Exhibit 10.5


 


EMPLOYMENT AGREEMENT


 


This EMPLOYMENT
AGREEMENT (the “Agreement”) is entered into as of July 1, 2021 (the “Effective Date”), by
and between Bluejay Diagnostic, Inc., a Delaware corporation (the “Company”) having its principal place of business
at 360 Massachusetts Ave, Acton, MA 01720, and Jason Cook (“Executive”, and the Company and the Executive collectively
referred to herein as the “Parties”).


 


WITNESSETH:


 


WHEREAS, the
Executive has agreed to serve as the Company’s Chief Technology Officer and the Company would like to retain Executive as its Chief
Technology Officer, and the Parties desire to enter into this Agreement embodying the terms of such employment; and


 


NOW, THEREFORE,
in consideration of the premises and the mutual covenants and promises of the Parties contained herein, the Parties, intending to be legally
bound, hereby agree as follows:


 


1. Title
and Job Duties.


 


(a) Subject
to the terms and conditions set forth in this Agreement, commencing on the Effective Date, the Company agrees to employ Executive as Chief
Technology Officer. Executive shall report directly to the Company’s Chief Executive Officer.


 


(b) Executive
accepts such employment and agrees, during the term of his employment, to devote his full business and professional time and energy to
the Company, and agrees faithfully to perform his duties and responsibilities in an efficient, trustworthy and business-like manner. Executive
also agrees that the Company’s Chief Executive Officer shall determine from time to time such other duties as may be assigned to
him. Executive agrees to carry out and abide by such directions of the Company’s Chief Executive Officer.


 


(c) Without
limiting the generality of the foregoing, Executive shall not, without the written approval of the Company, render services of a business
or commercial nature on his own behalf or on behalf of any other person, firm, or corporation, whether for compensation or otherwise,
during his employment hereunder. The foregoing limitation shall not apply to Executive’s involvement in associations, charities
and service on another entity’s board of directors, provided such involvement does not interfere with Executives responsibilities
(and as it pertains to any service on another entity’s board of directors, provided such action is pre-approved by the Company).


 


 2. Salary and Additional Compensation.




 


(a) Base
Salary. During the Term, the Company shall pay to Executive an annual base salary (“Base Salary”), which shall initially be
$200,000. The Board of Directors (the “Board”) shall review the Executive’s Base Salary no less than annually (at the
end of the Company’s compensation year, which shall be its fiscal year) and may increase (but not decrease) such Base Salary during
the term of this Agreement.


 


(b) Annual Bonus. For each
compensation year during the Term, Executive will be entitled to receive an annual bonus (the “Annual Bonus”), within
ninety (90) days of the completion of such year. The final determination of the amount, if any, of the Annual Bonus will be made by,
and in the sole discretion of, the Compensation Committee of the Board (or the Board, if such committee has been dissolved), based
on goals and objectives previously approved by the Compensation Committee of the Board (or the Board, if such committee has been
dissolved). The target Annual Bonus for the 2021 compensation year is 30% of Base Salary (pro rated for partial years). The Annual
Bonus shall be payable in a combination of cash and options to purchase Company common stock, as determined in the sole discretion
of the Compensation Committee of the Board (or the Board, if such committee has been dissolved). Any options issued hereunder shall
in all respects be subject to the terms and conditions of the Company’s 2021 Equity Plan (the “Plan”), and
the value attributable to any options shall be determined in the sole discretion of the Compensation Committee of the Board (or the
Board, if such committee has been dissolved). No Annual Bonus shall be payable to Executive until the completion of the
Company’s initial public offering (“IPO”).


 






     


     


    

 


(c) Option
Grant. On the Effective Date, Executive will be granted a stock option to purchase 75,000 shares of Company common stock at an exercise
price of $3.50 per share (the “Option Grant”). The Option Grant shall have a term of ten years and shall vest as follows:
(i) 41,668 shares shall vest as of the Effective Date; and (ii) 33,332 shares shall vest in four (4) equal installments upon the achievement
of the following milestone (provided Executive remains continuously employed by Company on and does not resign prior to each such vesting
date): (1) EUA of Symphony IL-6 (8,333 shares); (2) 510(k) of Symphony IL-6 for Sepsis (8,333 shares); (3) commencing clinical trial for
both hsTnT and NT- pro BNP (8,333 shares); (4) 510(k) approval of hsTNT and NT-pro BNP (8,333 shares). The Option Grant shall in all respects
be subject to the terms and conditions of the Plan.


 


(d) Relocation
Allowance. The Company will provide Executive with a relocation allowance of up to $30,000, payable within thirty (30) days of the date
that evidence is provided that the Executive has relocated to the Acton Town area if such relocation is completed within eighteen (18)
months of the Effective Date.


 


3. Expenses.
In accordance with Company policy, the Company shall reimburse Executive for all reasonable association fees, professional related expenses
(certifications, licenses and continuing professional education) and business expenses properly and necessarily incurred and paid by Executive
in the performance of his duties under this Agreement, upon his presentment of detailed receipts in the form required by the Company’s
policy. Notwithstanding the foregoing, all expenses must be promptly submitted for reimbursement by Executive. In no event shall any reimbursement
be paid by the Company after the end of the year following the year in which the expense is incurred by Executive.


 


 4. Benefits.




 


(a) Vacation.
Executive shall be entitled to three weeks per year of vacation, sick and personal time and to utilize such vacation as the Executive
shall determine; provided however, that Executive shall evidence reasonable judgment with regard to appropriate vacation scheduling.


 


(b) Health
Insurance and Other Plans. Executive shall be eligible to participate in the Company’s medical, dental and other employee benefit
programs, if any, that are provided by the Company for its employees at Executive’s level in accordance with the provisions of any
such plans, as the same may be in effect from time to time.


 


5. Term.
The term of employment under this Agreement (the “Term”) shall commence on the Effective Date and shall continue until terminated
by the Company or Executive in accordance with the terms and conditions set forth herein.


 


 6. Termination.




 


(a) Termination
at the Company’s Election.


 


(i) For
Cause. At the election of the Company, Executive’s employment may be terminated at any time for Cause (as defined below) upon
written notice to Executive given pursuant to Section 12 of this Agreement. For purposes of this Agreement, “Cause” for
termination shall mean that Executive: (A) pleads “guilty” or “no contest” to, or is convicted of an act
which is defined as a felony under federal or state law, or is indicted or formally charged with acts involving criminal fraud or
embezzlement; (B) in carrying out his duties, engages in conduct that constitutes gross negligence or willful misconduct; (C)
engages in substantiated fraud, misappropriation or embezzlement against the Company; (D) engages in any inappropriate or improper
conduct that causes material harm to the reputation of the Company; or (E) materially breaches any term of this Agreement. With
respect to subsection (E) of this section, to the extent such material breach may be cured, the Company shall provide Executive with
written notice of the material breach and Executive shall have twenty (20) days to cure such breach.


 






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(ii) Upon
Disability or Without Cause; Death. At the election of the Company, Executive’s employment may be terminated: (A) should Executive
have a physical or mental impairment that substantially limits a major life activity and Executive is unable to perform the essential
functions of his job with or without reasonable accommodation (“Disability”); or (B) at any time without Cause. Executive’s
employment with the Company will end upon Executive’s death.


 


(b) Termination
at Executive’s Election. Notwithstanding anything contained elsewhere in this Agreement to the contrary, Executive may terminate
his employment hereunder at any time and for any reason, upon thirty (30) days’ prior written notice given pursuant to Section 12
of this Agreement (“Voluntary Resignation”), provided that upon notice of resignation, the Company may terminate Executive’s
employment immediately.


 


(c) Termination
in General. If Executive’s employment with the Company terminates for any reason, the Company will pay or provide to Executive:
(i) any unpaid Base Salary through the date of employment termination, (ii) any unpaid Annual Bonus for the fiscal year prior to the fiscal
year in which the termination occurs (payable at the time the bonuses are paid to employees generally), (iii) any accrued but unused vacation
or paid time off in accordance with the Company’s policy, (iv) reimbursement for any unreimbursed business expenses incurred through
the termination date, to the extent reimbursable in accordance with Section 3, and (v) all other payments or benefits (if any) to which
Executive is entitled under the terms of any benefit plan or arrangement.


 


 7. Severance.




 


(a) Subject
to Section 7(b) below, if Executive’s employment is terminated prior to the end of the Term by the Company without Cause (other
than due to death or Disability), Executive shall be entitled to receive a cash severance payment equal to (i) three months of Executive’s
Base Salary at the time of termination, which shall increase to six months of Executive’s Base Salary if such termination occurs
after one year from the Effective Date; and (ii) a pro rata portion of the target Annual Bonus for the year in which such termination
occurs. Such severance payment shall be made over the three or six month period, as applicable, in accordance with the Company’s
normal payroll policy, provided that prior to the initial payment, the Executive has executed and delivered to the Company, and has not
revoked a general release of the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents,
successors and assigns, and such other persons and/or entities as the Company may determine, in a form reasonably acceptable to the Company.
Such general release shall be delivered on or about the date of termination and must be executed within 21 days of termination.


 


(b) Notwithstanding the
foregoing, (i) any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code
and the regulations and official guidance issued thereunder (“Section 409A”)) that is/are required to be made to
Executive hereunder as a “specified employee” (as defined under Section 409A) as a result of such employee’s
“separation from service” (within the meaning of Section 409A) shall be delayed for the first six (6) months following
such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration
of such six (6) month delay period; and (ii) for purposes of any such payment that is subject to Section 409A, if the
Executive’s termination of employment triggers the payment of “nonqualified deferred compensation” hereunder, then
the Executive will not be deemed to have terminated employment until the Executive incurs a “separation from service”
within the meaning of Section 409A.


 






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 8. Confidentiality Agreement.




 


(a) Executive
understands that during his employment he will have access to unpublished and otherwise confidential information both of a technical and
non-technical nature, relating to the business of the Company and any of its parents, subsidiaries, divisions, affiliates (collectively,
“Affiliated Entities”), or clients, including without limitation any of their actual or anticipated business, research or
development, any of their technology or the implementation or exploitation thereof, including without limitation information Executive
and others have collected, obtained or created, information pertaining to patent formulations, vendors, prices, costs, materials, processes,
codes, material results, technology, system designs, system specifications, materials of construction, trade secrets and equipment designs,
including information disclosed to the Company by others under agreements to hold such information confidential (collectively, the “Confidential
Information”). Executive agrees to observe all Company policies and procedures concerning such Confidential Information. Executive
further agrees not to disclose or use, either during his employment or at any time thereafter, any Confidential Information for any purpose,
including without limitation any competitive purpose, unless authorized to do so by the Company in writing, except that he may disclose
and use such information when necessary in the performance of his duties for the Company. Executive’s obligations under this Agreement
will continue with respect to Confidential Information, whether or not his employment is terminated, until such information becomes generally
available from public sources through no action of Executive. Notwithstanding the foregoing, however, Executive shall be permitted to
disclose Confidential Information as may be required by a subpoena or other governmental order, provided that he first notifies promptly
the Company of such subpoena, order or other requirement and allows the Company the opportunity to obtain a protective order or other
appropriate remedy. Nothing herein shall prohibit Employee from (i) reporting a suspected violation of law to any governmental or regulatory
agency and cooperating with such agency, or from receiving a monetary recovery for information provided to such agency, (ii) testifying
truthfully under oath pursuant to subpoena or other legal process or (iii) making disclosures that are otherwise protected under applicable
law or regulation.


 


(b) During
Executive’s employment, upon the Company’s request, or upon the termination of his employment for any reason, Executive will
promptly deliver to the Company all documents, records, files, notebooks, manuals, letters, notes, reports, customer and supplier lists,
cost and profit data, e-mail, apparatus, computers, cell phones, tablets, hardware, software, drawings, and any other material of the
Company or any of its Affiliated Entities or clients, including all materials pertaining to Confidential Information developed by Executive
or others, and all copies of such materials, whether of a technical, business or fiscal nature, whether on the hard drive of a laptop
or desktop computer, in hard copy, disk or any other format, which are in Executive’s possession, custody or control.


 


(c) Executive will
promptly disclose to the Company any idea, invention, discovery or improvement, whether patentable or not (“Creations”),
conceived or made by him alone or with others at any time during his employment. Executive agrees that the Company owns all such
Creations, conceived or made by Executive alone or with others at any time during his employment, and Executive hereby assigns and
agrees to assign to the Company all rights he has or may acquire therein and agrees to execute any and all applications, assignments
and other instruments relating thereto which the Company deems necessary or desirable. These obligations shall continue beyond the
termination of his employment with respect to Creations and derivatives of such Creations conceived or made during his employment
with the Company. Executive understands that the obligation to assign Creations to the Company shall not apply to any Creation which
is developed entirely on his own time without using any of the Company’s equipment, supplies, facilities, and/or Confidential
Information unless such Creation (a) relates in any way to the business or to the current or anticipated research or development of
the Company or any of its Affiliated Entities; or (b) results in any way from his work at the Company.


 






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(d) Executive
will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or any of its Affiliated
Entities or to his duties hereunder as having been made or acquired by Executive prior to his work for the Company.


 


(e) Executive
agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to the procurement, maintenance
and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries)
relating to such Creations. Executive shall sign all papers, including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Creations. Executive further agrees that if the Company is unable, after
reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such
papers as his agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as his agent
and attorney-in-fact to execute any such papers on his behalf and to take any and all actions as the Company may deem necessary or desirable
in order to protect its rights and interests in any Creations, under the conditions described in this paragraph.


 


9. Non-solicitation.
Executive agrees that, during the Term and until six (6) months after the termination of his employment, Executive will not, directly
or indirectly, including on behalf of any person, firm or other entity, employ or actively solicit for employment any employee of the
Company or any of its Affiliated Entities, or anyone who was an employee of the Company or any of its Affiliated Entities within the one-year
period prior to the termination of Executive’s employment, or induce any such employee to terminate his or her employment with the
Company or any of its Affiliated Entities.


 


10. Representation
and Warranty. The Executive hereby acknowledges and represents that he has had the opportunity to consult with legal counsel regarding
his rights and obligations under this Agreement and that he fully understands the terms and conditions contained herein. Executive represents
and warrants that Executive has provided the Company a true and correct copy of any agreements that purport: (a) to limit Executive’s
right to be employed by the Company; (b) to prohibit Executive from engaging in any activities on behalf of the Company; or (c) to restrict
Executive’s right to use or disclose any information while employed by the Company. Executive further represents and warrants that
Executive will not use on the Company’s behalf any information, materials, data or documents belonging to a third party that are
not generally available to the public, unless Executive has obtained written authorization to do so from the third party and provided
such authorization to the Company. In the course of Executive’s employment with the Company, Executive is not to breach any obligation
of confidentiality that Executive has with third parties, and Executive agrees to fulfill all such obligations during Executive’s
employment with the Company. Executive further agrees not to disclose to the Company or use while working for the Company any trade secrets
belonging to a third party.


 


11. Injunctive Relief.
Without limiting the remedies available to the Company, Executive acknowledges that a breach of any of the covenants contained in
Section 8 above may result in material irreparable injury to the Company for which there is no adequate remedy at law, that it will
not be possible to measure precisely damages for such injuries and that, in the event of such a breach or threat thereof, the
Company shall be entitled, without the requirement to post bond or other security, to seek a temporary restraining order and/or
injunction restraining Executive from engaging in activities prohibited by this Agreement or such other relief as may be required to
specifically enforce any of the covenants in Section 8 of this Agreement.


 






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12. Notice.
Any notice or other communication required or permitted to be given to the Parties shall be deemed to have been given if either personally
delivered, or if sent for next-day delivery by nationally recognized overnight courier, and addressed as follows:


 


If to Executive, to:


 


Dr. Jason Cook


  [***]


  [***]


 


If to the Company, to:


 


Bluejay Diagnostic, Inc.,

360 Massachusetts Ave




Acton, MA 01720

Attention: CEO


 


13. Severability.
If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, all other provisions shall
nonetheless remain in full force and effect.


 


14. Withholding.
The Company may withhold from any payment that it is required to make under this Agreement amounts sufficient to satisfy applicable withholding
requirements under any federal, state or local law.


 


15. Indemnification.
The Company agrees that Executive will be covered by any “directors and officers” insurance policies then in effect with respect
to Executive’s acts as an officer and/or director of the Company.


 


16. Governing
Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts,
without regard to the conflict of laws provisions thereof. Any action, suit or other legal proceeding that is commenced to resolve any
matter arising under or relating to any provision of this Agreement shall be submitted to the exclusive jurisdiction of any state or federal
court in Middlesex County, Massachusetts.


 


17. Waiver.
The waiver by either Party of a breach of any provision of this Agreement shall not be or be construed as a waiver of any subsequent breach.
The failure of a Party to insist upon strict adherence to any provision of this Agreement on one or more occasions shall not be considered
a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that provision or any other provision of this
Agreement. Any such waiver must be in writing, signed by the Party against whom such waiver is to be enforced.


 


18. Assignment. This
Agreement is a personal contract and Executive may not sell, transfer, assign, pledge or hypothecate his rights, interests and
obligations hereunder. Except as otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the
benefit of Executive and his personal representatives and shall inure to the benefit of and be binding upon the Company and its
successors and assigns, including without limitation, any corporation or other entity into which the Company is merged or which
acquires all or substantially all of the assets of the Company.


 


19. Entire
Agreement. This Agreement embodies all of the representations, warranties, covenants, understandings and agreements between the Parties
relating to Executive’s employment with the Company. No other representations, warranties, covenants, understandings, or agreements
exist between the Parties relating to Executive’s employment. This Agreement shall supersede all prior agreements, written or oral,
relating to Executive’s employment. This Agreement may not be amended or modified except by a writing signed by the Parties.


 


[Signature page follows]


 






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IN WITNESS WHEREOF, the Parties have
caused this Agreement to be duly executed and delivered on the date first written above.


 





	 	Bluejay Diagnostic, Inc.
	 	 
	 	By:	/s/ Neil Dey
	 	 	Name:	Neil Dey
	 	 	Title:	CEO


 





	Agreed to and Accepted:	 
	 	 
	Jason Cook	 
	 	 
	/s/ Jason Cook	 
	 	 
	Date: 07/01/2021	 


 


 


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