EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of
November 19, 2009 by and between NeoStem, Inc. (the “Company”) and Xxxxxxxxxxx
Xxxxxxx (the “Employee”).
W I T N E S S E T
H:
WHEREAS, the Company wishes for
Employee to serve as its Vice President, Finance and Employee agrees to so serve
on the terms hereinafter set forth.
NOW THEREFORE, in consideration of the
mutual covenants herein contained, the parties hereto hereby agree as
follows:
Section 1. Employment. The Company
agrees to employ the Employee, and the Employee agrees to be employed by the
Company, upon the terms and conditions hereinafter provided, for a period
commencing on November 30, 2009 (the “Commencement Date”) and, subject to
earlier termination pursuant to Section 5 hereof, continuing until the second
(2nd) anniversary of the Commencement Date (the “Term”). The Employee
hereby represents and warrants that he has the legal capacity to execute and
perform this Agreement, and that its execution and performance by him will not
violate the terms of any existing agreement or understanding to which the
Employee is a party.
Section 2. Responsibilities. During the Term, the
Employee agrees to serve as Vice President, Finance. It is agreed
that commencing as of February 15, 2009, Employee shall commence serving as
Employer’s Principal Accounting Officer, subject to the prior
approval of the Company’s Board of Directors. Such position shall have such
duties as assigned to Employee from time to time by the Chief Executive Officer
of the Company, and which she considers to be appropriate for such
position.
During
the Term, and except for reasonable vacation periods pursuant to the Company’s
policies, the Employee shall devote substantially all of his business time,
attention, skill and efforts exclusively to the business and affairs of the
Company and its subsidiaries and affiliates. Employee shall be based
in or around New York, NY; however, it is understood that reasonable travel
shall be required from time to time.
Section 3. Compensation. For all services
rendered by the Employee in any capacity required hereunder during the Term, the
Employee shall be compensated as follows:
(a) The
Company shall pay the Employee a fixed annual salary equal to $168,000 (the
“Base Salary”) in accordance with the Company’s payroll practices, including the
withholding of appropriate payroll taxes.
.
(b) The
Employee shall be entitled to participate in all compensation and employee
benefit plans or programs, and to receive all benefits and perquisites, which
are approved by the Board of Directors of the Company and are generally made
available by the Company to all salaried employees of the Company and to the
extent permissible under the general terms and provisions of such plans or
programs and in accordance with the provisions
thereof. Notwithstanding any of the foregoing, nothing in this
Agreement shall require the Company nor any subsidiary of the Company to
establish, maintain or continue any particular plan or program nor preclude the
amendment, rescission or termination of any such plan or program that may be
established from time to time. You will be entitled to participate in
any medical, health and insurance plans of the Company commencing 90 days after
the Commencement Date.
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(c
) The Employee
shall be entitled to a monthly car allowance equal to $1,000 payable monthly and
to a quarterly bonus equal to $6,000 payable on the last day of each fiscal
quarter; provided that the first such quarterly payment shall be prorated based
on the time between the Commencement Date and Decembber 31, 2009 and shall be
payable on December 31, 2009.
(c) On
the Commencement Date Employee shall be granted an option (the “Option”) to
purchase 250,000 shares of Company common stock, $.001 par value (the “Common
Stock”) under and subject to all the terms of the Company’s 2009 Equity
Compensation Plan (“2009 ECP”) at a per share exercise price equal to the
closing price of the Common Stock on the date of grant which shall become vested
and exercisable (i) as to 25,000 shares on the Commencement Date; (ii) as to
25,000 shares on the date of the Company’s filing of its Annual Report on Form
10-K for the year ended December 31, 2009; (iii) as to 100,000 shares on the one
year anniversary of the Commencement Date; and (iv) as to 100,000 shares
on the two year anniversaryof the Commencement Date
Section 4. Business
Expenses. The Company shall
pay or reimburse the Employee for all reasonable travel (it being understood
that travel shall be arranged by the Company) and other reasonable expenses
incurred by the Employee in connection with the performance of his duties and
obligations under this Agreement, subject to the Employee’s presentation of
appropriate vouchers in accordance with such expense account policies and
approval procedures as the Company may from time to time establish for employees
(including but not limited to prior approval of extraordinary expenses) and to
preserve any deductions for Federal income taxation purposes to which the
Company may be entitled.
Section 5. Termination of
Employment.
(a) The
Company may terminate Employee’s employment prior to the end of the Term
immediately upon written notice to Employee and will pay the employee for 30
days post termination date. Employee may terminate Employee’s
employment upon thirty days’ prior written notice to the Company. In
the event that the Employee’s employment terminates prior to expiration of the
Term due to any reason, earned but unpaid Base Salary as of the date of
termination of employment shall be payable in
full. However, no other payments shall be made, or
benefits provided, by the Company under this Agreement except as otherwise
required by law.
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Section 6. Confidentiality;
Covenant Against Competition; Proprietary Information;
Lock-up.
(a) The
Employee shall execute the Confidentiality, Non-Compete and Inventions
Assignment Agreement attached hereto as Attachment A concurrently with the
execution of this Agreement.
(b) Without
the prior written consent of the Company, Employee will not, directly or
indirectly, offer, sell, pledge, contract to sell (including any short sale),
grant any option to purchase or otherwise dispose of any shares of Common Stock
or other Company securities (including, without limitation, shares of Common
Stock of the Company which may be deemed to be beneficially owned by the
undersigned on the date hereof in accordance with the rules and regulations of
the Securities and Exchange Commission, shares of Common Stock which may be
issued upon exercise of a stock option or warrant and any other security
convertible into or exchangeable for Common Stock) (each of the foregoing
referred to as a “Disposition”) from the date hereof until April 29,
2009
Section 7. Withholding
Taxes. The Company may
directly or indirectly withhold from any payments made under this Agreement all
Federal, state, city or other taxes and all other deductions as shall be
required pursuant to any law or governmental regulation or ruling or pursuant to
any contributory benefit plan maintained by the Company in which the Employee
may participate.
Section 8. Notices. All notices,
requests, demands and other communications required or permitted hereunder shall
be given in writing and shall be deemed to have been duly given if delivered or
mailed, postage prepaid, by certified or registered mail or by use of an
independent third party commercial delivery service for same day or next day
delivery and providing a signed receipt as follows:
(a) To
the Company:
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx
Xxxx 00000
Attention: General
Counsel
(b) To
the Employee:
Xxxxxxxxxxx Xxxxxxx
or to
such other address as either party shall have previously specified in writing to
the other. Notice by mail shall be deemed effective on the second
business day after its deposit with the United States Postal Service, notice by
same day courier service shall be deemed effective on the day of deposit with
the delivery service and notice by next day delivery service shall be deemed
effective on the day following the deposit with the delivery
service.
Section 9. No
Attachment. Except as
required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no effect;
provided, however, that
nothing in this Section 9 shall preclude the assumption of such rights by
executors, administrators or other legal representatives of the Employee or her
estate and their conveying any rights hereunder to the person or persons
entitled thereto.
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Section 10. Source of
Payment. All payments
provided for under this Agreement shall be paid in cash from the general funds
of the Company. The Company shall not be required to establish a
special or separate fund or other segregation of assets to assure such payments,
and, if the Company shall make any investments to aid it in meeting its
obligations hereunder, the Employee shall have no right, title or interest
whatever in or to any such investments except as may otherwise be expressly
provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of
any kind, or a fiduciary relationship, between the Company and the Employee or
any other person. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right, without prejudice to
rights which employees may have, shall be no greater than the right of an
unsecured creditor of the Company.
Section 11. Binding
Agreement; No Assignment. This Agreement
shall be binding upon, and shall inure to the benefit of, the Employee and the
Company and their respective permitted successors, assigns, heirs, beneficiaries
and representatives. This Agreement is personal to the Employee and
may not be assigned by her. This Agreement may not be assigned by the
Company except (a) in connection with a sale of all or substantially all of its
assets or a merger or consolidation of the Company, or (b) to an entity that is
a subsidiary or affiliate of the Company. Any attempted assignment in
violation of this Section 11 shall be null and void.
Section 12. Governing Law;
Consent to Jurisdiction. The validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of New York. In addition, the Employee and
the Company irrevocably submit to the jurisdiction of the courts of the State of
New York and the United States District Court sitting in New York County for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of this Agreement and the transactions contemplated hereby. Service
of process in connection with any such suit, action or proceeding may be served
on the Employee or the Company anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. The
Employee and the Company irrevocably consent to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court.
Section 13. Amendments. This Agreement
may only be amended or otherwise modified by a writing executed by all of the
parties hereto.
Section 14. Counterparts. This Agreement may be
executed in any number of counterparts, each of which when executed shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument.
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IN WITNESS WHEREOF, the Company has
caused this Agreement to be executed by its duly authorized officer and the
Employee has signed this Agreement, all as of the
first
date above written.
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By:
/s/ Xxxxx X. Xxxxx
Name: Xxxxx X.
Xxxxx
Title: Chairman
and CEO
/s/ Xxxxxxxxxxx
Xxxxxxx
Xxxxxxxxxxx
Xxxxxxx
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Attachment
A
Confidentiality, Proprietary
Information
and Inventions
Agreement
I
recognize that NeoStem, Inc., a Delaware corporation (the “Company”), is engaged
in the business of operating a commercial autologous adult stem cell bank and
the pre-disease collection, processing and long-term storage of adult stem cells
and the research on very small embryonic like (VSEL) stem cells and other adult
stem cell initiatives both within the U.S. and China (the
“Business”). Any company with which the Company enters into, or seeks
or considers entering into, a business relationship in furtherance of the
Business is referred to as a “Business Partner”.
I
understand that as part of my performance of duties as an employee of the
Company, I will have access to confidential or proprietary information of the
Company and the Business Partners, and I may make new contributions and
inventions of value to the Company. I further understand that because
of my relationship to the Company I have created in me a duty of trust and
confidentiality to the Company with respect to any information: (1) related,
applicable or useful to the business of the Company, including the Company’s
anticipated research and development or such activities of its Business
Partners; (2) resulting from tasks performed by me for the Company; (3)
resulting from the use of equipment, supplies or facilities owned, leased or
contracted for by the Company; or (4) related, applicable or useful to the
business of any partner, client or customer of the Company, which may be made
known to me or learned by me during the period of my employment.
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For
purposes of this Agreement, the following definitions apply:
“Proprietary
Information” shall mean information relating to the Business or the business of
any Business Partner and generally unavailable to the public that has been
created, discovered, developed or otherwise has become known to the Company or
in which property rights have been assigned or otherwise conveyed to the Company
or a Business Partner, which information has economic value or potential
economic value to the business in which the Company is or will be
engaged. Proprietary Information shall include, but not be limited
to, trade secrets, processes, formulas, writings, data, know-how, negative
know-how, improvements, discoveries, developments, designs, inventions,
techniques, technical data, patent applications, customer and supplier lists,
financial information, business plans or projections and any modifications or
enhancements to any of the above.
“Inventions”
shall mean all Business-related discoveries, developments, designs,
improvements, inventions, formulas, software programs, processes, techniques,
know-how, negative know-how, writings, graphics and other data, whether or not
patentable or registrable under patent, copyright or similar statutes, that are
related to or useful in the business or future business of the Company or its
Business Partners or result from use of premises or other property owned, leased
or contracted for by the Company. Without limiting the generality of
the foregoing, Inventions shall also include anything related to the Business
that derives actual or potential economic value from not being generally known
to the public or to other persons who can obtain economic value from its
disclosure or use.
As part
of the consideration for my employment or continued employment, as the case may
be, and the compensation received by me from the Company from time to time, I
hereby agree as follows:
1. Proprietary Information and
Inventions.
(a) All
Proprietary Information and Inventions related to the Business shall be the sole
property of the Company and its assigns, and the Company or its Business
Partners, as the case may be, and their assigns shall be the sole owner of all
patents, trademarks, service marks, copyrights and other rights (collectively
referred to herein as “Rights”) pertaining to Proprietary Information and
Inventions. I hereby assign to the Company any rights I may have or
acquire in Proprietary Information or Inventions or Rights pertaining to the
Proprietary Information or Inventions which Rights arise in the course of my
Employment. I further agree as to all Proprietary Information or
Inventions to which Rights arise in the course of my Employment to assist the
Company or any person designated by it in every proper way (but at the Company’s
expense) to obtain and from time to time enforce Rights relating to said
Proprietary Information or Inventions in any and all countries. I
will execute all documents for use in applying for, obtaining and enforcing such
Rights in such Proprietary Information or Inventions as the Company may desire,
together with any assignments thereof to the Company or persons designated by
it. My obligation to assist the Company or any person designated by
it in obtaining and enforcing Rights relating to Proprietary Information or
Inventions shall continue beyond the cessation of my employment. In
the event the Company is unable, after reasonable effort, to secure my signature
on any document or documents needed to apply for or enforce any Right relating
to Proprietary Information or to an Invention, whether because of my physical or
mental incapacity or for any other reason whatsoever, I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agents and attorneys-in-fact to act for and in my behalf and stead in the
execution and filing of any such application and in furthering the application
for and enforcement of Rights with the same legal force and effect as if such
acts were performed by me. I hereby acknowledge that all original
works of authorship that are made by me (solely or jointly with others) within
the scope of my employment and which are protectable by copyright are “works for
hire” as that term is defined in the United States Copyright Act (17 USCA,
Section 101).
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2. Confidentiality. At
all times, both during my employment and after the cessation of my employment,
whether the cessation is voluntary or involuntary, for any reason or no reason,
or by disability, I will keep in strictest confidence and trust all Proprietary
Information, and I will not disclose or use or permit the use or disclosure of
any Proprietary Information or Rights pertaining to Proprietary Information, or
anything related thereto, without the prior written consent of the Company,
except as may be necessary in the ordinary course of performing my duties for
the Company. I recognize that the Company has received and in the
future will receive from third parties (including Business Partners) their
confidential or proprietary information subject to a duty on the Company’s part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. I agree that I owe the Company and such
third parties (including Business Partners), during my employment and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence, and I will not disclose or use or permit the use or
disclosure of any such confidential or proprietary information without the prior
written consent of the Company, except as may be necessary in the ordinary
course of performing my duties for the Company consistent with the Company’s
agreement with such third party.
3. Noncompetition and
Nonsolicitation. During my employment, and for a period of two
(2) years after the Cessation of my employment, I will not directly or
indirectly, whether alone or in concert with others or as a partner, officer,
director, consultant, agent, employee or stockholder of any company or
commercial enterprise, directly or indirectly, engage in any activity in the
United States, Canada or China that the Company shall determine in good faith is
in competition with the Company concerning its work in the
Business. During my employment and for a period of two (2) years
after the cessation of my employment, I will not, either directly or indirectly,
either alone or in concert with others, solicit or encourage any employee of or
consultant to the Company to leave the Company or engage directly or indirectly
in competition with the Company in the Business. During my employment
and for a period of two (2) years after the cessation of my employment, I agree
not to plan or otherwise take any preliminary steps, either alone or in concert
with others, to set up or engage in any business enterprise that would be in
competition with the Company in the Business. The following shall not
be deemed to be competitive with the Company: (i) my ownership of stock,
partnership interests or other securities of any entity not in excess of two
percent (2%) of any class of such interests or securities which is publicly
traded. It is understood and agreed that the restrictions contained
in this Section 3 shall immediately cease to be of force and effect in the event
the Company ceases to be engaged in the Business.
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4. Delivery of Company Property and Work
Product. In the event of the cessation of my employment, I
will deliver to the Company all biological materials, devices, records,
sketches, reports, memoranda, notes, proposals, lists, correspondence,
equipment, documents, photographs, photostats, negatives, undeveloped film,
drawings, specifications, tape recordings or other electronic recordings,
programs, data, marketing material and other materials or property of any nature
belonging to the Company or its clients or customers, and I will not take with
me, or allow a third party to take, any of the foregoing or any reproduction of
any of the foregoing.
5. No Conflict. I
represent, warrant and covenant that my performance of all the terms of this
Agreement and the performance of my duties for the Company does not and will not
breach any agreement to keep in confidence proprietary information acquired by
me in confidence or in trust prior to my employment. I have not
entered into, and I agree that I will not enter into, any agreement, either
written or oral, in conflict herewith.
6. No Use of Confidential
Information. I represent, warrant and covenant that I have not
brought and will not bring with me to the Company or use in my employment any
materials or documents of a former employer, or any person or entity for which I
have acted as an independent contractor or consultant, that are not generally
available to the public, unless I have obtained written authorization from any
such former employer, person or firm for their possession and use. I
understand and agree that, in my service to the Company, I am not to breach any
obligation of confidentiality that I have to former employers or other
persons.
7. Equitable Relief. I
acknowledge that irreparable injury may result to the Company from my violation
or continued violation of the terms of this Agreement and, in such event, I
expressly agree that the Company shall be entitled, in addition to damages and
any other remedies provided by law, to an injunction or other equitable remedy
respecting such violation or continued violation by me.
8. Severability. If
any provision of this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable or otherwise invalid as written, the same shall
be enforced and validated to the extent permitted by law. All
provisions of this Agreement are severable, and the unenforceability or
invalidity of any single provision hereof shall not affect the remaining
provisions.
9. Miscellaneous. This
Agreement shall be governed by and construed under the laws of the State of New
York applied to contracts made and performed wholly within such
state. No implied waiver of any provision within this Agreement shall
arise in the absence of a waiver in writing, and no waiver with respect to a
specific circumstance, event or occasion shall be construed as a continuing
waiver as to similar circumstances, events or occasions. This
Agreement, together with the Consulting Agreement dated this date, contains the
sole and entire agreement and understanding between the Company and myself with
respect to the subject matter hereof and supersedes and replaces any prior
agreements to the extent any such agreement is inconsistent
herewith. This Agreement can be amended, modified, released or
changed in whole or in part only by a written agreement executed by the Company
and myself. This Agreement shall be binding upon me, my heirs,
executors, assigns and administrators, and it shall inure to the benefit of the
Company and each of its successors or assigns. This Agreement shall
be effective as of the first day of my being retained to render services to the
Company, even if such date precedes the date I sign this Agreement.
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10. Thorough Understanding of
Agreement. I have read all of this Agreement and understand it
completely, and by my signature below I represent that this Agreement is the
only statement made by or on behalf of the Company upon which I have relied in
signing this Agreement.
IN WITNESS WHEREOF, I have caused this
Agreement to be signed on the date written below.
DATED: November
19, 2009
Employee:
/s/
Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxx
Xxxxxxx
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