Exhibit 10.1
AMENDED EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is effective as of October 15, 2002
(the "Effective Date"), by and between Keryx Biomedical Technologies Ltd., an
Israeli company with it principal place of business at Hartom 7, Jerusalem (the
"Company") and Rony Seger, I.D. No. ____________, of __________________________
(the "Employee").
Whereas the Employee has been employed by the Company as its Chief Scientific
Officer;
Whereas the Employee is returning to his position at the Weizmann Institute of
Science as of the date of this Agreement;
Whereas the Company desires to continue to employ the Employee on a part-time
basis, in the position of Senior Scientific Advisor (the "Position");
Whereas the Employee desires to continue his employment by the Company and to
fulfill the responsibilities of the Position on a part-time basis; and
Whereas the parties desire to set forth the new conditions of employment
pursuant to which the Company will employ the Employee;
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 Employee shall be responsible for rendering such advice and services to the
Company as may be reasonably required by the Company including, without
limitation, advising the Company with respect to the direction of the Company's
research and product development and business development activities. He shall
report directly to the Chief Executive Officer. The description of
responsibilities set forth herein shall serve as a general statement of the
duties, responsibilities and authority of the Employee.
3. Working Hours
The Employee shall be employed by the Company on a part-time basis, namely for
not more than one (1) day per week (inclusive of mealtime). 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
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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 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 fifty
seven thousand six hundred dollars ($57,600), payable in New
Israeli Shekels according the representative rate of exchange
in effect each month at the time Company salaries are
calculated. The Employee's salary shall be paid in twelve
equal installments, monthly in arrears.
5.1.2. The 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 s/he will not claim any such increase.
5.1.3. 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 and, should the Employee be a director of the
Company at the time such other payments not specifically
included in this Agreement are made, by the shareholders of
the Company.
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 in 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 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. Car Allowance: The Employee shall be entitled to receive a
monthly amount of two hundred and eighteen dollars ($218),
payable in New
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Israeli Shekels, to reimburse him for the upkeep and
maintenance entailed in the use of his personal automobile for
business purposes.
5.2.3. 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.
5.2.4. Annual Leave and Recreation Pay (Damei Havra'a): The Employee
shall be entitled to four (4) working days of paid annual
leave each year. The Employee shall not be allowed to accrue
more than ten (10) working days of annual leave except in
unusual circumstances and with the permission of the Company.
Should the Employee's annual leave balance exceed ten (10)
days at the end of any calendar year, the excess number of
days shall be paid out in accordance with the provisions of
the Annual Leave Law - 1951. Notwithstanding the foregoing,
any unused annual leave accrued by the Employee prior to the
Effective Date shall be paid out as part of the first payment
of his Global Salary following the Effective Date. The Company
shall also pay the Employee for one (1) day of recreation
(damei havra'a) each year in accordance with the law and the
normal practice of the Company in effect from time to time.
5.2.5. Sickness: 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. 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.
5.2.6. Discontinuation of the Employee's Participation in Other
Benefit Programs: The Employee acknowledges and agrees that as
of the Effective Date, his participation in the Company's
Continuing Education Fund (Keren Hishtalmut) and Manager's
Insurance Program (Bituach Minhalim) shall cease and that the
Company shall have no further obligations to contribute its
portion or to deduct the Employee's contribution to those
programs.
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 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.
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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 90 consecutive days or 120 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, 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.
6.3. Notwithstanding the foregoing, the Company may terminate the
Employee immediately and without prior notice in the following
circumstances: (a) a material breach of the Employee's obligations
pursuant to paragraphs 8.7, 8.8 and 8.11 (confidentiality and
non-competition); (b) a material breach by the Employee of any other
provision of this Agreement, which is not cured by the Employee
within fifteen (15) days after receiving notice thereof from the
Company containing a description of the breach or breaches alleged
to have occurred; (c) the habitual neglect or gross failure by the
Employee to adequately perform the duties of his position; (d) any
act of moral turpitude or criminal action connected to his
employment with the Company or his place of employment; or (e) the
Employee's refusal to comply with or his violation of lawful
instructions of the Chief Executive Officer or the Board of
Directors.
6.4. In the event that Employee's employment has been terminated in
accordance with paragraph 6.3, above, the Employee shall not be
entitled to receive any of the severance payments set forth in
paragraph 6.2, above.
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.
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7.3 The Employee hereby agrees that his employment by the Company
pursuant to this Agreement shall be considered for tax and national
insurance purposes as secondary to his employment by the Weizmann
Institute of Science.
8. The Obligations of the Employee
8.1. The Employee agrees to devote his time, energy, abilities and
experience to the performance of his duties, effectively and in good
faith.
8.2. Keryx shall not require the Employee to act on its behalf in any
manner that would represent a conflict between the interests of
Keryx, on one hand, and the Weizmann Institute, on the other hand.
Such acts shall include, but not be limited to, the carrying out of
research for Keryx that overlaps or continues research he has
carried out at the Weizmann Institute as of the date of this
Agreement; the evaluation of technology belonging to the Weizmann
Institute that Keryx is interested in licensing; and conducting
negotiations on Keryx's behalf with the Weizmann Institute in
connection with technology belonging to the Weizmann Institute that
Keryx is interested in licensing.
8.3 During the period of his employment, the Employee must notify the
Company immediately should he accept employment, whether or not
during regular business hours, for pay or without pay by any other
party other than the Company or the Weizmann Institute. Such
notification shall be accompanied by a certification by the Employee
that such employment will not conflict with or prevent him from
fulfilling his obligations to the Company.
8.4. 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.
8.5. 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.
8.6. The Employee declares that the terms and conditions of his
employment are personal and confidential and will not be disclosed
by him.
8.7. 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.
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8.8. 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. Nothing in the foregoing shall be
construed to prevent the Employee from disclosing or using any
information which the Employee can show by written documentation was
in the public domain or enters into the public domain through no
improper act on the Employee's part or on the part of any of the
Company's employees or was in his possession prior to his joining
the Company or disclosed to the Employee after he has left the
Company on a non-confidential basis by a person authorized to do so.
The Employee agrees immediately to return all such material and
reproductions in his possession to the Company upon request and in
any event upon termination of employment.
8.9. The Employee 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.
8.10. The Employee understands and recognizes that his services to the
Company 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 the Company's business, either as an individual for
his own account, or as a partner, joint venturer, employee, agent,
consultant, salesperson, officer, director or shareholder of a
Person operating or intending to operate within the area that the
Company is, at the date of termination, conducting its business (the
"Restricted Businesses"); provided, however, that nothing herein
will preclude the Employee 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 Employee works in a
division of such Person which carries on a bona fide business which
is not directly competitive with the Restricted Businesses.
8.11. For a period of 12 months after the termination of this Agreement,
the Employee shall not interfere with or disrupt or attempt to
disrupt the Company's business relationship with any of its
partners, customers or suppliers.
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8.12. During the term of this Agreement, and for 12 months thereafter, the
Employee shall not, directly or indirectly, without the prior
written consent of the Company:
(a) solicit or induce any employee of the Company or any
affiliated company to leave the employ of the Company or any
affiliated company or hire for any purpose any employee of the
Company or any affiliated company or any employee who has left
the employment of the Company or any affiliated company within
six months of the termination of said employee's employment
with the Company or any affiliated company; or
(b) solicit or accept employment or be retained by any party who,
at any time during the term of this Agreement, was a customer
or supplier of the Company or any affiliated company where his
position will be related to the business of the Company or any
affiliated company; or
(c) solicit or accept the business of any customer or supplier of
Keryx or any Affiliate with respect to products similar to
those supplied by Keryx.
8.13 In the event that the Employee breaches any provisions of paragraphs
8.10, 8.11 and/or 8.12, or there is a threatened breach, then, in
addition to any other rights which the Company may have, the Company
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 these provisions, the Employee shall not argue as a defense
that there is an adequate remedy at law nor shall the Company be
prevented from seeking any other remedies that may be available.
8.14. 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
The provisions of Section 7 of the agreement executed on August 30, 2001,
between the Employee and Keryx Biopharmaceuticals, Inc. are hereby incorporated
by reference and shall govern the intellectual property rights and obligations
the Employee and the Company.
10. Indemnification
The agreement executed between the Company's parent company and the Employee
that provides for the indemnification of the Company's officers and directors
shall remain in full force and effect. In addition, the Company, or its parent
company, shall maintain an appropriate level of Directors and Officers Liability
coverage, which coverage shall include the Employee.
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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 Jerusalem, 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.
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12.2. The addresses of the parties for the purposes of this Agreement are:
Keryx Biomedical Technologies Ltd.:
Hartom 7
POB 23706
Jerusalem 91236
Employee:
IN WITNESS WHEREOF the parties have hereunto set their hands at the place and on
the date first above written.
Keryx Biomedical Technologies Ltd.
By
/s/ Benjamin Corn /s/ Rony Seger
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Employee