TERMINATION AGREEMENT
10.1
December
17, 2007
Xxxxx
Xxxxxxx
Israeli
I.D number 59795252
00
Xxx
Xxxxx xx.
Xxxxxxxxx
Dear
Yoram:
In
connection with the termination of your employment relationship with Brainstorm
Cell Therapeutics Ltd., a company incorporated under the laws of the State
of
Israel and Brainstorm Cell Therapeutics, Inc., a Delaware corporation
(collectively, the “Company”), the Company and you have agreed to the severance
benefits described in the “Description of Severance Benefits” attached to this
letter as Attachment
A,
if you
sign and return this letter to the Company within five (5) days of the date
hereof.
Your
active employment with the Company terminated on November 15, 2007 (the
“Termination Date”); however, if you sign and return this letter agreement as
described above, you will remain on the Company’s payroll solely for the purpose
of receiving your severance benefits until your severance payments are fully
paid by the Company in accordance with this letter agreement. As agreed between
you and the Company, you shall be permitted to seek, accept and commence
employment with a new employer at any time after the date hereof, provided
that
such employment does not violate Section 6 of this letter agreement. You will
not accrue any additional vacation time or salary (other than severance payments
as described herein) after your Termination Date.
The
signature below of an authorized representative of the Company indicates the
Company’s agreement to the terms hereof. In addition, by your signing and
returning this letter agreement to the Company, you will be agreeing to the
terms and conditions set forth in the paragraphs below, including the release
of
claims set forth in Section 3. Therefore, you are advised to consult with your
attorney before signing this letter agreement.
The
following paragraphs set forth the terms and conditions which will apply if
you
timely sign and return this letter agreement.
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1.
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Termination
Date.
The effective date of termination from active employment with the
Company,
as stated above, is November 15, 2007.
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2.
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Description
of Severance Benefits.
The severance benefits to be paid to you if you timely sign and return
this letter are described in the “Description of Severance Benefits”
attached hereto as Attachment
A
(the “severance benefits”).
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3.
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Release.
For good and valuable consideration which you acknowledge you would
not
otherwise be entitled to receive, you hereby fully, forever, irrevocably
and unconditionally release, remise and discharge the Company and
its
predecessors and successors and past and present officers, directors,
stockholders, partners, members, managers, affiliates, subsidiaries,
consultants and parent companies, agents, representatives and employees
(together, with the Company, the “Released Parties”) from any and all
claims, charges, complaints, demands, actions, causes of action,
suits,
rights, debts, sums of money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities, and expenses (including attorneys' fees
and
costs), of every kind and nature which you ever had or now have against
the Released Parties, including, but not limited to, all claims arising
out of your employment with and/or separation from the Company (including,
without limitation, any claims for back-pay or relating to or arising
from
salary, compensation or wages), all employment discrimination claims
under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et
seq.,
the Americans With Disabilities Act of 1990, 42 X.X.X., §00000
et seq.,
both as amended; all claims arising out of the Family and Medical
Leave
Act, 29 U.S.C. § 2601 et seq.,
the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq.,
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §
1001 et seq.,
the Worker Adjustment and Retraining Notification Act, 29 U.S.C.
§ 2101
et seq.,
the New York Human Rights Law, N.Y. Exec. Law, Art. 15, ss. 290
et seq.,
and the New York Rights of Persons With A Disability Law, N.Y. Civil
Rts.
Law, Art. 4-B et seq.,
all as amended; the New York Equal Rights Law, as amended; the New
York
City Administrative Code, except for rights that cannot be waived
by law,
all as amended; all common law claims including, but not limited
to,
actions in tort, defamation and breach of contract; all claims to
any
non-vested ownership interest in the Company, contractual or otherwise,
including, but not limited, to claims to stock, phantom stock, or
other
type of equity, ownership interest, incentive compensation or profit
sharing; and any claim or damage arising out of, or otherwise occurring
during, your employment with or separation from the Company (including
a
claim for retaliation) under any common law theory or any federal,
state
or local statute or ordinance not expressly referenced above
(collectively, the “Released Claims”); provided, however, that nothing in
this Agreement prevents you from filing, cooperating with, or
participating in any proceeding before the Equal Employment Opportunity
Commission or a state fair employment practices agency (except that
you
acknowledge that you may not be able to recover any monetary benefits
in
connection with any such claim, charge or proceeding).
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Also,
this Termination Agreement comprises compromise and notice as it means in
Section 29 to Israeli Severance Pay Law, 1963.
You
hereby irrevocably agree to refrain from directly or indirectly asserting any
Released Claims in any court or before any tribunal against the Released
Parties.
You
acknowledge that you have had an opportunity to consult with independent legal
counsel and have had the opportunity to discuss fully the terms of this release
with such independent legal counsel.
You
acknowledge that you have five (5) days after the date hereof to consider the
terms of this release before signing it.
You
acknowledge that this Agreement shall become effective immediately upon
execution by you and an authorized representative of the Company.
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4.
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Return
of Company Property.
Except with respect to the Company vehicle, of which, pursuant to
Section
4 of Attachment
A,
you are entitled to maintain possession (the “Company Car”), you agree
that you have returned all property belonging to the Company including,
but not limited to, keys, files, records (and copies thereof), computer
hardware and software, credit cards, cellular phones, fax machines,
and
pagers, if any, and any and all other information or property previously
or currently held or used by you that is or was related to your employment
with the Company (collectively, “Company Property”). You agree that any
data belonging to the Company that is saved or resides on your personal
computer, PDA, in your personal files or otherwise in your possession
shall be properly transferred and delivered to the Company by November
15,
2007. You agree that in the event that you discover any Company Property
and materials (other than the Company Car) in your possession after
the
Termination Date, you will immediately return such Company Property
to the
Company. You further agree to leave intact all electronic documents
belonging to the Company, including those which you developed or
helped to
develop during your employment.
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5.
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Non-Disparagement
by You.
You
understand and agree that as a condition of payment to you of the
severance benefits, you shall not make any false, negative, disparaging
or
derogatory statements (whether written, oral or otherwise) about
the
Company, its business affairs, strategy, management, financial condition
or otherwise or about the Released Parties, to any party, including
any
media outlet, industry group, financial institution, competitor or
current
or former employee, consultant, client or customer of, or investor
in, the
Company, or any of the Released Parties.
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6.
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Non-Competition.
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a.
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For
a period of two years after the date you are no longer on the Company’s
payroll, you will not directly or
indirectly:
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(i) as
an
individual proprietor, partner, stockholder, officer, employee, director, joint
venturer, investor, lender, consultant, or in any other capacity whatsoever
(other than as the holder of not more than one percent of the combined voting
power of the outstanding stock of a publicly held company), develop, design,
produce, market, sell or render (or assist any other person in developing,
designing, producing, marketing, selling or rendering) products, technologies,
or services in the stem cell field; or
(ii) solicit,
divert or take away, or attempt to divert or to take away, the business or
patronage of any of the clients, business partners, customers or accounts,
or
prospective clients, customers or accounts, or any vendors or suppliers of
the
Company while you were employed by the Company.
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b.
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For
a period of two years after the Termination Date , you will not
directly
or indirectly recruit, solicit or hire any employee of the Company,
or
induce or attempt to induce any employee or contractor or consultant
or
collaborator of the Company to terminate his/her employment with,
or
otherwise cease his/her relationship with, the
Company.
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7.
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Binding
Agreement.
This letter agreement shall be binding upon the parties upon execution,
and may not be modified in any manner, except by an instrument in
writing
of concurrent or subsequent date signed by duly authorized representatives
of the parties hereto. This letter agreement is binding upon and
shall
inure to the benefit of the parties and their respective agents,
assigns,
heirs, executors, successors and administrators.
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8.
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Waiver
of Rights.
No
delay or omission by any party hereto in exercising any right under
this
letter agreement shall operate as a waiver of that or any other right.
A
waiver or consent given by any party hereto on any one occasion shall
be
effective only in that instance and shall not be construed as a bar
or
waiver of any right on any other
occasion.
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9.
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Validity.
Should
any provision of this letter agreement be declared or be determined
by any
court of competent jurisdiction to be illegal or invalid, the validity
of
the remaining parts, terms or provisions shall not be affected thereby
and
said illegal or invalid part, term or provision shall be deemed not
to be
a part of this letter agreement.
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10.
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Cooperation.
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a.
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You
agree that after the date hereof, you shall reasonably cooperate
with and
assist the Company with respect to its intellectual property assets
and
filings as and when requested by the Company. You also hereby represent
and acknowledge that the intellectual property of the Company is
owned
exclusively by the Company and you have no ownership rights whatsoever
in
or to such assets or
properties.
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b.
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You
agree that for a period of two (2) years following the Termination
Date,
you shall reasonably cooperate with and assist the Company with respect
to
any third party litigation regarding matters occurring in whole or
in part
during your employment with the Company.
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11.
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Confidentiality.
To
the extent required by law, you understand and agree that as a condition
for payment to you of the severance benefits herein described, the
existence and terms and contents of this letter agreement, and the
contents of the negotiations and discussions resulting in this letter
agreement, shall be maintained confidential by you and your agents
and
representatives and shall not be disclosed to any third party except
to
the extent required by federal or state law or as otherwise agreed
to in
writing by the Company (provided, however, you shall be permitted
to
discuss these matters with your legal counsel, tax planner or advisor
and
other professional service providers, provided that such persons
maintain
such confidentiality). In addition, you agree that, except to the
extent
required by law, you shall not discuss with any third party, and
shall
maintain the strictest confidentiality of, any information regarding
or
relating to the Company, its business, its business plans, its financial
condition, its products, its intellectual property or other assets,
its
board of directors, officers, employees, consultants, vendors, customers,
prospects or partners. In addition, in no event shall no present
yourself
to any person or party as an agent, consultant, officer or employee
of the
Company, and you shall not make any representation or commitment
to any
party or commitments on behalf of the
Company.
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12.
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Nature
of Agreement.
You understand and agree that this letter agreement is a severance
agreement and general release by you and does not constitute an admission
of liability or wrongdoing on the part of the Company or any of its
affiliates. You also agree that the Company is not obligated to offer
or
provide severance benefits or payments to you, and that its offer
of
severance benefits and payments to you hereunder is subject to your
satisfaction of the conditions set forth
herein.
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13.
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Acknowledgments.
You
acknowledge that you were given five (5) days after the date hereof
to
consider this letter agreement, including Attachment
A.
You acknowledge that you have been advised by the Company to consult
with
an attorney of your own choosing prior to executing this letter agreement.
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14.
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Voluntary
Assent.
You affirm that no other promises or agreements of any kind have
been made
to or with you by any person or entity whatsoever to cause you to
sign
this letter agreement, and that you fully understand the meaning
and
intent of this letter agreement. You further represent and acknowledge
that you have carefully read this letter agreement, including Attachment
A,
you understand the contents hereof, freely and voluntarily assent
to all
of the terms and conditions hereof, and sign your name of your own
free
act.
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15.
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Breach.
IN
THE EVENT YOU BREACH THIS LETTER AGREEMENT (INCLUDING, BUT NOT LIMITED
TO,
THE CONFIDENTIALITY, NON-COMPETITION OR NON-DISPARAGEMENT COVENANTS),
THEN
ALL ADDITIONAL AMOUNTS OWED TO YOU UNDER THIS LETTER AGREEMENT BY
THE
COMPANY SHALL CEASE IMMEDIATELY, AND THE COMPANY (AND THE RELEASED
PARTIES, AS THE CASE MAY BE) SHALL HAVE THE RIGHT TO RECAPTURE FROM
YOU
ALL PREVIOUS PAYMENTS MADE TO YOU UNDER THIS LETTER AGREEMENT AND
TO SEEK
ALL OTHER REMEDIES AVAILABLE TO THEM UNDER APPLICABLE LAW. IN THE
EVENT OF
YOUR BREACH OF THIS LETTER AGREEMENT, THE COMPANY (AND THE RELEASED
PARTIES, AS THE CASE MAY BE) SHALL BE ENTITLED TO REIMBURSEMENT FROM
YOU
OF ALL REASONABLE LEGAL FEES AND OTHER EXPENSES INCURRED BY IT OR
THEM IN
CONNECTION WITH THE ENFORCEMENT OF THEIR RIGHTS UNDER THIS LETTER
AGREEMENT. IN THE EVENT A COURT OF LAW DETERMINES THE COMPANY HAS
BREACHED
THIS LETTER AGREEMENT, THE COMPANY SHALL REIMBURSE YOU FOR ANY REASONABLE
LEGAL FEES INCURRED BY YOU IN ENFORCING YOUR RIGHTS
HEREUNDER.
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16.
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Third
Party Beneficiaries.
The
Released Parties are intended beneficiaries of the covenants made
by you
in this letter agreement, and they shall be entitled to enforce this
letter agreement as if they were actual parties
hereto.
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17.
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Counterparts.
This
letter agreement may be executed in counterparts, each of which shall
be
deemed to be an original but both of which together shall constitute
one
and the same instrument.
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18.
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Applicable
Law.
This letter agreement shall be interpreted and construed by the laws
of
the State of New York without regard to conflict of laws provisions.
You
hereby irrevocably submit to and acknowledge and recognize the
jurisdiction of the courts of the State of New York, or if appropriate,
a
federal court located in New York (which courts, for purposes of
this
letter agreement, are the only courts of competent jurisdiction),
over any
suit, action or other proceeding arising out of, under or in connection
with this letter agreement or the subject matter
hereof.
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19.
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Entire
Agreement.
This letter agreement contains and constitutes the entire understanding
and agreement between the parties hereto with respect to the subject
matter hereof and cancels all previous oral and written negotiations,
agreements, commitments, and writings in connection herewith. Nothing
in
this paragraph, however, shall modify, cancel or supercede your
obligations set forth in this letter agreement.
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IN
WITNESS HEREOF, the parties hereto have executed this letter agreement as of
the
day and year first set forth above.
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Very
truly yours,
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BRAINSTORM
CELL THERAPEUTICS LTD.
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By:
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx |
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Title:
CEO
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By:
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx |
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Title:
CEO
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I
hereby
agree to the terms and conditions set forth above and in the attached
Description of Severance Benefits. I have been given five (5) days to consider
this letter agreement and I have chosen to execute this on the date below.
I
intend that this letter agreement will become a binding agreement between me
and
the Company upon the signing of this letter agreement.
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/s/
Xxxxx Xxxxxxx
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12/17/07
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Xxxxx Xxxxxxx |
Date |
ATTACHMENT
A
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1.
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The
Company will reimburse you for any outstanding business expenses
as of the
Termination Date which were approved in advance and are supported
by
appropriate receipts and of the type and amount traditionally reimbursed
by the Company.
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2.
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An
aggregate gross payment ( Employer cost ) of $60,000U.S., converted
to
Israeli Shekel in accordance with the Conversion Formula, from which
all
applicable statutory deductions and withholdings under Israeli law
will be
made, including, without limitation, social security, pension and
education fund withholdings, which payment shall be paid out as follow
:
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Date
(dmyy)
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Employer
cost
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1.1.08
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$5,000
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1.2.08
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$5,000
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1.3.08
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$30,000
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1.4.08
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$5,000
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1.5.
08
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$5,000
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1.6.08
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$5,000
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1.7.08
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$5,000
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“Conversion
Formula” shall mean the application of
the
representative rate of exchange of the U.S. Dollar against the NIS last
published by the Bank of Israel immediately prior to the date of payment of
the
respective installment.
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3.
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Further,
you acknowledge and agree that the payments described in Section
2 above
are in full satisfaction of any claims you may have for outstanding
salary, wages, compensation or other payments due and owing under
your
Employment Agreement with the Company.
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4.
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Should
you decide to continue your use of the Company vehicle assigned to
you
after the Termination Date, the Company will deduct from the amounts
payable to you under Section 2 above, 3500 NIS, from which all applicable
statutory deductions and withholdings under Israeli law will be made,
including, without limitation income tax , social security, pension
and
education fund withholdings.
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5.
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Out
of the total number of options granted to you: (a) the options granted
to
you on November 16, 2004, to acquire 685,760 shares of Common Stock
of the
Company at an exercise price of $0.15 per share are fully vested
and shall
be exercisable for four (4) years from the Termination Date; (b)
the
options granted to you on May 2, 2006, to acquire 100,000 shares
of Common
Stock of the Company at an exercise price of $0.15 per share are
fully
vested and shall be exercisable for two (2) years from the Termination
Date; and (c) the options granted to you on March 21, 2007, to acquire
250,000 shares of Common Stock of the Company at an exercise price
of
$0.47 per share shall continue to vest and be exercisable in accordance
with the Option Agreement between you and the Company dated March
31, 2007
as if your employment continued throughout the entire vesting period
(collectively, the “Stock Options”). You have no rights, contractual or
otherwise, to any additional shares of the Company, options, or rights
to
receive or purchase any security or instrument of the Company, other
than
the 400,000 shares of Common Stock you own outright. Any other options
are
hereby forfeited to the Company and therefore unexercisable as of
the date
hereof. The Option Agreement between you and the Company by which
the
foregoing options were granted (the "Option Agreement") is hereby
amended
and revised by reference.
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6.
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On
the Effective Date, all rights and sums accumulated in your Manager’s
Insurance Policy no. _________ and Continuing Education Fund (as
such
terms are defined in the Employment Agreement) shall be released
and
transferred to you, and the Company shall sign standard confirmation
and
transfer approvals to the applicable insurer to that effect. If you
will
choose to continue to pay the manager’s insurance and the education fund
until the last payment on July 1,2008 the released will be done in
the day
of the last payment .,
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7.
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For
a period of three (3) years following the Termination Date, the Company
shall, at its expense, maintain your coverage under the Company’s Director
and Officer Liability Insurance Policy.
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