Exhibit
10.4


 


RESTATED
EMPLOYMENT AGREEMENT


 


This
RESTATED 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 Gordon Kinder (“Executive”, and the Company and the Executive collectively
referred to herein as the “Parties”). This Agreement replaces and supersedes the Employment Agreement between the
Parties dated July 1, 2021.


 


WITNESSETH:


 


WHEREAS,
the Executive has agreed to serve as the Company’s Chief Financial Officer and Vice President and the Company would like to retain
Executive as its Chief Financial Officer and Vice President, 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 Financial Officer and Vice President. 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 $232,000. 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. The Base Salary shall increase to $250,000 upon the completion of the Company’s
initial public offering (“IPO”).


 


(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 40% 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 IPO.


 






     


     


    

 


(c)
Option Grant. On the Effective Date, Executive will be granted a stock option to purchase 40,000 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 6,667 shares on December 31, 2021, 6,666 shares on July 7, 2022, 13,333 shares on July 7, 2023, and 13,334 on July 7, 2024;
provided Executive remains continuously employed by Company on and does not resign prior to each such vesting date. The Option Grant
shall in all respects be subject to the terms and conditions of the Plan.


 


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.


 


(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.


 






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(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.


 


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.


 






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(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.


 


(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.


 






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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.


 


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:


 


Gordon
W. Kinder


[***]


[***]


[***]


 


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:
	 	 
	 	 	 
	Gordon Kinder	 	 
	 	 	 
	/s/
        Gordon Kinder
	 	 
	 	 	 
	Date:	 	 


 


 


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