Exhibit 10.1


 





EXECUTION
VERSION


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is entered into effective as of February 1, 2017 (the “Effective
Date”), by and between Qualigen, Inc., a Delaware corporation with its principal office at 2042 Corte Del Nogal, Carlsbad,
CA 92011 USA (the “Company”), and Michael Poirier (the “Executive”), whose address is 1743 Wolverine Way,
Vista, CA 92084.


 


W
I T N E S S E T H:


 


WHEREAS,
the Company has engaged the Executive as its President and Chief Executive Officer and desires to continue to obtain the benefits
of the Executive’s knowledge, skill and ability in connection with managing the operations and finances of the Company and
to continue to employ the Executive as its President and Chief Executive Officer on the terms and conditions hereinafter set forth;
and


 


WHEREAS,
the Executive desires to provide his services to the Company and to accept employment by the Company on the terms and conditions
set forth in this Agreement, which supersedes all prior agreements, whether written or oral, including those under any previous
employment agreement between the Executive and the Company;


 


NOW,
THEREFORE, in consideration of the mutual promises set forth in this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


1.
Employment and Duties; Term.


 


(a)
Subject to the terms and conditions hereinafter set forth, the Company hereby employs the Executive as its President and Chief
Executive Officer, and he shall have the duties and responsibilities customarily associated with such positions, including without
limitation general responsibility for the management of the Company’s operations and finances. The Executive shall report
to the Company’s Board of Directors (the “Board”). The Executive shall also perform such other duties and responsibilities
as may be determined and directed by the Board, as long as such duties and responsibilities are generally consistent with those
of a President and Chief Executive Officer.


 


(b)
The Executive shall serve as a director of the Company or any of its subsidiaries, if validly elected or appointed, and in such
executive capacity or capacities with respect to any affiliate of the Company to which he may be elected or appointed, provided
that such duties are consistent with those of a company’s president and chief executive officer. The Executive shall receive
no additional compensation for services rendered pursuant to this Section 1(b).


 


(c)
The Executive’s job location shall be in San Diego County, California, but this provision shall not preclude the Company
from moving its headquarters to a location other than in San Diego County, California. Any such relocation by the Company or failure
by the Executive to relocate shall not breach the terms of this Agreement.


 




    	 



     

    

 


(d)
Unless terminated earlier pursuant to any of the provisions of Section 5 of this Agreement, this Agreement shall have an initial
term (the “Initial Term”) of three (3) years, commencing as of February 1, 2017 and expiring on January 31, 2020.
Following completion of the Initial Term, this Agreement shall automatically renew thereafter on a year-to-year basis for successive
one-year periods (i) unless and until terminated by either party pursuant to any of the provisions of Section 5, or (ii) unless
the Company or the Executive delivers to the other party written notice of non- renewal at least 90 days prior to the expiration
of the Initial Term or any subsequent one-year term (in which event this Agreement shall then terminate upon the expiration of
the Initial Term or such one-year extended term, as applicable). The Initial Term and the one-year extensions are collectively
referred to herein as the “Term.”


 


2.
Executive’s Performance.


 


(a)
The Executive hereby accepts the employment contemplated by this Agreement. During the Term, the Executive shall devote substantially
all of his business time to the performance of his duties under this Agreement, and he shall perform such duties diligently, in
good faith and in a manner consistent with the best interests of the Company and applicable laws. During the Term, the Executive
will not, without the prior written approval of the Board, serve or act as a shareholder (except for passive holdings of not more
than one percent (1%) of the other entity’s outstanding stock), employee, agent, consultant, officer, director, partner,
member, representative, lender or owner of any other business entity, nor (if it would require more than an insubstantial amount
of business time or attention) of any non-profit entity.


 


(b)
The Executive shall comply with all applicable governmental laws, rules and regulations and with the Company’s policies
applicable to all employees of the Company.


 


3.
Compensation and Other Benefits.


 


(a)
Salary. For his services to the Company during the Term, the Company shall pay the Executive an annual salary (“Salary”)
at the rate of $244,455 per year during the period from February 1 through June 30, 2017, and commencing as of July 1, 2017, at
the rate of $315,000 per year. The Company shall make all Salary payments to the Executive less required taxes and other withholdings
and otherwise in accordance with the Company’s general payroll practices and policies, provided that the Company shall pay
installments of Salary to the Executive not less frequently than bi- weekly. The Executive’s Salary shall be reviewed at
least annually by the Board or any compensation committee thereof and (i) may be increased from time to time in the sole discretion
of the Board or any such compensation committee, and (ii) may otherwise be adjusted by mutual written agreement of the Company
and the Executive.


 


(b)
Potential Bonus Payments Based on Receipt of CLIA Waivers by Application.


 


(i)
Subject to the following terms of this Section 3(b), the Company shall pay the Executive a cash bonus in the amount of $60,000
per assay for each of the first five (5) assays for which the Company, after the Effective Date, receives from the Food and Drug
Administration (“FDA”) a Clinical Laboratory Improvement Amendment (or “CLIA”) waiver for use of the Company’s
FastPack 2.0 System (each such bonus payment payable under this Section 3(b) being referred to herein as a “CLIA Waiver
Bonus Payment”). Each of the Company and the Executive acknowledges that the Company either is seeking or presently intends
to seek by application to the FDA a CLIA waiver for each of the following assays: (A) Vitamin D; (B) prostate-specific antigen
(“PSA”); (C) testosterone; (D) thyroid-stimulating hormone (“TSH”); and (E) free thyroxine (“FT4”);
provided, however, that the Executive further acknowledges that there is no guaranty that the Company will in fact apply for any
such waivers, and that the assays for which the Company may apply for a CLIA waiver, if any, and the timing of such applications,
are subject to change from time to time in the discretion of the Company. The maximum aggregate CLIA Waiver Bonus Payments that
the Executive is eligible to receive under this Section 3(b) is $300,000.


 




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(ii)
The Company shall pay any CLIA Waiver Bonus Payment due to the Executive under this Section 3(b), less any required taxes and
other applicable withholdings, not later than ninety (90) days following the Company’s receipt of the applicable CLIA waiver
for the specific assay. The rights of the Executive (if any) to receive a CLIA Waiver Bonus Payment in respect of a waiver received
by the Company after the termination or expiration of this Agreement and the Executive’s employment hereunder shall be as
set forth in the applicable provisions of Section 5.


 


(c)
Potential Bonus Payments Upon the Occurrence of Liquidity Events.


 


(i)
Subject to the terms and conditions set forth in this Section 3(c), upon and concurrent with the closing of any “Liquidity
Event” (as defined below) involving the Company, the Company shall pay to the Executive a lump-sum cash bonus (a “Liquidity
Event Bonus”) equal to two and one-half percent (2.5%) of the “Net Liquidity Event Proceeds” (as defined below)
received in connection with the subject transaction. The Company shall pay any Liquidity Event Bonus due to the Executive under
this Section 3(c) concurrently with the closing of the Liquidity Event.


 


(ii)
For purposes of this Section 3(c), the following terms shall have the following meanings:


 


(A)
“Liquidity Event” shall mean the occurrence of any of the following listed transactions involving the Company in which
(1) the consideration paid consists of cash, marketable securities (which are debt or equity securities that are listed for trading
on a national or international securities exchange and for which there is a reasonable public float to allow for even trading),
or a combination of cash and marketable securities, and (2) such consideration is paid or distributed to holders of the Company’s
outstanding capital stock as sale or merger consideration, dividends, distributions, liquidation preferences or distributions,
repurchase or redemption proceeds, or on any other basis:


 


(i)
the sale for value of all, substantially all or an otherwise material portion of the Company’s assets outside of the ordinary
course of business;


 


(ii)
any merger or consolidation of the Company with or into, or any other acquisition of the Company by, another corporation, partnership,
limited liability company or other entity or person (excluding for this purpose, however, any merger or consolidation of the Company
with or into another corporation or entity if the stockholders of the Company prior to the merger, consolidation or other transaction
own 50% or more of the voting equity securities of the surviving entity immediately after the consummation of the merger, consolidation
or other transaction); and


 


(iii)
any recapitalization transaction involving the Company (including, without limitation, a leveraged recapitalization) in which
the proceeds are distributed or paid out to holders of the Company’s capital stock.


 




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Each
event comprising a Liquidity Event is intended to constitute a “change in ownership or effective control,” or a “change
in the ownership of a substantial portion of the assets,” of the Company, as such terms are defined for purposes of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”), and “Liquidity Event” as used herein
shall be interpreted consistently therewith.


 


(B)
“Liquidity Event Proceeds” shall mean the net cash or value of marketable securities (or combination of cash and marketable
securities) received by the Company and its stockholders from or in connection with a Liquidity Event (i) before the payment of
the bonus provided for in this Section 3(c) and any other cash bonus due to any other executive officer of the Company in connection
with the same Liquidity Event, but (ii) after payment of all expenses incurred by the Company in connection with the Liquidity
Event transaction (including, without limitation, fees and expenses of attorneys, accountants, bankers and other financial advisors)
and repayment of any indebtedness of the Company then due or secured by any property or assets sold, exchanged or otherwise disposed
of a result of the transaction. In connection with any Liquidity Event, the Board shall determine the Liquidity Event Proceeds
in good faith consistent with the provisions of this subparagraph (B).


 


(iii)
Except as provided below in this subparagraph and in Section 5 of this Agreement, the Executive’s right to receive any Liquidity
Event Bonus under this Section 3(c) shall vest ratably in one-third installments on each of February 1, 2018, February 1, 2019
and January 31, 2020, with full vesting to occur on January 31, 2020 (the “Full Vesting Date”); provided, however,
that such vesting shall accelerate and the Executive’s right under this Section 3(c) to receive a Liquidity Event Bonus
shall be deemed to be fully vested in respect of any Liquidity Event that occurs prior to the Full Vesting Date (but the ratable
vesting schedule shall otherwise remain in effect with respect to any subsequent Liquidity Events). The rights of the Executive
(if any) to receive a Liquidity Event Bonus (or portion thereof) in connection with any Liquidity Event occurring after the termination
or expiration of this Agreement and the Executive’s employment hereunder shall be as set forth in the applicable provisions
of Section 5.


 


(iv)
For purposes of clarity, but subject to the provisions of subparagraph (v) below, it is possible under this Section 3(c) for there
to be multiple Liquidity Events involving the Company over time, and for the Executive to receive Liquidity Event Bonuses under
the provisions of this Section 3(c) in connection with each such Liquidity Event.


 


(v)
Notwithstanding any other provision contained in this Agreement, the Executive’s rights to receive any Liquidity Event Bonus
under this Section 3(c) shall terminate and be of no further force or effect following the occurrence of any Liquidity Event in
connection with which (A) the Company is dissolved and liquidated, or (B) all then-outstanding shares of the Company’s capital
stock are cancelled, redeemed or otherwise retired except in any such circumstance in which one or more outstanding classes or
series of such shares are exchanged for or converted into new securities issued by the Company or any successor entity to the
Company (by merger or otherwise), in which circumstance the Executive’s rights under this Section 3(c) shall remain in effect
until the subsequent dissolution and liquidation of the Company or such successor or the cancellation, redemption or retirement
of such new securities. A Liquidity Event described in this subparagraph (v) that, by these terms, results in the termination
of the Executive’s rights under this Section 3(c) is referred to herein as a “Final Liquidity Event.” For purposes
of clarity, the Company and the Executive acknowledge and agree that the Executive shall have the right to receive a Liquidity
Event Bonus under this Section 3(c) in respect of a Final Liquidity Event, but not in respect of any Liquidity Event that may
occur subsequent to the Final Liquidity Event.


 




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(vi)
Notwithstanding any other provision of this Agreement, if the total amounts payable pursuant to this Section 3(c), together with
any and all other payments to which the Executive may be entitled in connection with a Liquidity Event (or other similar event),
would constitute an “excess parachute payment” (as defined in Section 280G of the Internal Revenue Code), the Executive
shall receive the greater of: (i) the Liquidity Event Bonus due under this Section 3(c), less any excise tax imposed under Section
4999 of the Internal Revenue Code, or (ii) the largest amount which may be paid without any portion of such amount being subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code. For purposes of determining the largest amount payable,
such payments shall be reduced in such order and manner as the Executive shall specify in writing to the Company; provided that
any and all payments that are not “nonqualified deferred compensation” as defined for purposes of Section 409A of
the Internal Revenue Code shall be reduced and eliminated before any payment of nonqualified deferred compensation is reduced
or eliminated, and any reduction or elimination of payments that are nonqualified deferred compensation shall be made in reverse
chronological order of their respective payment due dates. In the event there is a dispute among the parties regarding the extent
to which payments must be reduced pursuant to this subparagraph (vi), such dispute shall be settled in accordance with Section
14(g) herein. No such disputed payment shall be made until the dispute is settled.


 


(d)
Other Benefits. The Executive shall be eligible on the same basis as other executive officers and employees of the Company (and
subject to any other eligibility requirements, cost sharing and other terms and conditions) to participate in and receive benefits
under any other bonus plan or any equity or long-term incentive, deferred compensation, retirement, savings, group insurance (including,
without limitation, medical, dental, life, accident and disability insurance), group health or other welfare or benefit plan or
program as may be approved by the Board of the compensation committee thereof and offered to the Company’s executive officers
and employees generally; provided, however, that the severance benefits (if any) payable under Section 5 of this Agreement shall
be in lieu of (and not in addition to) any severance benefits that would otherwise be due to the Executive under any severance
policy or plan otherwise in effect at the Company upon termination of the Executive’s employment; and provided further that
the Company shall not have any obligation to maintain any particular plan or program indefinitely or for any specific period of
time. In addition, the Executive shall be entitled to four (4) weeks paid vacation per full year of service, in accordance with
and subject to the Company’s vacation accrual plan and policies.


 


4.
Reimbursement of Expenses. The Company shall reimburse the Executive, upon presentation of proper expense statements, for
all authorized, ordinary and necessary out-of-pocket expenses reasonably incurred by Executive during the Term in connection with
the performance of his services pursuant to this Agreement in accordance with the Company’s expense reimbursement policy.
..


 




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5.
Termination of Employment.


 


(a)
Resignation by the Executive. The Executive may terminate this Agreement and his employment hereunder at any time by delivery
of at least thirty (30) days’ advance written notice to the Company. In any circumstance involving a termination of this
Agreement and of the Executive’s employment pursuant to this Section 5(a):



 


(i)
the Company shall (A) pay the Executive an amount in cash equal to the Executive’s accrued but unpaid Salary and vacation
pay through the date of termination, (B) pay the Executive an amount in cash equal to any CLIA Waiver Bonus and any Liquidity
Event Bonus that has been earned by the Executive under Section 3 hereof prior to the date of termination but that remains unpaid
as of such date, and (C) promptly reimburse any expenses incurred by the Executive through the date of termination and for which
the Executive is entitled to receive reimbursement under Section 4 hereof in accordance with the Company’s expense reimbursement
policies (all such payments referenced in this subparagraph (i) being collectively referred to in this Agreement as the “Base
Termination Payments”);


 


(ii)
subject to Section 5(f), the Executive shall retain his rights under Section 3(b) to receive a CLIA Waiver Bonus Payment in respect
of any CLIA waiver received by the Company after the effective date of termination but only to the extent that the Company filed
its original application in respect of such CLIA waiver during the term of the Executive’s employment or within sixty (60)
days following the effective date of termination, it being understood and agreed that the Executive shall not have any right to
receive a CLIA Waiver Bonus Payment in respect of any waiver for which the Company first files its application more than 60 days
following the effective date of termination (such rights referenced in this subparagraph (ii) being referred to herein as the
“Surviving CLIA Waiver Bonus Rights”);


 


(iii)
subject to Section 5(f), the Executive shall retain his rights under Section 3(c) to receive Liquidity Event Bonus payments (including
in respect of any Liquidity Event that may occur following the effective date of termination) to the extent that such rights have
vested under Section 3(c)(iii) as of the effective date of termination, it being understood and agreed that the Executive shall
forfeit any such rights with respect to any future Liquidity Events to the extent that such rights have not then vested (such
rights referenced in this subparagraph (iii), to the extent so vested and not forfeited, being referred to herein as the “Surviving
Liquidity Event Bonus Rights”);


 


(iv)
the Executive shall retain and receive any other rights or benefits (to the extent earned and vested as of the date of termination)
under any Company employee benefit plans or arrangements in accordance with the terms of such plans and arrangements;


 


(v)
the Executive shall not otherwise be entitled to any severance payments or similar benefits as of the date of termination (except
as and to the extent required by applicable law); and


 


(vi)
except as otherwise expressly provided in this Section 5(a), any and all other rights of the Executive to receive a Salary, bonus
or other compensation or benefits shall terminate as of the effective date of termination.


 


(b)
Non-Renewal as of End of Initial or Subsequent Term. Either the Company or the Executive may terminate this Agreement and the
Executive’s employment hereunder effective upon expiration of the Initial Term or any succeeding term by written notice
of non-renewal delivered to the other party at least ninety (90) days’ prior to the applicable expiration date of the then-current
term. In any circumstance involving a termination of this Agreement and of the Executive’s employment pursuant to this Section
5(b):


 


(i)
the Company shall make the Base Termination Payments (as defined in Section 5(a)(i));


 




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(ii)
subject to Section 5(f), the Executive shall retain his Surviving CLIA Waiver Bonus Rights (as defined in Section 5(a)(ii));


 


(iii)
subject to Section 5(f), the Executive shall retain his Surviving Liquidity Event Bonus Rights (as defined in Section 5(a)(iii));


 


(iv)
the Executive shall retain and receive any other rights or benefits (to the extent earned and vested as of the date of termination)
under any Company employee benefit plans or arrangements in accordance with the terms of such plans and arrangements;


 


(v)
the Executive shall not otherwise be entitled to any severance payments or similar benefits as of the date of termination (except
as and to the extent required by applicable law); and


 


(vi)
except as otherwise expressly provided in this Section 5(b), any and all other rights of the Executive to receive a Salary, bonus
or other compensation or benefits shall terminate as of the effective date of termination.


 


(c)
Death or Disability of the Executive. This Agreement and the Executive’s employment shall terminate immediately upon the
death of the Executive. In addition, this Agreement and Executive’s employment may be terminated by the Company effective
upon delivery of written notice to the Executive in the event of the Executive’s Disability. For purposes of this Agreement,
the term “Disability” shall mean the Executive’s inability to perform his duties hereunder as President and
Chief Executive Officer of the Company, as reasonably determined by the Board, as a result of prolonged absence from work for
health reasons or physical or mental disability, illness or incapacity for a continuous period of ninety (90) days, or for shorter
periods aggregating four (4) months in any twelve (12) month period.


 


In
any circumstance involving a termination of this Agreement and of the Executive’s employment pursuant to this Section 5(c):


 


(i)
the Company shall make the Base Termination Payments (as defined in Section 5(a)(i));


 


(ii)
subject to Section 5(f), the Executive shall retain his Surviving CLIA Waiver Bonus Rights (as defined in Section 5(a)(ii));


 


(iii)
subject to Section 5(f), the Executive shall retain his Surviving Liquidity Event Bonus Rights (as defined in Section 5(a)(iii)),
provided that for purposes of this subparagraph (iii), all vesting of the Executive’s rights under Section 3(c)(iii) shall
be accelerated and the Executive shall be deemed to be fully vested in such rights effective as of the date of the Executive’s
death or Disability;


 


(iv)
the Executive shall retain and receive any other rights or benefits (to the extent earned and vested as of the date of termination)
under any Company employee benefit plans or arrangements in accordance with the terms of such plans and arrangements;


 




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(v)
the Executive shall not otherwise be entitled to any severance payments or similar benefits as of the date of termination (except
as and to the extent required by applicable law); and


 


(vi)
except as otherwise expressly provided in this Section 5(c), any and all other rights of the Executive to receive a Salary, bonus
or other compensation or benefits shall terminate as of the effective date of termination.


 


(d)
Termination by the Company for “Cause.”


 


(i)
The Company, effective upon delivery of written notice to the Executive, may terminate this Agreement and the Executive’s
employment for “Cause.” For purposes of this Agreement, the term “Cause” shall mean any of the following:


 


(A)
a material breach by the Executive of any of Sections 6, 7 or 8 of this Agreement;


 


(B)
a material breach by the Executive of any other provision of this Agreement, if such material breach (if susceptible to cure)
has continued uncured for a period of at least fifteen (15) days following delivery by the Company to the Executive of written
notice of such material breach;


 


(C)
fraud, dishonesty or other breach of trust whereby the Executive obtains personal gain or benefit at the expense of or to the
detriment of the Company or any of the Company’s subsidiaries or affiliates;


 


(D)
a conviction of or plea of nolo contendere or similar plea by the Executive of any felony;


 


(E)
a conviction of or plea of nolo contendere or similar plea by of any other crime involving theft, misappropriation of property,
dishonesty or moral turpitude;


 


(F)
a willful and material violation of applicable law by the Executive in connection with the performance of his duties hereunder;


 


(G)
chronic or repeated substance abuse by the Executive, or any other use by the Executive of alcohol, drugs or illegal substances
in such a manner as to interfere with the performance of his material duties hereunder; or


 


(H)
failure to comply with the lawful directions of the Board which are otherwise consistent with the terms of this Agreement, which
failure has continued for a period of at least ten (10) days after delivery by the Company to the Executive of written demand
by the Board.


 


Termination
of this Agreement by the Company for “Cause” shall be without prejudice to any other right or remedy to which the
Company may be entitled at law, in equity or otherwise under this Agreement.


 




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(ii)
In any circumstance involving a termination of this Agreement and of the Executive’s employment pursuant to the preceding
Section 5(d)(i):


 


(A)
the Company shall make the Base Termination Payments (as defined in Section 5(a)(i));


 


(B)
subject to Section 5(f), the Executive shall retain his Surviving Liquidity Event Bonus Rights (as defined in Section 5(a)(iii))
to the extent then vested;


 


(C)
the Executive shall retain and receive any other rights or benefits (to the extent earned and vested as of the date of termination)
under any Company employee benefit plans or arrangements in accordance with the terms of such plans and arrangements;


 


(D)
the Executive shall not otherwise be entitled to any severance payments or similar benefits as of the date of termination (except
as and to the extent required by applicable law); and


 


(E)
except as otherwise expressly provided in this Section 5(d)(ii), any and all other rights of the Executive to receive a Salary,
bonus or other compensation or benefits shall terminate as of the effective date of termination.


 


(e)
Termination by the Company Without “Cause.” The Company, in the sole discretion of the Board and effective upon delivery
of not less than thirty (30) days’ advance written notice to the Executive, may terminate this Agreement and the Executive’s
employment hereunder at any time and for any reason, including without “Cause.” In the event that the Company terminates
the Executive’s employment under this Section 5(e):


 


(i)
the Company shall make the Base Termination Payments (as defined in Section 5(a)(i));


 


(ii)
subject to Section 5(f), the Executive shall retain his Surviving CLIA Waiver Bonus Rights (as defined in Section 5(a)(ii));


 


(iii)
subject to Section 5(f), the Executive shall retain his Surviving Liquidity Event Bonus Rights (as defined in Section 5(a)(iii)),
provided that for purposes of this subparagraph (iii), all vesting of the Executive’s rights under Section 3(c)(iii) shall
be accelerated and the Executive shall be deemed to be fully vested in such rights effective as of the date of the Executive’s
death or Disability;


 


(iv)
subject to Section 5(f), conditioned upon receipt by the Company of a general release in form reasonably acceptable to the Company
and expiration of any revocation period applicable to such release without the Executive having revoked such release, and in lieu
of any severance benefits that may otherwise be payable under any other severance plan or policy of the Company, the Company (A)
shall continue to pay to the Executive as severance his Salary at the rate then in effect on the date of termination for a period
of one (1) year following the date of termination, such payments to be made by the Company at the times, subject to applicable
withholdings and otherwise in accordance with the Company’s general payroll practices and policies, and (B) pay or reimburse
the Executive for the cost of COBRA continuation medical and dental insurance coverage for the Executive for the one-year severance
period (less any required taxes or withholdings); provided, however, that if the Company determines in its sole discretion that
it cannot provide the foregoing COBRA benefits without potentially violating applicable law (including, without limitation, Section
2716 of the Public Health Service Act), the Company shall in lieu thereof provide to the Executive a taxable lump-sum payment
in an amount equal to the monthly (or then remaining) COBRA premium that Executive would be required to pay to continue his group
health coverage for himself as in effect on the termination date (which amount shall be based on the premium for the first month
of COBRA coverage) until the date that is twelve (12) months following the Executive’s date of termination. Notwithstanding
the foregoing, any severance payments that otherwise would be required to be made under this subparagraph (iv) within forty-five
(45) days following the Executive’s date of termination shall instead be made on the Company’s first normal payroll
date that is more than forty-five (45) days following the Executive’s date of termination; and


 




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(v)
the Executive shall retain and receive any other rights or benefits (to the extent earned and vested as of the date of termination)
under any Company employee benefit plans or arrangements in accordance with the terms of such plans and arrangements; and


 


(vi)
except as otherwise expressly provided in this Section 5(e), any and all other rights of the Executive to receive a Salary, bonus
or other compensation or benefits shall terminate as of the effective date of termination.


 


(f)
Offset for Material Breaches of Restrictive Covenants. If the Executive materially breaches any provision contained in either
Section 6 or Section 7 of this Agreement, the Company, from the date of such breach going forward, shall no longer be obligated
to make any payments or reimbursements to the Executive or provide any benefits to the Executive under this Section 5 in respect
of any Surviving CLIA Waiver Bonus Rights, any Surviving Liquidity Event Bonus Rights, and any rights to receive severance of
COBRA benefits under Section 5(e)(iv).


 


6.
Trade Secrets and Proprietary Information.


 


(a)
Executive recognizes and acknowledges that the Company, through the expenditure of considerable time and money, has developed
and will continue to develop in the future information concerning customers, clients, marketing, patents, products, services,
business, research and development activities and operational methods of the Company and its customers or clients, contracts,
financial or other data, technical data or any other confidential or proprietary information possessed, owned or used by the Company,
the disclosure of which could or does have a material adverse effect on the Company, its business, any business it proposes to
engage in, its operations, financial condition or prospects and that the same are confidential and proprietary and considered
“Confidential Information” of the Company for the purposes of this Agreement. In consideration of his employment,
the Executive agrees that he will not, during or after the Term, without the consent of the Board make any disclosure of Confidential
Information now or hereafter possessed by the Company, to any person, partnership, corporation or entity either during or after
the term here of, except that nothing in this Agreement shall be construed to prohibit Executive from using or disclosing such
information (i) if such disclosure is necessary in the normal course of the Company’s business in accordance with Company
policies or instructions or authorization from the Board, (ii) such information shall become public knowledge other than by or
as a result of disclosure by a person not having a right to make such disclosure, (iii) complying with legal process as provided
in Section 6(b) of this Agreement, or (iv) subsequent to the Term, if such information shall have either been developed by Executive
independent of any of the Company’s confidential or proprietary information or been disclosed to Executive by a person not
subject to a confidentiality agreement with or other obligation of confidentiality to the Company. For the purposes of Sections
6, 7 and 8 of this Agreement, the term “Company” shall include the Company, its parent, its subsidiaries and affiliates.


 




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(b)
In the event that any Confidential Information is required to be produced by Executive pursuant to legal process, the Executive
shall give the Company notice of such legal process within a reasonable time, but not later than ten business days prior to the
date such disclosure is to be made, unless Executive has received less notice, in which event the Executive shall immediately
notify the Company. The Company shall have the right to object to any such disclosure, and if the Company objects (at the Company’s
cost and expense) in a timely manner, the Executive shall not make any disclosure until there has been a court determination on
the Company’s objections. If disclosure is required by a court order, final beyond right of review, or if the Company does
not object to the disclosure, the Executive shall make disclosure only to the extent that disclosure is required by the court
order, and the Executive will exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded
the Confidential Information.


 


(c)
The Executive shall, upon expiration or termination of the Term, or earlier at the request of the Company, turn over to the Company
all documents, papers, computer disks or other material in the Executive’s possession or under the Executive’s control
which may contain or be derived from Confidential Information. To the extent that any Confidential Information is on Executive’s
hard drive or other storage media, he shall, upon the request of the Company, cause such information to be erased from his computer
disks and all other storage media.


 


7.
Covenant Regarding Improper Use of Confidential Information.


 


(a)
During the period from the date of this Agreement until one (1) year following the date on which Executive’s employment
is terminated, Executive will not, directly or indirectly:


 


(i)
Utilize the Company’s Confidential Information to persuade or attempt to persuade any person or entity which is or was a
customer, client or supplier of the Company to cease doing business with the Company, or to reduce the amount of business it does
with the Company (the terms “customer” and “client” as used in this Section 7 to include any potential
customer or client to whom the Company submitted bids or proposals, or with whom the Company conducted negotiations, during the
term of Executive’s employment or during the twelve (12) months preceding the termination of his employment);


 


(ii)
Utilize the Company’s Confidential Information to solicit for himself or any other person or entity other than the Company
the business of any person or entity which is a customer or client of the Company, or was a customer or client of the Company
within one (1) year prior to the termination of his employment; or


 


(iii)
Persuade or attempt to persuade any employee of the Company, or any individual who was an employee of the Company during the one
(1) year period prior to the termination of this Agreement, to leave the Company’s employ, or to become employed by any
person or entity other than the Company.


 


(b)
The Executive acknowledges that the restrictive covenants (the “Restrictive Covenants”) contained in Sections 6 and
7 of this Agreement are a condition of his employment and are reasonable and valid in geographical and temporal scope and in all
other respects. If any court or arbitrator determines that any of the Restrictive Covenants, or any part of any of the Restrictive
Covenants, is invalid or unenforceable, the remainder of the Restrictive Covenants and parts thereof shall not thereby be affected
and shall remain in full force and effect, without regard to the invalid portion. If any court or arbitrator determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable because of the geographic or temporal scope of
such provision, such court or arbitrator shall have the power to reduce the geographic or temporal scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be enforceable.


 




    	- 11 - 



     

    




 


8.
Ownership of Intellectual Property.


 


(a)
“Inventions” means all inventions, ideas, discoveries, developments, methods, data, information, improvements, original
works, know-how, including, but not limited to, algorithms, technology, trade secrets, processes, codes and hardware (whether
or not reduced to practice and whether or not protectable under the patent, copyright, trade secrecy or similar laws of the United
States, the Peoples’ Republic of China or any applicable foreign country which:


 


(i)
relate to the Company’s business at the time of conception or reduction to practice or actual or demonstrably anticipated
research or development of Company that were conceived, created or developed by the Executive (whether alone or with others, whether
or not during working hours or on the Company’s premises or whether or not using material or property provided by the Company)
during the Term or having conceived, created or developed prior to the Term while Executive was employed by the Company; and/or


 


(ii)
were conceived, created or developed by the Executive (whether alone or with others) during the Term, even if having possibly
been conceived, created or developed prior to the Term but completed while in the employ of the Company, or which result from
any work performed by the Executive for Company.


 


(b)
All Inventions are, will be, and shall constitute “works-for-hire” and the exclusive property of the Company, and
the Company may use and exploit them without restriction or additional compensation to the Executive. The Executive shall promptly
and fully disclose to the Company any and all Inventions. The Executive shall maintain complete written records of all Inventions
and of all work or investigations done or carried out by the Executive at all stages thereof, which records shall be the exclusive
property of the Company and will be treated as Confidential Information for all purposes of this Agreement.


 


(c)
The Executive hereby irrevocably assigns and transfers to the Company, its successors, assigns or Affiliates, as the case may
be, all of Executive’s right, title and interest in and to any Inventions without additional consideration therefor from
the moment of their creation or inception, to be held and enjoyed by the Company, its successors, assigns or Affiliates, as the
case may be, to the full extent of the term for which any intellectual property protection may be granted and as fully as the
same would have been held by Executive had this Agreement, or such assignment or transfer not been made. In addition to the foregoing
assignments of Inventions to the Company, Executive hereby irrevocably assigns and transfers to the Company: (i) all worldwide
patents, trademarks, copyrights, mask works, trade secrets, applications for the foregoing and other intellectual property rights
in any Inventions; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect
to any Inventions. Executive hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or
with respect to any such Inventions, even after the termination of Executive’s employment.


 




    	- 12 - 



     

    




 


(d)
“Moral Rights” means any right to claim authorship of any Inventions, or to withdraw from circulation or control
the publication or distribution of any Inventions, and any similar right, existing under judicial or statutory law of any country
in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a moral
right.


 


(e)
Executive agrees to cooperate fully in obtaining patent, copyright or other proprietary protection for such Inventions, all in
the name of the Company, its successors, assigns or Affiliates, as the case may be, and at the Company’s cost and expense,
and shall execute and deliver all requested applications, assignments and other documents and take such other actions as the Company,
its successors, assigns or Affiliates, as the case may be, shall request in order to perfect, enforce and exploit the Company’s,
its successors,’ assigns’ or Affiliates,’ as the case may be, right in the Inventions (including transfer of
possession to the Company, its successors, assigns or Affiliates, as the case may be, of all Inventions embodied in tangible materials),
including granting Company a non-revocable, royalty- free license in any pre-existing works. Executive irrevocably designates
and appoints the Company and its duly authorized officers and agents as his agents and attorneys-in-fact to execute and file any
and all applications and other necessary documents and to do all other lawfully permitted acts to further perfect and enforce
the Company’s, its successors,’ assigns’ or Affiliates,’ (as the case may be), right in the Inventions
and to further the prosecution, issuance or enforcement of patents, copyrights, trade secrets and similar protections related
to the Inventions with the same legal force and effect as he had executed them himself. The Executive shall receive no additional
compensation for complying with Executive’s obligations under this Section 8. The Executive agrees that, to the extent this
Agreement shall be construed in accordance with any laws that limit the assignability to the Company, its successors, assigns
or Affiliates, as the case may be, of the Inventions, this Agreement shall be interpreted not to apply to any Invention which
a court rules or the Company agrees is subject to such state limitation.


 


California
Labor Code § 2870 provides as follows:


 


a.
Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights
in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own
time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions
that either:


 


(1)
Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably
anticipated research or development of the employer.


 


(2)
Result from any work performed by the employee for his employer.


 


b.
To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded
from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.


 


The
assignment of Inventions under this Agreement, accordingly, shall not extend to those items set forth in Labor Code § 2870.


 




    	- 13 - 



     

    

 


(f)
Any copyrightable work created by the Executive in connection with or during the performance of his employment duties, whether
published or unpublished, shall be the property of the Company as author and owner of copyright in such work.


 


(g)
The Executive warrants and represents that there are no Inventions (whether patentable or not), patents, trade secrets, trademarks,
trade names, copyrights, or other intellectual property owned by him prior to entering into employment with the Company hereunder,
and that he has not executed and will not execute any document or instrument in conflict herewith.


 


(h)
An “Affiliate” of the Company shall mean any person or entity which controls, is controlled by or is under common
control with the Company.


 


9.
Injunctive Relief. The Executive agrees that any violation or threatened violation of any of the provisions of Sections
6, 7 or 8 of this Agreement will cause immediate and irreparable harm to the Company for which money damages would not be an adequate
remedy. In the event of any breach or threatened breach of any of said provisions, the Executive consents to the entry of preliminary
and permanent injunctions by a court of competent jurisdiction prohibiting the Executive from any violation or threatened violation
of such provisions and compelling the Executive to comply with such provisions (without posting a bond or other security). This
Section 9 shall not affect or limit, and the injunctive relief provided in this Section 9 shall be in addition to, any other remedies
available to the Company at law or in equity or in arbitration for any such violation by the Executive. Subject to Section 7(b)
of this Agreement, the provisions of Sections 6, 7 and 8 of this Agreement and this Section 9 shall survive any termination of
this Agreement and the Executive’s employment.


 


10.
Indemnification. The Company shall enter into a separate agreement with the Company to provide the Executive with payment
of legal fees and indemnification to the maximum extent permitted by the Company’s Certificate of Incorporation, By-Laws,
and Delaware law. The Company shall also provide officers and directors liability insurance of not less than $5,000,000, and the
Company shall be responsible for any deductibles under such policy.


 


11.
Key Man Insurance. The Executive will cooperate with the Company in connection with any application by the Company to obtain
key-man life insurance on his life, on which the Company will be the beneficiary. Such cooperation shall include the execution
of any applications or other documents requiring his signature and submission of insurance applications and submission to a physical
examination.


 


12.
Code Section 409A Compliance.


 


(a)
This Agreement is intended to comply with the provisions of Section 409A of the Code, and, to the extent practicable, this Agreement
shall be interpreted and administered in a manner so that any amount or benefit payable hereunder shall be paid or provided in
a manner that is either exempt from or compliant with the requirements Section 409A of the Code and applicable Internal Revenue
Service guidance and Treasury Regulations issued thereunder. Terms used in this Agreement shall have the meanings given such terms
under Section 409A of the Code if, and to the extent required, in order to comply with Section 409A of the Code.


 


(b)
The payment schedules provided hereunder are intended to be exempt from or to comply with the requirements of Section 409A of
the Code and shall be interpreted consistently therewith.


 




    	- 14 - 



     

    

 


(c)
Any payments under Section 5 shall be made or shall commence only after the Executive has a “separation from service”
with the Company, as defined under Section 409A of the Code and the guidance issued thereunder.


 


(d)
Notwithstanding anything to the contrary in this Agreement, to the extent required to avoid additional taxes and interest charged
under Section 409A of the Code, if any of the Company’s stock is publicly traded and the Executive is deemed to be a “specified
employee” as determined by the Company for purposes of Section 409A(a)(2)(B) of the Code, the Executive agrees that any
non-qualified deferred compensation payments due to him under this Agreement in connection with a termination of employment that
would otherwise have been payable at any time during the six (6)-month period immediately following such termination of employment
shall not be paid prior to, and shall instead be payable in a lump sum on the first day of the seventh (7th) month following the
Executive’s separation from service (or, if the Executive dies during such period, within 30 days after the Executive’s
death).


 


(e)
Each payment of termination benefits under Section 5 of this Agreement, including, without limitation, each installment payment,
shall be considered a separate payment, as described in Treasury Regulations Section 1.409A-2(b)(2), for purposes of Section 409A
of the Code.


 


(f)
Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any payment under this Agreement
that constitutes “nonqualified deferred compensation” subject to Section 409A of the Code, except to the extent specifically
permitted or required by Section 409A of the Code.


 


(g)
If the Executive is entitled to be paid or reimbursed for any expenses under this Agreement, and such payments or reimbursements
are includible in the Executive’s federal gross taxable income, the amount of such expenses reimbursable in any one calendar
year shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an eligible expense must be
made no later than December 31 of the year after the year in which the expense was incurred. No right of the Executive to reimbursement
of expenses under Section 4 or any other Section of this Agreement shall be subject to liquidation or exchange for another benefit.


 


(h)
Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall
be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period
shall be within the sole discretion of the Company.


 


(i)
Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that
constitutes “nonqualified deferred compensation” subject to Section 409A of the Code be subject to offset, counterclaim
or recoupment by any other amount payable to the Executive unless otherwise permitted by Section 409A of the Code.


 


13.
Certain Representations, Warranties and Covenants of the Parties.


 


(a)
The Executive hereby represents and warrants to the Company that: (i) the execution, delivery and performance of this Agreement
by the Executive do not and will not conflict with, breach, violate or cause a default under any agreement, contract or instrument
to which the Executive is a party or any judgment, order or decree to which the Executive is subject, (ii) this Agreement constitutes
the legal, valid and binding obligation of the Executive, enforceable in accordance with its terms, and (iii) the Executive has
not and will not take any action that will conflict with, violate or cause a breach of any noncompete, nonsolicitation or confidentiality
agreement to which the Executive is a party or by which the Executive is bound. The Executive hereby acknowledges and represents
that he has carefully reviewed this Agreement, that he has consulted with independent legal counsel regarding his rights and obligations
under this Agreement (or, after carefully reviewing this Agreement, was given the opportunity to, but has freely decided not to,
consult with independent legal counsel), and that he fully understands the terms and conditions contained herein.


 




    	- 15 - 



     

    




 


(b)
The Company represents, warrants and agrees that it has full power and authority to execute and deliver this Agreement and perform
its obligations hereunder.


 


14.
Miscellaneous.


 


(a)
Any notice, consent or communication required under the provisions of this Agreement shall be given in writing and sent or delivered
by hand, overnight courier or messenger service, against a signed receipt or acknowledgment of receipt, or by registered or certified
mail, return receipt requested, or telecopier, email or similar means of communication (collectively “electronic communications”)
if receipt is acknowledged or if transmission is confirmed by mail as provided in this Section 13(a), to the parties at their
respective addresses set forth at the beginning of this Agreement or by electronic delivery to the telecopier or email (if any)
set forth on the signature page of this Agreement, with notice to the Company being sent to the attention of the Chief Financial
Officer of the Company. Either party may, by like notice, change the person, address or electronic communications number or address
to which notice is to be sent. If no telecopier number is provided for either party, notice to such party shall not be sent by
telecopier.


 


(b)
This Agreement shall in all respects be construed and interpreted in accordance with, and the rights of the parties shall be governed
by, the laws of the State of California applicable to agreements executed and to be performed wholly in such state without regard
to principles of conflicts of laws, except as provided in the first sentence of Section 10.


 


(c)
If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall, to any extent,
be determined to be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition
to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law, and
any court or arbitrator having jurisdiction may reduce the scope of any provision of this Agreement, including the geographic
and temporal restrictions set forth in Section 8 of this Agreement, so that it complies with applicable law.


 


(d)
This Agreement constitutes the entire agreement of the Company and the Executive as to the subject matter hereof, superseding
as of the Effective Date all prior or contemporaneous written or oral understandings or agreements, with respect to the subject
matter covered in this Agreement. This Agreement may not be modified or amended, nor may any right be waived, except by a writing
which expressly refers to this Agreement, states that it is intended to be a modification, amendment or waiver and is signed by
both parties in the case of a modification or amendment or by the party granting the waiver. No course of conduct or dealing between
the parties and no custom or trade usage shall be relied upon to vary the terms of this Agreement. The failure of a party to insist
upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.


 




    	- 16 - 



     

    




 


(e)
During and after the Executive’s employment, the Executive shall cooperate with the Company and its subsidiaries and affiliates
in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company or its
subsidiaries or affiliates (including the Executive being available to the Company and its subsidiaries and affiliates upon reasonable
notice for interviews and factual investigations, appearing at the Company’s or any subsidiary’s or affiliate’s
reasonable request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company
and its subsidiaries and affiliates all pertinent information and turning over to the Company and its subsidiaries and affiliates
all relevant documents that are or may come into the Executive’s possession, all at times and on schedules as reasonably
agreed to between the Company and the Executive. In the event the Company or any of its subsidiaries or affiliates requires the
Executive’s cooperation in accordance with this subparagraph, the Company shall reimburse the Executive for the Executive’s
reasonable out-of-pocket expenses incurred in connection therewith (including lodging and meals, upon submission of receipts and
compliance with the Company’s expense reimbursement policies).


 


(f)
This Agreement is personal in nature and neither of the parties hereto will, without the consent of the other, assign, transfer
or delegate this Agreement or any rights or obligations hereunder; provided, however, that the Company may, without the Executive’s
consent, assign its rights and obligations hereunder to (i) any affiliate of the Company or (ii) any subsequent purchaser of the
Company or any of its businesses or any material portion of its assets (whether such sale is structured as a sale of stock, sale
of assets, merger, recapitalization or otherwise), in each case, in accordance with and as expressly in this Agreement. Without
limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security interest, or otherwise, other than by a transfer by the Executive’s
will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer by the Executive contrary
to this subparagraph (e), the Company will have no liability to pay any amount so attempted to be assigned, transferred or delegated.
The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in form and substance reasonably satisfactory to
the Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place. As used in this Agreement, “Company”
shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that executes and
delivers the agreement provided for in this subparagraph (e) or that otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.


 




    	- 17 - 



     

    




 


(g)
Except for actions, suits, or proceedings taken pursuant to or under Section 6, 7, 8 or 9 of this Agreement, any dispute concerning
this Agreement or the rights of the parties hereunder shall be submitted to binding arbitration in San Diego County, California
before a single arbitrator associated with JAMS (or other mutually agreeable alternative dispute resolution service) in accordance
with its Employment Arbitration Rules & Procedures and subject to JAMS Policy on Employment Arbitration Minimum Standards
of Procedural Fairness (the “JAMS Rules”), a copy of which Rules can be found at www.jamsadr.com or obtained
from the Company’s human resources department. The arbitration provisions of this Agreement will be governed by the Federal
Arbitration Act (9 U.S.C. Section 1 et seq.). In all other respects, this provision will be construed in accordance with the laws
of the State of California, without reference to conflicts of law principles. Included within this provision are any claims based
on common law or violation of local, state or federal law, such as claims for discrimination or civil rights violations under
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act,
the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the California Family Rights
Act, the California Fair Employment and Housing Act, the California Labor Code, or similar statutes. However, claims for unemployment
benefits and workers’ compensation claims will not be subject to arbitration. In addition, either party may seek provisional
remedies pursuant to California Code of Civil Procedures Section 1281.8(b). There will be no right or authority for any claim
subject to arbitration to be heard or arbitrated on a class or collective basis, as a private attorney general, or in a representative
capacity on behalf of any other person or entity. If there is a dispute as to whether an issue or claim is arbitrable, the arbitrator
will have the authority to resolve any such dispute, including claims as to fraud in the inducement or execution, or claims as
to validity, construction, interpretation or enforceability.


 


A
neutral arbitrator with experience in arbitrating employment disputes will be chosen by mutual agreement of the parties; however,
if the parties are unable to agree upon an arbitrator within a reasonable period of time (not to exceed thirty (30) days after
the delivery of any demand for arbitration hereunder), then a neutral arbitrator will be appointed in accordance with the arbitrator
selection procedure set forth in the JAMS Rules (or the rules of the selected alternative dispute resolution service). The issue(s)
submitted to the arbitrator shall be set forth in each party’s request for arbitration. The arbitrator selected shall have
the authority to grant Executive or the Company or both all remedies otherwise available by law; provided, however, that the arbitrator
shall not have the power or authority to aware punitive or exemplary damages or to grant injunctive or equitable relief. The arbitrator
may not consolidate more than one person’s claim, and may not otherwise preside over any form of a representative, collective
or class proceeding. The parties will be permitted to conduct discovery as provided by California Code of Civil Procedure Section
128.05. The arbitration shall provide (i) for written discovery and depositions adequate to give the parties access to documents
and witnesses that are essential to the dispute and (ii) for a written decision by the arbitrator that includes the essential
findings and conclusions upon which the decision is based. The arbitrator’s decision must be issued no later than thirty
(30) days after a dispositive motion is heard and/or an arbitration hearing has been completed. The award of the arbitrator shall
be final, binding and conclusive on all parties, and judgment on such award may be entered in any court having jurisdiction.


 


The
parties shall each bear their own costs and attorneys’ fees incurred in conducting the arbitration. Where Executive is asserting
a claim under a state or federal statute prohibiting discrimination in employment, a public policy claim arising under a statute,
or where otherwise required by applicable law to achieve the enforceability of this Agreement, the Company will pay the costs
and fees charged by the arbitrator and JAMS (or other mutually selected alternative dispute resolution service) to the extent
such costs would not otherwise be incurred in a court proceeding. In all other circumstances, the Executive and the Company will
split equally the fees and administrative costs charged by the arbitrator and JAMS. To the extent permissible under the law, however,
and following the arbitrator’s ruling on the matter, the arbitrator may rule that the arbitrator’s fees and costs
be distributed in an alternative manner. If any party prevails on a statutory claim and the statute provides that the prevailing
party is entitled to payment of attorneys’ fees, the arbitrator shall award reasonable fees and costs to the prevailing
party based on the same standard as such fees and costs would be awarded if such claim had been asserted in state or federal court.


 




    	- 18 - 



     

    

 





This
mutual arbitration agreement does not prohibit or limit either Party’s right to seek a provisional remedy pursuant to California
Code of Civil Procedures Section 1281.8(b), pending the resolution of a dispute by arbitration. The arbitrator shall have no authority
to add to or to modify the terms described in this Agreement (including this subparagraph) or the Company’s employee handbook,
shall apply all applicable law, and otherwise shall have no lesser and no greater remedial authority than would a court of law
resolving the same claim or controversy.


 


AS
A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY
TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING
TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.


 


(h)
Notwithstanding the provisions of Section 13(g) of this Agreement, with respect to any claim for injunctive relief or other equitable
remedy pursuant to Section 9 of this Agreement or any claim to enforce an arbitration award or to compel arbitration, each of
the parties hereby (i) consents to the exclusive jurisdiction of the federal and state courts sitting in San Diego County, California,
(ii) agrees that any process in any action commenced in such court under this Agreement may be served upon it or him personally,
either (A) by certified or registered mail, return receipt requested, or by an overnight courier service which obtains evidence
of delivery, with the same full force and effect as if personally served upon him in San Diego County, California, or (B) by any
other method of service permitted by law, and (iii) waives any claim that the jurisdiction of any such court is not a convenient
forum for any such action and any defense of lack of in personam jurisdiction with respect thereof.


 


(i)
This Agreement and all rights of the Executive hereunder shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee, or other
designee or, if there be no such designee, to the Executive’s estate.


 


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


 


(k)
The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against any party hereto.


 


(l)
Notwithstanding any termination of the Executive’s employment under this Agreement, Sections 6 through 14 hereof shall survive
and continue in full force until the performance of the obligations thereunder, if any, in accordance with their respective terms.


 


(m)
No delay or omission to exercise any right, power or remedy accruing to either party hereto shall impair any such right, power
or remedy or shall be construed to be a waiver of or an acquiescence to any breach hereof. No waiver of any breach hereof shall
be deemed to be a waiver of any other breach hereof theretofore or thereafter occurring. Any waiver of any provision hereof shall
be effective only to the extent specifically set forth in an applicable writing. All remedies afforded to either party under this
Agreement, by law or otherwise, shall be cumulative and not alternative and shall not preclude assertion by such party of any
other rights or the seeking of any other rights or remedies against any other party.


 




    	- 19 - 



     

    




 


(n)
This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument. This Agreement and any agreement or instrument entered into in connection with this
Agreement, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by e-mail
attachment (e.g., PDF), shall be treated in all manner and respects as an original agreement or instrument and shall be considered
to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of
any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof
and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile
machine or e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated
through the use of a facsimile machine or e-mail as a defense to the formation of a contract and each such party forever waives
any such defense.


 


[Signatures
on following page]


 




    	- 20 - 



     

    

 


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


 


	Telecopier
    and Email	Signatures
	 	 	 
	 	“Company”
	 	 	 
	 	QUALIGEN,
    INC.
	 	 	 
	 	By:	/s/ Chris Lotz
	 	 	Chris
    Lotz, Vice President and Chief Financial Officer
	 	 	 
	 	“Executive”
	 	 
	 	/s/ Michael S. Poirier
	 	Michael
    Poirier


 


[Signature
Page of Executive Employment Agreement]


 




    	- 21 - 



     


    

 





AMENDMENT
OF EXECUTIVE EMPLOYMENT AGREEMENT


 


The
Executive Employment Agreement dated February 1, 2017 between Qualigen, Inc. and Michael Poirier is hereby amended to change Section
5(a) thereof to read in full as follows:


 


“Resignation
by the Executive.
The Executive
may terminate
this Agreement
and his employment
hereunder
at any
time by written resignation. A resignation
for Good Reason shall be treated hereunder as if it were a termination by the Company without Cause and shall have the effects
stated in Section 5(e) with regard to termination without Cause, rather than the effects stated in the sub-subsections of this
Section 5(a).


 


“Good
Reason” means the occurrence of any of the following circumstances, without the Executive’s express consent: the Executive
resigns due to (i) a material reduction of the Executive’s title or authority, (ii) a material reduction in the Executive’s
salary or benefits (other than a reduction that generally applies to the officers at the Executive’s level in the Company
or, as applicable, after a transaction in which the Company or substantially all its assets is acquired, in the successor entity
at that time), (iii) any material breach of this Agreement by the Company which is not cured within 30 days after written notice
by the Executive; or (iv) a change of the principal non-temporary location in which the Executive is required to perform the Executive’s
services to any location exceeding 35 miles from Carlsbad, California. In no event shall a resignation be considered to be with
Good Reason unless the resignation occurs after but within 30 days after the initiation of the item of Good Reason.


 


Termination
of this Agreement
and of the Executive’s employment by
the Executive for Good
Reason shall be without
prejudice
to any
other right
or remedy
to which
the Executive may
be entitled
at law,
in equity
or otherwise
under this
Agreement.


 


In
any circumstance
involving
a termination
of this Agreement
and of the Executive’s
employment
pursuant
to this
Section
5(a) (i.e., resignation without Good Reason):


 


(i)
the Company
shall (A)
pay the
Executive
an amount
in cash equal
to the Executive’s
accrued
but unpaid Salary
and vacation
pay through
the date
of termination,
(B) pay the
Executive
an amount
in cash equal
to any
CLIA Waiver
Bonus and any
Liquidity
Event Bonus
that
has been earned
by the
Executive
under Section
3 hereof prior
to the date
of termination
but that remains
unpaid as
of such date,
and (C)
promptly
reimburse
any expenses
incurred
by the Executive
through
the date
of termination
and for which
the Executive
is entitled
to receive
reimbursement
under Section
4 hereof in accordance
with the Company’s
expense
reimbursement
policies
(all such
payments
referenced
in this
subparagraph
(i) being
collectively
referred
to in this
Agreement
as the “Base
Termination
Payments”);


 


(ii)
subject to
Section
5(f), the Executive
shall retain
his rights
under Section
3(b) to receive
a CLIA Waiver
Bonus Payment
in respect
of any CLIA
waiver
received
by the Company
after
the effective
date of termination
but only to the
extent
that the
Company
filed
its original
application
in respect
of such CLIA
waiver
during the
term
of the Executive’s
employment
or within sixty
(60) days
following
the effective
date of termination,
it being
understood and
agreed that
the Executive
shall not have
any right
to receive
a CLIA Waiver
Bonus Payment
in respect
of any waiver
for which
the Company
first
files
its application
more than
60 days following
the effective
date of termination
(such rights
referenced
in this
subparagraph
(ii) being
referred
to herein
as the “Surviving
CLIA
Waiver
Bonus Rights”);


 



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(iii)
subject to
Section
5(f), the Executive
shall retain
his rights
under Section
3(c) to receive
Liquidity
Event Bonus payments
(including
in respect
of any
Liquidity
Event that
may occur
following
the effective
date
of termination)
to the extent
that such
rights
have vested
under Section
3(c)(iii) as
of the effective
date of termination,
it being
understood and
agreed that
the Executive
shall forfeit
any such
rights
with respect
to any
future
Liquidity
Events to
the extent
that such
rights
have not then
vested
(such
rights
referenced
in this
subparagraph
(iii),
to the extent
so vested
and not forfeited,
being
referred
to herein
as the “Surviving
Liquidity
Event Bonus
Rights”);


 


(iv)
the Executive
shall retain
and receive
any other
rights
or benefits
(to the
extent
earned and
vested
as of the date
of termination)
under any
Company
employee
benefit
plans or arrangements
in accordance
with the terms
of such plans
and arrangements;


 


(v)
the Executive
shall not otherwise
be entitled
to any
severance
payments
or similar benefits
as of the date
of termination
(except
as and to
the extent
required
by applicable
law);
and


 


(vi)
except
as otherwise
expressly
provided
in this
Section
5(a), any
and all
other rights
of the Executive
to receive
a Salary,
bonus or other
compensation
or benefits
shall terminate
as of the effective
date of termination.”


 


Except
as expressly set forth in this Amendment, the Executive Employment Agreement remains unchanged and in full force and effect.


 


Dated:
January 9, 2018


 


	QUALIGEN,
    INC.	 
	 	 
	By: 	/s/ Chris Lotz	 
	Name:	Chris Lotz	 
	Title:	VP/CFO	 
	 	 
	/s/
    Michael S. Poirier	 
	MICHAEL
    POIRIER	 


 






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