ex10-18.htm


Exhibit 10.18

 

FIRST AMENDMENT TO EMPLOYMENT AGREEMENT

 

 

 

This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “First Amendment”) is entered into as of September 12, 2016 by and among Sun BioPharma, Inc., a Delaware corporation (the “Company”), and David B. Kaysen (“Employee”).

 

WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated December 2, 2015 (the “Employment Agreement”). 

 

WHEREAS, the Company and Employee have agreed to amend certain provisions of the Employment Agreement as set forth herein; and

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

	
1.
	
Capitalized terms used in this First Amendment, to the extent not otherwise defined herein, shall have the same meaning as in the Employment Agreement.



 

	
2.
	
Section 2(b) of the Employment Agreement shall be superseded and replaced with the following:

	 	 
	3.	“(b)     Time and Attention.      During the initial months of the Employment Period, but not beyond June 16, 2016, Employee will serve as President and Chief Executive Officer of the Company in a part-time capacity ("Part-Time") due to Employee's prior commitments. Thereafter, excluding any periods of vacation and sick leave to which Employee is entitled, Employee agrees to devote Employee's entire working time, energy, and skill to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to Employee hereunder, to use Employee's reasonable best efforts to perform faithfully and efficiently such responsibilities; provided, however, that these obligations shall not prohibit Employee from (i) as approved by the Board, serving on civic or charitable board or committees and up to three (3) corporate boards or committees or (ii) managing personal investments, so long as such activities do not materially interfere with the performance of Employee's responsibilities to the Company, its subsidiaries and affiliates, or violate the Company's conflict of interest policies. During the Employment Period, Employee shall (i) disclose to the Company any business opportunity that comes to Employee's attention and that relates to the business of the Company or otherwise arises as a result of Employee's employment and (ii) not take advantage of or otherwise divert such opportunity for Employee's own benefit or that of any other person or entity without prior written consent of the Company.”


 

	
4.
	
Section 3(a)(i) of the Employment Agreement shall be superseded and replaced with the following:

	 	 
	5.	(i)      Base Salary.     From October 1, 2015, to no later than June 16, 2016, Employee’s monthly salary shall be $17,500 per month while Employee is Part-Time. Thereafter, Employee’s monthly salary shall be $35,000 per month, which equals an annual rate of $420,000 (the “Base Salary”). Notwithstanding the foregoing, from March 1, 2015 until no later than the date of a “Qualified Financing” as defined in Section 3(a)(iii) below, or the date of a Change of Control pursuant to Section 6(d) of this Agreement, whichever of these events, singularly referred to as a “Payment-Triggering Event,” occur first in time, Employee will be paid 50% of Base Salary per month in cash (the “Cash Compensation”) and 50% of Base Salary per month will be accrued (the “Accrued Compensation”). The Accrued Compensation shall be paid to the Employee following the occurrence of the earliest Payment Triggering Event pursuant to the provisions of this Agreement. If a Payment-Triggering Event occurs, the Accrued Compensation will be paid to the Employee in a lump sum in the first payroll after the Payment-Triggering Event has been completed or is effective. If no Payment-Triggering Event occurs prior to June 30, 2018, Employee’s right to the Accrued Compensation will be forfeited and waived. Employee’s Base Salary shall be reviewed annually by the Board, beginning with the year ending December 31, 2016, and the Base Salary for each such year during the Employment Period shall be determined by the Board, which may authorize an increase in Employee’s Base Salary for such year. In no event may Employee’s Base Salary be reduced below its then-current level at any time during the Employment Period other than with Employee’s consent or pursuant to a general wage reduction in respect of substantially all of the Company’s executive officers, in which event Employee’s Base Salary may only be reduced to the same extent and up to the same percentage amount as the base salaries of other executive officers are reduced. Employee’s Base Salary shall be paid in accordance with the Company’s normal periodic payroll practices.


 

	
6.
	
This First Amendment evidences the entire agreement of the parties hereto with respect to the subject matter hereof, and all prior oral discussions and writings are merged into this First Amendment.



 

	
7.
	
Except as specifically set forth herein, the Employment Agreement remains in full force and effect.



 

	
8.
	
This First Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.



 

 

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IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date first written above.

 

	 	SUN BIOPHARMA, INC.
	 	 
	 	By:	
/s/ D. Robert Schemel 

	 	 	  
	 	Name:	
D. Robert Schemel 

	 	 	  
	 	Title:	
Compensation Committee Chair 



 

 

 

	 	
EMPLOYEE

 

	 	  
	 	/s/ David B. Kaysen  
	 	
David B. Kaysen



 

 

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