EXHIBIT 10.26
DIRECTOR AGREEMENT
THIS DIRECTOR AGREEMENT (the "Agreement") is made as of this 13th day of
January, 2006 between Omrix Biopharmaceuticals, Inc., a Delaware corporation,
(the "Company") and Xxxxxxx Xxxxx (the "Director") with respect to services to
be performed for the Company by the Director. The parties' respective addresses
are as set forth below their signature lines. In consideration of the mutual
terms, conditions and covenants set forth herein, the Company and the Director
hereby agree as follows:
1. Purpose
The Director wishes to be engaged, or to continue to be engaged, as a
director by the Company and is willing to provide certain skills and
abilities to the Company (the "Engagement"). Accordingly, this Agreement
will define the terms upon which the Company will engage the Director.
2. Duties and Services
The Director will act as the Chairman of the Board of Directors of the
Company ("Board") and will serve on Board Committees as voted on by the
Board and the Committees, as the case may be. Initially, the Director will
the Chairman of the Audit Committee of the Board, the Chairman of the
Governance and Nominating Committee of the Board, a member of the
Compensation Committee of the Board and advisor to the Company. The
Director shall be subject to Internal Revenue Code 1099 tax reporting.
Among the Director's duties will be presiding over meetings of the
stockholders and meetings of the Board, calling special meetings of the
Board, receiving Board and officer resignations, receiving accountings of
transactions and of the financial condition of the Company and such other
specific duties that are normal and customary to such position and as may
reasonably be assigned to Director from time to time by the Board,
including but not limited to assisting the Company in financings, such as
an initial public offering ("IPO"), in strategic decision-making regarding
partnerships, and in providing general guidance to management and the
Board. The Director will report to the Board and coordinate his activities
with the Board and the Company.
3. Compensation and Stock Incentive Grant
3.1 In addition to Thirty Thousand Dollars ($30,000) per year in his
capacity as a director, the Director will be paid Ninety Thousand
Dollars ($90,000) per year for service as Chairman of the Board,
paid together in equal monthly installments of Ten Thousand Dollars
($10,000) (the "Monthly Payment") on the first business day of each
month in arrears for services rendered to the Company, plus
Reimbursable Expenses, as defined in Section 3.2 below. The Director
shall spend as much time as is necessary to perform his Duties and
Services as per Section 2 above on Company affairs commencing on the
date hereof, and shall retain adequate records of same, which shall
be made available to the Company upon request. The
Director agrees not to assume more than two additional Chairman of
the Board director positions such as this one.
3.2 Reimbursable Expenses shall include travel and out-of-pocket
expenses necessary in order to perform services under this
Agreement, including but not limited to parking, tolls, mileage at
the rate of 37.5 cents per mile, business class airfare, necessary
hotel accommodations and other expenses resulting from the
Director's performance of services under this Agreement, provided
that the Director shall have submitted to the Company written
expense statements and other supporting documentation in a form that
is reasonably satisfactory to the Company. For international travel,
the Director will use the Company's services to obtain and issue the
most economical electronic business class air tickets, whenever
practical. The Company and the Director will equally share the cost
of a Tandberg 1000 video conferencing system or Webex system (or one
of similar performance at lower cost), which will facilitate the
Director's interactions with members of Omrix's management and the
Board.
3.3 The Director shall be entitled to participate in Omrix's 2004 Equity
Incentive Plan and has received a grant of non-qualified stock
options exercisable for 300,000 shares at a strike price of $2.25,
vesting over a four (4) year period with 25% of the shares vesting
on January 13, 2006 and the balance in thirty six (36) approximately
equal monthly installments.
4. Nature of Relationship
4.1 This Agreement is not an employment agreement. With the exception of
the stock grant referenced in paragraph 3.3 above and any and all
benefit plans from time to time in effect for members of the Board
generally, the Director is not entitled to any of the benefits that
the Company provides to its employees.
4.2 The Director shall be solely responsible for taxes and other wage
deductions incurred as a result of performing services under this
Agreement. The Company will not pay or withhold federal, state or
foreign government payroll taxes of any kind, including but not
limited to FICA, FUTA and MUTA, with respect to its payments to the
Director.
5. Non-Disclosure, Inventions and Non-Competition Agreement
The Director has executed and will be bound by the Non-Disclosure,
Inventions, and Non-Competition Agreement between the Company and the
Director, dated January 13, 2005, the terms of which are expressly
incorporated into this Agreement.
2
6. Term and Termination
6.1 Unless earlier terminated pursuant to this Section 6.1, the term of
service as the Chairman of the Board shall be governed by the
organizational documents of the Company and shall expire at the
annual meeting of stockholders of the Company held in 2008. If (i)
the Director is terminated for Cause, as defined in Exhibit A, or
(ii) the Director resigns without Good Reason, as defined in Exhibit
A, the Director shall retain such portion of the Director's options
under Section 3.3, which have vested as of the termination date and
the Director shall have 30 days from the termination date to
exercise such vested options, all as provided in the option grant.
If (i) the Director is terminated without Cause, as defined in
Exhibit A, or (ii) the Director resigns for Good Reason, as defined
in Exhibit A, the Director shall retain such portion of Director's
options under Section 3.3 that vest within two years of the
termination date, such vesting shall accelerate to the termination
date, and the Director shall have 365 days from the termination date
to exercise such vested options, all as provided in the option grant
and, in addition, the Director shall receive twelve (12) Monthly
Payments as specified in Section 3.1.
6.2 Upon termination of this Agreement for any reason, or at any time
upon request of the Company, the Director will immediately return to
the Company all property belonging to the Company, including without
limitation all Confidential Information, as defined in the Company's
Non-Disclosure, Inventions and Non-Competition Agreement, in the
Director's possession or control, and all notes, drawings, lists,
memoranda, magnetic disks or tapes, or other recording media
containing such Confidential Information, whether alone or together
with non-confidential information, all documents, reports, files,
memoranda, records, software, credit cards, door and file keys,
computer access codes, disks and instruction manuals, or any other
physical or personal property that the Director received, prepared,
or helped prepare in connection with his performance of services
under this Agreement. If any such property is not in the Director's
possession or control, the Director will use his best efforts to
obtain and return the same, and the Director will not retain any
copies, duplicates, reproductions, or excerpts thereof, nor will the
Director show or give any of the above to any third party.
6.3 The parties acknowledge and agree that if, notwithstanding the
foregoing, this Agreement should terminate by operation of law or
for any other reason, the Director's obligations under this
Agreement, including without limitation the obligations under the
Company's Non-Disclosure, Inventions and Non-Competition Agreement,
shall survive and continue in full force and effect, as shall the
Director's obligation to return all of the Company's property,
including but not limited to all Confidential Information.
3
7. Miscellaneous
7.1 Waiver of Breach. The failure of any party at any time or times to
require performance of any provisions of this Agreement shall in no
manner affect that party's right, at a later time, to enforce the
same. A waiver or consent given by the any party on any occasion is
effective only in that instance and will not be construed as a bar
to or waiver of any right on any other occasion.
7.2 Notices. All notices, requests, demands and any other communications
hereunder shall be made in writing and shall be deemed to have been
duly given if and when delivered (including delivery by confirmed
facsimile or email transmission), or three days after being sent by
recognized overnight delivery service, addressed to the Company and
the Director at their respective addresses shown below the signature
lines hereof, or such other address as either may notify to the
other from time to time.
7.3 Assignment; Binding Effect. No interest in this Agreement or in the
Director's rights or obligations hereunder may be assigned by the
Director, and any such purported assignment shall be void and of no
force or effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors
and other legal representatives and, to the extent that any
assignment hereof is permitted, to the Company's assigns.
7.4 Entire Agreement; Amendment. This Agreement and its attachments
constitute the entire agreement between the parties with respect to
the subject matter hereof, and unless otherwise provided herein,
supersedes all prior agreements or understandings, written or oral,
in respect thereof, whether express or implied. This Agreement may
be released, discharged, abandoned, supplemented, amended, changed,
modified, renewed, extended or cancelled, and the terms or covenants
hereof may be waived, only by a written instrument of concurrent or
subsequent date, signed by the Director and by a duly authorized
officer or representative of the Company, or in the case of a
waiver, signed by the party waiving compliance.
7.5 Governing Law. This Agreement shall in all events and for all
purposes be governed by and construed in accordance with the laws of
the State of Delaware without regard to any choice of law principle
that would dictate the application of the laws of another
jurisdiction.
7.6 Construction. The terms of this Agreement are contractual in nature
and not a mere recital, and it shall take effect as a sealed
document. Captions herein are inserted for convenience, do not
constitute a part of this Agreement, and shall not be admissible for
the purpose of proving the intent of the parties. This Agreement may
be executed in two or more
4
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, and in
pleading and proving any provision of this Agreement it shall not be
necessary to produce more than one such counterpart. Delivery of an
executed signature page of this Agreement by facsimile transmission
shall be effective as an originally executed counterpart thereof.
7.7 Director Representations. The Director represents and warrants that
neither the execution and delivery of this Agreement nor the service
as the Chairman of the Board as described herein shall conflict with
or result in a breach of any of the terms, conditions or provisions
of any agreement to which the Director is a party or is bound.
7.8 Enforcement. The parties recognize and acknowledge that the Director
is engaged under this Agreement to render services of a unique
character, requiring special expertise and experience by the
Director. Breach of any of the Director's obligations would injure
the Company; such injury is likely to be difficult to measure; and
monetary damages, even if ascertainable, are likely to be inadequate
compensation for such injury. Therefore, the Company shall be
entitled, in addition to monetary damages and to any other remedies
available to the Company under this Agreement and at law, to
equitable relief, including injunctive relief, and to payment by the
Director of all costs incurred by the Company in enforcing any
provision of this Agreement against the Director, including
reasonable attorney's fees. The election of any one or more remedies
by the Company shall not constitute a waiver of the right to pursue
other available remedies.
7.9 Severability. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
of this Agreement, and all other provisions shall remain in full
force and effect. If any provision of this Agreement is held to be
excessively broad, it shall be reformed and construed by limiting
and reducing it so as to be enforceable to the maximum extent
permitted by law.
7.10 Arbitration. Any controversy, claim or dispute arising out of or
relating to this Agreement or the Director's relationship with the
Company, including claims for discrimination, claims based on common
law or statute, either during the term of this Agreement or
afterwards, between the parties, their assignees, affiliates,
attorneys, or agents, but excluding any claims arising out of or
relating to the Company's Non-Disclosure, Inventions, and
Non-Competition Agreement, shall be settled by arbitration. The
Parties agree that prior to initiating arbitration they will attempt
in good faith to settle any such disputes amicably. Arbitration
shall be conducted by a single arbitrator in accordance with the
then-prevailing National Rules for the
5
Resolution of Employment Disputes of the American Arbitration
Association, sitting in Boston, Massachusetts. The parties agree to
abide by all decisions and awards rendered in such proceedings. Such
decisions and awards rendered by the arbitrator shall be final and
conclusive and may be entered in any court having jurisdiction
thereof as a basis of judgment and of the issuance of execution for
its collection. All such controversies, claims or disputes shall be
settled in this manner in lieu of any action at law or equity;
provided however, that nothing in this Section 7.10 shall be
construed as precluding the Company or the Director from bringing an
action for injunctive relief or other equitable relief. The parties
shall keep confidential the existence of the claim, controversy or
dispute from third parties, other than the arbitrator, except that
the Director may disclose the existence of the arbitration
proceedings to the Director's spouse, attorneys and financial
advisors, or to the extent such disclosure is required by federal or
state law or as otherwise agreed to in writing by the Director and
an authorized agent of the Company, and the Company may disclose the
existence of the arbitration proceedings for any reasonable business
purpose or to anyone that the Company, in its discretion, believes
needs to know the information being disclosed, or as otherwise
required by law.
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
DIRECTOR, Omrix Biopharmaceuticals, Inc.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxx
--------------------------- ----------------------------------
Xxxxxxx X. Xxxxx Name: Xxxxxx Xxxx
Title: CEO
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Cell: 000-000-0000
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
[SIGNATURE PAGE TO DIRECTOR AGREEMENT WITH F. PRICE]
Exhibit A
Definitions
1. Cause. For purposes of this Agreement, "Cause" shall mean any one or more
of the following:
(a) The breach by the Director of any of the terms of this Agreement
(other than items 1. (b) and (e) - (i) below) or any other
agreements executed in connection herewith, provided that the
Director has not cured such breach within thirty (30) days after the
Company has sent or delivered written notice of the same to the
Director and the Director's last known address on file with the
Company;
(b) Disloyalty, gross negligence or dishonesty of the Director in
rendering services to the Company in accordance with his obligations
under this Agreement;
(c) The failure or refusal of the Director to render services to the
Company in accordance with his or her obligations under this
Agreement;
(d) The commission by the Director of an act of fraud, embezzlement or
deliberate disregard of the rules or policies of the Company or the
commission by the Director of any other action which injures the
Company;
(e) The conviction, or plea of nolo contendere, by the Director of a
felony;
(f) The commission of an act which constitutes unfair competition with
the Company or which induces any customer of the Company to breach a
contract with the Company; or
(g) The breach by the Director of the Nondisclosure, Inventions and
Non-Competition Agreement referenced in Paragraph 5 of this
Agreement.
2. Good Reason. For purposes of this Agreement, "Good Reason" shall mean any
one or more of the following, provided that the Director has provided the
Company with written notice of the same and the Company has failed to cure
such Good Reason within thirty (30) days of receipt of such written
notice:
(a) A reduction in the Director's compensation or benefits as set forth
in the Agreement, other than in connection with a company-wide
reduction of employee and/or Director compensation or benefits;
(b) A failure by the Company to pay to the Director when due any
compensation or other material benefit due to him; or
(c) A breach by the Company of any material term or provision of this
Agreement.
(d) The removal of the Director from his position as Chairman of the
Board other than for Cause as defined above.
