EXECUTIVE
EMPLOYMENT AGREEMENT


 


This
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 10th day of November 2017,
by and between PolarityTE, Inc., a Delaware corporation headquartered at 615 Arapeen Drive, Salt Lake City, UT 84108 (“Parent”)
and Denver Lough, an individual (“Executive”). As used herein, the “Effective Date” of this
Agreement shall mean the date as written above and signed below.


 


W
I T N E S S E T H:


 


WHEREAS,
the Executive desires to be employed by the Parent as its Chief Executive Officer and Chief Scientific Officer and the Parent
wishes to employ the Executive in such capacities, in each case, commencing on and as of the Effective Date.


 


NOW,
THEREFORE, in consideration of the foregoing and their respective covenants and agreements contained in this document, the Parent
and the Executive hereby agree as follows:


 


1.
Employment and Duties. The Parent agrees to employ and the Executive agrees to serve as the Parent’s Chief Executive
Officer, Chief Scientific Officer and Chairman of the Board. The duties and responsibilities of the Executive shall include the
duties and responsibilities as the Parent’s Board of Directors (“Board”) may from time to time assign to the
Executive.


 


Upon
the Effective Date of this Agreement (or as promptly as practicable thereafter), Executive shall be appointed to serve as a member
of the Board, pursuant to the terms and conditions of the Parent’s bylaws, as amended. For so long as Executive is Chief
Executive Officer, the Parent shall use commercially reasonable efforts, subject to applicable law and regulations of the The
NASDAQ Stock Market LLC, to cause Executive to be nominated for election as a director and to be recommended to the stockholders
for election as a director.


 


The
Executive shall devote his full-time efforts and services to the business and affairs of the Parent and its subsidiaries. Nothing
in this Section 1 shall prohibit the Executive from: (A) serving as a director or member of any other board, committee thereof
of any other entity or organization; (B) delivering lectures, fulfilling speaking engagements, and any writing or publication
relating to his area of expertise; (C) serving as a director or trustee of any governmental, charitable or educational organization;
(D) engaging in additional activities in connection with personal investments and community affairs, including, without limitation,
professional or charitable or similar organization committees, boards, memberships or similar associations or affiliations (E)
serving in health care facilities as a physician in order to maintain his license to practice medicine, or (F) performing advisory
activities, provided, however, such activities are not in competition with the business and affairs of the Parent or would tend
to cast executive of Parent in a negative light in the reasonable judgment of the Board.


 




    	 



    	 



    

 


2.
Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years
following the Effective Date and shall be automatically renewed for successive one (1) year periods thereafter unless either party
provides the other party with written notice of his or its intention not to renew this Agreement at least three (3) months prior
to the expiration of the initial term or any renewal term of this Agreement. “Employment Period” shall mean
the initial three (3) year term plus one (1) year renewals, if any.


 


3. Place
of Employment. The Executive’s services shall be performed at such location or locations as Executive
shall determine, in his sole discretion.


 


4.
Base Salary and Board Fees. The Parent agrees to pay the Executive a base salary (“Base Salary”) of
$530,000.00 per annum for the position(s) of Chief Executive Officer and Chief Scientific Officer. Annual adjustments after the
first year of the Employment Period shall be determined by the Board. The Base Salary shall be paid in periodic installments in
accordance with the Parent’s regular payroll practices. Executive shall, subject to policies and procedures of the Parent’s
Board of Directors, be eligible to additional fees for service on the Parent’s
Board.


 


5.
Incentive Compensation and Bonuses.


 


(a)
Annual Bonus: For each fiscal year during the term of employment, the Executive shall be eligible to receive a bonus in
the amount of 100% of annual salary, if any, as may be determined from time to time by the Board in its discretion. The Annual
Bonus shall be paid by the Parent to the Executive promptly after determination that the relevant targets, if any, have been met,
it being understood that the attainment of any financial targets associated with any bonus shall not be determined until following
the completion of the Parent’s annual audit and public announcement of such results and shall be paid promptly following
the Parent’s announcement of earnings. In the event that the Compensation Committee is unable to act or
if there shall be no such Compensation Committee, then all references herein to the Compensation Committee (except in the
proviso to this sentence) shall be deemed to be references to the Board. Upon his termination from employment, the Executive shall
be entitled to receive a pro-rata portion of the Annual Bonus calculated based upon his final day of employment, regardless of
whether he is employed by the Parent through the conclusion of the fiscal quarter or year, as the case may be, on which the Annual
Bonus is based.


 


(b)
Equity Awards and Incentive Compensation: During the term of employment, the Executive shall be eligible to participate
in any equity-based incentive compensation plan or program adopted by the Parent (such awards under such plan or program, the
“Share Awards”) as the Compensation Committee or Board may from time to time determine. Share Awards shall
be subject to applicable plan terms and conditions. And any additional terms and conditions as determined by the Compensation
Committee or the Board.


 


6.
Severance Compensation:


 


(A) Separation
Payment. Upon termination of employment for any reason, the Executive shall be entitled to: (A) the sum of his annual
Base Salary from the date of termination to be paid according to Section 4; (B) any
and all reasonable expenses paid or incurred by the Executive in connection with and related to the performance of his duties
and responsibilities for the Parent during the period ending on the termination date to be paid according to Section 8; (C)
any accrued but unused vacation time through the termination date in accordance with Parent policy; and (D) the sum of his
annual Bonus from the date of termination to be paid according to Section 5(a); and (E) all Share Awards earned and vested
prior to termination. With respect to any Share Awards held by the Executive as of his death that are not vested and
exercisable as of such date, the Parent shall fully accelerate the vesting and exercisability of such Share Awards, so that
all such Share Awards shall be fully vested and exercisable as of the Executive’s death, such options (as well as any
Share Awards that previously became vested and exercisable) to remain exercisable, notwithstanding anything in any other
agreement governing such options, until the earlier of (A) a period of one (1) year after the Executive’s death or (B)
the original term of the option, if such Share Awards is an option.


 




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Additionally,
if the Executive’s employment is terminated prior to expiration of the Employment Period (including due to his death or
Disability, as defined in Section 11(b)) unless the Executive’s employment is terminated for Cause (as defined in Section
11(c)) or the Executive terminates his employment without Good Reason (as defined in Section 11(d) and other than for a Change
in Control as provided in Section 11(d) and Section 11(f)), the Executive shall be entitled to receive a cash amount equal to
the sum of the Executive’s Base Salary, Annual Bonus and Share Awards earned during the year immediately preceding the date
of termination (herein the “Separation Payment”), or the amount payable (including Executive’s Base Salary,
Annual Bonus and Share Awards) for the remainder of the Employment Period then in effect, if greater; provided, that the Executive
executes an agreement releasing Parent and its affiliates from any liability associated with this Agreement and such release is
irrevocable at the time the Separation Payment is first payable under this Section 6 and the Executive complies with his other
obligations under Section 13 of this Agreement. Subject to the terms hereof, 100% of the Separation Payment shall be paid within
thirty (30) days of the Executive’s termination of employment (“Initial Payment”), provided that the Executive
has executed a release.


 


The
Executive may continue coverage with respect to the Parent’s group health plans as permitted by the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”) for himself and each of his “Qualified Beneficiaries”
as defined by COBRA (“COBRA Coverage”). The Parent shall reimburse the amount of any COBRA premium paid for
COBRA Coverage timely elected by and for the Executive and any Qualified Beneficiary of the Executive, and not otherwise reimbursed,
during the period that ends on the earliest of (x) the date the Executive or the Qualified Beneficiary, as the case may be, ceases
to be eligible for COBRA Coverage, (y) the last day of the consecutive eighteen (18) month period following the date of the Executive’s
termination of employment and (z) the date the Executive or the Qualified Beneficiary, as the case may be, is covered by another
group health plan. To reimburse any COBRA premium payment under this paragraph, the Parent must receive documentation of the COBRA
premium payment within ninety (90) days of its payment.


 


(B)
Special Participation Payment upon Involuntary Termination of Executive. Provided Executive shall not be in material breach
of this Agreement, Executive shall have the right to Participation Payments (as defined below) paid to Parent (or any Affiliate)
from commercial transactions associated with U.S. Patent Application No. 14/954,335 and PCT International Patent Application No.
PCT/US2015/063114 and any and all patents and patent applications, whether domestic or foreign, claiming priority thereto or arising
therefrom (including all divisionals, continuations, reissues, reexaminations, renewals, extensions, and supplementary protection
certificates of any such patents and patent application) (the “Patents”) and intellectual property rights associated
with the Patents (sales or licenses to third parties), net of Deductible Purchaser Expenses (as defined below) (“Profits”)
on and following the final issuance to the Parent (or an Affiliate) by the USPTO of a United States Patent under the pending Patent
application and assigned to the Company upon either: (A) termination of Executive’s employment by Executive with Good Reason,
or (B) upon termination of Executive’s employment by Parent without Cause (as such terms are defined below).


 


The
Parent will wire transfer within thirty (30) days following the end of each calendar quarter, to the account specified by Executive
or such other account as most recently specified in writing by Executive, an amount equal to the product of (A) the applicable
Participation Percentage multiplied by (B) the Participation Income for the most recently completed calendar quarter (“Participation
Payments”),


 


“Deductible
Purchaser Expenses,” for any particular calendar quarter, means (i) the cumulative amount of all charges
and out-of-pocket costs and expenses (including research and development, patenting, operating expenses, allocable portion of
overhead, insurance, samples, models, training, discounts, allowances, givebacks and similar items of value) incurred by the Parent
and its Affiliates where such costs are incurred from the business of the Parent and such Affiliates related to the Patents and
any intellectual property associated with the Patents on and following the Closing and (ii) costs and expenses associated with
assertion and/or litigation of the Patents or any intellectual property associated with the Patents.


 


“Participation
Income” for any particular calendar quarter means the Profits of Parent and its Affiliates (as reported and
in accordance with US GAAP) received for each calendar quarter minus Deductible Purchaser Expenses.


 


“Participation
Percentage” for any particular calendar quarter means five (5%) percent of Participation Income.


 




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Parent
shall keep full, clear and accurate records with respect to the Participation Income and Participation Payments and shall furnish
any information which Seller may reasonably prescribe from time to time to enable Seller to ascertain the proper Participation
Payments due under this Agreement. Parent shall retain such records with respect to the Participation Payments for at least three
(3) years from each such payment. Executive shall have the right, annually, through a national auditing firm, to make an examination,
during normal business hours, of all records and accounts bearing upon the amount of Participation Payments payable under this
Agreement. Prompt adjustment shall be made to compensate for any errors or omissions disclosed by such examination. Parent shall
be responsible for all its costs of any such audit unless the audit reveals an underpayment by Parent of at least $100,000 for
the audited period. In such an event, Parent shall be responsible for Executive’s costs of the audit. Based on audited financials,
Parent will provide Executive with a calculation of the amounts due with respect to each of the quarters in such recently ended
calendar year (a “Year End Statement”). The Year End Statement is due to Executive within fifteen (15) days
of Parent’s receipt of audited financial statements certified by Parent’s auditor. Within ten (10) days following
receipt of such Year End Statement, Parent or Executive., as the case may be, will pay, (without interest) to the other, any amounts
in excess of or remaining due as shown in the Year End Statement.


 


If
a dispute arises with respect to the amounts of Participation Payments due, the parties will negotiate the matter in good faith
during a four (4) week period. If a dispute remains after such good faith negotiations, the parties will as expeditiously as possible
(in any event within sixty days) seek mediation to resolve the remaining matters. If no agreement is reached, the parties may
exercise all rights available hereunder at law.


 


7.
Clawback Rights. The Annual Bonus, and any and all stock based compensation (such as options and equity awards) (collectively,
the “Clawback Benefits”) shall be subject to “Clawback Rights” as follows: during the period
that the Executive is employed by the Parent and upon the termination of the Executive’s employment and for a period of
three (3) years thereafter, if there is a restatement of any financial results from which any Clawback Benefits to the Executive
shall have been determined, the Executive agrees to repay any amounts which were determined by reference to any Parent financial
results which were later restated (as defined below), to the extent the Clawback Benefits amounts paid exceed the Clawback Benefits
amounts that would have been paid, based on the restatement of the Parent’s financial information. All Clawback Benefits
amounts resulting from such restated financial results shall be retroactively adjusted by the Compensation Committee to take into
account the restated results, and any excess portion of the Clawback Benefits resulting from such restated results shall be immediately
surrendered to the Parent and if not so surrendered within ninety (90) days of the revised calculation being provided to the Executive
by the Compensation Committee following a publicly announced restatement, the Parent shall have the right to take any and all
action to effectuate such adjustment. The calculation of the revised Clawback Benefits amount shall be determined by the Compensation
Committee in good faith and in accordance with applicable law, rules and regulations. All determinations by the Compensation Committee
with respect to the Clawback Rights shall be final and binding on the Parent and the Executive. The Clawback Rights shall terminate
following a Change of Control as defined in Section 12(f), subject to applicable law,
rules and regulations. For purposes of this Section 7, a restatement of financial results that requires a repayment of a portion
of the Clawback Benefits amounts shall mean a restatement resulting from material non-compliance of the Parent with any financial
reporting requirement under the federal securities laws and shall not include a restatement of financial results resulting from
subsequent changes in accounting pronouncements or requirements which were not in effect on the date the financial statements
were originally prepared (“Restatements”). The parties acknowledge it is their intention that the foregoing
Clawback Rights as relates to Restatements conform in all respects to the provisions of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (“Dodd-Frank Act”) and require recovery of all “incentive-based”
compensation, pursuant to the provisions of the Dodd-Frank Act and any and all rules and regulations promulgated thereunder from
time to time in effect. Accordingly, the terms and provisions of this Agreement shall be deemed automatically amended from time
to time to assure compliance with the Dodd-Frank Act and such rules and regulations as hereafter may be adopted and in effect.


 


8.
Expenses. The Executive shall be entitled to prompt reimbursement by the Parent for all reasonable ordinary and necessary
travel, entertainment, and other expenses incurred by the Executive while employed (in accordance with the policies and procedures
established by the Parent for its senior executive officers) in the performance of his duties and responsibilities under this
Agreement; provided, that the Executive shall properly account for such expenses in accordance with Parent policies and procedures.


 




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9.
Other Benefits. During the term of this Agreement, the Executive shall be eligible to participate in incentive, stock purchase,
savings, retirement (401(k)), and welfare benefit plans, including, without limitation, health, medical, dental, vision, life
(including accidental death and dismemberment) and disability insurance plans (collectively, “Benefit Plans”),
in substantially the same manner and at substantially the same levels as the Parent makes such opportunities available to the
Parent’s managerial or salaried executive employees and/or its senior executives.


 


The
Parent shall pay one hundred percent (100%) of the cost for any group medical, vision and/or dental coverage elected by and for
the Executive and one hundred percent (100%) of the additional incremental cost for any group medical, vision and/or dental coverage
elected by the Executive for the Executive’s family.


 


The
Executive shall be entitled to air travel, including travel by business and/or first class, as is reasonable and necessary for
the performance of his duties and responsibilities, in accordance with the Parent’s policies as approved by the Board.


 


10.
Vacation. During the term of this Agreement, the Executive shall be entitled to accrue, on a pro rata basis, twenty (20)
paid vacation days per year. Vacation shall be taken at such times as are mutually convenient to the Executive and the Parent
and no more than ten (10) consecutive days shall be taken at any one time without Parent approval in advance.


 


11.
Termination of Employment:


 


(a)
Death. If the Executive dies during the Employment Period, this Agreement and the Executive’s employment with the
Parent shall automatically terminate and the Parent’s obligations to the Executive’s estate and to the Executive’s
Qualified Beneficiaries shall be those set forth in Section 6 regarding severance compensation.


 


(b)
Disability. In the event that, during the term of this Agreement the Executive shall be prevented from performing his essential
functions hereunder to the full extent required by the Parent by reason of Disability (as defined below), this Agreement and the
Executive’s employment with the Parent shall automatically terminate. The Parent’s obligation to the Executive under
such circumstances shall be those set forth in Section 6 regarding severance compensation. For purposes of this Agreement, “Disability”
shall mean a physical or mental disability that prevents the performance by the Executive, with or without reasonable accommodation,
of his essential functions hereunder for an aggregate of ninety (90) days or longer during any twelve (12) consecutive months.
The determination of the Executive’s Disability shall be made by an independent physician who is reasonably acceptable to
the Parent and the Executive (or his representative), be final and binding on the parties hereto and be made taking into account
such competent medical evidence as shall be presented to such independent physician by the Executive and/or the Parent or by any
physician or group of physicians or other competent medical experts employed by the Executive and/or the Parent to advise such
independent physician.


 


(c)
Cause.


 


(1)
At any time during the Employment Period, the
Parent may terminate this Agreement and the Executive’s employment hereunder for Cause. For purposes of this Agreement,
“Cause” shall mean: (a) the willful and continued failure of the Executive to perform substantially his duties
and responsibilities for the Parent (other than any such failure resulting from the Executive’s death or Disability) after
a written demand by the Board for substantial performance is delivered to the Executive by the Parent, which specifically identifies
the manner in which the Board believes that the Executive has not substantially performed his duties and responsibilities, which
willful and continued failure is not cured by the Executive within thirty (30) days following his receipt of such written demand;
(b) the conviction of, or plea of guilty or nolo contendere to, a felony, or (c) fraud, dishonesty or gross misconduct
which is materially and demonstratively injurious to the Parent. Termination under clauses (b) or (c) of this Section 11(c)(1)
shall not be subject to cure.


 


(2) For
purposes of this Section 11(c), no act, or failure to act, on the part of the Executive shall be considered
“willful” unless done, or omitted to be done, by him in bad faith and without reasonable belief that his action
or omission was in, or not opposed to, the best interest of the Parent. Between the time the Executive receives written
demand regarding substantial performance, as set forth in subparagraph (1) above, and prior to an actual
termination for Cause, the Executive will be entitled to appear (with counsel) before the full Board to present information
regarding his views on the Cause event. After such hearing, termination for Cause must be approved by a majority vote of the
full Board (other than the Executive). After providing the written demand regarding substantial performance, the Board may
suspend the Executive with full pay and benefits until a final determination by the full Board has been made.


 









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(3)
Upon termination of this Agreement for Cause,
the Parent shall have no further obligations or liability to the Executive or his heirs, administrators or executors with respect
to compensation and benefits thereafter, except for the obligation to pay the Executive any Base Salary earned through the date
of termination to be paid according to Section 4; any unpaid Annual Bonus to be paid according to Section 5; reimbursement of
any and all reasonable expenses paid or incurred by the Executive in connection with and related to the performance of his duties
and responsibilities for the Parent during the period ending on the termination date to be paid according to Section 8; and any
accrued but unused vacation time through the termination date in accordance with Parent policy. The Parent shall deduct, from
all payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions.


 


(d)
For Good Reason or a Change of Control or Without Cause.


 


(1)
At any time during the term of this Agreement
and subject to the conditions set forth in Section 12(d)(2) below the Executive may terminate this Agreement and the Executive’s
employment with the Parent for “Good Reason” or for a “Change of Control” (as defined in Section 12(f)).
For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following events without
Executive’s consent: (A) the assignment to the Executive of duties that are significantly different from, and/or that result
in a substantial diminution of, the duties that he assumed on the Effective Date (including reporting to anyone other than solely
and directly to the Board); (B) the assignment to the Executive of a title that is different from and subordinate to the title
[Chief Executive Officer] of the Parent, provided, however, for the absence of doubt following a Change of Control, should the
Executive be required to serve in a diminished capacity in a division or unit of another entity (including the acquiring entity),
such event shall constitute Good Reason regardless of the title of the Executive in such acquiring company, division or unit;
or (C) material breach by the Parent of this Agreement.


 


(2)
The Executive shall not be entitled to terminate
this Agreement for Good Reason unless and until he shall have delivered written notice to the Parent within ninety (90) days of
the date upon which the facts giving rise to Good Reason occurred of his intention to terminate this Agreement and his employment
with the Parent for Good Reason, which notice specifies in reasonable detail the circumstances claimed to provide the basis for
such termination for Good Reason, and the Parent shall not have eliminated the circumstances constituting Good Reason within thirty
(30) days of its receipt from the Executive of such written notice. In the event the Executive elects to terminate this Agreement
for Good Reason in accordance with Section 11(d)(1), such election must be made within the twenty-four (24) months following the
initial existence of one or more of the conditions constituting Good Reason as provided in Section 11(d)(1). In the event the
Executive elects to terminate this Agreement for a Change in Control in accordance with Section 11(d)(1), such election must be
made within one hundred eighty (180) days of the occurrence of the Change of Control.


 


(3)
In the event that the Executive terminates this
Agreement and his employment with the Parent for Good Reason or for a Change of Control or the Parent terminates this Agreement
and the Executive’s employment with the Parent without Cause, the Parent shall pay or provide to the Executive (or, following
his death, to the Executive’s heirs, administrators or executors) the severance compensation set forth in Section 6 above.
The Parent shall deduct, from all payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.


 


(4) The
Executive shall not be required to mitigate the amount of any payment provided for in this Section 11(d) by seeking other
employment or otherwise, nor shall the amount of any payment provided for in this Section 11(d) be reduced by any
compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the
Executive from any other source at any time before and after the termination date. The Parent’s obligation to make any
payment pursuant to, and otherwise to perform its obligations under, this Agreement shall not be affected by any offset,
counterclaim or other right that the Parent may have against the Executive for any reason.


 




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(e)
Without “Good Reason” by the Executive. At any time during the term of this Agreement, the Executive shall
be entitled to terminate this Agreement and the Executive’s employment with the Parent without Good Reason and other than
for a Change of Control by providing prior written notice of at least thirty (30) days to the Parent. Upon termination by the
Executive of this Agreement or the Executive’s employment with the Parent without Good Reason and other than for a Change
of Control, the Parent shall have no further obligations or liability to the Executive or his heirs, administrators or executors
with respect to compensation and benefits thereafter, except for the obligation to pay the Executive any Base Salary earned through
the date of termination to be paid according to Section 4; any unpaid Annual Bonus to be paid according to Section 5; reimbursement
of any and all reasonable expenses paid or incurred by the Executive in connection with and related to the performance of his
duties and responsibilities for the Parent during the period ending on the termination date to be paid according to Section 8;
and any accrued but unused vacation time through the termination date in accordance with Parent policy. The Parent shall deduct,
from all payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions.


 


(f)
Change of Control. For purposes of this Agreement, “Change of Control” shall mean the occurrence of
any one or more of the following: (i) the accumulation (if over time, in any consecutive twelve (12) month period), whether directly,
indirectly, beneficially or of record, by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) or more of the shares of the outstanding
Common Stock of the Parent, whether by merger, consolidation, sale or other transfer of shares of Common Stock (other than a merger
or consolidation where the stockholders of the Parent prior to the merger or consolidation are the holders of a majority of the
voting securities of the entity that survives such merger or consolidation), (ii) a sale of all or substantially all of the assets
of the Parent or (iii) during any period of twelve (12) consecutive months, the individuals who, at the beginning of such period,
constitute the Board, and any new director whose election by the Board or nomination for election by the Parent’s stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning
of the twelve (12) month period or whose election or nomination for election was previously so approved, cease for any reason
to constitute at least a majority of the Board; provided that the following acquisitions shall not constitute a Change of Control
for the purposes of this Agreement: any acquisition of Common Stock or securities convertible into Common Stock by any employee
benefit plan (or related trust) sponsored by or maintained by the Parent.


 


(g)
Any termination of the Executive’s employment by the Parent or by the Executive (other than termination by reason of the
Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes
of this Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive’s employment under the provision so indicated, provided, however, failure
to provide timely notification shall not affect the employment status of the Executive.


 


12.
Confidential Information.


 


(a)
Disclosure of Confidential Information. The Executive recognizes, acknowledges and agrees that he has had and will continue
to have access to secret and confidential information regarding the Parent, its subsidiaries and their respective businesses (“Confidential
Information”), including but not limited to, its products, methods, formulas, software code, patents, sources of supply,
customer dealings, data, know-how, trade secrets and business plans, provided such information is not in or does not hereafter
become part of the public domain, or become known to others through no fault of the Executive. The Executive acknowledges that
such information is of great value to the Parent, is the sole property of the Parent, and has been and will be acquired by him
in confidence. In consideration of the obligations undertaken by the Parent herein, the Executive will not, at any time, during
or after his employment hereunder, reveal, divulge or make known to any person, any information acquired by the Executive during
the course of his employment, which is treated as confidential by the Parent, and not otherwise in the public domain. The provisions
of this Section 13 shall survive the termination of the Executive’s employment hereunder.


 




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(b)
The Executive affirms that he does not possess and will not rely upon the protected trade secrets or confidential or proprietary
information of any prior employer(s) in providing services to the Parent or its subsidiaries.


 


(c)
In the event that the Executive’s employment with the Parent terminates for any reason, the Executive shall deliver forthwith
to the Parent any and all originals and copies, including those in electronic or digital formats, of Confidential Information;
provided, however, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including, but
not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information
showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed
for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the
Parent. The covenants and agreements in this Section 12 shall exclude excludes information (A) which is in the public domain through
no unauthorized act or omission of Executive or (B) which becomes available to Executive on a non- confidential basis from a source
other than Parent or its affiliates without breach of such source’s confidentiality or non-disclosure obligations to Parent
or any of its affiliates.


 


13.
Non-Competition and Non-Solicitation.


 


(a)
The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive
is valuable to the Parent and that its protection and maintenance constitutes a legitimate business interest of the Parent, to
be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition
restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive
also acknowledges that the Parent’s Business (as defined in Section 13(b) (1) below) is conducted worldwide (the “Territory”),
and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth
below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other
legitimate business interests of, the Parent, its affiliates and/or its clients or customers. The provisions of this
Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.


 


(b)
The Executive hereby agrees and covenants that he shall not without the prior written consent of the Parent, directly or indirectly,
in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder,
officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent
of the outstanding securities of a company whose shares are traded on any national securities exchange or (ii) as a limited partner,
passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or
may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided however, that
the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with
respect to such portfolio companies), or whether on the Executive’s own behalf or on behalf of any other person or entity
or otherwise howsoever, during the Term and thereafter to the extent described below, within the Territory:


 


(1)
Engage, own, manage, operate, control, be employed
by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business
in competition with the Business of the Parent, as defined in the next sentence. For purposes hereof, the Parent’s “Business”
shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally
polarized tissue by use of Leucine-rich repeat-containing G- protein coupled Receptor (LGR) expressing cells and any and all inventions,
technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that
involve the making, use or licensing thereof.


 


(2)
Recruit, solicit or hire, or attempt to recruit,
solicit or hire, any employee, or independent contractor of the Parent to leave the employment (or independent contractor relationship)
thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of
competing with the Business of the Parent;


 




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(3)
Attempt in any manner to solicit or accept from
any customer of the Parent, with whom Executive had significant contact during Executive’s employment by the Parent (whether
under this Agreement or otherwise), business of the kind or competitive with the business done by the Parent with such customer
or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such
customer has customarily done or might do with the Parent, or if any such customer elects to move its business to a person other
than the Parent, provide any services of the kind or competitive with the business of the Parent for such customer, or have any
discussions regarding any such service with such customer, on behalf of such other
person for the purpose of competing with the Business of the Parent; or


 


(4)
Interfere with any relationship, contractual
or otherwise, between the Parent and any other party, including, without limitation, any supplier, distributor, co-venturer or
joint venturer of the Parent, for the purpose of soliciting such other party to discontinue or reduce its business with the Parent
for the purpose of competing with the Business of the Parent.


 


With
respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue
during the Term of this Agreement and for a period of two (2) years thereafter.


 


14.
Section 409A.


 


The
provisions of this Agreement are intended to comply with or are exempt from Section 409A of the Code (“Section 409A”)
and the related Treasury Regulations and shall be construed in a manner consistent with the requirements for avoiding taxes or
penalties under Section 409A. The Parent and the Executive agree to work together in good faith to consider amendments to this
Agreement and to take such reasonable actions necessary, appropriate or desirable to avoid imposition of any additional tax under
Section 409A or income recognition prior to actual payment to the Executive under this Agreement.


 


It
is intended that any expense reimbursement made under this Agreement shall be exempt from Section 409A. Notwithstanding the foregoing,
if any expense reimbursement made under this Agreement shall be determined to be “deferred compensation” subject to
Section 409A (“Deferred Compensation”), then (a) the right to reimbursement or in-kind benefits is not subject
to liquidation or exchange for another benefit, (b) the amount of expenses eligible for reimbursement, or in-kind benefits, provided
during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other
taxable year (provided that this clause (b) shall not be violated with regard to expenses reimbursed under any arrangement covered
by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in
effect) and (c) such payments shall be made on or before the last day of the taxable year following the taxable year in which
the expense was incurred.


 


With
respect to the time of payments of any amount under this Agreement that is Deferred Compensation, references in the Agreement
to “termination of employment” and substantially similar phrases, including a termination of employment due to the
Executive’s Disability, shall mean “Separation from Service” from the Parent within the meaning of Section
409A (determined after applying the presumptions set forth in Treasury Regulation Section 1.409A-1(h)(1)). Each installment payable
hereunder shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation
Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the “short-term deferral” rule set forth
in Treasury Regulation Section 1.409A-1(b)(4) is intended to meet the “short-term deferral” rule. Each other payment
is intended to be a payment upon an involuntary termination from service and payable pursuant to Treasury Regulation Section 1.409A-
1(b)(9)(iii), et. seq., to the maximum extent permitted by that regulation, with any amount that is not exempt from Code Section
409A being subject to Code Section 409A.


 




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Notwithstanding
anything to the contrary in this Agreement, if the Executive is a “specified employee” within the meaning of Section
409A at the time of the Executive’s termination, then only that portion of the severance and benefits payable to the Executive
pursuant to this Agreement, if any, and any other severance payments or separation benefits which may be considered Deferred Compensation
(together, the “Deferred Separation Benefits”), which (when considered together) do not exceed the Section
409A Limit (as defined herein) may be made within the first six (6) months following the Executive’s termination of employment
in accordance with the payment schedule applicable to each payment or benefit. Any portion of the Deferred Separation Benefits
in excess of the Section 409A Limit otherwise due to the Executive on or within the six (6) month period following the Executive’s
termination will accrue during such six (6) month period and will become payable in one lump sum cash payment on the date six
(6) months and one (1) day following the date of the Executive’s termination of employment. All subsequent Deferred Separation
Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding
anything herein to the contrary, if the Executive dies following termination but prior to the six (6) month anniversary of the
Executive’s termination date, then any payments delayed in accordance with this paragraph will be payable in a lump sum
as soon as administratively practicable after the date of the Executive’s death and all other Deferred Separation Benefits
will be payable in accordance with the payment schedule applicable to each payment orbenefit.


 


For
purposes of this Agreement, “Section 409A Limit” shall mean a sum equal to (x) the amounts payable within the
terms of the “short-term deferral” rule under Treasury Regulation Section 1.409A-1(b)(4) plus (y) the amount payable
as “separation pay due to involuntary separation from service” under Treasury Regulation Section 1.409A-1(b)(9)(iii)
equal to the lesser of two (2) times: (i) the Executive’s annualized compensation from the Parent based upon his annual
rate of pay during the Executive’s taxable year preceding his taxable year when his employment terminated, as determined
under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1); and (ii) the maximum amount that may be taken into account under a qualified
plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive’s employment is terminated.


 


15.
Miscellaneous.


 


(a)
Neither the Executive nor the Parent may assign or delegate any of their rights or duties under this Agreement without the express
written consent of the other; provided, however, that the Parent shall have the right to delegate its obligation of payment of
all sums due to the Executive hereunder, provided that such delegation shall not relieve the Parent of any of its obligations
hereunder.


 


(b)
During the term of this Agreement, the Parent (i) shall indemnify and hold harmless the Executive and his heirs and representatives
to the maximum extent provided by the laws of the State of Delaware and by Parent’s bylaws and (ii) shall cover the Executive
under the Parent’s directors’ and officers’ liability insurance on the same basis as it covers other senior
executive officers and directors of the Parent.


 


(c)
This Agreement constitutes and embodies the full and complete understanding and agreement of the parties with respect to the Executive’s
employment by the Parent, supersedes all prior understandings and agreements, whether oral or written, between the Executive and
the Parent, and shall not be amended, modified or changed except by an instrument in writing executed by the party to be charged.
If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable,
then the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted
so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision. No waiver by either party of any provision or condition to be performed
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or any prior or subsequent time.


 


(d)
This Agreement shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their respective
successors, heirs, beneficiaries and permitted assigns.


 


(e)
The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


(f)
All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall
be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage
prepaid, or by reputable national overnight delivery service (e.g., Federal Express) for overnight delivery to the party at the
address set forth in the preamble to this Agreement, or to such other address as either party may hereafter give the other party
notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received
or the third business day after deposited in the mail or one business day after deposited with an overnight delivery service for
overnight delivery.


 




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(g)
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, and each of the
parties hereto irrevocably consents to the jurisdiction and venue of the federal and state courts located in the State of New
York, County of New York, for any disputes arising out of this Agreement, or the Executive’s employment with the Parent.
The prevailing party in any dispute arising out of this Agreement shall be entitled to his or its reasonable attorney’s
fees and costs.


 


(h)
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one of the same instrument. The parties hereto have executed this Agreement as of the date
set forth above.


 


(i)
The Executive represents and warrants to the Parent, that he has the full power and authority to enter into this Agreement and
to perform his obligations hereunder and that the execution and delivery of this Agreement and the performance of his obligations
hereunder will not conflict with any agreement to which the Executive is a party.


 


(j)
The Parent represents and warrants to the Executive that it has the full power and authority to enter into this Agreement and
to perform its obligations hereunder and that the execution and delivery of this Agreement and the performance of its obligations
hereunder will not conflict with any agreement to which the Parent is a party.


 


[Signature
page follows immediately]


 




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IN
WITNESS WHEREOF, the Executive and the Parent have caused this Executive Employment Agreement to be executed as of the date first
above written.


 


	 	POLARITYTE,
    INC.
	 	 	 
	 	 
	 	Edward W. Swanson, MD, Chief Operating Officer
	 	Date:
    	November
    10, 2017
	 	 	 
	 	EXECUTIVE
	 	 	 
	 	Signed:	 
	 	Name:
	Denver
    M. Lough, MD, PhD
	 	Date:
	November
    10, 2017


 




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