Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On December 15, 2022, OptiNose, Inc. (the "Company") appointed Paul Spence, Jr.
as the Company's Chief Commercial Officer. A copy of the press release
announcing the appointment of Mr. Spence is attached hereto as Exhibit 99.1.
Mr. Spence, age 54, has 30 years of experience in the life science and
pharmaceuticals industry as a leader responsible for marketing, sales, market
access, operations, and supply chain. Mr. Spence was most recently the Senior
Vice President and U.S. Pharma Chief Commercial Officer at Nestlé Health
Sciences where he led the Aimmune Gastrointestinal and Food Allergy businesses
from 2020 to 2022 and prior to that VP U.S. Commercial at Nestlé Health Sciences
from 2016-2019. Prior to joining Nestlé Health Sciences, he had commercial roles
of increasing responsibility at Boehringer-Ingelheim Pharmaceuticals,
Sanofi-Aventis, and Bristol-Myers Squibb. Mr. Spence earned a Bachelor of
Science in Finance and Accounting from Penn State University and an MBA from
Villanova University.
In connection with his appointment as the Company's Chief Commercial Officer,
Mr. Spence entered into an employment agreement (the "Spence Employment
Agreement") detailing the terms of his employment that will continue until
either the Company or Mr. Spence terminate his employment with the Company. The
Spence Employment Agreement provides that Mr. Spence will:
•receive a base salary of $435,000 per year and is eligible to receive a
discretionary annual performance-based cash bonus, with a target bonus amount
equal to 45% of his base salary. Mr. Spence's salary and target bonus will be
reviewed periodically by the Company's Compensation Committee or Board of
Directors.
•receive (i) a non-qualified stock option grant to purchase up to 500,000 shares
of the Company's common stock at a per share purchase price equal to the closing
price of a share of the Company's common stock on the NASDAQ Global Select
Market on December 15, 2022 (the date of grant). The non-qualified stock option
grant is being made to Mr. Spence as an inducement material to him accepting
employment with the Company and is being granted outside of the OptiNose, Inc.
2010 Stock Incentive Plan, as amended and restated (the "2010 Plan"), in
accordance with Nasdaq Listing Rule 5635(c)(4). The non-qualified stock option
will vest over four years, with one-fourth of the shares underlying the stock
option vesting on the first anniversary of the grant date and the remainder of
the shares vesting in thirty-six equal monthly installments thereafter. The
vesting of shares underlying the non-qualified stock option is subject to Mr.
Spence's continuous service with the Company through each such vesting date. The
non-qualified stock options grant is subject to such other terms and conditions
as are specified in the Form of Non-Qualified Stock Option Agreement (Inducement
Grant) previously filed by the Company with the SEC.
•be eligible to receive annual equity awards based on Company and his
performance, to participate in the Company's other short-term and long-term
incentive programs, and be eligible to participate in all of the Company's
retirement and group welfare plans available to the Company's senior level
executives as a group or the Company employees generally, subject to the terms
and conditions applicable to such plans.
•be entitled to receive the following severance benefits if Mr. Spence's
employment is terminated by the Company without "cause" or by Mr. Spence for
"good reason" (each as defined in the Spence Employment Agreement), subject to
his execution and non-revocation of a release of claims and compliance with the
restrictive covenants and other terms set forth in the Spence Employment
Agreement: (i) twelve months of base salary continuation, and (ii) up to twelve
months of continued participation by Mr. Spence and his eligible dependents in
the Company's standard group medical, vision and dental plans on substantially
the same terms as such benefits are provided to active senior level executives;
provided that if such termination of employment occurs within three months prior
to, or eighteen months after, a "change in control" (as defined in the 2010
Plan) (the "Change of Control Protection Period"), then Mr. Spence shall be
entitled to receive: (i) an amount equal to 150% of the sum of his annual base
salary and target bonus at the rate in effect on his date of termination, (ii)
payment of a pro-rata bonus for the year in which such employment termination
occurs; (iii) up to eighteen months of continued participation by Mr. Spence and
his eligible dependents in the Company's standard group medical, vision and
dental plans on substantially the same terms as such benefits are provided to
active senior level executives, and (iv) all of Mr. Spence's then-outstanding
equity awards granted to him by the Company will become immediately vested. In
addition, if Mr. Spence's employment is terminated by the Company without
"cause" or by him for "good reason" any time following a Change of Control, then
Mr. Spence shall receive 12-months of vesting acceleration with respect to his
then outstanding Company equity awards.
--------------------------------------------------------------------------------
•be subject to restrictive covenants relating to non-disclosure of confidential
information, mutual non-disparagement, assignment of inventions, non-competition
and non solicitation of employees, customers and suppliers that run for
specified periods following the termination of Mr. Spence's employment.
Mr. Spence and the Company also entered into an indemnification agreement on
December 15, 2022 (the "Indemnification Agreement"), which is addition to the
indemnification, expense advancement and limitations of liability provided for
in the Company's Certificate of Incorporation and Company Bylaws. The
Indemnification Agreement provides Mr. Spence with contractual rights to
indemnification and, in some cases, expense advancement in any action or
proceeding arising out of his services as one of the Company's executive
officers or as a director or executive officer of any other company or
enterprise to which he may provides services at the Company's request.
There are no arrangements or understandings between Mr. Spence and any other
person pursuant to which Mr. Spence was appointed as an officer. There are no
relationships or transactions in which Mr. Spence has or will have an interest,
or was or is a party, requiring disclosure under Item 404(a) of Regulation S-K.
The foregoing is a summary description of certain terms of the Spence Employment
Agreement, Non-Qualified Stock Option Agreement (Inducement Grant), and
Indemnification Agreement and, by its nature, is not complete. It is qualified
in its entirety by reference to (i) the Spence Employment Agreement, a copy of
which is attached hereto as Exhibit 10.1, (ii) the Form of Non-Qualified Stock
Option Agreement (Inducement Grant) filed as Exhibit 99.3 to the Form 8-K filed
by the Company with the SEC on February 19, 2020, and (iii) the Form of
Indemnification Agreement filed as Exhibit 10.1 to the Form 10-K filed by the
Company with the SEC on March 8, 2022, each of which is incorporated herein by
reference.
* * *
On December 9, 2022, the Company and Victor Clavelli, the Company's Chief
Commercial Officer, mutually agreed that Mr. Clavelli's employment would
terminate on December 22, 2022. Subject to Mr. Clavelli's execution and
non-revocation of a release, he will be eligible to receive the severance and
other benefits specified in his Amended and Restated Employment Agreement dated
March 2, 2022 (the "Clavelli Employment Agreement") applicable to a termination
without Cause.
The foregoing is a summary description of certain terms of the Clavelli
Employment Agreement and, by its nature, is not complete. It is qualified in its
entirety by reference to the Clavelli Employment Agreement, a copy of which is
filed as Exhibit 10.26 to the Form 10-K filed by the Company with the SEC on
March 8, 2022, and is incorporated herein by reference.
* * *
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
10.1 Employment Agreement, dated December 15, 2022, between OptiNose US, Inc.
and Paul Spence, Jr.
99.1 Press release, dated December 15, 2022, issued by OptiNose, Inc.
Cover Page Interactive Data File (embedded within the Inline XBRL
104 document)
--------------------------------------------------------------------------------
© Edgar Online, source Glimpses
OPTINOSE, INC. 
