SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Amendment No. 1)
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Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As previously disclosed on a Current Report on Form 8-K filed on June 27, 2023 (the “Original 8-K”), on June 21, 2023, the Board of Directors of Agile Therapeutics, Inc. (the “Company”) appointed Scott Coiante to serve as the Company’s Senior Vice President, Chief Financial Officer and Treasurer, effective August 16, 2023. In connection with such appointment, Mr. Coiante and the Company entered into an employment agreement, dated as of August 16, 2023 (the “Employment Agreement”). This Current Report on Form 8-K/A amends and supplements the Original 8-K filed by the Company, and is being filed to provide information required pursuant to Item 5.02 of Form 8-K.
Pursuant to the terms of the Employment Agreement, Mr. Coiante will receive an initial annual base salary of $430,000 and will be eligible to participate in the Company’s benefit and compensation plans, including the Company’s annual bonus plan and the 2023 Equity Incentive Compensation Plan. Mr. Coiante’s target annual bonus is 45% of his base salary, which, for 2023, shall be pro-rated for Mr. Coiante’s actual period of service in 2023.
Mr. Coiante will also receive an equity award (the “Inducement Grant”) in the form of restricted stock units in respect of 20,000 shares of the Company’s common stock (“Shares”) on or within 30 days of August 16, 2023. The Inducement Grant will be governed by the terms of an individual award agreement, but further governed by the terms of the 2023 Equity Incentive Compensation Plan. The Inducement Grant will vest on a four-year vesting schedule, with 25% of the Shares subject to the option vesting on the first four anniversaries of the date that the Inducement Grant is granted, subject to Mr. Coiante’s continued employment with the Company on each vesting date and subject to accelerated vesting in the event of a change in control.
The Employment Agreement provides that all incentive compensation payable to Mr. Coiante under the Employment Agreement is subject to any clawback policy implemented by our board of directors and all other applicable Company policies.
The Employment Agreement provides for payments in the event the Company terminates Mr. Coiante’s employment without “reasonable cause” or if Mr. Coiante resigns for “good reason,” or if Mr. Coiante’s employment is terminated due to “disability,” each as defined in the Employment Agreement, provided that Mr. Coiante executes and does not revoke a release of claims in favor of the Company (each, a “Qualifying Termination”).
If a Qualifying Termination occurs outside the context of a change of control (as defined in the Employment Agreement), for 12 months, Mr. Coiante will be entitled to (i) continued payment of base salary and (ii) reimbursement of COBRA premiums in an amount equal to the employer portion of premiums for health coverage of active employees. If, however, such a Qualifying Termination occurs on the date of, or within 12 months following, a change of control, such period of severance will be 18 months instead of 12 months, cash severance will be paid in a lump sum (instead of over time) and any of Mr. Coiante’s then-outstanding and unvested equity awards will become vested. In the event of a change of control following Mr. Coiante’s Qualifying Termination, any base salary continuation payments still due to Mr. Coiante will be paid in full upon the change of control. Mr. Coiante is additionally entitled to similar severance in the event of a termination due to disability under the Employment Agreement.
The Employment Agreement includes non-competition and non-solicitation of employees and customers restrictions on Mr. Coiante during the term of employment and for 18-months after Mr. Coiante’s termination of employment in the event of a termination without cause or for good reason upon or within 12 months following a change of control and 12 months in all other cases.
The Employment Agreement also includes a perpetual confidentiality covenant and assignment of inventions.
The foregoing summary of the Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Employment Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
In addition to the foregoing, as previously disclosed in the Original 8-K, on June 21, 2023, the Company and Jason Butch came to a mutual agreement pursuant to which Mr. Butch separated from service as the Chief Accounting Officer of the Company, effective August 15, 2023. On August 17, 2023, the Company entered into a Transition and Separation Agreement with Mr. Butch (the “Separation Agreement”), providing for a mutual release of claims and in consideration for such release (and not revoking such release), Mr. Butch will be entitled to receive 6 months of continued base salary and health care continuation subsidies as severance payments and benefits contemplated by his Employment Agreement on a termination by the Company without cause as well as an extended 90 day period post-employment during which he may exercise his vested options to purchase Shares. Mr. Butch is additionally bound by confidentiality, non-solicitation and non-competition covenants.
The foregoing summary of the Separation Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Separation Agreement, which will be filed with the Company's next Quarterly Report on Form 10-Q.
Item 9.01. Financial Statements and Exhibits.
Cover Page Interactive Data File (Embedded within the Inline XBRL Document).
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Agile Therapeutics, Inc.
Dated: August 22, 2023
/s/ Alfred Altomari
Chairperson and Chief Executive Officer
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of August 16, 2023, by and between AGILE THERAPEUTICS, INC., a Delaware corporation (the “Company”), and Scott Coiante (the “Executive”), collectively referred to as the “parties.”
The Company desires to employ the Executive and to have the benefit of the Executive’s skills and services, and the Executive desires to accept such employment with the Company, on the terms and conditions set forth herein.
In consideration of the mutual promises, covenants, and conditions set forth in this Agreement, the parties agree as follows:
Furthermore, the termination by the Executive of the Executive’s employment with the Company for any reason other than for Good Reason pursuant to Section 2d shall be deemed to be a termination of the Executive’s employment for “Reasonable Cause” without any notice or other action on the part of the Company.
The Executive may not resign with Good Reason pursuant to this Section 2d, and shall not be considered to have done so for any purpose of this Agreement, unless (i) the Executive, within sixty (60) days after the initial existence of the act or failure to act by the Company that constitutes “Good Reason” within the meaning of this Agreement, provides the Company with written notice that describes, in particular detail, the act or failure to act that the Executive believes to constitute “Good Reason” and identifies the particular clause of this Section 2d that the Executive contends is applicable to such act or failure to act; (ii) the Company, within thirty (30) days after its receipt of such notice, fails or refuses to rescind such act or remedy such failure to act so as to eliminate “Good Reason” for the termination by the Executive of the Executive’s employment relationship with the Company, and (iii) the Executive actually resigns from employment with the Company on or before that date that is six (6) calendar months after the initial existence of the act or failure to act by the Company that constitutes “Good Reason.” If the requirements of the preceding sentence are not fully satisfied on a timely basis, then the resignation by the Executive from the Executive’s employment with the Company shall not be deemed to have been for “Good Reason,” the Executive shall not be entitled to any of the benefits to which the Executive would have been entitled if the Executive had resigned from employment with the Company for “Good Reason,” and the Company shall not be required to pay any amount that would otherwise have been due to the Executive under Section 4a had the Executive resigned with “Good Reason.”
i.Expense Reimbursement. The Company shall reimburse the Executive for all reasonable out-of-pocket expenses incurred in connection with the Company’s business and the Executive’s performance of the Executive’s obligations under this Agreement, in accordance with the applicable expense reimbursement policy of the Company, upon submission by the Executive to the Company of such written evidence of such expense as the Company may require. Any disputes as to the eligibility of an expense for reimbursement shall be resolved in the sole discretion of the Company.
During and after the Executive’s term of employment, the Executive or the Executive’s legal representative shall, at the Company’s request and expense, execute domestic and foreign patent applications and assignments to the Company concerning Inventions owned by the Company under this section, and take all other actions as the Company may request to perfect and maintain the Company’s rights in same.
During the Restricted Period, the Executive shall not engage in any "competitive business." As used in this Agreement, a "competitive business" shall mean any business that is engaged in the research, development, manufacturing, distribution, licensing or sale of technology, products, or services relating to hormonal contraception; provided, however, that a "competitive business" shall not include the acquiring, surviving, or licensing company in a Change of Control transaction if the Executive shall become an employee of or a consultant to such company with the knowledge and consent of the Company. For purposes of this Agreement, the term "Restricted Period" shall mean the period from and after the date of this Agreement and through the three (3) month period after the termination of the term of the Executive's employment hereunder, provided that the Restricted Period shall be for a period of nine (9) months (instead of three (3) months) after the termination of the term of the Executive's employment hereunder if the Executive has a CoC Qualifying Termination.
The Executive hereby represents and warrants to the Company, the same being part of the essence of this Agreement that, as of the date of this Agreement, the Executive is not a party to any agreement, contract, or understanding, and that no facts or circumstances exist, that would in any way restrict or prohibit the Executive in any material way from undertaking or performing any of the Executive’s obligations under this Agreement. The foregoing representation and warranty shall remain in effect throughout the term of the Executive’s employment hereunder.
Immediately upon termination of the term of the Executive’s employment or upon the Company’s earlier request, the Executive shall return to the Company all Confidential Information and other items described in Section 5 and all originals and copies of any other property or information owned by the Company or relating to its business, that the Executive has in the Executive’s possession or under the Executive’s control, including all credit cards, papers, books, equipment, files, and samples. To the extent that the Executive made use of the Executive’s own personal computing device(s) (e.g., PDA, laptop, iPad, thumbdrive, etc.) during and in connection with the term of the Executive’s employment, the Executive agrees to deliver
such personal computing device(s) to the Company for review and permit the Company to delete all of the Company’s Confidential Information from such personal computing device(s), and/or permit the Company to remotely delete all of the Company’s Confidential Information from such personal computing device(s).
(Signature page follows.)
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have executed this Agreement to be effective as of the date specified above.
AGILE THERAPEUTICS, INC.
/s/ Scott Coiante By: /s/ Al Altomari
Name: Scott Coiante Name: Al Altomari
Title: Chairman and Chief Executive Officer
Nature of Work
Hours Per Week