EMPLOYMENT AGREEMENT
This
employment agreement (the “Agreement”) dated as of February 10, 2006, effective
as of January 1, 2006 (the “Effective Date”), by and between XTL
Biopharmaceuticals Ltd.,
an
Israeli company with its principal offices in Building No. 3 (third floor),
Kiryat Weizmann, Rehovot, Israel,
(the
"Company"),
and
Xxxx Xxxxxxx I.D. Number: , an individual whose address is (the "Employee").
WITNESSETH:
WHEREAS,
the Company desires to employ Employee as its Director of Finance (the
“Position”), and Employee desires to be employed by the Company in such
capacity, 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:
It
is hereby agreed by and between the parties as follows:
| 1. |
Preamble
|
The
preamble to this Agreement and any attachments thereto are an integral part
of
this Agreement.
| 2. |
Job
Description
|
The
Company hereby employs Employee, and Employee hereby accepts employment, to
serve in a position of Director, Finance. At a time to be determined by the
Chief Executive Officer and at the discretion of the Chief Executive Officer,
the Employee shall be responsible for the financial and accounting management
of
the Company. He shall report directly to the Chief Executive Officer, or his
designate, the Chief Financial Officer. The description of responsibilities
set
forth herein shall serve as a general statement of the duties, responsibilities
and authority of the Employee. Additional duties, responsibilities and authority
may be assigned to the Employee by the Chief Executive Officer, or his
designate, the Chief Financial Officer, from time to time in his
discretion.
| 3. |
Working
Hours
|
The
Employee shall be employed by the Company on a full-time basis, namely for
not
less than forty-four (44) hours per week (inclusive of meal time). The Employee
agrees that his position is considered to be a management position as defined
in
the Hours of Work and Rest Law - 1951, which requires a special measure of
personal trust. Accordingly, the provisions of the Hours of Work and Rest Law
-
1951 shall not apply and the Employee shall not be entitled to receive any
additional payment for his work other than those that are set forth in this
Agreement.
| 4. |
Term
of Agreement
|
This
Agreement shall take effect from the Effective Date and shall remain in effect
through the third anniversary of such date, unless it is earlier terminated
as
hereinafter provided.
| 5. |
Annual
Salary
|
| 5.1. |
The
Employee’s annual salary shall be as
follows:
|
|
5.1.1.
|
The
Employee shall receive an annual gross salary of seventy eight thousand
dollars (US$78,000) payable in New Israeli Shekels according the
representative rate of exchange in effect each month at the time
Company
salaries are calculated (the "Annual Salary"). In the event that
(1) the
Employee assumes the financial and accounting management of the Company,
and (2) the departure of the Company’s current CFO, the Employee’s Annual
Salary shall be increased to US$90,000 payable in New Israeli Shekels
according the representative rate of exchange in effect each month
at the
time the Company salaries are calculated. The Employee’s Annual Salary
shall be paid in twelve equal installments, monthly in arrears.
|
| 5.1.2. | On each anniversary date of this Agreement the Employee’s Annual Salary shall be increased by an amount to be determined by the Chief Executive Officer in consultation with the Board of Directors. |
| 5.1.3 | The Annual Salary set forth in paragraph 5.1.1, above, shall be referred to as the “Global Salary”. The linkage of the Global Salary to the United States dollar is in lieu of any generally-applicable increases, whether the statutory cost of living increase (“Tosefet Yoker”) or any other industry-wide increase applicable as the result of collective bargaining agreements or other order of the Ministry of Labor and Welfare (such as Tzavei Harhava). By signing this Agreement and accepting employment pursuant to its terms, the Employee represents that he will not claim any such increase. |
| 5.1.4. | The Employee shall not be entitled to receive from the Company any salary or payment of any kind other than the Global Salary and other payments specifically set forth in this Agreement or properly authorized by the Board of Directors. |
|
5.2.
|
Other
Terms of Employment
|
| 5.2.1. |
Bonuses:
The Employee shall be eligible to receive one or more bonuses during
any
calendar year at the discretion of the Chief Executive Officer, acting
in
consultation with the Board of
Directors.
|
| 5.2.2. |
Expenses:
The Employee shall be entitled, in accordance with the Company’s standard
policy in effect from time to time, to be reimbursed for expenses
(Hotza’ot Eshel) incurred in Israel and abroad in connection with Company
business against receipt by the Company of appropriate vouchers,
receipts
or other proof of the Employee’s
expenditures.
|
| 5.2.3. |
Continuing
Education Fund:
The Employee shall be entitled to participate in the Company’s continuing
education fund (Keren Hishtalmut). The Company shall contribute an
amount
equal to seven and a half percent (7.5%) of the Employee’s Global Salary
and shall deduct two and a half percent (2.5%) of the Employee’s Global
Salary and transfer it as the Employee’s contribution. The Employee
consents to the deduction of this amount as his contribution to the
continuing education fund. These contributions will be calculated
up to
the permissible tax-exempt salary ceiling according to the income
tax
regulations in effect from time to time. If the amount of the Company’s
contribution is greater than permitted by those regulations, the
Employee
shall not have the right to receive the excess
amount.
|
| 5.2.4. |
Reserve
Duty:
The Employee shall be entitled to receive his full Global Salary
and other
payments while performing reserve duty, provided that any amount
received
by the Employee from the I.D.F. or any other source (excluding Damei
Calcala) is transferred to the Company or, in the alternative, an
amount
equal to that received from the I.D.F. or any other source is deducted
from the Global Salary payable to the
Employee.
|
| 5.2.5. |
Annual
Leave and Damei Havra’a:
The Employee shall be entitled to fifteen (15) working days of paid
annual
leave each year. The Employee shall not be allowed to accrue more
than
fifteen (15) working days of annual leave except in unusual circumstances
and with the permission of the Company. Any accrued and unused vacation
days can be redeemed by the Employee in accordance with the provisions
of
the Annual Leave Law –
1951. In
addition, the Employee shall be entitled to paid leave on the major
national and religious holidays celebrated in Israel, and in accordance
with the normal practice of the Company in effect from time to time.
The
Company shall also pay the Employee an amount equivalent to five
(5) days
of damei havra’a each year in accordance with the law and the normal
practice of the Company in effect from time to time.
|
| 5.2.7. |
Sickness
and Disability Insurance:
The Employee shall be entitled to the number of days for sick leave
permitted by law. Compensation for sick days utilized shall be paid
according to his Global Salary only upon the presentation of medical
documentation as required by the Company. As detailed under Section
5.3.1
below, the Employee shall be covered by disability insurance that
provides
monthly compensation. Notwithstanding the foregoing, the Employee
shall
not be entitled to receive compensation for sick leave if such
compensation is covered by the Employee’s disability insurance referred to
above. However, should the amounts received by the Employee pursuant
to
such disability insurance be less than the amount that is properly
payable
as compensation for the Employee’s available sick leave, according to the
Global Salary, the Company shall pay the difference. It is understood
and
agreed that unused sick leave cannot be redeemed by the Employee.
For the
avoidance of doubt, it is understood and agreed that the payments
made by
the Company in consideration of sick leave covers all obligations
of the
Company pursuant to the Sick Leave Law -
1976.
|
|
5.3.
|
Pension
Benefits and Severance Payments
|
| 5.3.1 |
Managers
Insurance. Within ten days after 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 13-1/3% of the Employee’s monthly installment of the
Global Salary for the preceding month to a Managers Insurance (Bituach
Manahalim) policy (the “Policy”) and/or a comprehensive pension plan
(“Pension Plan”) through an agency and with an insurance company or a
pension fund, to be selected by the Employee, to be divided as follows:
8-1/3% towards Severance (the “Company’s Severance Contribution”); 5%
toward provident (compensation) as required by the new regulations
in
effect as of January 2006, relating to payments made to provident
funds.
In addition to the 13-1/3% mentioned above, at the beginning of each
month
the Company shall deduct from the monthly installment of the Global
Salary
of Employee an amount equal to 5% of the Employee’s monthly installment of
the Global Salary for the preceding month, and shall pay such amount
as
premium payable in respect of the provident compensation component
of
Policy. In addition the Company shall also pay up to 2.5% of the
Employee’s monthly installment of the Global Salary towards disability
insurance (depending on the cost to the Company necessary to provide
coverage). In the event the Employee elects to be insured under a
Pension
Plan, the allocations shall be modified in accordance with the Pension
Plans policies, provided, in any event they do not exceed the amounts
set
forth above.
|
| (a) |
Section
14 of the Severance Compensation Law –
1963.
|
| (i) |
It
is hereby agreed that upon termination of employment under this Agreement,
the Company shall release to the Employee all amounts accrued in
the
Managers Insurance on account of both the Company’s and Employee’s
contributions. It is hereby clearly agreed and understood that the
amounts
accrued in the Managers Insurance on account the Company’s contribution
[i.e. 13.33% of each monthly installment of the Global Salary payment]
shall be in lieu and in full and final substation of any severance
pay the
Employee shall be or become entitled to under any applicable Israeli
law.
|
| (ii) |
The
Company hereby waives in advance any right to any amounts accrued
in the
Managers Insurance, unless the Employee is either not entitled to
Severance Pay according to Section 17 of the Severance Compensation
Act,
1963, or has withdrawn amounts from the Managers Insurance not
due or as a result of an “Entitling Event”, as such term is defined in the
General Approval of the Labor Minister, dated June 30, 1998, issued
in
accordance to the said Section 14 (the “General
Approval”).
|
| (iii) |
Sub-Sections
(i) and (ii) are in accordance with Section 14 of the Severance
Compensation Act, 1963 and the General Approval, a copy of which
is
attached hereby to this Schedule
A
as
Exhibit
A.
|
|
5.4.
|
Company
Automobile.
|
The
Company will provide a leased automobile to the Employee, and will place such
automobile at the disposal of the Employee under the terms of the Company’s
general leasing plan (to be provided to the Employee upon provision of the
automobile), for a period xxxx to the remaining term on the car assigned to
the
Employee. The Company will bear all expenses of the automobile, including
gasoline, but excluding any traffic or parking fines resulting from the use
of
such automobile. All tax consequences resulting from the use of such automobile
by the Employee shall be his sole and exclusive responsibility.
|
5.5.
|
Cellular
Phone
|
The
Company shall provide and maintain for the Employee a cellular telephone for
as
long as the Employee is employed by the Company. It is agreed that the Employee
may transfer his own current cellular phone number to the Company. Upon
cessation of the Employee’s employment with the Company for whatever reason, the
Company agrees to return to the Employee his cellular phone number.
|
5.6.
|
Grant
of Stock/Share Options
|
| 5.6.1. |
The
Employee shall be entitled to receive one or more grants of options
to
purchase the Company’s ordinary shares. The amount of options granted and
timing of each grant shall be determined at the sole discretion of
the
Chief Executive Officer in consultation with the Board of Directors.
The
options shall be granted in accordance with the Company’s share option
plans. The grant of such options and the terms and conditions applicable
thereto, are subject to (i) the inclusion of the of the Employee
in the
Company’s share option plan; (ii) approval of the Company’s Board of
Directors; and (iii) such other terms and conditions as required
in order
to effect the grant of the options. All tax consequences resulting
from
the grant, vesting and exercise of the share options to or by the
Employee
shall be his sole and exclusive responsibility.
|
|
6.
|
Termination
of Employment
|
| 6.1. |
Either
party may terminate the Employee’s employment with the Company without
cause at any time upon three (3) month’s prior written notice. The Company
shall have the right, in its sole discretion, to require the Employee
to
continue working for the Company during the notice period.
|
| 6.2. |
The
Employee’s employment shall be terminated by his death or disability. (For
purposes of this section, “disability” shall be deemed to have occurred if
the Employee is unable, due to any physical or mental disease or
condition, to perform his normal duties of employment for 120 consecutive
days or 180 days in any twelve month period.). In such an event,
he shall
be entitled to continue to receive his annual salary for three (3)
months
following his last day of actual employment by the Company. Such
amount
shall be in addition to any severance payment he is entitled to receive
according the provisions of the Severance Compensation Law - 1963.
In
addition, in such events, the Board of Directors shall take the necessary
steps so that (a) any outstanding, but unvested, options granted
to the
Employee shall vest upon the effective date of his termination; and
(b)
the period during which the Employee shall be permitted to exercise
such
options shall be extended to two (2) years from the effective date
of his
termination as defined in the Share Option Plan governing the options
in
question. Should the Employee’s employment be terminated as a result of
his death, the benefits granted herein, shall be granted instead
to his
lawful heir or heirs.
|
|
7.
|
Taxes
and Other Payments
|
| 7.1. |
Unless
otherwise specifically provided for in this Agreement, the Company
shall
not be liable for the payment of taxes or other payments for which
the
Employee is responsible as result of this Agreement or any other
legal
provision, and the Employee shall be personally liable for such taxes
and
other payments.
|
| 7.2. |
The
Employee hereby agrees that the Company shall deduct from his Global
Salary the Employee’s national insurance fees, income tax and other
amounts required by law or the terms of this Agreement. The Company
shall
provide the Employee with documentation of such deductions.
|
|
8.
|
The
Obligations of the Employee
|
|
8.1.
|
The
Employee agrees to devote his entire business time, energy, abilities
and
experience to the performance of his duties, effectively and in good
faith.
|
|
8.2.
|
During
the period of his employment, the Employee shall not be employed,
whether
or not during regular business hours, for pay by any other party
other
than the Company, without the prior permission of the Company. The
Company
has approved that the Employee may continue his pre-existing consulting
relationship with Keryx Biopharmaceuticals, Inc., provided such consulting
relationship does not conflict in any way with the services provided
to
the Company hereunder.
|
|
8.3.
|
The
Employee agrees to immediately inform the Company of any Company
issue or
transaction in which the Employee has a direct or indirect personal
interest and/or where such issue or transaction could cause a conflict
of
interest for the Employee in the fulfillment of his responsibilities
as an
employee of the Company.
|
|
8.4.
|
The
Employee hereby gives irrevocable instructions and permission to
the
Company to deduct from any amounts owed to the Employee by the Company,
including amounts payable as severance compensation, (a) any debt
he has
or will have to the Company; and/or (b) any amount that was wrongfully
or
mistakenly paid to him by the Company. Any such amounts to be deducted
shall be calculated in real terms as of the date of the deduction,
including linkage to cost of living
index.
|
|
8.5.
|
The
Employee declares that the terms and conditions of his employment
are
personal and confidential and will not be disclosed by
him.
|
|
8.6.
|
The
Employee declares that he is free to enter into this Agreement and
that he
has no obligations of any kind to any third party that would impair
this
Agreement, either as an employee or an independent contractor. The
Employee further declares that as long as he remains an employee
of the
Company, he will not incur any such
obligations.
|
|
8.7.
|
The
Employee agrees to keep confidential (a) all professional, scientific,
commercial, and business information; and (b) any other information
or
document that comes to the Employee’s knowledge in connection with the
affairs of the Company (collectively, the “Confidential Information”), and
agrees not to use or exploit the Confidential Information or to disclose
it to any third party where such use, exploitation or disclosure
in not
directly related to the affairs of the Company, unless the Company
gives
prior written authorization of such
disclosure.
|
|
8.8.
|
The
Employees agrees that during his employment by the Company and thereafter
he (a) will not disseminate or otherwise make use of the Confidential
Information or of other non-public information of which he learned
while
working for the Company, except where such dissemination or use is
directly related to the affairs of the Company; (b) will maintain
the
confidentiality of the Confidential Information; and (c) will not
in any
way act to injure the reputation of the Company or any of its affiliated
companies.
|
|
8.9
|
The
Employee understands and recognizes that his services to the Company
are
special and unique. Therefore, he agrees that during the term of
this
Agreement and for one (1) year after the termination for any reason
of his
employment, he shall not be employed in or give any services to any
business or third party that competes directly with the Company or
whose
activities conflict with the activities of the Company, unless the
Chief
Executive Officer has given his explicit written consent prior the
commencement of such employment or the giving of such
services.
|
| 8.10 |
Upon
termination of his employment, the Employee agrees to assist the
Company
with an orderly transition of his responsibilities and to return
to the
Company any documents, information and/or materials that were given
to him
or which were created by him in connection with his
employment.
|
|
9.
|
Intellectual
Property Rights
|
| 9.1. |
The
Employee declares that he is aware that anything that is done by
him in
the Company or in connection with the Company, whether it be an invention,
a discovery, or the development of an idea or a thing, all within
the
framework of the Company’s business (the Development”) shall belong to and
be controlled by the Company, unless the Board of Directors shall,
in
writing, direct otherwise.
|
| 9.2. |
The
Company shall have the right to fully utilize and exploit the Development,
as it sees fit, including changing it, registering part or all of
it as a
patent, whether in Israel or abroad, selling it, transferring it
to a
third party, all without being required to either receive the Employee’s
consent or pay the Employee any additional payment for such Development
apart from any payment he receives pursuant to this
Agreement.
|
| 9.3. |
The
Development and any subsequent intellectual property arising therefrom
shall remain the sole property of the Employer even after the Employee’s
employment terminates for any reason. The termination of this Agreement,
whether due to its breach or its own terms, shall not impair the
Company’s
exclusive rights in the Development. Notwithstanding the termination
of
this Agreement, the Board of Directors shall have the discretion
to award
the Employee a cash payment in accordance with the terms of paragraph
5.2.1, above, as a result of any Development or subsequent intellectual
property arising therefrom developed primarily by the
Employee.
|
| 9.4. |
The
Employee may not do anything with the Development or any related
materials
without the knowledge and prior consent of the Company. The Employee
declares that he neither has nor will have any rights in the Development
or its fruits and that all rights to the Development and its fruits
shall
fully reside in the Company.
|
| 9.5. |
Even
in the event that at the time of the termination of the Employee’s
employment for any reason the Development has not been completed,
the
Employee shall be prohibited from any continued activity in connection
with the subject of the Development, alone or in concert with others,
that
is not explicitly allowed in writing by the Company. The Company
alone
will be the sole owner of the uncompleted Development and shall have
the
sole right to complete the Development or to take any other action
in
connection with the Development.
|
10.
Indemnification
The
Company shall take whatever steps are necessary to indemnify the Employee,
including, but not limited to the Employee, for all actions taken in good faith
in pursuit of their duties and obligations to the Company. Such steps shall
include, but shall not necessarily be limited to, the obtaining of an
appropriate level of Directors and Officers Liability coverage, if appropriate.
In the event the Employee will be signing the Company’s financial statements or
other regulatory filings, then the Company shall include the Employee in its
Directors and Officers Liability coverage.
|
11.
|
General
|
| 11.1. |
It
is agreed that the provisions of this Agreement represent the full
scope
of the agreement between the parties and that neither side shall
be bound
by any promises, declarations, exhibits, agreements or obligations,
oral
or written, that are not included in this Agreement prior to its
execution. Any changes or amendments to this Agreement must be in
writing
and signed by both parties.
|
| 11.2. |
This
Agreement shall be governed by, and construed and interpreted under,
the
laws of the State of Israel. The parties agree that any legal claim
lodged
by one party against the other arising from the terms of this Agreement
shall be adjudicated only by the appropriate court in Tel Aviv,
Israel.
|
| 11.3. |
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.
|
| 11.4. |
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.
|
| 11.5 |
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 or any purpose whatsoever unless such waiver is
in
writing and signed by such party.
|
| 11.6 |
The
headings of Sections are inserted for convenience and shall not affect
any
interpretation of this Agreement.
|
|
12.
|
Notices
|
| 12.1. |
A
notice that is sent by registered mail to a party at its address
as set
forth in paragraph 12.2, below, shall be deemed received three (3)
days
after its posting, and the receipt stamped by the post office shall
represent definitive evidence of the date of
mailing.
|
| 12.2. |
The
addresses of the parties for the purposes of this Agreement
are:
|
Building
No. 3 (third floor)
Kiryat
Weizmann
Rehovot
Employee:
Xxxx
Xxxxxxx
IN
WITNESS WHEREOF
the
parties have hereunto set their hands at the place and on the date first above
written.
| By: /s/ Xxx Xxxxxxx | /s/ Xxxxxxx Xxxxx | ||
|
Name Xxx
Xxxxxxx
|
Xxxxxxx Xxxxx |
||
|
Title Chief
Executive Officer
Date:
February 10, 2006
|
Chairman February 10, 2006 |
| By: /s/ Xxxx Xxxxxxx | |||
|
Name Xxxx
Xxxxxxx
|
|||
|
Date:
February 10, 2006
|
