Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Form Option Agreement
On April 22, 2022, the Company's compensation committee adopted a new form of
Nonqualified Stock Option Agreement (the "Form Option Agreement") for use in
connection with grants of awards to executive officers on or after April 22,
2022 under the Company's 2015 Equity Incentive Plan (the "Plan"). The Form
Option Agreement contemplates time-based vesting, with accelerated vesting upon
a Change in Control or, unless otherwise determined by the Company's Board of
Directors, a material transaction resulting from the Company's strategic
evaluation process announced on March 29, 2022 (such transaction, a "Strategic
Transaction") (subject to the recipient's continued employment through the
applicable date or event). The Option Agreement also provides for a 24-month
post-termination exercise period in the event the recipient's employment is
terminated for any reason other than death, disability, or for cause.
The foregoing description of the Form Option Agreement does not purport to be
complete and is qualified in its entirety by reference to the Form Option
Agreement attached hereto as Exhibit 10.1 and incorporated herein by reference.
Retention Agreements
On April 28, 2022, the Company entered into retention agreements with each of
its executive officers, including, Richard Cunningham, Frank L. Porfido,
Jonathan Eckard and James Biehl (the "Retention Agreements"). The Retention
Agreements provide for a retention cash bonus in an amount equal to the
officer's respective bonus for the fiscal year ending March 31, 2023, to be
payable within 20 days following the closing of a Change of Control (as defined
in the Plan) or a Strategic Transaction (the date of closing of such
transaction, the "Closing Date") on or before March 31, 2023, provided that such
officer remains employed as of the Closing Date and, provided, further, that if
such officer is terminated without Cause or terminates the officer's employment
for Good Reason (as such terms are defined in each officer's respective
employment agreement) prior to the Closing Date, such officer will still be
entitled to the retention bonus, payable within 20 days following the Closing
Date.
The foregoing description of the Retention Agreements does not purport to be
complete and is qualified in its entirety by reference to the form of Retention
Agreement attached hereto as Exhibit 10.3 and incorporated herein by reference.
Item 5.03. Amendments to Certificate of Incorporation or Bylaws.
On April 25, 2022, the Board amended and restated the Company's amended and
restated by-laws (the "A&R By-laws") solely to provide that the holders of
shares of capital stock issued and outstanding entitled to vote thereat
representing at least one-third (1/3) of the votes entitled to be cast thereat,
present in person or represented by proxy, will constitute a quorum at all
meetings of the stockholders for the transaction of business, while prior to the
amendment and restatement, a majority of the votes entitled to be cast thereat,
present in person or represented by proxy, were required to constitute a quorum.
The foregoing description of the A&R By-laws does not purport to be complete and
is qualified in its entirety by reference to the text of the amendment of the
A&R By-laws, which is attached hereto as Exhibit 3.1 and is incorporated herein
by reference.
Item 8.01 Other Events.
On April 25, 2022, the Company entered into Indemnification Agreements with
certain of its current directors and executive officers (collectively, the
"Indemnitees"). The indemnification agreements were authorized by the Board at a
regularly scheduled quarterly meeting of the Board. The Indemnification
Agreements clarify and supplement indemnification provisions already contained
in the Company's A&R By-laws and, subject to certain exceptions, generally
provide that the Company will indemnify the Indemnitees to the fullest extent
permitted by applicable law against expenses, judgments, fines and other amounts
incurred in connection with their service as a director or officer and also
provide for rights to advancement of expenses. Further, under each
Indemnification Agreement, the Indemnitee is presumed to have satisfied the
applicable standard of conduct under Delaware law required for indemnification,
and the Company will have the burden of proof to overcome that presumption and
establish that Indemnitee is not so entitled.
The foregoing description of the Indemnification Agreements does not purport to
be complete and is qualified in its entirety by reference to the form of
Indemnification Agreement attached hereto as Exhibit 10.2 and incorporated
herein by reference.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number Description
3.1 Amended and Restated By-Laws, effective April 25, 2022.
3.2 Amended and Restated By-Laws, effective April 25, 2022 (marked).
10.1 Form of Nonqualified Stock Option Agreement, adopted on April 22,
2022 under the Tyme Technologies, Inc. 2015 Equity Incentive Plan.
10.2 Form of Indemnification Agreement by and between Tyme Technologies,
Inc. and its individual directors and officers.
10.3 Form of Retention Agreement by and between Tyme Technologies, Inc.
and certain of its individual officers.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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