EXHIBIT 10.23
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Made and entered into in on January 1st, 2006
Between: OMRIX BIOPHARMACEUTICALS LTD.
Xxxxxxxx 00, Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxx
(hereinafter: the "COMPANY")
ON THE ONE PART
and:
XXXXXXX XXXXXXXXX, I.D. No. 058717687
Residing at 00 Xxxxxxxx Xxxxxx Xxx Xxxx, Xxxxxx
(hereinafter the "EMPLOYEE")
ON THE SECOND PART
WHEREAS the Employee and the Company have entered into an Employment
Agreement dated February 8, 2004 (the "EMPLOYMENT AGREEMENT");
WHEREAS, the Employee continues to be employed with the Company;
WHEREAS, the Employee and the Company wish to amend and restate the
Employment Agreement effective as of January 1st , 2006 (the
"AMENDMENT DATE");
1. HEADINGS
The headings of the sections in this Agreement are for convenience only and
shall not be used for the purpose of interpretation of this Agreement.
2. DEFINITIONS
Capitalized terms and expressions shall have the meaning indicated next to
each one of them:
"EFFECTIVE DATE" - means the first date of employment of the Employee by
the Company, being April 18, 2004.
"TERM" - has the meaning ascribed to it in Section 11.1 below.
"OMRIX GROUP" - shall mean Omrix Biopharmaceuticals Inc. (the "PARENT"),
and all of its subsidiaries, including Omrix Biopharmaceuticals S.A., the
Company and Biopex Ltd.
THE EMPLOYMENT
2.1. During the Term (as defined below), the Employee shall serve as Senior
Vice President and Chief Financial Officer ("CFO") of the Omrix Group
(hereinafter The "POSITION"). The Employee hereby undertakes to devote
his full-time attention and energies and use his best efforts in his
employment with the Company and for the Omrix Group.The official
employer of the Employee shall be the Company.
2.2. During the Term, the Employee's duties and responsibilities shall be
as provided in Section 3 hereof and shall include those duties and
responsibilities customarily performed by a CFO or as may be assigned
to the Employee from time to time by the Company's Chief Executive
Officer (the "CEO").
2.3. The working place of the Employee is Israel. However, the Employee
recognizes that the Position require extensive travel to the office of
the CEO in Belgium and possibly, subject to a formal request by the
Company a relocation to Belgium or to the USA for several years. The
financial terms in case of a request for relocation will be agreed
between the parties separately.
2.4. The Employee shall be reporting to the CEO.
2.5. The Employee hereby represents that, to the best of his knowledge,
there is no hindrance, whether by law, by Agreement, or in any other
way, to his employment by any member of the Omrix Group in the
Position and on terms stated herein. The Employee agrees that, in the
event the Employee breaches this representation under this
Sub-Section, he will indemnify and hold harmless the Omrix Group from
and against any claims, losses, damages and expenses arising out of
such breach.
3. THE EMPLOYEE'S DUTIES
3.1. The Employee undertakes to fulfill his Position diligently, devotedly,
expertly and honestly, and to use all his abilities, knowledge,
experience and expertise for the benefit of the Omrix Group and to do
his utmost to further the business interest of the Omrix Group and to
devote all the time reasonably required for this purpose.
3.2. The Employee undertakes to perform his obligations hereunder in
accordance with the Omrix Group's corporate ethics, principles and
rules. The management of the Company shall always be carried out in
conformity with the procedures, practices, policies and the objectives
of the Company as determined and manifested by its Board of Directors.
3.3. Throughout the Term, without the consent of any member of the Omrix
Group, the Employee will not be entitled to engage, directly or
indirectly, in any other work or occupation without the prior approval
of the CEO, irrespective of whether or not the Employee is remunerated
for such work and/or services and/or engagement.
3.4. The Employee undertakes to inform the CEO without delay of any
business and/or matter in which he has a personal interest and which,
to the Employee's best judgment, may cause a conflict of interest with
the Position.
4. PERSONAL AGREEMENT
4.1. This Agreement is personal and specific, defines the entire scope of
relationship between the Employee and the Company and determines
exclusively the terms under which the Employee is employed by the
Company.
4.2. In light of the above, the provisions of any collective bargaining
agreement which exist or shall exist do not, and will not, apply to
the employment of the Employee hereunder, whether such agreement was
signed among the government, the General Federation of Labor and
Employers' organizations, or any such parties, or whether signed by
others, in relation to the field or fields of the Company or in
relation to the kind of employees the Employee belongs to.
4.3. It is agreed between the parties that the Position is a management
position which requires a special measure of personal trust, as
stipulated in section 30(a)(5)(6) of the WORKING HOURS AND REST LAW,
1951. In light of such trust relations, the provisions of the said Law
will not apply to the Employee's employment by the Company and the
Employee shall not be entitled to demand or accept payment for
overtime and that the salary specified in Section 6.1, will also
include compensation and global payment for any and all hours which
the Employee will spend while discharging his duties for the Company.
4.4. Furthermore it is expressly agreed that the terms of the Employee's
employment as stated herein will not be affected or altered by the
terms of employment of any other employee of the Company or the Omrix
Group and that the terms of the Employee's
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employment by the Company shall be determined exclusively by the law
and/or the provisions of this Agreement and/or according to any
changes, if any, of the law, and/or by mutual agreement of the
parties.
5. SALARY AND TERMS OF EMPLOYMENT
During the Term, the Company will pay the Employee in return for his work
and for the execution of this Agreement, the following salary and other
payments and benefits as follows:
5.1. Salary
5.1.1. A gross monthly salary of US$12,500 to be paid in US
dollars. Each monthly salary will be paid not later than by
the 9th day of each calendar month for the previous month
work (hereinafter "THE BASIC SALARY").
5.1.2. The Basic Salary as indicated above is before taxes (gross)
and includes payments in full for overtime, including the
time spent abroad.
5.1.3. The Employee agrees that he is not entitled to any social
benefits and fringe benefits other than those listed herein,
as compensation or salary in excess of the Basic Salary.
5.2. Employee Benefits
The Employee shall be entitled to the following benefits:
5.2.1. Personal Car: The Company shall place at the Employee's
disposal, for his and his immediate family exclusive use, a
company car (at the standard of Omrix Group executive
management), in order to enable the performance of the
Employee's duties and responsibilities. The above car shall
remain at the Employee's disposal at any time, including
during vacation. The Company shall pay and/or reimburse the
Employee for tax, gasoline, maintenance and parking expenses
in relation to the said car. The Employee will not be
entitled to a refund for expenses due to traffic tickets.
5.2.2. Vacation: The Employee shall be entitled to an annual
vacation of 22 (thirty) working days. Up to 50 (fifty)
vacation days may be accumulated.
5.2.3. Sick Leave: The Employee shall be entitled to up to 30
(thirty) days fully paid Sick Leave a year. The Employee
shall not be entitled to accumulate Sick Leave days beyond a
period of 6 (six) months. The unused Sick Leave days shall
not be redeemable. Notwithstanding the above, the Employee
shall not be entitled to receive a portion of the Basic
Salary during Sick Leave in the event that he shall receive
equivalent payments from an insurance company in accordance
with the provisions of Section 6.2.5.
5.2.4. Recreation Payment: The Employee shall be entitled to
Recreation Payment for 10 (ten) days, to be paid at the end
of each work year, in the amount required by law.
5.2.5. Managers' Insurance Policy: The Company shall effect a
Managers' Insurance Policy, or maintain the Employee's
Managers' Insurance Policy, as shall be directed by the
Employee in its sole discretion (hereinafter: the "POLICY")
in the name of the Employee and shall pay a sum which equals
to 18.83% of the Employee's Basic Salary towards such
Policy, of which 8.33% will be on account of severance pay
and 5% on account of pension fund payments. The Company
shall deduct 5% from the Employee's Basic Salary to be paid
on behalf of the Employee towards such Policy. An additional
amount which equals to 2.5% of the
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Employee's Basic Salary shall be paid by the Company on
account of the Employee's disability pension payments.
5.2.6. Continued Educational Fund (CED): The Company shall pay in
respect of the Employee, each month, an amount equals to
7.5% of his gross Salary, into a Continued Educational Fund
approved as such by the Tax Authorities. The Employee shall
pay each month to the above Fund an amount equivalent to
2.5% of his gross Salary.
5.2.7. Mobile Phone: During the term of this Agreement, the Company
shall reimburse the Employee for all his mobile phone
expenses.
5.2.8. Bonus:
With respect to the period up to the Amendment Date, the
Employee shall be entitled to receive the bonuses as per the
wording of the Employment Agreement prior to this Amendment
which is made on the Amendment Date.
Starting from the Amendment Date, each year the Employee
will be entitled to receive a the following bonus on an
annual basis: (a) an unconditional minimum amount of
US$30,000 (the "BASE BONUS"); and (b) a discretionary
additional amount of up to 36% of the Employee's aggregate
annual Basic Salary (the criteria for evaluation of such
additional bonus entitlement under sub section (b) will be
based 50% on evaluation of the Employee's performance of its
duties hereunder and 50% on the performance of the Omrix
Group (the "PERFORMANCE BONUS"). The Base Bonus and
Performance Bonus will not carry any social benefits. The
Base Bonus will be paid in four equable quarterly
installments.
5.2.9. Telephone: The Company will cover the cost of the private
home telephone line of the Employee.
6. NON-COMPETITION
6.1. Without prejudice to any of the Employee's other undertakings in
respect of applicable unfair competition regulations, it is agreed
that during the Term and during a period of two (2) years after its
termination, for any reason, the Employee shall not directly or
indirectly, individually for his own account or as an employee,
shareholders, partner, consultant of any firm, partnership,
corporation or other entity or in any other capacity whatsoever be
involved in the business of plasma fractionation and/or plasma
derivative products including but not limited to biological surgical
or fibrin adhesives, in the world.
6.2. During the Term, and for a period of two (2) years after its
termination, for any reason, the Employee shall not, directly of
indirectly, either on his own behalf or on behalf of any other person,
firm, corporation or other entity, without prior written consent of
the Company:
(a) Attempt in any manner to persuade any client of the Company
and/or the Omrix Group to cease to do business or to reduce the
amount of business which any client has customarily done or
contemplates doing with any of the Company and/or the Omrix
Group, whether or not the relationship between the Omrix Group
and such client was originally established, in whole or in part,
through the Employee's efforts; and/or
(b) Employ or attempt to employ any person who is then in the employ
of any of the Company and/or the Omrix Group or was in the
employ of any of the Company and/or the Omrix Group within six
(6) months prior to the Employee's termination of employment;
and
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(c) Solicit business of any client of the Company and/or the Omrix
Group unless such solicitation is for the benefit of the
Company and/or the Omrix Group, or render any services of the
type usually rendered by the Company and/or the Omrix Group to
any such client of the Company and/or the Omrix Group unless
such services are rendered for the benefit or on behalf of the
Company and/or the Omrix Group or unless such services are
without breach of the Employee's obligations under Section 6.1
above.
7. NON DISCLOSURE OF INFORMATION
7.1. The Employee shall not at any time, during the term of this Agreement
or thereafter, use for his own account or for the account of any third
party any of the clients lists, trade secrets or other proprietary
information or any trade name, trademark, service xxxx or other
proprietary business designation used or owned by the Company and/or
by the Omrix Group.
7.2. During the term of this Agreement and thereafter, the Employee may
receive or have access to Company's and/or Omrix Group's confidential,
proprietary information or documents not in the public domain and to
confidential or proprietary information of any clients of the Company
and/or of the Omrix Group. The Employee agrees to receive such
information in confidence and not to disclose at any time, or use
(except in the course of his employment hereunder and in furtherance
of the business of the Company and/or the Omrix Group), during the
term of this Agreement or thereafter, such information without the
express written consent of the Company (given by the CEO) or of the
Omrix Group, as the case may be. Without limiting the foregoing, the
Employee shall not, during the term of his employment, or at any time
thereafter, copy or reproduce for the Employee's use or give, divulge,
reveal or otherwise disclose to any person, corporation, partnership
or other business or professional entity, except as authorized to do
so by the Company's CEO, any form, document, written material or
computer program, or any method, formula, plan, advertisements or
advertising campaigns or plans created, developed or utilized by the
Companies and/or by the Omrix Group or by the Employee as an employee
of the Company for the purpose of rendering services, programs or
other products and materials to the clients of the Company and/or of
the Omrix Group, nor will the Employee copy or reproduce for the
Employee's use or give, divulge, reveal or otherwise disclose to any
person, corporation, partnership or other business or professional
entity, except as authorized to do so by the CEO, any confidential
business information of any client of the Company or the Omrix Group.
8. TAXES
8.1. Unless otherwise specifically indicated in this Agreement, the Company
shall not pay any tax or other obligatory payments such as Income Tax,
Social Security or Health Tax which the Employee is obliged to pay by
law.
8.2. The Company shall deduct from any payment or fringe benefit to which
the Employee shall be entitled in accordance with this Agreement,
taxes and other obligatory payments as required by law, and shall
transfer to the proper authorities any and all such taxes, deductions
and allocations.
9. HAND OVER TO SUCCESSOR
Upon termination of the Employee's employment by the Company for whatever
reason, the Employee shall hand over, in an orderly manner, to his
successor or to any other person of the Company's choice, all the
information and documentation in his possession. Without derogating from
the above the Employee shall, upon the Company's written request,
immediately hand over to the Company any and all documents, information and
any other material in his possession which belongs to the Company and/or
the Omrix Group and/or any of their clients, including documentation which
was prepared by the Employee during the course of his employment.
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10. INTELLECTUAL PROPERTY RIGHTS
10.1. The Employee shall notify the Company in writing of any copyright,
patent, invention, improvement of process or design in his possession
developed and/or obtained by him during the Term and shall hand over
any such rights and documents exclusively to the Company.
10.2. Any title and/or right to any invention, development, copyright,
parent, improvement of process or design developed by the Employee
during the Term shall belong exclusively to the Company and the
Employee hereby waives any right therein.
10.3. The Employee shall sign, if requested by the Company to do so, any
document required in order to file, in the name of the Company, an
application for patent, copyright, trademark, registered design etc.,
in respect of any invention, patent, improvement of process, design,
text, etc., developed/invented by the Employee during the Term.
10.4. The Employee shall take whatever reasonable steps shall be necessary
in order to protect and maintain intact the Company's business and
interests.
11. TERM AND TERMINATION
11.1. This Agreement shall come into effect on the Effective Date and shall
terminate not sooner than April 18, 2007 (the "ANNIVERSARY DATE") and
will, on the Anniversary Date and on each anniversary of the
Anniversary Date thereafter, automatically renew for an additional
period of one (1) year period, unless a notice of intent not to renew
shall be delivered in accordance with this Section 11 by either the
Company or the Employee, each in its sole discretion and as the case
may be, at least six (6) months prior to such anniversary date (the
"TERM").
11.2. Notwithstanding Sub-Section 11.1, the Company shall be entitled to
dismiss the Employee and to terminate his employment forthwith (with
immediate effect) in the event of Cause or Disability.
11.2.1. CAUSE - shall mean that (a) the Employee acts contrary to
the instructions of the CEO of the Company or materially
exceeds the limits of his authority as described herein or
in written instructions executed by the CEO; provided that
such action or omission form action is not a result of a
requirement of a court order or applicable law; or (b) the
Employee behaves in a manner which materially deviates from
the very high standards of integrity expected from a Senior
Executive; or (c) the Employee is charged with a criminal
offence other than traffic violation, or (d) the Employee is
in a material breach of its obligations under Section 7
hereof; or (e)the Employee is in a material breach of its
obligations under Section 6 hereof; or (f) the Employee is
in a material breach of its obligations under Section 3
hereof; or (g) the Employee fraudulently reports falsely or
inaccurately about his activities and/or about the business
of the Company and/or the Omrix Group; or (h) the Employee
makes fraudulent representations toward third parties as to
the policy of any member of the Omrix Group or the
services/products provided/rendered by it.
11.2.2. DISABILITY - shall mean a physical or mental incapacity
lasting for a period of not less than (a) sixty (60) days in
any twelve (12) month period which renders the Employee
unable to perform his responsibilities and duties under this
Agreement.
11.3. Upon termination for Cause, the Employee will receive his basic
Salary and other compensation and benefits earned under this
Agreement but not yet paid or delivered as of the date of termination
of this Agreement but will not be entitled to severance pay, the
right to receive the Company contribution to the Policy or to any
other compensation from the Company.
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11.4. Upon termination of the Employee's employment with the Company, by
the Company other than termination for Cause, the Employee shall be
entitled to (a) his Basic Salary payable through the Anniversary
Date or the respective anniversary of the Anniversary Date, as the
case nay be (in each case, the "TERMINATION PERIOD") as if the
Employee were to be employed for such Termination Period, plus (b) a
pro rata portion of the Base Bonus and Performance Bonus for the
Termination Period, plus (e) any and all other accrued compensation
and benefits earned under this Agreement but not yet paid or
delivered to the Employee as of the date of the termination of the
Agreement, including the use of the car and payment of expenses
during the Termination Period, severance pay required by law and the
right to receive the Policy shall be automatically assigned to the
Employee.
11.5. It is hereby agreed that in the event that the Company transfers the
ownership of the Policy or any other insurance policy or the right
to receive such policy to the Employee, then the 8.33% paid by the
Company on account of severance pay and included in such transfer
shall be credited against any obligation that the Company may have
to pay severance pay to the Employee pursuant to the Severance Pay
Law, 1963.
12. CONTINUOUS EMPLOYMENT; SURVIVAL OF PROVISIONS.
It is hereby acknowledged and clarified that the employment of the Employee
by the Company has commenced on the Effective Date and the Employee shall
continue to be employed by the Company on a continuous ongoing basis until
the termination of this Agreement pursuant to its terms. It is further
clarified that the amending and restating of the Employment Agreement
hereunder shall not effect its validity and the Employment Agreement, as
amended, shall remain in full force and effect with respect to the
employment of the Employee.
13. WAIVER SHALL NOT CONSTITUTE A PRECEDENT
The failure of any party to enforce at any time any provision of this
Agreement, or to enforce any rights, or to make any elections hereunder,
shall not be deemed to be a waiver of such provisions, rights of elections.
14. SEVERABILITY
In case one or more of the provisions contained in this Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
the other provisions of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
15. INVALIDITY OF PREVIOUS AGREEMENTS
This Agreement represents the entire understanding and agreement between
the parties hereto and supersedes all prior negotiations, representations
and agreements made by and between the parties prior to this Agreement in
connection with the Employee's employment by the Company, whether in
writing, orally or in any other way.
16. AMENDMENTS
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This Agreement may be amended only by a written document executed by all
parties hereto and any amendment purportedly made in any other way shall
not be binding on the parties hereto.
17. NOTICES
The addresses of the parties are as indicated in the preamble to this
Agreement and any notice sent by one of the parties to the other party by
registered mail to the above addresses shall be deemed to have been
received by the addressee three (3) business days after being posted,
postage pre-paid, and in the event of hand delivery - at the time of such
delivery.
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18. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of the State of Israel, and the competent Courts in Tel-Aviv-Jaffa
will have the sole jurisdiction in any dispute arising hereunder.
IN WITNESS WHEREOF the above parties have executed this Amended and
Restated Agreement on the date first hereinabove written.
/s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxxxxxx
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OMRIX BIOPHARMACEUTICALS LTD. XXXXXXX XXXXXXXXX
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