Exhibit 10.23
EMPLOYMENT AGREEMENT
This Agreement, dated November 19, 1999, by and between LAKARO
BIOPHARMACEUTICALS, INC. ("Lakaro"), a Delaware corporation having an address at
000 Xxxxx Xx., Xxx'xxxx Xx'xx, Xxxxxxxxx, Xxxxxx 00000 and XXX XXXXXXXXXXXX, an
individual residing at Xxxxx 00, Xxxxxxxxx, Xxxxxx (the "Secretary")
WITNESSETH:
WHEREAS, the Corporation desires to employ the Secretary as Secretary
of Lakaro and the Secretary desires to be employed by the Lakaro as Secretary of
Lakaro, all pursuant to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT DUTIES
(a) Lakaro hereby engages and employs the Secretary, and the Secretary
accepts engagement and employment, as Secretary of Lakaro, to direct, supervise
and have responsibilities for the corporate affairs of Lakaro and for any other
appropriate areas and tasks which the Board of Directors and/or the Chief
Executive Officer may assign to him. The Secretary acknowledges and agrees that
the performance by the Secretary of his duties hereunder may require significant
domestic and international travel by the Secretary. In addition, the Secretary
realizes that he may be required to spend a substantial amount of time in
Jerusalem, Israel.
(b) The Secretary shall devote substantially all of his gainful time to
the discharge of his duties and responsibilities under this Agreement.
2. TERM
The Secretary's employment hereunder shall be for a term of three (3)
years commencing on the Effective Date and continuing through the third
anniversary of the Effective Date (the "Initial Term"), with successive one-year
renewals thereafter (the "Renewal Terms") unless sooner terminated as
hereinafter provided, or by notice of either party not less than 90 days prior
to the expiration of each term.
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of
Lakaro, the Secretary shall be compensated as follows:
(i) Upon the next meeting of the Corporation's Board of
Directors, the Corporation will grant (the "Initial Grant") the Secretary
options (the "Options") to purchase 125,000 shares of the common stock of the
Corporation at an exercise price equal to $0.15 per share (the "Exercise
Price"), which options shall be exercisable for a period of 10 years from the
date of issuance. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the total number and/or class of securities subject to such
options and (ii) the Exercise Price in order to reflect such change and thereby
preclude a dilution or enlargement under such options.
(ii) The stock options shall vest as follows: one-third on the
closing of the next equity investment in Lakaro; one-sixth six months from the
date of grant; one-sixth twelve months from the date of grant; one-sixth
eighteen months from the date of grant; and one-sixth twenty four months from
the date of grant; but immediate vesting shall occur upon a change of control of
the Corporation as described in paragraph 10(a)(iii)C below.
(iii) At the discretion of the Board of Directors, the
Secretary shall be entitled to an annual grant of subsequent stock options each
of which shall have the same antidilution protection as described in Section 3
paragraph (a)(i) above.
(b) Lakaro shall reimburse the Secretary for all normal, usual and
necessary expenses incurred by the Secretary in furtherance of the business and
affairs of Lakaro, including travel and entertainment, against receipt by Lakaro
of appropriate vouchers or other proof of the Secretary'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 Lakaro.
(c) The Secretary shall be, during the term of this Agreement, entitled
to four (4) weeks of vacation per year as well as all statutory holidays.
(d) Lakaro shall adopt as part of the Corporation's Bylaws a broad form
indemnity of all actions taken in good faith by the officers and directors of
the Corporation.
(e) Subject to Section 10(c) below, the Secretary must be an employee
of Lakaro at the time any compensation is due in order to receive such
compensation. In addition, no options shall vest after the termination of this
Agreement.
4. REPRESENTATIONS AND WARRANTIES
BY THE SECRETARY AND LAKARO
(a) The Secretary hereby represents and warrants to Lakaro as follows:
(i) Neither the execution and delivery of this Agreement nor
the performance by the Secretary of his duties and other obligations hereunder
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 Secretary is a party or by which he is bound.
(ii) The Secretary 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 Secretary enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the
Secretary to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
(b) Lakaro hereby represents and warrants to the Secretary as follows:
(i) Lakaro is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to own its properties and conduct its business in the manner
presently described.
(ii) Lakaro has the full power and authority to enter into
this Agreement and to incur and perform its obligations hereunder.
(iii) The execution, delivery and performance by Lakaro of
this Agreement does not conflict with or result in a breach or violation of or
constitute a default under (whether immediately, or upon the giving of notice or
lapse of time or both) the certificate of incorporation or by-laws of Lakaro, or
any agreement or instrument to which Lakaro is a party or by which Lakaro or any
of its properties may be bound or affected.
5. CONFIDENTIAL INFORMATION
(a) The Secretary agrees that during the course of his employment and
at any time thereafter, he will not disclose or make accessible to any other
person, Lakaro's products, services and technology, both current and under
development, promotion and marketing programs, lists, trade secrets and other
confidential and proprietary business information of Lakaro or any of its
clients. The Secretary agrees: (i) not to use any
such information for himself or others; and (ii) not to take any such material
or reproductions thereof from Lakaro's facilities at any time during his
employment by Lakaro, except as required in the Secretary's duties to Lakaro.
The Secretary agrees immediately to return all such material and reproductions
in his possession to Lakaro upon request and in any event upon termination of
employment. Nothing in the foregoing shall be construed to prevent the Secretary
from disclosing or using any information which the Secretary can show by written
documentation was in the public domain or enters into the public domain through
no improper act on the Secretary's part or on the part of any of Lakaro's
employees or was in his possession prior to his joining Lakaro or disclosed
properly to the Secretary after leaving Lakaro.
(b) Except with prior written authorization by Lakaro, the Secretary
agrees not to disclose or publish any of the confidential, technical or business
information or material of Lakaro, its clients or any other party to whom Lakaro
owes an obligation of confidence, at any time during or for a period of two
years after his employment with Lakaro except in the event of involuntary no
cause termination by Lakaro or a termination by the Secretary for cause.
6. NON-COMPETITION
(a) The Secretary understands and recognizes that his services to
Lakaro are special and unique and agrees that, during the term of this
Agreement, and for a period of 12 months 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
directly competitive with Lakaro's business, either as an individual for his own
account, or as a partner, joint venturer, Secretary, agent, consultant,
salesperson, officer, director or shareholder of a Person operating or intending
to operate within the area that Lakaro is, at the date of termination,
conducting its business (the "Restricted Businesses"); provided, however, that
nothing herein will preclude the Secretary from holding one percent (1%) or less
of the stock of any publicly traded company or from holding a position with a
Person who does not engage in a business directly competitive with the
Restrictive Businesses so long as the Secretary works in a division of such
Person which carries on a bona fide business which is not directly competitive
with the Restricted Businesses.
(b) For a period of 12 months after the termination of this Agreement,
the Secretary shall not interfere with or disrupt or attempt to disrupt Lakaro's
business relationship with any of its customers, or solicit any of the employees
of Lakaro.
(c) In the event that the Secretary breaches any provisions of this
Section 6 or there is a threatened breach, then, in addition to any other rights
which Lakaro may have, Lakaro 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 6, the Secretary shall not argue as a defense
that there is an adequate remedy at law nor shall Lakaro be prevented from
seeking any other remedies which may be available.
7. OWNERSHIP OF PROPRIETARY INFORMATION
(a) The Secretary agrees that all information that has been created,
discovered or developed by Lakaro, its subsidiaries, affiliates, successors or
assigns (collectively, the "Affiliates") (including, without limitation,
information relating to the development of Lakaro's business created,
discovered, developed or made know to Lakaro or the Affiliates by Secretary
during the Term and information relating to Lakaro's customers, suppliers,
consultants, and licensees) and/or in which property rights have been assigned
or otherwise conveyed to Lakaro or the Affiliates, shall be the sole property of
Lakaro or the Affiliates, as applicable, and Lakaro or the Affiliates, as the
case may be, shall be the sole owner of all patents, copyrights and other rights
in connection therewith, including but not limited to the right to make
application for statutory protection. All of the aforementioned information is
hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes trade secrets, processes,
discoveries, structures, inventions, designs, ideas, works of authorship,
copyrightable works, trademarks, copyrights, formulas, data, know-how, show-how,
improvements, inventions, product concepts, techniques, information or
statistics contained in, or relating to, marketing plans, strategies, forecasts,
blueprints, sketches, records, notes, devices, drawings, customer lists, patent
applications, continuation applications, continuation-in-part appications, file
wrapper continuation applications and divisional
applications and information about Lakaro's or the Affiliates' employees and/or
consultants (including, without limitation, the compensation, job responsibility
and job performance of such employees and/or consultants).
(b) The Secretary further agrees that at all times, both
during the Term and after the termination of this Agreement, he will keep in
confidence and trust all Proprietary Information, and he will not use or
disclose any Proprietary Information or anything directly relating to it without
the written consent of Lakaro or the Affiliates, as appropriate, except as may
be necessary in the ordinary course of performing his duties hereunder and
except for academic, non-commercial research purposes with the prior written
approval of the Board of Directors. The Secretary acknowledges that the
Proprietary Information constitutes a unique and valuable asset of Lakaro and
each Affiliate acquired at great time and expense, which is secret and
confidential and which will be communicated to Secretary, if at all, in
confidence in the course of his performance of his duties hereunder, and that
any disclosure or other use of the Proprietary Information other than for the
sole benefit of Lakaro or the Affiliates would be wrongful and could cause
irreparable harm to Lakaro or the Affiliates, as the case may be.
Notwithstanding the foregoing, the parties agree that, at all
such times, Secretary is free to use (i) information in the public domain not as
a result of a breach of this Agreement, (ii) information lawfully received from
a third party and (iii) Secretary's own skill, knowledge, know-how and
experience to whatever extent and in whatever way he wishes, in each case
consistent with his obligations as Secretary and that, at all times, Secretary
is free to conduct any non-commercial research not relating to Lakaro's
business.
8. DISCLOSURE AND OWNERSHIP OF INVENTIONS
(a) During the Term, the Secretary agrees that he will promptly
disclose to Lakaro, or any persons designated by Lakaro, all improvements,
inventions, designs, ideas, works of authorship, copyrightable works,
discoveries, trademarks, copyrights, trade secrets, formulas, processes,
structures, product concepts, marketing plans, strategies, customer lists,
information about Lakaro's or the Affiliates' employees and/or consultants
(including, without limitation, job performance of such employees and/or
consultants), techniques, blueprints, sketches, records, notes, devices,
drawings, know-how, data, whether or not patentable, patent applications,
continuation applications, continuation-in-part applications, file wrapper
continuation applications and divisional applications, made or conceived or
reduced to practice or learned by him, either alone or jointly with others,
during the Term (all said improvements, inventions, designs, ideas, works of
authorship, copyrightable works, discoveries, trademarks, copyrights, trade
secrets, formulas, processes, structures, product concepts, marketing plans,
strategies, customer lists, information about Lakaro's or the Affiliates'
employees and/or consultants, techniques, blueprints, sketches, records, notes,
devices, drawings, know-how, data, patent applications, continuation
applications, continuation-in-part applications, file wrapper continuation
applications and divisional applications shall be collectively hereinafter
called "Inventions").
(b) The Secretary agrees that all Inventions shall be the sole
property of Lakaro to the maximum extent permitted by applicable law and to the
extent permitted by law shall be "works made for hire" as that term is defined
in the United States Copyright Act (17 USCA, Section 101). Lakaro shall be the
sole owner of all patents, copyrights, trade secret rights, and other
intellectual property or other rights in connection therewith. Secretary hereby
assigns to Lakaro all right, title and interest he may have or acquire in all
Inventions. Secretary further agrees to assist Lakaro in every proper way (but
at Lakaro's expense) to obtain and from time to time enforce patents, copyrights
or other rights on said Inventions in any and all countries, and to that end the
Secretary will execute all documents necessary:
(i) to apply for, obtain and vest in the name of
Lakaro alone (unless Lakaro otherwise directs) letters patent, copyrights or
other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect
of such applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous protection.
(c) The Secretary's obligation to assist Lakaro in obtaining
and enforcing patents and copyrights for the Inventions in any and all countries
shall continue beyond the Term, but Lakaro agrees to
compensate the Secretary at his normal and usual rate after the expiration of
the Term for time actually spent by the Secretary at Lakaro's request on such
assistance.
9. NON-SOLICITATION
During the Term, and for 12 months thereafter, Secretary shall not,
directly or indirectly, without the prior written consent of Lakaro:
(a) solicit or induce any employee of Lakaro or any Affiliate to leave
the employ of Lakaro or any Affiliate or hire for any purpose any employee of
Lakaro or any Affiliate or any employee who has left the employment of Lakaro or
any Affiliate within six months of the termination of said employee's employment
with Lakaro; or
(b) solicit or accept employment or be retained by any party who, at
any time during the Term, was a customer or supplier of Lakaro or any Affiliate
where his position will be related to the business of Lakaro; or
(c) solicit or accept the business of any customer or supplier of
Lakaro or any Affiliate with respect to products similar to those supplied by
Lakaro.
10. TERMINATION
(a) This Secretary's employment hereunder shall begin on the Effective
Date and shall continue for the period set forth in Section 2 hereof unless
sooner terminated upon the first to occur of the following events:
(i) (A) The death of the Secretary; or
(B) the total disability of the Secretary.
(ii) Termination by the Board of Directors of Lakaro for just
cause. Any of the following actions by the Secretary shall constitute just
cause:
(A) Material breach by the Secretary of Sections 5,
6, 7, 8, or 9 of this Agreement; or
(B) Material breach by the Secretary of any provision
of this Agreement other than Sections 5, 6, 7, 8 or 9
which is not cured by the Secretary within 30 days of
notice from Lakaro; or in the event the breach is not
curable within 30 days; the commencement of action(s)
to cure within said 30 days and the diligent pursuit
of the cure thereafter, provided such breach may be
completely cured; or
(C) Any action by the Secretary constituting gross
negligence, recklessness or willful misconduct in
respect of the Secretary's obligation to Lakaro which
has or is likely to result in material, economic
damage to Lakaro.
` (iii) Termination by the Secretary for just cause. Any of
the following actions or omissions by Lakaro shall constitute just cause.
(A) Material breach by Lakaro of any provision of
this Agreement which is not cured by Lakaro within 30
days of notice thereof from the Secretary; or
(B) A failure to elect or reelect the Secretary to
the office of Secretary of Lakaro or other change by
Lakaro of the Secretary's function, duties or
responsibilities such that the Secretary is no longer
the highest ranking Officer of Lakaro; or
(C) A "change in control," which shall mean a merger
or consolidation in which either more than 50% of the
voting power of Lakaro is transferred or Lakaro is
not the
surviving entity, or sale or other disposition of all
or substantially all the assets of Lakaro; or
(D) Termination of the Secretary's employment other
than for serious, willful misconduct in respect of
the Secretary's obligations to the Corporation,
including, but not limited to, final conviction for a
felony or perpetration of a common-law fraud which
has or is likely to result in material economic
damage to the Corporation; or
(E) Relocation to a geographic area without the
Secretary's prior consent.
(iv) Termination by Lakaro without cause. Notwithstanding
anything in this Agreement, Lakaro may terminate the Secretary's employment
without cause upon 90 days prior notice.
(b) Upon termination by Lakaro for any reason other than the reasons
set forth in subparagraph (i) or (ii) of paragraph (a) above, or upon
termination by the Secretary for any reason set forth in subparagraph (iii) of
paragraph (a) above, then the Options shall immediately vest and become
exercisable at the option of the Secretary.
11. 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 thereof; one (1) business day after being sent by Federal
Express or similar overnight delivery; or three (3) business 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.
12. 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 to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
13. ENTIRE 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.
14. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, Lakaro, its successors and assigns, and upon the
Secretary and his legal representatives. This Agreement constitutes a personal
service agreement, and the performance of the Secretary's obligations hereunder
may not be transferred or assigned by the Secretary.
15. NON-WAIVER
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, 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.
16. GOVERNING LAW
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law. Any litigation commenced pursuant to the terms of the
Agreement shall only be prosecuted and defended in the city, county and state of
New York. Additionally, the prevailing party in any litigation shall be entitled
to an additional award of the recoupment of its attorney fees, cost and
expenses.
17. REMEDIES FOR BREACH
The Secretary understands and agrees that any breach of Sections 5, 6,
7, 8 or 9 of this Agreement by the Executive could cause irreparable damage to
Lakaro and to the Affiliates, and that monetary damages alone would not be
adequate and, in the event of such breach, Lakaro shall have, in addition to any
and all remedies of law, the right to an injunction, specific performance or
other equitable relief to prevent or redress the violation of Lakaro's rights
under such Sections.
18. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EMPLOYEE:
By: /s/ Xxx Xxxxxxxxxxxx
---------------------------
Name: Xxx Xxxxxxxxxxxx
LAKARO BIOPHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
