EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 30 day of October, 2005.
BETWEEN:
Oriens Life Sciences (Israel), Ltd., a body corporate duly
registered in Israel with an address of 00 Xxxxxxxx Xx., Xxx Xxxx,
Xxxxxx
(the "Company")
AND:
Xxxxx Xxxxxx-Nahomov, an individual currently residing at 6 Xxx Xxx
St., Kiryat Ono, Israel
(the "Executive")
WHEREAS:
A. The Company has agreed to engage the Executive to serve in the role of the
Chief Financial Officer of the Company;
B. The Executive and the Company wish to formally record the terms and
conditions upon which the Executive will be employed by the Company and that
each of the Company and the Executive have agreed to the terms and conditions
set forth in this Agreement, as evidenced by their execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE 1
CONTRACT FOR SERVICES
1.1 Engagement of Executive. Subject to earlier termination of the Agreement
as hereinafter provided, the Company hereby agrees to employ the Executive
in accordance with the terms and provisions hereof. The Executive shall
serve as the CFO of the Company and shall perform her duties hereunder at
the Company's facilities in Israel; however, the Executive acknowledges
and agrees that the performance of her duties hereunder may require
significant domestic and international travel.
1.2 Further Engagement of Executive. In addition, the Executive is employed as
the CFO of the Company's parent company, SafeTek International Inc. (the
"Parent Company"), without being entitled to any compensation other than
the salary and additional compensation to which she is entitled pursuant
to this Agreement.
1.3 Term. Unless terminated earlier in accordance with the provisions hereof,
the term of employment under this Agreement shall commence on September 1,
2005 and shall continue until terminated by either party as provided
herein (the "Term").
1.4 Exclusive Service. The Executive agrees to faithfully, honestly and
diligently serve the Company and to devote the Executive's time, attention
and best efforts to further the business and interests of the Company
during the period of this Agreement, to the exclusion of all other
engagements, except for those other engagements as shall be specifically
authorized and approved by the CEO of the Company. The Executive agrees
and undertakes to inform the CEO of the Company, immediately after
becoming aware of any matter that may in any way raise a conflict of
interest between the Executive and the Company. Nothing in this Section
shall degrade from the Executive's obligation to devote her time to the
business and interests of the Company, and to continue observing all of
her undertakings under this Agreement in their entirety, including,
without limitation, her obligations of confidentiality and non-disclosure.
1.5 Duties. The Executive's services hereunder shall be provided on the basis
of the following terms and conditions:
(a) reporting directly to the Chief Executive Officer of the Company,
the Executive shall serve as the CFO of the Company;
(b) the Executive shall be responsible for all finance affairs of the
Company, all subject to any applicable law and to instructions
provided by the CEO and the Board of Directors of the Company from
time to time;
(c) the Executive shall faithfully, honestly and diligently serve the
Company and cooperate with the Company and utilize maximum
professional skill and care to ensure that all services rendered
hereunder are to the satisfaction of the Company, acting reasonably,
and the Executive shall provide any other services not specifically
mentioned herein, but which by reason of the Executive's capability
the Executive knows or ought to know to be necessary to ensure that
the best interests of the Company are maintained;
(d) the Executive shall assume, obey, implement and execute such duties,
directions, responsibilities, procedures, policies and lawful orders
as may be determined or given from time to time by the Company; and
(e) the Executive shall report the results of her duties hereunder to
the Company as it may request from time to time.
ARTICLE 2
COMPENSATION
2.1 Salary.
(a) For services rendered by the Executive during the Term, the
Executive shall be paid throughout the Term a monthly salary,
payable within 10 days after the end of each month (the "Salary").
(b) During the first two months in which the Executive receives a
Salary, the gross monthly Salary shall be US$ 6,000; during the
third through fourth months in which the Executive receives a
Salary, the gross monthly Salary shall be US$ 7,000; and thereafter
the Executive's gross monthly Salary shall be US$ 7,700.
(c) The Salary shall be paid in NIS translated pursuant to the official
representative rate of exchange of the US$ as published by the Bank
of Israel on the payment date. Any deductions required to be made by
the Company and submitted to relevant tax or other authorities will
be deducted at source.
(d) The Executive's Assignment is included among the positions of
management or those requiring a special degree of personal trust,
and the Company is not able to supervise the number of working hours
of the Executive; therefore the provisions of the Israel Hours of
Work and Rest Law - 1951, will not apply to the Executive and she
will not be entitled to any additional remuneration whatsoever for
her work, with the exception of that specifically set out in this
Agreement.
2.2 Options. The Executive shall be entitled to participate in the employee
stock option plan to be adopted by the Parent Company (the "ESOP"), to an
extent determined at the sole discretion of the Parent Company's Board of
Directors, and only following and pending the adoption of the ESOP by the
Parent Company.
2.3 Expenses. The Executive will be reimbursed by the Company for all
reasonable business expenses incurred by the Executive in connection with
her duties within previously approved budgets upon submission of a monthly
statement of expenses. This includes, but not only, full use of cellular
phone, use of one dedicated telephone/data line at home, daily newspaper,
payments of expenses incurred when traveling abroad, per diem payments for
travel abroad according to the rules set forth by the Israeli Tax
Authorities and others. The Executive shall bear any tax payments
resulting from the aforesaid, to the extant applicable.
2.4 Company Vehicle. The Executive shall be entitled to the use of a Licensing
Class 4 vehicle, as shall be determined by the Company, for which the
Company shall incur all reasonable expenses associated therewith, but
excluding personal traffic fines and the like. The use of such car shall
be subject to the Company's instructions, as may be amended from time to
time. The Executive shall bear any tax payments resulting from the
aforesaid, to the extent applicable.
2.5 Vacation; Recreation Pay. The Executive shall be entitled to cumulative
paid vacations of 20 days per year. In addition, Executive shall be
entitled to sick leave and Recreation Pay according to applicable law.
Executive shall be entitled to cash redemption of vested vacation upon
termination of this agreement, with or without cause, according to Israeli
Labor Law and practice.
2.6 Deductions. The Executive acknowledges that all payments by the Company in
respect of the services provided by the Executive shall be net of all
amounts which the Company
as employer is required to deduct or withhold from Salary or other
payments to an executive in accordance with statutory requirements
(including, without limitation, income tax, employee contributions and
unemployment insurance contributions).
ARTICLE 3
SOCIAL INSURANCE AND BENEFITS
3.1 Managers Insurance. The Company shall insure Executive under an accepted
"Manager's Insurance Scheme", which in each case shall provide insurance
in the event of illness or disability (hereinafter referred to as the
"Managers Insurance") as follows: (i) the Company shall pay an amount
equal up to 7.5% of Executive's Salary towards the Managers Insurance for
Executive's benefit and Disability Insurance and shall deduct 5% from
Executive's Salary and pay such amount towards the Managers Insurance for
Executive's benefit (the various components of the Managers Insurance
shall be fixed at the discretion of Executive); and (ii) the Company shall
pay an amount equal to 8 1/3% of Executive's Salary towards a fund for
severance compensation which shall be payable to Executive upon severance,
subject to provisions of Section 3.3 herein.
3.2 Keren Hishtalmut Fund. The Company and Executive shall open and maintain a
Keren Hishtalmut Fund. The Company shall contribute to such Fund an amount
equal to 7-1/2% of each monthly Salary payment, and Executive shall
contribute to such Fund an amount of up to 2-1/2% of each monthly Salary
payment. Executive hereby instructs the Company to transfer to such Fund
the amount of Executive's and the Company's contribution from each monthly
Salary payment. Notwithstanding the above, if the amounts to be
contributed to the Keren Hishtalmut Fund will exceed the amount exempt
from tax pursuant to the applicable tax regulations, any amount so
exceeding shall not be transferred to such Fund but shall be added to the
Salary.
3.3 Effect of Termination. Upon termination of this Agreement by either party,
other than in circumstances constituting Cause (as defined below), the
Company shall assign and transfer to the Executive, after Executive has
met all of Executive's obligations hereunder in connection with such
termination of employment, the ownership in the aforesaid Manager's
Insurance and Keren Hishtalmut Fund. In the event that this Agreement is
terminated in circumstances constituting Cause, the Company, in its
absolute discretion, may retain its payments to such funds and release to
the Executive only those sums contributed by Executive to such funds.
3.4 Liability Insurance Indemnification. Within a reasonable period of time
following the signing of this agreement, the Company shall provide the
Executive with coverage under a standard directors' and officers'
liability insurance policy, at the Company's expense. In addition, the
Executive shall be granted indemnification by the Parent Company in
connection with her position therein.
ARTICLE 4
CONFIDENTIALITY
4.1 Maintenance of Confidential Information. The Executive acknowledges that
in the course of employment hereunder the Executive will, either directly
or indirectly, have access to and be entrusted with information (whether
oral, written or by inspection) relating to the Company or its Parent
Company or their respective affiliates, associates or customers (the
"Confidential Information"). For the purposes of this Agreement,
"Confidential Information" includes, without limitation, any and all
Developments (as defined herein), trade secrets, inventions, innovations,
techniques, processes, formulas, drawings, designs, products, systems,
creations, improvements, documentation, data, specifications, technical
reports, customer lists, supplier lists, distributor lists, distribution
channels and methods, retailer lists, reseller lists, employee
information, financial information, sales or marketing plans, competitive
analysis reports and any other thing or information whatsoever, whether
copyrightable or uncopyrightable or patentable or unpatentable. The
Executive acknowledges that the Confidential Information constitutes a
proprietary right, which the Company is entitled to protect. Accordingly
the Executive covenants and agrees that during the Term and thereafter
until such time as all the Confidential Information becomes publicly known
and made generally available through no action or inaction of the
Executive, the Executive will keep in strict confidence the Confidential
Information and shall not, without prior written consent of the Company,
disclose, use or otherwise disseminate the Confidential Information,
directly or indirectly, to any third party.
4.2 Exceptions. The general prohibition contained in Section 4.1 against the
unauthorized disclosure, use or dissemination of the Confidential
Information shall not apply in respect of any Confidential Information
that:
(a) is available to the public generally in the form disclosed;
(b) becomes part of the public domain through no fault of the Executive;
(c) is already in the lawful possession of the Executive at the time of
receipt of the Confidential Information; or
(d) is compelled by applicable law to be disclosed, provided that the
Executive gives the Company prompt written notice of such
requirement prior to such disclosure and provides assistance in
obtaining an order protecting the Confidential Information from
public disclosure.
4.3 Developments. Any information, technology, technical data or any other
thing or documentation whatsoever which the Executive, either by himself
or in conjunction with any third party, has conceived, made, developed,
acquired or acquired knowledge of during the Executive's employment with
the Company or which the Executive, either by himself or in conjunction
with any third party, shall conceive, make, develop, acquire or acquire
knowledge of (collectively the "Developments") during the Term or at any
time thereafter during which the Executive is employed by the Company that
is related to
conducting research and clinical study shall automatically form part of
the Confidential Information and shall become and remain the sole and
exclusive property of the Company. Accordingly, the Executive does hereby
irrevocably, exclusively and absolutely assign, transfer and convey to the
Company in perpetuity all worldwide right, title and interest in and to
any and all Developments and other rights of whatsoever nature and kind in
or arising from or pertaining to all such Developments created or produced
by the Executive during the course of performing this Agreement,
including, without limitation, the right to effect any registration in the
world to protect the foregoing rights. The Company shall have the sole,
absolute and unlimited right throughout the world, therefore, to protect
the Developments by patent, copyright, industrial design, trademark or
otherwise and to make, have made, use, reconstruct, repair, modify,
reproduce, publish, distribute and sell the Developments, in whole or in
part, or combine the Developments with any other matter, or not use the
Developments at all, as the Company sees fit.
4.4 Protection of Developments. The Executive does hereby agree that, both
before and after the termination of this Agreement, the Executive shall
perform such further acts and execute and deliver such further
instruments, writings, documents and assurances (including, without
limitation, specific assignments and other documentation which may be
required anywhere in the world to register evidence of ownership of the
rights assigned pursuant hereto) as the Company shall reasonably require
in order to give full effect to the true intent and purpose of the
assignment made under Section 4.3 hereof. If the Company is for any reason
unable, after reasonable effort, to secure execution by the Executive on
documents needed to effect any registration or to apply for or prosecute
any right or protection relating to the Developments, the Executive hereby
designates and appoints the Company and its duly authorized officers and
agents as the Executive's agent and attorney to act for and in the
Executive's behalf and stead to execute and file any such document and do
all other lawfully permitted acts necessary or advisable in the opinion of
the Company to effect such registration or to apply for or prosecute such
right or protection, with the same legal force and effect as if executed
by the Executive.
4.5 Fiduciary Obligation. The Executive declares that the Executive's
relationship to the Company is that of fiduciary, and the Executive agrees
to act towards the Company and otherwise behave as a fiduciary of the
Company.
4.6 Remedies. The parties to this Agreement recognize that any violation or
threatened violation by the Executive of any of the provisions contained
in this Article 4 will result in immediate and irreparable damage to the
Company and that the Company could not adequately be compensated for such
damage by monetary award alone. Accordingly, the Executive agrees that in
the event of any such violation or threatened violation, the Company
shall, in addition to any other remedies available to the Company at law
or in equity, be entitled as a matter of right to apply to such relief by
way of restraining order, temporary or permanent injunction and to such
other relief as any court of competent jurisdiction may deem just and
proper.
4.7 Reasonable Restrictions. The Executive agrees that all restrictions in
this Article 4 are reasonable and valid, and all defenses to the strict
enforcement thereof by the Company are hereby waived by the Executive.
ARTICLE 5
NON-COMPETITION
5.1 Non Competition. Executive agrees and undertakes that she will not, so
long as she is employed by the Company and for a period of 12 months
following termination of her employment for whatever reason, directly or
indirectly, as owner, partner, joint venture, stockholder, employee,
broker, agent, principal, corporate officer, director, licensor or in any
other capacity whatever engage in, become financially interested in, be
employed by, or have any connection with any business or venture that
competes with the Company's business, including any business which, when
this Agreement terminates, the Company contemplates in good faith to be
materially engaged in within 12 months thereafter, provided that the
Company has taken demonstrable actions to promote such engagement or that
the Company's Board of Directors has adopted a resolution authorizing such
actions prior to the date of termination; provided, however, that
Executive may own securities of any corporation which is engaged in such
business and is publicly owned and traded but in an amount not to exceed
at any one time one percent (1%) of any class of stock or securities of
such company, so long as she has no active role in the publicly owned and
traded company as director, employee, consultant or otherwise.
5.2 No Solicitation. Executive agrees and undertakes that during the period of
her employment and for a period of 12 months following termination, she
will not, directly or indirectly, including personally or in any business
in which she is an officer, director or shareholder, for any purpose or in
any place, employ any person (as an employee or consultant) employed by
the Company at such time or during the preceding twelve months, unless
such person has been terminated by the Company, provided however, that
such person who is terminated by the Company may be employed by Executive
as described above only after the expiration of twelve months after the
effective date of such termination.
ARTICLE 6
TERMINATION
6.1 Termination For Cause or Disability. This Agreement may be terminated at
any time by the Company without notice, for Cause or in the event of the
Disability of Executive.
For the purposes of this Agreement, "Cause" also means that the Executive
shall have:
(a) committed an intentional act of fraud, embezzlement or theft in
connection with the Executive's duties or in the course of the
Executive's employment with the Company;
(b) intentionally and wrongfully damaged property of the Company, or any
of its respective affiliates, associates or customers;
(c) intentionally or wrongfully disclosed any of the Confidential
Information;
(d) made material personal benefit at the expense of the Company without
the prior written consent of the management of the Company;
(e) accepted shares or options or any other gifts or benefits from a
vendor without the prior written consent of the management of the
Company;
(f) fundamentally breached any of the Executive's material covenants
contained in this Agreement; or (g) willfully and persistently,
without reasonable justification, failed or refused to follow the
lawful and proper directives of the Company specifying in reasonable
detail the alleged failure or refusal and after a reasonable
opportunity for the Executive to cure the alleged failure or
refusal.
For the purposes of this Agreement, an act or omission on the part of the
Executive shall not be deemed "intentional," if it was due to an error in
judgment or negligence, but shall be deemed "intentional" if done by the
Executive not in good faith and without reasonable belief that the act or
omission was in the best interests of the Company, or its respective
affiliates, associates or customers.
For the purposes of this Agreement, "Disability" shall mean any physical
or mental illness or injury as a result of which Executive remains absent
from work for a period of six (6) successive months, or an aggregate of
six (6) months in any twelve (12) month period. Disability shall occur
upon the end of such six-month period.
6.2 Severance for Termination With Cause. If the Company terminates the
Executive's employment for Cause, then the Company will not be obligated
to pay the Executive any severance payments or provide any notice
whatsoever to the Executive.
6.3 Termination Without Cause. Either the Executive or the Company may
terminate the Executive's employment without Cause, for any reason
whatsoever, with 30 days notice within the first year of the Executive's
engagement and with 90 days prior written notice thereafter.
6.4 The Notice Period.
(a) During the period following the notice of termination (the "Notice
Period"), Executive shall cooperate with the Company and use her
best efforts to assist the integration into the Company's
organization of the person or persons who will assume Executive's
responsibilities.
(b) This Agreement shall remain in full force and effect until the end
of the Notice Period and there shall be no change in Executive's
compensation terms or any of her obligations hereunder during such
Notice period.
(c) Notwithstanding sub-section (b) above, during the Notice Period the
Company may, at its discretion, relieve Executive of her position,
upon which Executive shall leave the Company. Such actions shall not
derogate in any way or manner whatsoever from Executive's rights to
receive the Salary until the end of the Notice period.
6.5 Limitation of Damages. It is agreed that in the event of termination of
employment, neither the Company, nor the Executive shall be entitled to
any notice, or payment in excess of that specified in this Article 6.
6.6 Return of Materials. Within three (3) days of any termination of
employment hereunder, or upon any request by the Company at any time, the
Executive will return or cause to be returned any and all Confidential
Information and other assets of the Company (including all originals and
copies thereof), which "assets" include, without limitation, hardware,
software, keys, security cards and backup tapes that were provided to the
Executive either for the purpose of performing the employment services
hereunder or for any other reason. The Executive acknowledges that the
Confidential Information and the assets are proprietary to the Company,
and the Executive agrees to return them to the Company in the same
condition as the Executive received such Confidential Information and
assets.
6.7 Effect of Termination. Articles 3.3, 3.4, 4, 5 and 6.6 hereto shall remain
in full force and effect after termination of this Agreement, for any
reason whatsoever.
ARTICLE 7
MUTUAL REPRESENTATIONS
7.1 Executive represents and warrants to the Company that the execution and
delivery of this Agreement and the fulfillment of the terms hereof (i)
will not constitute a default under or conflict with any agreement or
other instrument to which she is a party or by which she is bound, and
(ii) do not require the consent of any person or entity.
7.2 The Company represents and warrants to Executive that this Agreement has
been duly authorized, executed and delivered by the Company and that the
fulfillment of the terms hereof (i) will not constitute a default under or
conflict with any agreement of other instrument to which it is a party or
by which it is bound, and (ii) do not require the consent of any person of
entity.
7.3 Each party hereto warrants and represents to the other that this Agreement
constitutes the valid and binding obligation of such party enforceable
against such party in accordance with its terms subject to applicable
bankruptcy, insolvency, moratorium and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles
of equity (regardless if enforcement is sought in proceeding in equity or
at law).
ARTICLE 8
NOTICES
8.1 Notices. All notices required or allowed to be given under this Agreement
shall be made either personally by delivery to or by facsimile
transmission to the address as hereinafter set forth or to such other
address as may be designated from time to time by such party in writing:
(a) in the case of the Company, to:
Oriens Life Sciences (Israel) Ltd.
00 Xxxxxxxx Xx., Xxx Xxxx
Attn: Xx. Xxxx Xxxxxxxxx, CEO
Fax: 000-0-000-0000
with a copy to
Xxx Xxxxx, Adv.
Xxx Xxxxx & Co. Law Offices, 1 Azrieli Center (Round Building)
Xxx Xxxx 00000, Xxxxxx
Fax: 000-0-000-0000
Email: xxx@xxxxxxxx.xx.xx
(b) and in the case of the Executive, to the Executive's last residence
address known to the Company.
8.2 Change of Address. Any party may, from time to time, change its address
for service hereunder by written notice to the other party in the manner
aforesaid.
ARTICLE 9
GENERAL
9.1 Entire Agreement. As of from the date hereof, any and all previous
agreements, written or oral between the parties hereto or on their behalf
relating to the employment of the Executive by the Company are null and
void. The parties hereto agree that they have expressed herein their
entire understanding and agreement concerning the subject matter of this
Agreement and it is expressly agreed that no implied covenant, condition,
term or reservation or prior representation or warranty shall be read into
this Agreement relating to or concerning the subject matter hereof or any
matter or operation provided for herein.
9.2 Personal Agreement. The provisions of this Agreement are in lieu of the
provisions of any collective bargaining agreement, and therefore, no
collective bargaining agreement shall apply with respect to the
relationship between the parties hereto (subject to the applicable
provisions of law).
9.3 Further Assurances. Each party hereto will promptly and duly execute and
deliver to the other party such further documents and assurances and take
such further action as such other party may from time to time reasonably
request in order to more effectively carry out the intent and purpose of
this Agreement and to establish and protect the rights and remedies
created or intended to be created hereby.
9.4 Waiver. No provision hereof shall be deemed waived and no breach excused,
unless such waiver or consent excusing the breach is made in writing and
signed by the party to be charged with such waiver or consent. A waiver by
a party of any provision of this Agreement shall not be construed as a
waiver of a further breach of the same provision.
9.5 Amendments in Writing. No amendment, modification or rescission of this
Agreement shall be effective unless set forth in writing and signed by the
parties hereto.
9.6 Assignment. Except as herein expressly provided, the respective rights and
obligations of the Executive and the Company under this Agreement shall
not be assignable by either party without the written consent of the other
party and shall, subject to the foregoing, enure to the benefit of and be
binding upon the Executive and the Company and their permitted successors
or assigns. Nothing herein expressed or implied is intended to confer on
any person other than the parties hereto any rights, remedies, obligations
or liabilities under or by reason of this Agreement. 9.7 Severability. In
the event that any provision contained in this Agreement shall be declared
invalid, illegal or unenforceable by a court or other lawful authority of
competent jurisdiction, such provision shall be deemed not to affect or
impair the validity or enforceability of any other provision of this
Agreement, which shall continue to have full force and effect.
9.8 Headings. The headings in this Agreement are inserted for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement.
9.9 Number and Gender. Wherever the singular or masculine or neuter is used in
this Agreement, the same shall be construed as meaning the plural or
feminine or a body politic or corporate and vice versa where the context
so requires.
9.10 Time. Time shall be of the essence of this Agreement.
9.11 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the state of Israel applicable therein, and
each of the parties hereto expressly attorns to the jurisdiction of the
courts of the state of Israel. The sole and exclusive place of
jurisdiction in any matter arising out of or in connection with this
Agreement shall be the applicable Tel-Aviv court.
9.12 Enurement. This Agreement is intended to bind and enure to the benefit of
the Company, its successors and assigns, and the Executive and the
personal legal representatives of the Executive.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as
of the date and year first above written.
ORIENS LIFE SCIENCES (ISRAEL) LTD. EXECUTIVE
Sign: /s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxxx-Nahomov
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Xxxxx Xxxxxx-Nahomov
Name: Xxxx Xxxxxxxxx
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Title: Chief Executive Officer
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