any business in which either the Company or its successors is engaging, or in which either the Company or its successors has substantial plans to engage as of the Separation Date that are known by the Participant, provided that: (i) this restriction shall not apply to the ownership by the Participant of not more than five percent (5%) of any class of the publicly traded securities of any entity; and (ii) following the date of the Participant’s separation from the Company for any reason this restriction shall not apply to any geographical area where, as of the Separation Date, the Company or its successors are not conducting substantial business, are not providing substantial products or services, or did not have substantial plans to provide such products or services; and (iii) following the Separation Date this restriction shall not apply to any business acquired after the Separation Date by the Company or its successors, which business, does not compete with either the Company’s or its successors’ business as it existed on the Separation Date.
(b) directly or indirectly: (i) solicit or seek to entice away from the Company or its successors, or offer employment or any consulting or other service arrangement to, any person who is employed by the Company or its successors; or (ii) interfere with the business relationship of the Company or its successors with any person or entity who is a customer or client of, supplier to or other party having material business relations with the Company or its successors.
VI. | Parachute Payments |
A. Best Pay Cap. Notwithstanding anything herein to the contrary, in the event that any amount or benefit received or to be received by any Participant pursuant to this Policy or any other agreement, plan or arrangement (collectively, the “Covered Payments”), would subject the Participant to an excise tax under Section 4999 of the Code (an “Excise Tax”), then, after taking into account any reduction in the Covered Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement, then such remaining Covered Payments shall be reduced, to the extent necessary so that no portion of the Covered Payments is subject to the Excise Tax but only if (i) the net amount of such Covered Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments) is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Covered Payments and the amount of Excise Tax to which such Participant would be subject in respect of such unreduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Covered Payments).
B. Certain Exclusions. For purposes of determining whether and the extent to which a Participant’s Covered Payments will be subject to the Excise Tax, (i) no portion of the Covered Payments the receipt or enjoyment of which such Participant shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Covered Payments shall be taken into account which, in the written opinion of an independent, nationally recognized accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Covered Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Covered Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
VII. | Administration; Amendment and Termination |
A. Administration. This Policy shall be interpreted, administered and operated by the Compensation Committee of the Company’s Board of Directors (in such capacity, the “Administrator”). The Administrator shall have complete authority in its sole discretion subject to the express provisions of this Policy, including, for the avoidance of doubt, subject to Section VII.B. below, to determine who shall be eligible for the payments and benefits under this Policy, to interpret the terms of this Policy, and to make all other determinations necessary or advisable for the administration of this Policy.
B. Amendment; Termination. This Policy may not be amended or terminated by the Company’s Board of Directors or the Administrator in any manner that may adversely impact any Participant, including, but not limited to, amendment of a Participant’s status as a Participant under the Policy, unless such applicable Participant has provided his or her written consent.
VIII. | MISCELLANEOUS |
A. No Right to Employment. Nothing in this Policy gives any employee the right to be retained in the employment of the Company or a Subsidiary or otherwise modifies the employee’s at-will employment relationship with the Company or a Subsidiary. The Policy is not a contract of employment between the Company or a Subsidiary and any employee.
B. Severability. If any provision of this Policy is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provisions of the Policy, and the Policy shall be construed and enforced as if such provision had not been included in the Policy.
C. Unfunded Obligations. The amounts to be paid to Participants under this Policy are unfunded obligations of the Company. The Company is not required to segregate any monies or other assets from its general funds with respect to these obligations. Participants will not have any preference or security interest in any assets of the Company other than as a general unsecured creditor.
D. Transfer. Neither a Participant nor any other person shall have any right to sell, assign, transfer, pledge, anticipate or otherwise encumber, transfer, hypothecate or convey any amounts payable under this Policy prior to the date that such amounts are paid, except that, in the case of a Participant’s death, such amounts shall be paid to the Participant’s beneficiaries.
E. Governing Law. The Policy is intended to be governed by and will be construed in accordance with ERISA and, to the extent not preempted by ERISA, the laws of the State of Delaware.
F. Clawback. Any amounts payable under this Policy are subject to any policy in existence as of the Effective Date(the “Clawback Policy”) established by the Company providing for clawback or recovery of amounts that were paid to any Participant. The Company will make any determination for clawback or recovery in its sole discretion in accordance with the Clawback Policy and in accordance with any applicable law or regulation.
G. Withholding. The Company and its Subsidiaries will have the right to withhold from any amount payable hereunder any federal, state and local taxes required by law to be withheld therefrom.
H. Section 409A.
1) To the extent applicable, this Policy shall be interpreted and applied consistent and in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”). Notwithstanding any provision of this Policy to the contrary, to the extent that the Administrator determines that any payments or benefits under this Policy may not be either compliant with or exempt from Section 409A, the Administrator may in its sole discretion adopt such amendments to this Policy or take such other actions that the Administrator determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Policy from Section 409A and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A; provided, however, that this Section VII(H) shall not create any obligation on the part of the Administrator to adopt any such amendment or take any other action, nor shall the Company or any Subsidiary have any liability for failing to do so
2) Notwithstanding anything to the contrary in this Policy, no amounts shall be paid to any Participant under this Policy during the six-month period following such Participant’s “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Code and Treasury Regulation Section 1.409A-1(h)) to the extent that the Administrator determines that paying such amounts at the time or times indicated in this Policy would result in a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, including as a result of the Participant’s death), the Participant shall receive payment of a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Participant during such six-month period without interest thereon.
3) To the extent that any payments or reimbursements provided to a Participant under this Policy are deemed to constitute compensation to the Participant to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31st of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Participant’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. For purposes of Section 409A, each separately identified amount to which a Participant is entitled under this Policy shall be treated as a separate payment. In addition, to the extent permissible under Section 409A, the right to receive any installment payments under this Policy shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii). Whenever a payment under the Policy specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
I. Assumption of Plan. The Company shall require any successor thereto (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, whether pursuant to a Change in Control or otherwise, to expressly assume and agree to perform the obligations under this Policy in the same manner and to the same extent the Company would be required to perform if no such succession had taken place.
J. Complete Statement of Policy. This Policy document contains a complete statement of the terms of the Policy and supersedes all prior statements with respect to the terms of the Policy. This Policy document also serves as the summary plan description. No other evidence, whether written or oral, shall be taken into account in interpreting the provisions of the Policy. In the event of a conflict between a provision in the Policy document and any booklet, brochure, presentation, or other communication (whether written or oral), the provision of this Policy document shall control.
K. Claims. Any claims under or relating to this Policy will be subject to the procedures set forth on Exhibit B, which is incorporated into this Policy as if first set forth herein.
IX. | Definitions |
For purposes of this Policy, the following terms have their respective meanings set forth below:
1) “Cause” means, with respect to any Participant, “Cause” as defined in an effective, written employment agreement between the Participant and the Company or a Subsidiary thereof if such an agreement exists and contains a definition of Cause, or, if no such agreement exists or such agreement does not contain a definition of Cause, then Cause means any one or more of the following: (i) any act or omission by a Participant which, if convicted by a court of law, would constitute a felony or a crime of moral turpitude; (ii) a Participant’s dishonesty or material violation of standards of integrity in the course of fulfilling his or her employment duties to the Company or any of its Subsidiaries; (iii) a Participant’s insubordination or a violation of a written policy of the Company or its Subsidiaries, violation of which would be grounds for dismissal under applicable Company (or Subsidiary) policy, provided such policy was in existence prior to the Change in Control; (iv) any act or omission by a Participant materially adverse to the interest of the Company or any its Subsidiaries, that resulted in material harm to the Company or any its Subsidiaries; (v) a Participant’s material breach of any written agreement between Participant and the Company; (vi) a Participant’s failure to comply in any material respect with any Company code of conduct, or ethics policy, provided such policy was in existence prior to the Change in Control; or (vii) a Participant’s failure to comply in any material respect with any statute, regulation, or legal requirement applicable to the Participant’s position with the Company or its business.
2) “Change in Control” has the meaning set forth in the Plan.
3) “Change in Control Period” means the period commencing thirty (30) days prior to, and ending eighteen (18) months following, the consummation of a Change in Control.
4) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
5) “Code” means the U.S. Internal Revenue Code of 1986, as amended.
6) “Equity Award” means any equity-based award covering shares of Company common stock (including, without limitation, stock options, restricted stock units and restricted stock granted under the Plan or otherwise).
7) “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
8) “Good Reason” means (i) a material diminution in Participant’s duties or responsibilities; (ii) a material modification in the scope or breadth of a Participant’s duties or responsibilities compared to such duties or responsibilities in existence prior to the Change in Control, (iii) a diminution in Participant’s base salary, Target Bonus, or annual equity award, (iv) a requirement that Participant relocate Participant’s principal place of employment to a location more than twenty-five (25) miles from Participant’s then principal place of employment immediately prior to such relocation, or not permitting the Participant to work remotely, or (v) a requirement that Participant travel on the Company’s business to an extent substantially inconsistent with the Participant’s business travel obligations prior to the Change in Control.
9) “Individual Agreement” means, with respect to any Participant, any individual employment agreement, offer letter, severance agreement or similar agreement between such Participant and the Company or any of its Subsidiaries that provides such Participant with severance payments and/or benefits.
10) “Plan” means the Company’s 2021 Incentive Award Plan (or any successor plan thereto).
11) “Pro-Rated Bonus” means, with respect to any Participant, such Participant’s target annual bonus for the calendar year in which the Participant incurs a Qualifying Termination, pro-rated based on the length of such Participant’s employment with the Company or its Subsidiaries during the calendar year of such Participant’s Qualifying Termination.
12) “Prior Year Bonus” means, with respect to any Participant, any annual bonus for the calendar year immediately prior to the calendar year in which the Participant’s Qualifying Termination occurs that has been earned but remains unpaid as of the date of such Qualifying Termination.
13) “Qualifying Termination” means a Participant’s termination of employment with the Company and its Subsidiaries by the Company or a Subsidiary without Cause or termination by Participant with Good Reason.
14) “Subsidiary” means any direct or indirect subsidiary of the Company.
15) “Target Bonus” means, with respect to any Participant, such Participant’s target annual bonus.
Exhibit A
Form Of RELEASE
Confidential general RELEASe
This Confidential General Release (“Agreement”) is made by and between XXXXXX (“Employee”) and Science 37 Holdings, Inc., its subsidiaries, affiliates, successors, and assigns (“Company”) (collectively, the “Parties”):
WHEREAS, Employee has been employed with Company as of DATE; Employee was and is a resident of STATE; Employee’s last day of employment shall be DATE (the “Termination Date”);
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions and demands that the Employee may have against the Company, including but not limited to, any and all claims arising or in any way related to Employee’s employment with or separation from the Company.
NOW THEREFORE, in consideration of the promises made herein, the Parties hereby agree as follows:
1. Payments and Consideration.
(a) Employee will be paid, at Employee’s regular rate of pay, for all hours worked through the Termination Date, regardless of whether Employee signs this Agreement. Employee will be paid in accordance with normal payroll procedures, less all applicable deductions and withdrawals.
(b) Employee’s execution of this Agreement is required in connection with Employee’s receipt of the appliable Non-CIC Severance Benefits or CIC Severance Benefits (the “Severance Benefits”) pursuant to the Company’s Second Amended and Restated Severance Policy (the “Severance Policy”).
(c) Employee will be reimbursed for all ordinary and necessary, reasonable business-related expenses incurred by Employee in connection with Employee’s employment with Company through Employee’s Termination Date. Employee must submit all requests for reimbursement within five (5) days of the Effective Date, accompanied by proper documentation, to HR@Science37.com.
2. Tax Treatment. Employee understands and agrees that the Company is neither providing tax nor legal advice, nor is the Company making representations regarding tax obligations or consequences, if any, related to this Agreement.
3. Confidential Information. Employee acknowledges that, as part of their employment, Employee had access to information of a nature not generally disclosed to the public, and Employee agrees to keep confidential and not disclose to anyone the Company’s business, proprietary, and trade secret information in Employee’s possession, or any personal, confidential, or otherwise proprietary information regarding the Company’s employees, customers, and clients, or the Company’s personnel practices and related matters. This obligation is understood to be in addition to, and not as any replacement for, any agreements Employee may have signed with the Company concerning confidentiality, trade secrets, non-disclosure, non-competition, non-solicitation, or assignment of inventions or other intellectual property developments, which agreements will remain in full force and effect. Employee agrees that Employee will not take, copy, use, or distribute in any form or manner documents or information that the Company deems proprietary, including without limitation research and development materials, information regarding customers, clients, business partners, or prospective customers, clients, or business partners, financial information, business and strategic plans, software programs and codes, access codes, and other similar materials or information.
4. Return of the Company Property. Employee agrees to return to the Company any and all the Company property in Employee’s possession, including without limitation any computer or other electronic devices; software programs; other the Company equipment, tools, records, or technical materials; information related to the Company customers, clients and business contacts; marketing information; pricing information; cellular phones; personnel materials or files, handbooks, manuals, or policies; memoranda, notes, and drafts thereof; and any other documents or property (and any summaries or copies thereof), developed by Employee and/or obtained by Employee or on Employee’s behalf, directly or indirectly, pursuant to Employee’s employment with the Company. Employee may retain information necessary to perform the consulting services after notification to Company of same.
5. Release of Claims.
(a) Employee agrees that the foregoing consideration represents settlement in full of all outstanding obligations owed to Employee by Company. THIS IS A GENERAL RELEASE OF ALL CLAIMS. As consideration for the Severance Benefits, Employee, on Employee’s own behalf, and on behalf of Employee’s respective heirs, family members, executors, administrators, attorneys, representatives, and assigns, hereby fully and forever releases Company and its legal representatives, officers, directors, fiduciaries, employees, investors, shareholders, insurers, agents, administrators, affiliates, divisions, subsidiaries, predecessor and successor corporations, and assigns, both in their individual and corporate capacities (including its current and former parent companies, subsidiaries, and other affiliated companies as well as any of their current and former insurers, directors, officers, agents, shareholders, and employees), (collectively, the “Releasees”), of and from any and all claims and causes of action, demands, duties, obligations, agreements, promises, liabilities, damages, costs, and/or fees, whether known or unknown, suspected or unsuspected, arising out of or relating to Employee’s employment, including the termination of employment, including without limitation:
(1) | any and all claims relating to or arising from Employee’s employment relationship with Company and the termination of that relationship; |
(2) | any and all claims relating to, or arising from, Employee’s right to purchase, or actual purchase of, shares of stock of Company, including, without limitation, any claims for fraud; misrepresentation; breach of fiduciary duty; breach of duty under applicable state corporate law; and securities fraud under any state or federal law; |
(3) | any and all claims under the law of any jurisdiction including without limitation wrongful discharge of employment; constructive discharge from employment; termination in violation of public policy; discrimination; breach of contract, both express and implied; breach of a covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent and intentional infliction of emotional distress; negligent and intentional misrepresentation; negligent and intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; and conversion; |
(4) | any and all claims for violation of any federal, state or municipal statute, including without limitation all employment laws, including without limitation the Age Discrimination in Employment Act, as amended; Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1866; the Civil Rights Act of 1871; the Fair Labor Standards Act; the Americans with Disabilities Act; the Older Workers’ Benefits Protection Act; the Family Medical Leave Act; the Equal Pay Act; the Employee Retirement Income Security Act of 1974; the National Labor Relations Act; North Carolina wage laws; North Carolina equal pay laws; the North Carolina Persons with Disabilities Protection Act; claims under N.C.G.S. § 95-28.1; claims under N.C.G.S. § 95-28.1A; claims under N.C.G.S. § 95-28.2; claims under N.C.G.S. § 130A-148(i); claims under N.C.G.S. § 9-32; claims under N.C.G.S. §§ 127A-201 to 127A-203; and all other laws against discrimination or applicable to employment that may be the subject of a release under applicable law; |
2
(5) | any and all claims for violation of the federal, or any state, constitution; |
(6) | any and all claims arising out of any other laws and regulations relating to employment or employment discrimination; |
(7) | any and all claims arising out of any personnel policies, contracts of employment, any other contracts, and covenants of good faith and fair dealing; |
(8) | any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Employee as a result of this Agreement; |
(9) | any claim or damage arising out of Employee’s employment with or separation from Company under any common law theory or any federal, state, or local statute or ordinance not specifically referred to above; |
(10) | any and all claims for unpaid or withheld wages, , commissions, and other compensation of any kind that Employee may have against the Releasees; and |
(11) | any and all claims for attorneys’ fees and costs. |
(b) Employee understands and agrees that, to the fullest extent permitted by law, Employee is precluded from filing or pursuing any legal claim of any kind against any of the Releasees at any time in the future, in any federal, state, or municipal court, administrative agency, or other tribunal, arising out of any of the claims that Employee has waived by virtue of executing this Agreement. Employee agrees not to file or pursue any such legal claims and, if Employee does pursue such legal claims, Employee waives any right to receive monetary recovery. By Employee’s signature below, Employee represents that Employee has not filed any such legal claims against any of the Releasees in any federal, state, or municipal court, administrative agency, or other tribunal.
(c) Nothing in this Agreement shall be construed to waive any claims that cannot be waived as a matter of law. In addition, this Agreement does not prevent Employee from filing an administrative charge against any Releasee that may not be released as a matter of law. Nothing in this agreement shall be construed to prohibit Employee from reporting conduct to, providing truthful information to or participating in any investigation or proceeding conducted by any federal or state government agency or self-regulatory organization. This release does not waive any rights or claims that may arise after the date that Employee executed this Agreement, including any dispute to enforce Employee’s rights under this Agreement, such as the timely payment of Severance Benefits.
(d) Nothing in this Agreement will affect the ability of Employee or Company to enforce rights or entitlements specifically provided for under this Agreement as set forth above or under the Severance Policy or any applicable transaction bonus agreement, or any rights or claims that may arise after the date that Employee executed this Agreement. By Employee’s signature below, Employee represents that, other than the Severance Benefits, any severance rights pursuant to applicable employment agreements, and any applicable transaction bonus: (a) Employee is not aware of any unpaid wages, vacation, bonuses, expense reimbursements, or other amounts owed to Employee by Company; (b) however, to the extent Employee is aware of any claims for unpaid wages, severance, benefits, bonuses, commissions, and other compensation of any kind, there is a bona fide dispute between the Parties regarding the fact of and amount of such claims, and Employee further agrees to release such claims (for the avoidance of doubt, excluding any claims with respect to Severance Benefits) and acknowledges that Employee's release is not barred or void under Labor Code section 206.5; (c) Employee has not been denied any request for leave to which Employee believes Employee was legally entitled, and Employee was not otherwise deprived of any of Employee’s rights under the Family and Medical Leave Act or any similar state or local statute; and (d) Employee has not assigned or transferred, or purported to assign or transfer, to any person, entity, or individual whatsoever, any of the claims released in the foregoing general release and waiver. Company’s obligations under this Agreement are contingent upon Employee’s compliance with all terms and conditions provided for herein.
3
6. Release of Unknown Claims. For the purpose of implementing a full and complete release, Employee expressly acknowledges that the releases given in this Agreement are intended to include, without limitation, claims that Employee did not know or suspect to exist in Employee’s favor at the time of the date of Employee’s execution of this Agreement, regardless of whether the knowledge of such claims, or the facts upon with they might be based, would have materially affected the settlement of this matter; and that the Severance Benefits provided under the Severance Policy were also for the release of those claims and contemplates the extinguishment of any such unknown claims.
7. Age Discrimination in Employment Act. Employee acknowledges, agrees and understands that:
(a) under the general release detailed above, Employee is waiving and releasing, among other claims, any rights and claims that may exist under the Age Discrimination in Employment Act (“ADEA”);
(b) the waiver and release of claims set forth in the release above does not apply to any rights or claims that may arise under the ADEA after the date of execution of this Agreement;
(c) the payments and other consideration that are being provided to Employee are of significant value and are in addition to what Employee otherwise would be entitled;
(d) Employee is being advised in writing to consult with an attorney before signing this Agreement;
(e) Employee is being given a period of forty-five (45) days within which to review and consider this Agreement before signing it, though Employee may sign earlier, and if Employee fails to sign and return this Agreement within forty-five (45) day consideration period, the Company’s offer and this Agreement will expire on its own terms;
(f) Employee may revoke acceptance of this Agreement by providing written notice to the Company within seven (7) days following its execution, and any notice of revocation of this Agreement must be in writing and emailed to hrinquiries@science37.com; and
(g) Because of Employee’s right to revoke this Agreement, this Agreement shall not become effective and enforceable until the eighth (8th) day after the return of an executed copy of this Agreement by Employee to the Company (the “Effective Date”), and Employee will not be entitled to any of the benefits set forth in this Agreement until after the Effective Date.
4
8. Non-Disparagement.
(a) Employee agrees to refrain from any disparagement, defamation, libel, or slander of any of the Releasees, and agrees to refrain from any tortious interference with the contracts and relationships of any of the Releasees. Employee understands and agrees that Employee’s entitlement to the compensation and benefits due under this Agreement is conditioned upon Employee’s continued support of the Company. Employee agrees to refrain from taking any action, and from making any statement (oral or written), that disparages or criticizes the Company, its affiliates, parent companies, subsidiaries, and related entities, or its officers, directors, or employees, or that harms the Company’s or any of the Company’s affiliates’, parent companies’, subsidiaries’, and related entities’, or the Company’s officers’, directors’, or employees’ respective reputations, or that disrupts or impairs the Company’s normal, ongoing business operations. Employee specifically agrees not to post false, misleading, or inaccurate information about the Company on job review sites or other anonymous platforms and/or any other social media platforms, including but not limited to Glassdoor, Twitter, Instagram, Medium, or any other social media site, and hereby represents and warrants that Employee has not violated this Paragraph as of the date of the execution of this Agreement. This provision applies to all of Employee’s interactions with third parties, including without limitation any conversations or correspondence that Employee might have with organizations, governmental entities, and persons with whom the Company engages in business, as well as with employees of the Company. Employee understands that this provision does not apply on occasions when Employee is subpoenaed or ordered by a court or other governmental authority to testify or give evidence and must respond truthfully. Employee further agrees not to otherwise interfere with the Company’s business operations, including, without limitation, the Company’s efforts to market and sell its products.
(b) All inquiries by potential future employers as to Employee will be directed to the HR@Science37.com. Upon inquiry, the Company shall only state the following information: Employee’s last position and dates of employment.
9. Confidentiality of Agreement. The Parties acknowledge that Employee’s agreement to keep the terms and conditions of this Agreement confidential is a material factor on which Employee and the Company relied in entering into this Agreement. Employee warrants that Employee has not disclosed the fact of this Agreement or any of the terms of this Agreement, or the negotiations leading thereto, to anyone other than Employee’s attorneys, accountants, or tax consultants, or Employee’s spouse. Employee represents and agrees that (i) Employee will keep the fact and amount of this settlement and the terms of this Agreement completely confidential, except and unless disclosure is required and compelled by lawful court order; (ii) if disclosure is compelled by court order, Employee will disclose only so much information as is necessary for compliance; and (iii) confidentiality is the essence of this Agreement. Accordingly, Employee shall not publicize or disclose the fact of this Agreement, the Severance Benefits, or the terms of this Agreement in any manner whatsoever, whether in writing or orally, to any person, directly or indirectly, or by or through any agent or representative, except as necessary to effectuate the terms of this Agreement, and other than to the following: (1) Employee’s attorneys; (2) Employee’s accountants and tax consultants; (3) other representatives or entities as required and compelled by law or lawful court order; and (4) Employee’s spouse. With respect to any individuals referred to above and to whom Employee knowingly discloses any information regarding this Agreement or its terms, Employee agrees that Employee will inform such individuals that the information is strictly confidential and may not be reviewed, discussed, or disclosed, orally or in writing, with any other person, organization, or entity whatsoever, at any time. Employee further represents that no disclosure inconsistent with this Paragraph and its subparts has been made by Employee prior to the date of Employee’s execution of this Agreement.
(a) This Confidentiality Agreement specifically includes without limitation an obligation, on the part of Employee and Employee’s respective attorneys and other representatives, not to knowingly disclose, or cause to be disclosed, the terms of this Agreement to any of the Company’s current or former employees or to any of the Company’s affiliates, or to any individual associated with the press or the media. Employee agrees that Employee shall be separately responsible and liable for Employee’s own disclosure prohibited by this Paragraph and its subparts, including disclosures made by Employee’s respective representatives.
5
(b) It shall not be a breach of this Paragraph or its subparts for Employee or the Company to respond, if asked, that any dispute regarding Employee’s employment or termination of employment with the Company has been resolved.
(c) If Employee breaches any of the promises contained in this Paragraph or its subparts, the Company shall be entitled to recover its reasonable attorneys’ fees and other costs in the event that the Company prevails in a proceeding to enforce any provision of this Paragraph or its subparts.
10. No Cooperation. Employee agrees Employee will not act in any manner that might damage the business of the Company. Employee agrees that Employee will not 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 or any officer, director, employee, agent, representative, shareholder, or attorney of the Company, unless under a subpoena or other court order to do so. Employee further agrees both to immediately notify the Company upon receipt of any court order, subpoena, or any legal discovery device that seeks or might require the disclosure or production of the existence or terms of this Agreement, and to furnish, within three (3) business days of its receipt, a copy of such subpoena or legal discovery device to the Company.
11. Injunctive Relief. Employee's breach of any obligation or covenant set forth in this Agreement will have a material and adverse effect upon the Company and will cause the Company irreparable harm, and damages arising from any breach may be difficult to ascertain. Consequently, in addition to all of the remedies otherwise available to the Company, including, but not limited to, the recovery of monetary damages and reasonable attorneys' fees incurred in enforcing this Agreement, the Company shall have the right to injunctive relief to restrain and enjoin any actual or threatened breach of the provisions of this Agreement. All of the Company's remedies for breach of this Agreement shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedies. Employee agrees and consents that the Company shall be entitled to injunctive relief; both preliminary and permanent, without bond. If the Employee breaches any of the restrictive covenants set forth in this Agreement, then the restricted time period of each of the covenants shall be extended by an amount of time equal to the duration of such breach or violation.
12. Non-Admissibility; No Admission of Liability. Employee agrees that this Agreement shall not be admissible as evidence in any future proceeding of any kind, except in court on a claim of breach of this Agreement. The Parties understand and acknowledge that this Agreement constitutes a compromise and settlement of disputed claims. No action taken by the Parties hereto, or either of them, either previously or in connection with this Agreement shall be deemed or construed to be:
(a) an admission of the truth or falsity of any claims heretofore made; or
(b) an acknowledgment or admission by either Party of any fault or liability whatsoever to the other Party or to any third party.
13. No Knowledge of Wrongdoing. Employee represents that Employee has no knowledge of any wrongdoing involving improper or false claims against a federal or state governmental agency, or any other wrongdoing that involves Employee or other present or former the Company employees.
14. Contingent Obligation. the Company’s continuing obligations under this Agreement are contingent upon Employee’s compliance with all terms and conditions provided for herein. In the event that Employee breaches any of Employee’s obligations under this Agreement, Employee agrees that the Company may cease making any payments due under this Agreement, and recover all payments already made under this Agreement, in addition to all other available legal remedies.
6
15. Fees and Costs. The Parties shall each bear their own costs, expert fees, attorneys’ fees, and other fees incurred in connection with the execution of this Agreement.
16. No Representations. The Parties represent that they each have had the opportunity to consult with an attorney, at their own expense, and have carefully read and understand the scope and effect of the provisions of this Agreement. Neither Party has relied upon any representations or statements made by the other Party hereto which are not specifically set forth in this Agreement.
17. Severability. In the event that any provision in this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision so long as the remaining provisions remain intelligible and continue to reflect the original intent of the Parties.
18. Entire Agreement. Employee acknowledges that this Agreement is a full and accurate embodiment of the understanding between Employee and the Company with respect to the subject matter hereof, and that it supersedes any prior agreements or understandings made by the Parties, except the Severance Policy and any confidentiality, non-disclosure, non-competition, non-solicitation, trade secret, assignment of inventions, and other intellectual property provisions to which Employee’s employment was subject, including specifically the Confidentiality Agreement, which will remain in effect subsequent to the execution of this Agreement. The terms of this Agreement may not be modified, except by mutual consent of the Parties. Any and all modifications must be reduced to writing and signed by the Parties to be effective.
19. Governing Law and Venue. This Agreement shall be deemed to have been executed and delivered within the State of North Carolina, and it shall be construed, interpreted, governed, and enforced in accordance with the laws of the State of North Carolina, without regard to choice of law principles. In the event of any dispute in connection with this Agreement, the venue in which said dispute will be resolved, whether in arbitration or in connection with an injunction, will be in the State of North Carolina.
20. Counterparts. This 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.
21. Good Faith Compliance. The Parties agree to cooperate in good faith and to do all things necessary to effectuate this Agreement.
22. Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the Parties hereto, with the full intent of releasing all claims.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
Dated: ________________ | |
Science 37 Holdings, Inc. | |
Name: | |
Title: |
Dated: ________________ | By | |
XXXXXXXXX |
7
Exhibit B
Claims Procedures
A. General. Claims for benefits under this Policy shall be administered in accordance with Section 503 of ERISA and the Department of Labor Regulations thereunder. The Administrator shall have the right to delegate its duties under this Exhibit and all references to the Administrator shall be a reference to any such delegate, as well. The Administrator shall make all determinations as to the rights of any Participant, beneficiary, alternate payee or other person who makes a claim for benefits under this Policy (each, a “Claimant”). A Claimant may authorize a representative to act on his or her behalf with respect to any claim under the Policy. A Claimant who asserts a right to any benefit under this Policy he or she has not received, in whole or in part, must file a written claim with the Administrator. All written claims shall be submitted to [Name, Title]; [address]; [email].
B. Regular Claims Procedure. The claims procedure in this subsection (B) shall apply to all claims for Policy benefits.
1) Timing of Denial. If the Administrator denies a claim in whole or in part (an “adverse benefit determination”), then the Administrator will provide notice of the decision to the Claimant within a reasonable period of time, not to exceed thirty (30) days after the Administrator receives the claim, unless the Administrator determines that any extension of time for processing is required. In the event that the Administrator determines that such an extension is required, written notice of the extension will be furnished to the Claimant before the end of the initial thirty (30) day review period. The extension will not exceed a period of thirty (30) ) days from the end of the initial thirty (30) day period, and the extension notice will indicate the special circumstances requiring such extension of time and the date by which the Administrator expects to render the benefit decision.
2) Denial Notice. The Administrator shall provide every Claimant who is denied a claim for benefits with a written or electronic notice of its decision. The notice will set forth, in a manner to be understood by the Claimant:
a. the specific reason or reasons for the adverse benefit determination;
b. reference to the specific Policy provisions on which the determination is based;
c. a description of any additional material or information necessary for the Claimant to perfect the claim and an explanation as to why such information is necessary; and
d. an explanation of the Policy’s appeal procedure and the time limits applicable to such procedures, including a statement of the Claimant’s right to bring an action under Section 502(a) of ERISA after receiving a final adverse benefit determination upon appeal.
3) Appeal of Denial. The Claimant may appeal an initial adverse benefit determination by submitting a written appeal to the Administrator within sixty (60) days of receiving notice of the denial of the claim. The Claimant:
a. may submit written comments, documents, records and other information relating to the claim for benefits;
b. will be provided, upon request and without charge, reasonable access to and copies of all documents, records and other information relevant to the Claimant’s claim for benefits; and
c. will receive a review that takes into account all comments, documents, records and other information submitted by the Claimant relating to the appeal, without regard to whether such information was submitted or considered in the initial benefit determination.
4) Decision on Appeal. The Administrator will conduct a full and fair review of the claim and the initial adverse benefit determination within thirty (30) days after the Administrator receives the claim. If special circumstances require a further extension of time for processing, the extension will not exceed a period of thirty (30) ) days from the end of the initial ninety (30) day period and the Administrator shall provide the Claimant with written notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension. The Administrator generally cannot extend the review period any further unless the Claimant voluntarily agrees to a longer extension. The Administrator shall notify the Claimant of the benefit determination as soon as possible but not later than five (5) days after it has been made.
5) Notice of Determination on Appeal. The Administrator shall provide the Claimant with written or electronic notification of its benefit determination on review. In the case of an adverse benefit determination, the notice shall set forth, in a manner intended to be understood by the Claimant:
a. the specific reason or reasons for the adverse benefit determination;
b. reference to the specific Policy provisions on which the adverse benefit determination is based;
c. a statement that the Claimant is entitled to receive, upon request and without charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim for benefits;
d. a statement describing any voluntary appeal procedures offered by the Policy and the Claimant’s right to obtain the information about such procedures; and
e. a statement of the Claimant’s right to bring an action under Section 502(a) of ERISA.
D. Exhaustion; Judicial Proceedings. No action at law or in equity shall be brought to recover benefits under the Policy until the claim and appeal rights described in the Policy have been exercised and the Policy benefits requested in such appeal have been denied in whole or in part. Any such judicial proceeding must be filed by eighteen (18) months after the Administrator’s final decision regarding the claim or appeal.
E. Administrator’s Decision is Binding. Benefits under the Policy shall be paid only if the Administrator decides in its sole discretion that a Claimant is entitled to them. In determining claims for benefits, the Administrator has the authority to interpret the Policy, to resolve ambiguities, to make factual determinations, and to resolve questions relating to eligibility for and amount of benefits. . A misstatement or other mistake of fact shall be corrected when it becomes known and the Administrator shall make such adjustment on account thereof as it considers equitable and practicable. Notwithstanding the foregoing, and further notwithstanding any other provision of the Policy to the contrary, any determination by the Administrator with respect to a Claimant’s entitlement to benefits under the Policy in connection with a termination of employment that occurs during the Change in Control Period shall be subject to de novo review in any action at law or in equity brought to recover benefits under the Policy.