This Amendment (this Amendment) to the [Employment Agreement] by and between CytoDyn Inc. and [Executive Name] is made and entered into as of January __, 2020 (the Effective Date), by and between CytoDyn Inc., a Delaware corporation (the Company), and [Executive Name], an individual (the Executive).
WHEREAS, the Company and the Executive have entered into that certain [Employment Agreement], dated as of [Date] (the Employment Agreement); and
WHEREAS, the Company and the Executive wish to amend certain terms of the Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the material promises set forth herein and for other good and valuable consideration, the parties agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Employment Agreement.
2. Amendment to Section 4. Section 4.1[(d)] of the Employment Agreement is hereby [amended by adding a new section 4.1(d)]/[amended and restated in its entirety] as follows:
(d) Notwithstanding anything in Section 4.1(c) to the contrary, the Severance Payments may be made, in the Boards sole discretion, in whole or in part through the issuance of shares of the Companys Common Stock, in each case with a Fair Market Value (as defined in the Companys Amended and Restated 2012 Equity Incentive Plan) equal to the amount to be paid on the applicable date.
3. Amendment to Section 4. Section 4.5 of the Employment agreement is hereby amended and restated in its entirety as follows:
Section 4.5 Release Agreement. In order to receive the Severance Payments set forth in Section 4.1 or to receive the Enhanced Severance Payments set forth in Section 4.2 (as applicable, and, in each case, if eligible), the Executive must timely execute (and not revoke) a separation agreement and general release (the Release Agreement) in a customary form as is determined to be reasonably necessary by the Company in its good faith and reasonable discretion; provided, that the Company shall endeavor to provide the Executive with the form of Release Agreement within 3 days following the Termination Date. The Severance Payments or the Enhanced Severance Payments, as applicable, are subject to the Executives execution of such Release Agreement within 45 days of the Executives receipt of the Release Agreement and the Executives non-revocation of such Release Agreement, if applicable.
4. No Other Amendments. Except as expressly amended herein, the Employment Agreement, as amended shall continue in full force and effect.