EMPLOYMENT AGREEMENT
Exhibit
4.19
This
Employment Agreement is effective as of May 1, 1994, by and between XENOGRAFT
TECHNOLOGIES, LTD., an Israeli company of X.X. Xxx 000, Xxxxxxx, Xxxxxx (the
"Company"), and Xxxxxx Xxxxx, an individual who currently resides at Bustanai
12, Rehovot (the "Employee") .
WITNESSETH
WHEREAS,
the Company desires to employ the Employee as its Chief Immunologist, and the
Employee desires to be employed by the Company as its Chief Immunologist, on
the
terms and conditions set forth below;
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT:
DUTIES
(a) The
Company hereby employs the Employee, and the Employee hereby accepts employment,
as the Chief Immunologist of the Company on the terms and conditions set forth
below.
(b) The
Employee shall be responsible for, and shall supervise and manage, all the
research and development activities performed at the Facilities of the Company,
as well as such activities as are performed on behalf of the Company through
its
Sponsored Research agreements. In addition, the Employee shall perform such
other services and duties as are normally incident to the position held by
the
Employee and are commensurate with Employee's background, education and
professional standing or as are requested of the Employee by the General Manager
for Israeli Operations and/or the President of the Company. In carrying out
these functions, the Employee shall work at the direction of and subject to
the
approval of, and shall report to, the General Manager of Israeli Operations
of
the Company.
(c) The
Employee shall perform his duties hereunder at the Company's facilities in
Israel, provided, however, that Employee acknowledges and agrees that the
performance of his duties hereunder may require significant domestic and
international travel.
(d) Subject
to the provisions of Section 1(e), the Employee shall devote essentially all
of
his business time, attention and efforts to the performance of his duties and
the business and affairs of the Company. Subject to the provisions of Section
1(e) , the Employee shall not during the term of this Agreement be engaged
(whether or not during normal business hours) in any other business or
professional activity whether or not such activity is pursued for gain, profit
or other pecuniary advantage.
(e) The
provisions of Section 1(d) notwithstanding, (i) the Employee shall not be
prevented from purchasing securities in any corporation which does not compete
with the Company and whose securities are publicly traded, provided that such
purchases shall not result in his collectively owning beneficially at any time
five percent or more of the equity securities of any such corporation; and
(ii)
the Employee shall not be prevented from participating in conferences, preparing
or publishing papers or books or teaching, with the prior approval of the
Company's General Manager for Israeli Operations.
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2.
TERM
During
the six months period following the date hereof (the "Trial Period"), each
of
the Company and the Employee may terminate this Agreement at.
any time
by giving the other party hereto a notice at least two months prior to the
date
of termination of employment. If neither party hereto terminates this Agreement
prior to the termination of the Trial Period then, subject to the rights of
the
parties to terminate this Agreement pursuant to Section 7 hereof, the term
of
the Employee's employment with the Company (the "Initial Term") shall continue
through the second anniversary of the date of the expiration of the Trial
Period. The Company will notify the Employee, no later than three months prior
to the expiration of the Initial Term, if the Company has then determined not
to
renew this Agreement upon its expiration. Upon expiration of the Initial Term,
the term of this Agreement will thereafter be automatically renewed for
successive two-year terms unless either the Company or Employee notifies the
other in writing, no later than three months prior to the expiration of any
such
two-year renewal term, of the termination of Employee's employment hereunder.
Any renewals of this Agreement will be subject to renegotiation between the
parties.
3. COMPENSATION
AND BENEFITS
(a)
As
compensation for the performance of his duties on behalf of the Company, the
Employee shall be compensated as follows:
(i) Annual
Salary.
The
Company shall pay the Employee an annual salary ("Salary") in NIS at a rate
initially equivalent to $57,000 per year during his employment with the Company.
The Salary shall be paid in monthly installments not later than the third day
of
each month with respect to the preceding month, in accordance with the Company's
payroll practices in Israel. Each monthly installment of the Salary will be
indexed to the Israeli Consumer Price Index as published on or about the 15th
day of the month for which the payment is being made; the basic Consumer Price
Index for purposes of this Agreement being the one published on or about May
15,
1994. The
indexation of the Salary to the Israeli Consumer Price Index is in lieu of
any
"Tosefet Yoker" or other mandatory or statutorily required increase in salary,
which the Employee hereby waives.
(ii) Managers
Insurance.
At
the
end of each month during the employment of Employee hereunder (or such other
day
as is consistent with the Company's general practices), the Company shall pay
an
aggregate amount equal to 155/6%
of
Employee's monthly Salary for the preceding month to a Managers Insurance
(Bituach Manahalim) policy (the "Policy") through an agency and with an
insurance company to be jointly selected by the Company and the Employee, to
be
divided as follows: 81/3%
toward Severance; 5% toward Compensation; and 21/2%
toward "Shalva" (or comparable loss of working capacity) insurance. In addition,
at the beginning of each month the Company shall deduct from the Salary of
Employee an amount equal to 5% of the Employee's monthly Salary for the
preceding month, and shall pay such amount as premium payable in respect of
the
"Compensation" component of the Policy.
(iii) Keren
Hishtalmut Fund.
At
the
end of each month during the employment of Employee hereunder (or such other
day
as is consistent with the Company's general practices), the Company shall pay
an
amount equal to 71/2%
of
Employee's monthly Salary for the preceding month to a Keren Hishtalmut Fund
designated by the Employee (the "Fund"), and shall deduct from the Salary of
Employee an amount equal to 21/2%
of the
Employee's monthly Salary for the preceding month and pay the same to the
Fund.
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(iv) Stock
Options.
The
Company shall grant the Employee options to purchase 25,000 shares of Class
A
Common Stock of the Company at an exercise price of $0.10 per share. Such
options shall vest and become exercisable as to 50% (12,500 shares) on the
second anniversary of the effective date of this Agreement, 25% (6,250 shares)
on the third anniversary of the effective date of this Agreement and 25% (6,250
shares) on the fourth anniversary of the effective date of this Agreement.
The
grant of such options and the terms and conditions applicable thereto (including
the exercise price of such options), are subject to (i) the adoption of an
employee stock option plan by the Company's Board of Directors, (ii) approval
by
the Company's Board of Directors, and (iii) such other terms and conditions
as
may be set forth in a stock option agreement approved by the Company's Board
of
Directors and signed by Employee. All tax consequences resulting from the grant,
vesting or exercise of options to or by the Employee shall be his sole and
exclusive responsibility.
(v) Vacation.
The
Employee shall be entitled to fifteen (15) business days of paid vacation
annually during the term of this Agreement (prorated for any partial calendar
year during which he is employed hereunder).
The
Company shall withhold all applicable taxes, insurance payments and such other
amounts as may be required by law or agreed upon by the parties with respect
to
the compensation payable to the Employee pursuant to this
Agreement.
(b) The
Company shall pay or reimburse Employee for all normal, usual and necessary
expenses incurred or paid by Employee in the performance of his duties
hereunder, against receipt by the Company of appropriate vouchers, receipts
or
other proof of Employee's expenditures and otherwise in accordance with such
Expense Reimbursement Policy as may from time to time be adopted by the Board
of
Directors of the Company.
4. REPRESENTATIONS
AND WARRANTIES BY THE EMPLOYEE
The
Employee hereby represents and warrants to the Company as follows:
(a) Neither
the execution and delivery of this Agreement nor the performance by the Employee
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
under (whether immediately, upon the giving of notice or lapse of time or both)
any prior employment agreement, contract, or other instrument to which the
Employee is a party or by which he is bound.
(b) The
Employee has the full right, power and legal capacity to enter and deliver
this
Agreement and to perform his duties and other obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of the Employee
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for the Employee to execute and deliver
this Agreement or perform his duties and other obligations
hereunder.
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5.
NON-COMPETITION
(a) The
Employee understands and recognizes that his services to the Company are special
and unique and agrees that, during the term of this Agreement and for a period
of two (2) years from the date of termination of his employment hereunder,
he
shall not in any manner, directly or indirectly, on behalf of himself or any
person, firm, partnership, joint venture, corporation or other business entity
("Person"), enter into or engage in any business competitive with the Company's
business in the field of in
vivo
production of human monoclonal antibodies and/or chimeric animal models of
human
diseases, and/or any business which the Company may enter into or contemplate
entering into during Employee's employment hereunder, either as an individual
for his own account, or as an employee, partner, joint venturer, executive,
agent, consultant, salesperson, officer, director or shareholder of a Person;
provided, however, that nothing herein will preclude the Employee from holding
up to five percent (5%) of the stock of any publicly traded company which is
not
a competitor of the Company.
(b) For
a
period of two years after the termination of this Agreement, the Employee shall
not interfere with or disrupt or attempt to disrupt the Company's business
relationship with any of its customers, or solicit any of the employees of
the
Company.
(c) In
the
event that the Employee breaches any provisions of this Section 5 or there
is a
threatened breach, then, in addition to any other rights which the Company
may
have, the Company shall be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained herein.
In
the event that an actual proceeding is brought in equity to enforce the
provisions of this Section 5, the Employee shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available.
6. CONFIDENTIAL
INFORMATION
(a) The
Employee agrees that during the course of his employment or at any time after
termination, he will not disclose or make accessible to any other Person, any
information of, or pertaining to, the Company which is, by its nature,
confidential, including, without limitation, information concerning products,
services and technology, both current and under development, promotion and
marketing programs, lists, trade secrets and other confidential and proprietary
business information (collectively, "Confidential Information") of the Company
or any of its clients, except to the extent required to carry out his
responsibilities to the Company: The Employee agrees: (i) not to use any such
information, directly or indirectly, for himself or others; and (ii) not to
take
any such material or reproductions thereof from the Company's facilities at
any
time during his employment by the Company except as required in connection
with
the Employee's duties to the Company. The Employee agrees to return all such
material and reproductions thereof (whether or not merged with other works)
in
his possession to the Company promptly upon request and in any event immediately
upon termination of employment.
(b) Except
with prior written authorization by the Company, the Employee agrees not to
disclose or publish any of the Confidential Information or material of the
Company, its clients or any other party to whom the Company owes an obligation
of confidence, at any time during or after his employment with the
company.
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(c) The
Employee hereby assigns to the Company all right, title and interest he may
have
or acquire in all inventions (including patent rights) developed by the Employee
during his employment by the Company ("Inventions") and agrees that all
Inventions shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents, copyrights
and
other rights in connection therewith. Employee further agrees to assist the
Company in every proper way (but at the Company's expense) to obtain and from
time to time enforce patents, copyrights or other rights on said Inventions
in
any and all countries.
7.
TERMINATION
The
Employee's employment hereunder shall commence on the effective date of this
Agreement, and shall continue for the period set forth in Section 2 hereof
unless sooner terminated either during, or immediately after, the Trial Period,
or upon the first to occur of the following events:
(a) The
death
or disability of the Employee (for purposes of this Section 7, "disability"
shall be deemed to have occurred if Employee is unable, due to any physical
or
mental disease or condition, to perform his normal duties of employment for
90
consecutive days or 120 days in any 12-month period);
(b) Termination
by the Board of Directors of the Company for just cause. Any of the following
actions or omissions by the Employee shall constitute just cause:
(i) Material
breach by the Employee of Section 5 or Section 6 of this Agreement;
(ii) Material
breach by the Employee of any provision of this Agreement other than Section
5
or Section 6 which is not cured by the Employee within fifteen (15) days after
his receipt of notice thereof from the Company containing a description of
the
breach or breaches alleged to have occurred; or
(iii) Any
action by the Employee to intentionally harm the Company.
(c) Termination
by the Employee for just cause. Any of the following actions or omissions by
the
Company shall constitute just cause:
(i) Material
breach by the Company of any provision of this Agreement which is not cured
by
the Company within fifteen (15) days after its receipt of notice thereof from
the Employee containing a description of the breach or breaches alleged to
have
occurred;
(ii) Any
action by the Company to intentionally harm the Employee;
or
(iii) Requirement
by the Company that Employee relocate to a business location outside of the
State of Israel.
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8.
NOTICES
Any
notice or other communication under this Agreement shall be in writing and
shall
be deemed to have been given: when delivered personally against receipt therefor
or by facsimile when followed by a hard copy thereof; or three (3) days after
being mailed registered or certified mail, postage prepaid, return receipt
requested, to either party at the address set forth above, or to such other
address as such party shall give by notice hereunder to the other
party.
9. SEVERABILITY
OF PROVISIONS
If
any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole
or
in part, the remaining conditions and provisions or portions thereof shall
nevertheless remain in full force and effect and enforceable, and no provision
shall be deemed dependent upon any other covenant or provision unless so
expressed herein.
10. ENTIRE
AGREEMENT: NO PRIOR AGREEMENT: MODIFICATION
This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof, and the parties hereto have made no agreements, representations
or warranties relating to the subject matter of this Agreement which are not
set
forth herein. No modification of this Agreement shall be valid unless made
in
writing and signed by the parties hereto.
11. BINDING
EFFECT
The
rights, benefits, duties and obligations under this Agreement shall inure to,
and be binding upon, the Company, its successors and assigns, and upon the
Employee and his legal representatives: This Agreement constitutes a personal
service agreement, and the performance of the Employee's obligations hereunder
may not be transferred or assigned by the Employee.
12.
NONWAIVER
The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance therewith or with any other term,
condition or provision hereof, and said terms, conditions and provisions shall
remain in full force and effect. No waiver of any term or condition of this
Agreement on the part of either party shall be effective for any purpose
whatsoever unless such waiver is in writing and signed by such
party.
13. GOVERNING
LAW
This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of Israel.
14.
HEADINGS
The
headings of paragraphs are inserted for convenience and shall not affect any
interpretation of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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Dated:
___________________
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By:
/s/ Xxxxxx
Xxxxx
Xxxxxx Xxxxx
|
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Dated:
___________________
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By:
/s/ XTL Biopharmaceuticals Ltd.
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