Form 10-Q Nuwellis, Inc. For: Jun 30
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E-mailExhibit 10.4
May 18, 2021
Neil Ayotte
2016 Meeting St.
Wayzata, MN 55391
Re: Employment Terms
Dear Neil:
We are pleased to offer you employment with Nuwellis, Inc., a Delaware corporation (the “Company”). The terms of your offer are as follows:
Your initial position with us will be as SVP, General Counsel & Chief Compliance Officer, reporting to the President & CEO.
This is a position exempt from overtime requirements on the basis of Minnesota Statute, Chapter 177. Your annualized salary will be three-hundred thousand dollars ($300,000.00), paid in semi-monthly installments of $12,500.00. The regularly
scheduled paydays are the 15th and last day of each month in accordance with our normal payroll procedures. The number of days in the pay period varies from 13 to 16 depending on the month. In addition to the above base salary, you will
be eligible to earn a bonus of up to 35% of your base salary, applied on a pro-rata basis in 2021. One condition of receiving a bonus is that you must be employed in good standing with the Company as of the bonus payment date. In addition, the
Company is pleased to offer you stock options as detailed in ATTACHMENT 1, “Stock Option Grant”.
You are also entitled to a lump sum payment of ten thousand dollars, ($10,000.00) less applicable taxes and withholdings, payable on your
first paycheck. This bonus comes with the condition that if you resign or your employment with Nuwellis, Inc. terminates due to cause within one (1) year of effective date of your employment, you shall be obligated to repay the bonus amount on a
pro-rata basis, which will be considered a debt that is immediately due and payable, and Nuwellis, Inc. will also have the right to set off the debt against any compensation or reimbursement that Nuwellis, Inc. owes to you.
During your employment, you will be eligible to participate in the employee stock options program, benefit programs and arrangements
that we make available to our employees, including contributory and non-contributory welfare and benefit plans. You will be eligible for an annual accrual of 152 hours of Personal Time Off which will be earned/accrued on a semi-monthly basis. You
may also participate in the Company’s 401(k) Plan.
Your job duties, title, responsibility and reporting level, compensation and benefits, as well as personnel policies and procedures,
are subject to change.
Your employment is effective June 7, 2021 or other mutually agreed upon date. Based on this start date, the first payment of wages
earned will be on June 15, 2021. By signing this letter agreement, you acknowledge and agree that your employment with the Company is “at will,” meaning that either you or the Company are entitled to terminate your employment at any time for any
reason, with or without cause. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an
express writing signed by you and a duly authorized officer of the Company.
This offer of employment is contingent upon the satisfactory completion of a drug screen, background check/consumer report, which may
include verification of job required licensure, and the truthfulness of the information presented in your job application, résumé, and interview, as well as you providing us with proof of your eligibility to work in the United States within three
(3) days of your start date.
Also, you are required as a condition to your employment with the Company to; 1) sign the Company’s standard Employee Proprietary
Information, Inventions Assignment and Non-Competition Agreement attached hereto as EXHIBIT A, and 2) read the attached Nuwellis Code of Business Conduct
and Ethics.
This letter agreement and its attachments contain all of the terms of your employment with the Company and supersede any prior
understandings or agreements, whether oral or written, between you and the Company.
Nuwellis complies with all mandated payroll deductions such as federal and state income taxes, social security taxes and any other
deductions required by law. In addition, we comply with any deductions required by court order such as wage garnishments or child support orders. Employee benefit deductions may also be made for group health, dental, vision, retirement savings,
HSA/FSA accounts and other benefits elected by the employee.
This letter agreement may not be amended or modified except by an express written agreement signed by you and a duly authorized
officer of the Company. The terms of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota, without regard to its principles of conflicts of laws. By signing this Agreement, you irrevocably
submit to the exclusive jurisdiction of the courts of the State of Minnesota for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. By signing this
Agreement, you also waive any right to request a trial by jury in any litigation with respect to this letter agreement and represent that counsel has been consulted specifically as to this waiver. Please notify Human Resources if you require this
document in another language.
We hope that you find the foregoing terms acceptable. You may indicate your agreement with these terms and accept this offer by signing and dating this letter agreement and the enclosed Employee Proprietary Information, Inventions Assignment and Non-Competition Agreement and
returning them to me by May 20, 2021.
Sincerely,
Sandra Eayrs
Sr. Vice President, Human Resources
_ _ _ _ _
I have read and accept the employment offer as set forth in this Agreement. By signing this Agreement, I represent and warrant to the Company that I am
under no contractual commitments inconsistent with my obligations to the Company. I hereby acknowledge that I have received and read the Company’s Code of Business Conduct and Ethics, and that I understand the Code and its application to my
performance of services to the Company.
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Neil Ayotte
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Date
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/s/ Neil Ayotte
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5/21/21
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Neil Ayotte
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Date
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Attachment 1
Stock Option Grant
Stock Options for 41,690 shares under the New Hire Plan will be
granted subject to approval by the Board of
Directors.
One-fourth of the shares vest on the one-year anniversary of
the Vesting Commencement Date; the balance of
the shares vest in a series of thirty-six (36) successive equal monthly installments measured from the first anniversary of the Vesting Commencement Date.
Attachment 1-1
Exhibit 31.1
| 1. |
I have reviewed this Quarterly Report on Form 10-Q of Nuwellis, Inc. for the quarterly period ended June 30, 2021;
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| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to the period covered by this report;
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| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
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| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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| b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by
this report based on such evaluation; and
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| d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in
the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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| 5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the
registrant’s board of directors (or persons performing the equivalent functions):
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| a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information; and
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| b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Nestor Jaramillo
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President, Chief Executive Officer
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Exhibit 31.2
| 1. |
I have reviewed this Quarterly Report on Form 10-Q of Nuwellis, Inc. for the quarterly period ended June 30, 2021.
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| 3. |
| 4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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| b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by
this report based on such evaluation; and
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| d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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| b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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/s/ George Montague
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George Montague
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Chief Financial Officer
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Exhibit 32.1
In connection with the Quarterly Report of Nuwellis, Inc. (the “Company”) on Form 10-Q for the quarterly period ended June 30, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Nestor Jaramillo, Jr., Chief Executive Officer of the Company, certify,
pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
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(1)
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(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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/s/ Nestor Jaramillo
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Nestor Jaramillo
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President, Chief Executive Officer
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In connection with the Quarterly Report of Nuwellis, Inc. (the “Company”) on Form 10-Q for the quarterly period ended June 30, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Paul Wotta, Principal Accounting Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to §
906 of the Sarbanes-Oxley Act of 2002, that:
| (1) |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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| (2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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/s/ George Montague
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George Montague
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Chief Financial Officer
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