Exhibit 10.6
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of September 18, 2023 (the "Effective Date"), by and between Histogen Inc., a Delaware corporation (“Company” or "Employer"), and Susan A. Knudson. ("Executive").
RECITALS
WHEREAS, Employer and Executive previously entered into that certain executive employment agreement, dated March 10, 2023;
WHEREAS, Employer and Executive desire to amend and restate terms of Executives employment with the Company by entering into this Agreement related to Executive’s employment as Executive Vice President, Chief Operating Officer, and Chief Financial Officer (“COO/CFO”) as of the date hereof changing to Chief Executive Officer, President and Chief Financial Officer (“CEO/CFO”) as of October 1, 2023 (the “Promotion Date”).
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein, Executive and Employer agree as follows:
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3. Compensation and Benefits.
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4. Confidentiality and Proprietary Rights.
As a condition of employment, Executive previously executed and will continue to abide by Employer's Proprietary Information and Inventions Agreement, which is provided as Exhibit A to this Agreement and incorporated herein by reference.
5. Non-Solicitation; Non-Disparagement.
6. Injunctive Relief. Executive acknowledges that Executive' s breach of the covenants contained in
sections 2, 4, and 5 would cause irreparable injury to Employer and agrees that in the event of any such breach, Employer shall be entitled to seek temporary, preliminary, and permanent injunctive relief pursuant to the California Arbitration Act, without the necessity of proving actual damages or posting any bond or other security.
7. Termination.
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8. Payments and Obligations Upon Termination
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(vi) A " termination of employment" shall mean the date that Executive permanently
ceases performing services for Employer as an Executive even though Executive may remain on Employer's books and records as an Executive so that Employer may fulfill its obligations under this Section 8. Termination of employment shall be deemed to occur when Executive experiences a "separation of service" within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended and restated (the "Code" and such Code section, "Section 409A").
9. Compliance with Internal Revenue Code Section 409A. In the event that any compensation or
other payments payable under this Agreement are subject to Section 409A, then Executive acknowledges and agrees that Employer shall adhere to the provisions of Section 409A and any regulations or other guidance issued thereunder. Executive agrees that Executive bas reviewed or been advised to review (and had ample opportunity to review) the provisions of this Agreement with applicable legal and tax counsel to ensure compliance with Section 409A and that Employer shall not be responsible for any adverse tax consequences experienced by Executive in connection with this Agreement. Executive's right to receive any installment payments pursuant to this Agreement will be treated as a right to receive a series of separate payments. For purposes of this Agreement, references to "termination of employment" (and substantially similar phrases) will be interpreted to mean a "separation from service" within the meaning of Section 409A. If, as of the date of Executive' s "separation from service" from Employer, Executive is a "specified Executive" (within the meaning of Section 409A), then: (a) each installment of the Compensation Continuation that, in accordance with the dates and terms set forth in this Agreement , will in all circumstances, regardless of when the "separation from service" occurs, be paid within the short-term deferral period (as defined in Section 409A) will be treated as a "short-term deferral" within the meaning of Treas. Reg. Section l. 409A- l(b)(4) to the maximum extent permissible under Section 409A and will be paid on the dates and terms set forth in this Agreement; and (b) each installment of the Compensation Continuation that is not described in clause (a) above and that would, absent this clause (b), be paid within the six-month period following Executive's "separation from service" from Employer will not be paid until the date that is six months and one day after such "separation from service" (or, if earlier, Executive's death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following Executive's "separation from service" and any subsequent installments , if any, being paid in accordance with the dates and terms set forth in this Agreement; provided, however, that the preceding provisions of this clause (b) will not apply to any installment of the Compensation Continuation if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treas. Reg. Section l.409A-l(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treas. Reg. Section l. 409A-l(b)(9)(iii) must be paid no later than the last day of Executive' s second taxable year following the taxable year in which the "separation from service" occurs. The determination of whether and when Executive's "separation from service" from Employer has occurred will be made in a manner consistent with, and based on the
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presumptions set forth in, Treas. Reg. Section l.409A- l (h). Solely for purposes of this paragraph, "Employer" will include all persons with whom Employer would be considered a single employer under Section 414(b) and 414(c) of the Code. All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of any eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
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Exhibit 10.6
If to Employer, to:
Histogen Inc.
Attention: Board of Directors
Email:
With a copy to (which will not constitute notice):
DLA Piper LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Attention: Larry W. Nishnick
Email:
If to Executive, to such address as set forth in Employer's records, or to such other address as the party to whom such notice or other communication is to be given may have furnished to each other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received (i) when delivered, if personally delivered, (ii) when sent, if sent by email during normal business hours on a business day (or, if not sent during normal business hours on a business day, on the next business day after the date sent by facsimile), (iii) on the next business day after dispatch, if sent by nationally recognized, overnight courier guaranteeing next business day delivery, and (iv) on the fifth business day following the date on which the piece of mail containing such communication is posted, if sent by mail.
(iii) this Agreement, will be settled by final and binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Services, Inc. ("JAMS") applicable to the dispute. JAMS Rules for Employment Arbitration are available at http://www.jamsadr.com/rules-employment-arbitration/.
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To the extent permitted by law, the hearing and all filings and other proceedings shall be treated in a private and confidential manner by the arbitrator and all parties and representatives and shall not be disclosed except as necessary for any related judicial proceedings or as required by applicable law.
14. Consent to Jurisdiction. In any proceeding seeking equitable relief, to enforce arbitration or an arbitral award, or in the event that arbitration cannot be enforced, each of the parties hereby irrevocably and unconditionally agrees to submit to the exclusive jurisdiction of the appropriate state and federal courts situated in San Diego, California, in any dispute, controversy, suit, or action arising out of or in connection with this Agreement or any
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associated agreement or document and hereby waives in advance any objection or defense to such jurisdiction, including any defense based on lack of personal jurisdiction or forum non conveniens.
[Signature page follows]
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Exhibit 10.6
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
EXECUTIVE
Susan A. Knudson
HISTOGEN INC.
By: Daniel Kisner Ph.D.
Title: Chairman of the Board
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EXHIBIT A
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Exhibit 10.6
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
(see attached as previously executed)
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EXHIBIT B
CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
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Executive waives any right which Executive has or may have under 1542 to the full extent Executive may lawfully waive such rights pertaining to this general release of claims.
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Exhibit 10.6
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
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