Exhibit 10.1
Dated the 1st day of September 2023
VIRAX BIOLABS GROUP LIMITED
and
DR NIGEL MCCRACKEN
________________________________________
EMPLOYMENT AGREEMENT
FOR
EXECUTIVE OFFICER
THIS AGREEMENT is made on the 1st day of September 2023.
BETWEEN:
(each a “Party” and collectively the “Parties”).
NOW IT IS HEREBY AGREED as follows:-
“Agreement” | this service agreement, as may be amended or modified from time to time;
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“Appointment” | the appointment of Dr Nigel McCracken as an Executive Officer of the Company pursuant to Clause 2;
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“Board” | the board of directors for the time being of the Company or the directors present at any meeting of the Board duly convened and held and includes a duly authorised committee thereof;
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“Bonus Plan” | shall have the meaning ascribed to it in Clause 5.2;
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“Business” | all the business and affairs carried on from time to time by the Group or by any of the companies within the Group;
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“Cause”
| shall have the meaning ascribed to it in Clause 6.1; |
“Compensation” | shall have the meaning ascribed thereto in the Clause 5.1;
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“Compensation Committee”
| the compensation committee of the Board; |
“Confidential Information” | (i) all information, know-how and records (in whatever form held) including (without prejudice to the generality of the foregoing) all formulae, designs, specifications, drawings, data, manuals and instructions and all customer lists, sales information, business plans and forecasts and all technical or other expertise and all computer software and all financial accounting and tax records, correspondence, orders and enquiries that are confidential or not generally known in any way in connection with the Group or any business of the Group, or trade secrets of the Group; (ii) any confidential |
| information or trade secrets of the clients or prospective clients of the Group, or (iii) the confidential or proprietary information of any third party received by the Group and for which the Group has confidential obligations;
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“Corporate Status” | the capacity of the Executive Officer with respect to the Company and the services performed by the Executive Officer in that capacity;
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“D&O Insurance” | shall have the meaning ascribed to it in Clause 16;
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“Group” | the Company and its subsidiaries from time to time and a member of the Group shall be construed accordingly;
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“Indemnifiable Amounts”
| shall have the meaning ascribed to it in Clause 9;
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“Indemnifiable Expenses”
| shall have the meaning ascribed to it in Clause 9; |
“Indemnifiable Liabilities”
| shall have the meaning ascribed to it in Clause 9; |
“Insurance Carrier”
| shall have the meaning ascribed to it in Clause 16; |
“Nasdaq” | Nasdaq Stock Market;
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“Singapore” | the Republic of Singapore;
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“Proceedings” | any threatened, pending or completed claim, action, suit, arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal, or any other proceeding, whether civil, criminal, administrative or investigative, whether formal or informal, including a proceeding initiated by the Executive Officer pursuant to Clause 14 to enforce his rights hereunder;
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“United Kingdom” | The United Kingdom of Great Britain and Northern Ireland;
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“United States” | The United States of America; and
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“USD” | United States dollars, the lawful currency of the United States.
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“GBP” | Great Britain Pound, the lawful currency of the United Kingdom.
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For UK based employees, and after three months, the Company will auto-enroll you into a pension scheme, in accordance with the Employer’s pension auto-enrolment obligations. While participating, the Company will match 6%. While participating in the scheme, you agree to worker pension contributions being deducted from your salary. The scheme is subject to its rules as may be amended from time to time, and the Company may replace the scheme with another pension scheme at any time.
For United States based employees, the employee shall be entitled to participate in the Company’s 401(k) plan. The Company shall match the employee’s contribution of 50 cents for each dollar an employee contributes, up to 6% of the employee’s pay.
For UK based employment, the Executive Officer shall, during the term of this Agreement, be entitled to GBP 100 per month for the purposes of obtaining his own hospitalisation and surgical insurance plan.
For the purposes of this Agreement, “Cause” means any one of Clause 6.1(a) to (i).
any Confidential Information (including without limitation), relating to the dealings, organisation, business, finance, transactions or any other affairs of the Group or its suppliers, agents, distributors, clients or customers; or in respect of which any company within the Group is bound by an obligation of confidence to any third party, but so that these restriction shall cease to apply to any information or knowledge which may (otherwise than through the default of the Executive Officer or his associates) become available to the public generally or otherwise required by law or any applicable rules or regulations to be disclosed.
ANNUAL LEAVE
The Executive Officer shall (in addition to public holidays and statutory leave and sick leave) be entitled to 30 working days paid annual leave in each year during the term of this Agreement to be taken at such time or times as the Board may approve.
The Executive Officer’s leave year runs from 1 January to 31 December, and the Executive Officer may carry forward no more than 20% unused paid annual leave of his current entitlement to be taken on or before 31st March of the following leave year.
MEDICAL LEAVE AND HOSPITALISATION LEAVE
The Executive Officer shall be entitled to full basic salary during any period of absence from work due to sickness or injury up to a maximum period of 14 days medical leave and 60 days hospitalisation leave. For the avoidance of doubt, the Executive Officer shall not be entitled to be paid during any period which he is absent without leave.
STATUTORY LEAVE
The Executive Officer will be entitled to any statutory leave provided that the Executive Officer meets the relevant requirements as prescribed under the applicable law.
Subject to any applicable law, the Company agrees to indemnify the Executive Officer as follows:
Executive Officer shall be entitled to indemnification under Clauses 9(a) and 9(b) above in all circumstances other than the following:
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to the extent that the Executive Officer is, by reason of the Executive Officer’s Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, the Executive Officer shall be indemnified in connection therewith. If the Executive Officer is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify the Executive Officer against those Expenses reasonably incurred by the Executive Officer or on the Executive Officer’s behalf in connection with each successfully resolved claim, issue or matter. For purposes of this clause, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
The Company may pay to the Executive Officer all Indemnifiable Expenses incurred by the Executive Officer in connection with any Proceeding, including a Proceeding by or in the right of the Company, in advance of the final disposition of such Proceeding, if the Executive Officer furnishes the Company with a written undertaking, to the satisfaction of the Company, to repay the amount of such Indemnifiable Expenses advanced to the Executive Officer in the event it is finally determined by a court or arbitral body of competent jurisdiction that the Executive Officer is not entitled under this Agreement to indemnification with respect to such Indemnifiable Expenses.
The Executive Officer shall submit to the Company a written request specifying the Indemnifiable Amounts, for which the Executive Officer seeks payment under Clause 9 hereof and the Proceeding of which has been previously notified to the Company and approved by the Company for indemnification hereunder. At the request of the Company, the Executive Officer shall furnish such documentation and information as are reasonably available to the Executive Officer and necessary to establish that the Executive Officer is entitled to indemnification hereunder. The Company shall pay such Indemnifiable Amounts within thirty (30) days of receipt of all required documents.
Except as otherwise provided in this Agreement, the Executive Officer shall not be entitled to payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect to any Proceeding brought by the Executive Officer against the Company, any entity which it controls, any director or officer thereof, or any third party, unless the Company has consented to the initiation of such Proceeding. This clause shall not apply to counterclaims or affirmative defenses asserted by the Executive Officer in an action brought against the Executive Officer.
The Company will obtain and maintain a policy or policies of director and officer liability insurance, of which the Executive Officer will be named as an insured, providing the Executive Officer with coverage for Indemnifiable Amounts and/or Indemnifiable Expenses in accordance with said insurance policy or policies (“D&O Insurance”); provided that:
The Company:
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The Executive Officer:
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This Agreement shall be binding upon and enure to the benefit of each party hereto and its successors and assigns and personal representatives (as the case may be), provided always that the Executive Officer may not assign his obligations and liabilities under this Agreement.
None of the provisions of this Agreement shall be deemed to constitute a partnership or joint venture between the parties for any purpose.
This Agreement may not be amended, supplemented or modified except by a written agreement or instrument signed by or on behalf of the parties hereto.
Any provision of this Agreement which is prohibited by or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement. Where, however, the provisions of any such applicable law may be waived, they are hereby waived by the parties to the full extent permitted by such law to the end that this Agreement shall be a valid and binding agreement enforceable in accordance with its terms.
The Contracts (Rights of Third Parties) Act 2001 shall not under any circumstances apply to this Agreement and any person who is not a party to this Agreement (whether or not such person shall be named, referred to, or otherwise identified, or shall form part of a class of persons so named, referred to, or identified, in this Agreement) shall have no right whatsoever under the Contracts (Rights of Third Parties) Act 2001to enforce this Agreement or any of its terms.
This Agreement shall be governed by and construed in all respects in accordance with the laws of the Singapore and the parties hereby submit to the non-exclusive jurisdiction of the courts of the Singapore.
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IN WITNESS whereof this Agreement has been executed the day and year first above written.
The Company
SIGNED by JAMES ALEXANDER CUNLIFFE FOSTER
for and on behalf of
VIRAX BIOLABS GROUP LIMITED
/s/ James Foster
The Executive Officer
DR NIGEL MCCRACKEN
/s/ Nigel McCracken