UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 4, 2024 (April 02, 2024) |
ARCA biopharma, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware |
000-22873 |
36-3855489 |
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(State or Other Jurisdiction |
(Commission File Number) |
(IRS Employer |
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10170 Church Ranch Way Suite 100 |
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Westminster, Colorado |
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80021 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s Telephone Number, Including Area Code: (720) 940-2200 |
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(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Trading |
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Common |
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ABIO |
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The Nasdaq Global Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Separation of Michael Bristow, M.D., President, Chief Executive Officer and Director
ARCA biopharma, Inc. (“ARCA” or the "Company") and Dr. Michael Bristow, President, Chief Executive Officer and a member of the board of directors (the “Board”) of ARCA have mutually agreed to conclude Dr. Bristow’s employment and service as a director, effective April 3, 2024. Dr. Bristow's departure is not the result of any disagreement with ARCA’s management or the Board on any matter relating to its operations, policies or practices.
In connection with Dr. Bristow’s separation, ARCA and Dr. Bristow entered into a separation agreement (the “Separation Agreement”) on April 3, 2024. Pursuant to the terms of the Separation Agreement, ARCA will provide to Dr. Bristow a lump sum payment equal to (i) twelve (12) months of Dr. Bristow’s base salary as of the last date of his employment and (ii) a cash payment of $25,000, less applicable withholdings. The severance benefits are conditioned on the execution and non-revocation by Dr. Bristow of a legal release of claims.
The foregoing description of the material terms 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, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K, and incorporated herein by reference.
ARCA and Dr. Bristow will also enter into a consulting agreement, effective April 3, 2024 (the “Consulting Agreement”), pursuant to which Dr. Bristow will provide certain consulting services provided for in the Consulting Agreement to ARCA until the earlier of (i) the completion of services under the Consulting Agreement, (ii) a termination in accordance with the terms of the Consulting Agreement, and (iii) upon a Change of Control (as defined in ARCA’s 2020 Equity Incentive Plan (the “Plan”)). Pursuant to the Consulting Agreement, Dr. Bristow provision of services under the Consulting Agreement will be Continuous Service (as defined in the Plan) and, as a result, his equity awards under the Plan shall continue to vest during the term of the Consulting Agreement.
The foregoing description of the material terms of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Consulting Agreement, which ARCA expects to file as an exhibit to a subsequent periodic report to be filed with the U.S. Securities and Exchange Commission.
Appointment of President
Effective as of April 3, 2024, the Board appointed Thomas A. Keuer, the Company’s Chief Operating Officer, to serve as ARCA’s President and principal executive officer. Mr. Keuer has been with ARCA since 2006, and as its Chief Operating Officer for the last nine years, a position he will continue to serve in. Mr. Keuer will not receive any additional compensation in connection with his appointment as President and principal executive officer. Mr. Keuer’s position will end upon closing of the merger transaction with Oruka Therapeutics, Inc. as previously disclosed on a Current Report on Form 8-K filed with the SEC on April 3, 2024.
Biographical information for Mr. Keuer can be found in the Company’s Annual Report on Form 10-K, filed with the U.S. Securities and Exchange Commission on February 1, 2024, and is incorporated herein by reference.
Mr. Keuer has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended, nor are any such transactions currently proposed. There is no arrangement or understanding between Mr. Keuer or any other person pursuant to which Mr. Keuer was selected as an officer. There are no family relationships between Mr. Keuer and any of ARCA’s directors or executive officers.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit Number |
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Description |
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10.1 |
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Separation Agreement and Release, by and between ARCA and Michael Bristow, dated as of April 3, 2024. |
10.2* |
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Consulting Agreement, by and between ARCA and Michael Bristow, dated as of April 3, 2024. |
104 |
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Cover Page Interactive Data File. The cover page XBRL tags are embedded within the inline XBRL document (contained in Exhibit 101). |
* Portions of this exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ARCA biopharma, Inc. |
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Date: |
April 4, 2024 |
By: |
/s/ C. Jeffrey Dekker |
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Name: C. Jeffrey Dekker |
Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is made by and between Michael Bristow (“Executive”) and ARCA biopharma, Inc. (formerly known as ARCA Discovery, Inc.) (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Executive was employed at-will by the Company;
WHEREAS, Executive signed an Amended and Restated Employment and Retention Agreement with the Company on June 4, 2008, which was amended by the Parties on June 13, 2013 (the “Employment Agreement”);
WHEREAS, Executive signed an Employee Intellectual Property, Confidentiality and Non-Compete Agreement with the Company on January 3, 2005 (the “Confidentiality Agreement”);
WHEREAS, the Company granted Executive certain stock options to purchase shares of the Company’s common stock (the “Options”), as set forth in the table below (the “Options Table”), with each such Option subject to the terms and conditions of either the Company’s 2013 Equity Incentive Plan, as amended (the “2013 Plan”) or the Company’s 2020 Equity Incentive Plan (the “2020 Plan,” and collectively with the 2013 Plan, each an “Equity Plan”), as set forth below, and an option agreement under the applicable Equity Plan (collectively, the Equity Plans and applicable option agreements, the “Stock Agreements”):
Grant Date |
Shares Underlying Option on Separation Date |
Exercise Price Per Share |
Vested Shares Underlying Option on Separation Date |
Unvested Shares Underlying Option on Separation Date |
02/11/2015 |
205 |
$84.42 |
205 |
- |
06/08/2016 |
1,511 |
$59.40 |
1,511 |
- |
02/15/2017 |
2,333 |
$45.00 |
2,333 |
- |
12/21/2020 |
190,000 |
$4.27 |
154,375 |
35,625 |
12/15/2021 |
95,000 |
$2.29 |
71,250 |
23,750 |
WHEREAS, the Company expects to enter into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) with Oruka Therapeutics, Inc. (“Target”), pursuant to which Target is expected to become a wholly owned subsidiary of the Company and the stockholders of Target will acquire majority control of the Company (with the transactions referred to in the Merger Agreement, the “Merger,” and the date of the closing of the Merger, the “Closing”);
WHEREAS, Executive resigned from employment with the Company effective April 3, 2024 (the “Separation Date”);
WHEREAS, Executive and the Company executed a Consulting Agreement effective as of the Separation Date (the “Consulting Agreement”), whereby Executive will continue to provide services to the Company as a consultant; and
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that Executive may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Executive’s employment with or separation from the Company;
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:
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COVENANTS
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a. any and all claims relating to or arising from Executive’s employment relationship with the Company and the termination of that relationship, as well as any all claims relating to or arising from the Merger;
b. any and all claims relating to, or arising from, Executive’s right to purchase, actual purchase, or ownership of shares of stock of the Company, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Uniformed Services Employment and Reemployment Rights Act; the Colorado Anti-Discrimination Act; the Colorado Religious Discrimination Rules; the Colorado Disability Discrimination Rules; the Colorado Age Discrimination Rules; the Colorado Workplace Harassment Rules; the Colorado Sex Discrimination Rules; the Colorado Marital Status Discrimination Law; the Colorado Equal Pay Law; the Colorado Law Prohibiting Discrimination by Labor Organizations; the Colorado Whistleblower Law; the Colorado Overtime Pay Law; the Colorado Workplace Accommodations for Nursing Mothers Act; the Colorado Civil Union Act; the Colorado Family Care Act; the Colorado Job History Law; the Colorado Crime Victim Leave Law; the Colorado Military Leave Law; the Colorado Military Service Discrimination Law; the Colorado Labor Relations Act; and the Colorado Labor Peace Act;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any claim for any loss, cost, damage, or expense arising out of any dispute over the nonwithholding or other tax treatment of any of the proceeds received by Executive from the Company; and
h. any and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth in this Section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any obligations incurred under this Agreement. This release does not release claims that cannot be released as a matter of law. This release does not extend to any right Executive may have to unemployment compensation benefits. Executive represents that Executive has made no assignment or transfer of any right, claim, complaint, charge, duty, obligation, demand, cause of action, or other matter waived or released by this Section.
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(a) Executive has read this Agreement;
(b) Executive has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of Executive’s own choice or has elected not to retain legal counsel;
(c) Executive understands the terms and consequences of this Agreement and of the releases it contains; and
(d) Executive is fully aware of the legal and binding effect of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
MICHAEL BRISTOW, an individual
Dated: |
4/3/2024 |
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/s/ Michael Bristow |
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Michael Bristow |
ARCA BIOPHARMA, INC.
Dated: |
4/3/2024 |
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/s/ C. Jeffrey Dekker |
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By: C. Jeffrey Dekker |
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Title: CFO |
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Exhibit 10.2
Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential.
ARCA BIOPHARMA, INC.
CONSULTING AGREEMENT
This Consulting Agreement (this “Agreement”) is made and entered into as of April 3, 2024 (the “Effective Date”) by and between ARCA biopharma, Inc. (the “Company”), and Dr. Michael Bristow (“Consultant”) (each herein referred to individually as a “Party,” or collectively as the “Parties”).
The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company, and Consultant is willing to perform such services, on the terms described below. In consideration of the mutual promises contained herein, the Parties agree as follows:
Consultant shall perform the services described in Exhibit A (the “Services”) for the Company (or its designee), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services.
Upon the termination of this Agreement, or upon the Company’s earlier request, Consultant will immediately deliver to the Company, and will not keep in Consultant’s possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Confidential Information, tangible embodiments of the Inventions, all devices and equipment belonging to the Company, all electronically-stored information and passwords to access such property, those records maintained pursuant to Section 3(c) and any reproductions of any of the foregoing items that Consultant may have in Consultant’s possession or control.
Consultant agrees to indemnify and hold harmless the Company and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Consultant or Consultant’s assistants, employees, contractors or agents, (ii) a determination by a court or agency that the Consultant is not an independent contractor, (iii) any failure of Consultant to perform the Services in accordance with all applicable laws, rules and regulations, or (iv) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use of the Inventions or other deliverables of Consultant under this Agreement.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO CONSULTANT OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY THE COMPANY TO CONSULTANT UNDER THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTION GIVING RISE TO SUCH LIABILITY.
10170 Church Ranch Way, Suite 100
Westminster, CO 80021
Attention: Mr. Thomas Keuer
IN WITNESS WHEREOF, the Parties hereto have executed this Consulting Agreement as of the date first written above.
CONSULTANT ARCA BIOPHARMA, INC.
By: |
/s/ Michael Bristow |
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By: |
/s/ C. Jeffrey Dekker |
Name: |
Michael Bristow |
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Name: |
C. Jeffrey Dekker |
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Title: |
CFO |
Address for Notice:
[***]
Exhibit 10.2
EXHIBIT A
SERVICES AND COMPENSATION
Name: Mr. Thomas A. Keuer
Title: President
Email: [***]
Phone: [***]
Contract consulting services, including the following:
Final completion of these services is expected on or before August 1, 2024 unless otherwise approved by an authorized agent of the Company.
This Exhibit A is accepted and agreed upon as of April 3, 2024.
CONSULTANT ARCA BIOPHARMA, INC.
By: |
/s/ Michael Bristow |
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By: |
/s/ C. Jeffrey Dekker |
Name: |
Michael Bristow |
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Name: |
C. Jeffrey Dekker |
Title: |
Consultant |
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Title: |
CFO |
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