Item 1.01 Entry into a Material Definitive Agreement
On March 1, 2023, Achieve Life Sciences, Inc. (the “Company”) entered into a Cooperation Agreement (the “Cooperation Agreement”) with Dialectic Capital Management, LP (“Dialectic”) and related entities (collectively with Dialectic, the “Stockholders”) regarding certain changes to the composition of the Company’s board of directors (the “Board”) and other related matters.
Pursuant to the terms of the Cooperation Agreement: (1) the Company shall, no later than March 21, 2023, appoint three individuals (the “Designees”) to the Board to fill three vacancies created by either (x) the departure of an incumbent member of the Board as designated in the Cooperation Agreement (the “Incumbent Directors”) or (y) expanding the Board size to up to 11 directors; (2) the Board shall nominate the Designees for election at the 2023 Annual Meeting of the Company’s stockholders (the “2023 Annual Meeting”); (3) the Board shall appoint at least one of the Designees to each of the committees of the Board, other than the Chemistry, Manufacturing and Controls Committee, as well as any new committee(s) formed prior to the Expiration Date (as defined in the Cooperation Agreement); and (4) the Company shall set the Board size at eight directors no later than the date of the 2023 Annual Meeting (the “Incumbent Director Resignation Date”) and, in the event there are more than eight directors serving on the Board as of the Incumbent Director Resignation Date, one or all of the Incumbent Directors, as applicable, shall submit his resignation to be effective no later than the Incumbent Director Resignation Date; provided, that in the event the resignation of any Incumbent Director as of Incumbent Director Resignation Date would cause any violation of the applicable listing rules of The Nasdaq Stock Market LLC, the parties agree that such resignation shall not be effective until such time as would ensure compliance with such listing rules and the parties shall work in good faith to document and approve such necessary modification(s) to the Incumbent Director Resignation Date.
The Cooperation Agreement further provides that if, at any time prior to the Expiration Date, any Designee (or any Replacement Designee (as defined below)) is unable or unwilling to serve and ceases to be a director, resigns as a director or is removed as a director, or for any other reason fails to serve or is not serving as a director, the Company and Dialectic shall work in good faith to promptly mutually agree upon a replacement candidate for appointment to the Board in substantially the same manner as the Company and Dialectic agreed upon the selection of such Designee (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Designee”).
The Cooperation Agreement includes certain voting commitments, standstill, and mutual non-disparagement provisions (subject to certain carveouts and exceptions) that generally remain in place during the period beginning upon the execution and delivery of the Cooperation Agreement and ending on the earlier of (i) the date that is fifteen (15) business days prior to the notice deadline under the Company’s Sixth Amended and Restated Bylaws (and all amendments thereto) for stockholders to submit non-proxy access stockholder nominations of director candidates for election to the Board (the “Nomination Notice Deadline”) at the 2024 Annual Meeting of the Company’s stockholders (the “2024 Annual Meeting”), (ii) the date the Stockholders, in the aggregate, cease to own at least 10% (on a non-converted basis) of the Company’s issued and outstanding common stock, (iii) any material breach of the Cooperation Agreement by any Stockholder or (iv) the last resignation of all three of the Designees; provided that notwithstanding anything to the contrary in the Cooperation Agreement, if (A) the Company confirms in writing that it will re-nominate the Designees for election as directors at the 2024 Annual Meeting or the 2025 Annual Meeting of the Company’s stockholders, as applicable (and that it will take such further actions as required by the Cooperation Agreement with respect to the Designees with respect to such annual meeting); (B) the Designees consent to such re-nomination(s); and (C) the Stockholders agree to the extension of the
Expiration Date, then prong (i) shall be deemed to be automatically extended each such time until the date that is fifteen (15) business days prior to the applicable Nomination Notice Deadline(s) applicable to each such subsequent annual meeting of stockholders of the Company at which the Company has confirmed it will re-nominate the Designees.
The foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Cooperation Agreement filed as Exhibit 10.1 hereto.