Employment Agreement Entered into on April 30, 2013 By and Between
Exhibit 10.3
Entered into on April 30, 2013
By and Between
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Cellect Biotechnology Ltd. a private company number 514625805 From ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, POB 2409, 44641 (the “Company”) |
The first party | |
And
| ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ID number 55365860 from ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the “CEO” or the “Employee”) | The second party |
(the Company and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ shall be collectively called: the “Parties”)
| Whereas | the Employee is interested in working in the Company and the Company is interested to employ the Employee as CEO and the Company's president as specified in this agreement and all according to the manner, conditions and consideration set forth in this agreement as follows; |
| And whereas | the Company’s shareholders are about to perform a share exchange transaction under section 103t with a "shell company" (the “Public Company”) such that after the exchange the Company shall be a subsidiary wholly owned by the Public Company; |
| And whereas | the Employee is a candidate for serving after the transaction as the Company's CEO of the Board and as the CEO of the Board of the Public Company and the Company is interested in such employment as specified in this agreement and all according to the manner, conditions and consideration set forth in this agreement as follows; |
| And whereas | the Employee declares that he has the capability, skills, reliability, and the experience necessary for fulfilling the position as defined in this agreement below; |
| And whereas | the Employee declares that there is no legal and/or contractual and/or other prevention for his employment in the position as defined below; |
| And whereas | the Parties wish to settle the employment conditions of the Employee in the Public Company and the Company under this agreement as detailed below; |
Now therefore, it was stated, agreed and stipulated by and between the Parties as follows:
| 1. | Preamble |
| 1.1 | The preamble to this agreement constitutes an integral part thereof. |
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| 1.2 | The division of the agreement into sections and the headings of the sections were purported for convenience only and are not to be used as for interpretation purposes. |
| 2. | The role and purpose of the agreement |
| 2.1 | This agreement is personal and unique and beyond what is stated in the agreement no other agreements shall apply to the Parties. |
| 2.2 | The Employee shall be employed by the Company as the Company's CEO. |
| 2.3 | The CEO shall be subject to the Company's Board, shall act according to its guidelines and shall be accountable in all that concerns the fulfillment of his position. |
| 2.4 | The Parties are aware that after the completion of the transaction, the CEO shall be employed as an employee of the Public Company. |
| 3. | Unique agreement |
| 3.1 | It is agreed that the information and conditions of this agreement are personal and confidential. |
| 3.2 | The CEO commits to keep in absolute confidentiality the conditions of his employment and wages and not allow any party, whether internal or external an access to the agreement conditions and not deliver to another any information regarding the conditions of his employment and wages other than to parties that where the law the CEO is required to deliver such information. Keeping in confidentiality the conditions of this agreement is subject to the disclosure provisions under the securities law, 1968 and the provisions of the stock exchange. |
| 3.3 | The Parties declare that they are not contractually precluded from entering into this agreement. |
| 4. | The CEO's personal confidence and obligations |
| 4.1 | The CEO shall be meticulous about complying with the provisions of any law, with all the rules and provisions to be issued from time to time by the authorities that shall supervise and/or regulate the activity of the Company and its employees in connection with managing the Company's business affairs and shall comply with the Company's internal guidelines and procedures as shall be from time to time. |
| 4.2 | The CEO commits to fulfill his position in the Company diligently and loyally and devote in working for the Company all his knowledge, experience, business time and energy, and act, to the best of his ability, diligently, efficiently and loyally for promoting the Company, its benefits and success according to the Company's Board guidelines and work procedures. |
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| 4.3 | During the term of his employment in the Company, the CEO shall not be involved, directly or indirectly, in any other business, company, occupation, directly or indirectly, which may be in conflict of interests with the activity of the Public Company and/or the Company and commits to devote its entire time and energy to the Company. |
| 4.4 | Notwithstanding the foregoing in section 4.2 as above, it is agreed that the CEO may devote from his business time and energy to public and other activities, as specified in Appendix A of this agreement which shall be updated from time to time. Other activities that are not listed in Appendix A shall be reported to the Company's Board and approved by the Board. |
| 4.5 | The CEO commits to abide by the law and according to the Company's procedures in all of its decisions concerning hiring or dismissing the Company's employees. |
| 4.6 | During the term of this agreement, the CEO shall not receive, directly or indirectly, any payment or other benefit from any party who is directly or indirectly involved in working with the Company, including from customers or suppliers of the Company. |
| 4.7 | The CEO commits to notify the Company's management immediately and with no delay of any matter or issue for which him or his family members may have a personal interest or that may create a conflict of interests with his position in the Company. |
| 5. | Wages and conditions |
| 5.1 | In return for the CEO's work in the Company, the CEO shall be entitled to wages and conditions as specified in the "Summary of employment conditions" which is attached to this agreement as Appendix B and constituting an integral part thereof. |
| 5.2 | It is clarified that as the Company's CEO, the latter shall be at the disposal of the Company for the purpose of fulfilling his position at hours and days beyond the regular working hours and days, as necessary. The CEO warrants and represents that he is aware that his position is a management position that requires a unique measure of personal confidence and accordingly the work hours and rest law – 1951 shall not apply to him while working at the Company. The CEO shall not be entitled to payments or any additions for overtime and/or for surplus hours or rest days and his monthly wage, as specified in this section, as above, was calculated to include a full compensation for his work at any scope necessary, according to the work requirements. |
| 6. | Confidentiality |
| 6.1 | The CEO warrants and represents that he is aware and he agrees that in the course of his work and confidence relations he is exposed and shall be exposed to a valuable commercial-professional information in all that concerns the Company's business affairs (the Company's area of activity) and to various commercial contacts. This information is the exclusive property of the Company and its disclosure to any party or its use by the CEO may harm and damage severely the Company. |
| 6.2 | The CEO warrants and represents to keep in confidentiality and not disclose or deliver to any person or entity, including companies in which the CEO is active and not use, himself or on behalf of a third party, directly or indirectly – whether the secrets, information and the documents below came to his attention as a result of his work in the Company or otherwise, as long as those did not become a public domain: |
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| 6.3 | Commercial secrets and/or other secrets of the Company, information directly or indirectly related to its property, business affairs, affairs, the Company's reputation, its customers and suppliers and of the people and/or the entities related to the Company, including information regarding the Company's area of activity and any information relating and/or concerning the aforesaid, including but without derogating from the generality of the foregoing – the Company's R&D subjects, manufacturing methods, processes, prices, calculations, terms of agreement with customers and suppliers, drawings, documents and secrets whether the above secrets and information came to the CEO due to his work in the Company or that came to him by any other manner (the secrets/the information, as the case may be) and any document, memo, record, report, summary, plans, letters or other documents of the Company including electronic documents and computer software and encrypted information and/or information saved in any media with respect to the above information and secrets, in whole or in part, whether prepared by him or by another (the “Documents”). |
| 6.4 | Information - whether written or verbal and in any media used or that may be used by the Company in its business, and/or provides the Company with a commercial advantage over its competitors coming to the information of the Company's CEO and/or in the context and/or during the performance of his position in the Company. |
| 6.5 | The CEO approves that he is aware that all of the above secrets, Information and Documents – are vital business and proprietary information of the Company which is not a public domain and cannot be easily discovered by others, which its secrecy confers on the Company a commercial advantage over its competitors and the Company takes reasonable measures to maintain its secrecy. |
| 6.6 | The CEO warrants and represents that he shall keep in confidentiality the Information, as defined in this section, of the Company or related companies or of the Company's customers, as detailed below, shall not deliver to any person and/or entity outside the Company and shall not use such information or disclose it, by deed or omission, without the Company's consent in advance and in writing unless the disclosure is necessary for fulfilling his position in the Company. |
| 6.7 | The above obligations shall be valid at any time after the employment period of the CEO until such secrets, Information and Documents become a public domain. |
| 7. | Employment restrictions |
| 7.1 | For a period of 6 months from the end of the CEO employment period (the “Restriction Period”) for any reason whatsoever, the CEO shall not engage, directly or indirectly, as a salaried employee and/or partner and/or otherwise in a business competing with the Company's businesses as they were prior to the actual employment termination in the Company. |
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| 7.2 | The CEO commits that for a year from the employment termination date in the Company he shall not maintain by himself and/or through anyone on his behalf any business or commercial contact whether on his own initiative or otherwise by a third party with those who were at the employment termination date and/or during the year preceding the termination date and/or are managers of the Company, with customers of the Company and any company/competitor of the Company, whether as employer, contractor, partner, advisor, manager and/or otherwise in all that relates to the Company's area of activity as was on the employment termination date. |
| 7.3 | The CEO commits not to offer, directly or indirectly, work or employment to a Company's employee and/or not to accept such an offer from a Company's employee and/or not to employ him in any business for any purpose and in any place and/or not to be in any business contact with him for a year from the termination of work relations between the CEO and the Company. |
| 7.4 | "The Company" for the purpose of this section - including corporations relating to the Company at present or in the past. |
| 7.5 | "Employee" for the purpose of this section – including corporations controlled by the Company. |
| 8. | Patents and inventions |
| 8.1 | All proprietary rights and copyrights for each invention, development, or patent relating to the Company or its businesses and/or deriving from the provision of services to be invented or developed by the CEO during his employment in the Company or that he shall be a partner in their creation even if the invention or development is completed by the Company after employment termination, shall be the exclusive property of the Company. |
| 8.2 | The Company may protect the invention and/or development and/or the patent by registration or by any other way in Israel or elsewhere and the CEO may not register the invention and/or development and/or patent or take any other course of action with respect to the above other than activities that are required to register or use the patent in the name of the Company or by the Company or for the Company. |
| 8.3 | The CEO shall cooperate with the Company with respect to registering its rights for each patent or invention which were invented by him for the Company during his employment in the Company also after employment termination. |
| 8.4 | The CEO shall notify in writing the Company's Board of any invention and/or development and/or patent immediately after their creation. |
| 8.5 | For the avoidance of doubt, the wages of the CEO under this agreement represent the full consideration for his work including for each invention and/or patent invented by him in the course of his employment period in the Company and that relates to the Company's area of activity and represents a fair value and full compensation in connection with the invention and/or patent. The CEO warrants and represents that he shall not be entitled to any compensation and/or increased wages in connection with inventions and/or any intellectual property in the course of his employment period other than the consideration specified in Appendix A of this agreement and the CEO hereby waives any claim and/or demand based on section 134 of the patent law – 1967. |
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| 9. | The agreement's term |
| 9.1 | This agreement is valid for 36 months from its signing date (the “Agreement Term”). |
| 10. | Early notice and termination of work relations |
| 10.1 | Each Party may terminate this agreement by an early notice to the other Party of 180 days in advance and in writing. |
| 10.2 | It is agreed that in the early notice period, the CEO shall be entitled to its full rights whether under the law and the employment agreement including motor vehicle whether or not the Company has waived his work in the early notice period, in whole or in part. If the Company terminates the work of the CEO immediately, the Company shall pay the CEO the full payments to which the CEO is entitled in the early notice period under the law and the employment agreement. |
| 10.3 | In the cases listed below, the Company may discontinue immediately the employment of the CEO, with no early notice, or payment for early notice fees and with no severance pay or any other payment: |
| 10.3.1 | In the circumstances set forth in the law of early notice for dismissal and resignation – 2001. |
| 10.3.2 | In case it was found out that the CEO acted dishonestly and disloyally towards the Company and/or maliciously harmed the Company and/or abused his position. |
| 10.3.3 | Had the CEO been arrested for suspicion of committing a criminal offense and/or was convicted of a disgraceful criminal offense or an offense which its circumstances are such that its continued employment shall damage the Company, as per the management, whether or not the offense is related to its work in the Company. |
| 10.4 | The CEO shall return to the Company the entire equipment, Documents and Information including the information saved by electronic means and/or otherwise. |
| 11. | General provisions |
| 11.1 | In case of disputes between the Parties concerning their obligations and/or the interpretation of a certain provision of the provisions of this agreement, the matter shall be decided exclusively by a court in Tel Aviv having subject matter jurisdiction. |
| 11.2 | In any event where the Company pays the CEO monies under circumstances conferring the right to receive refunds from the national insurance institute, the CEO shall produce to the Company the confirmations required so that the Company shall be able to claim due funds from the national insurance institute. |
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| 11.3 | All of the amounts payable to the CEO or to his credit under the employment agreement and all the cash equivalent benefits granted to the CEO under this agreement, are gross amounts and are subject to deduction of taxes and other compulsory payments as required by law. |
| 11.4 | In a case where any Party shall not use any right conferred upon him under this agreement or under any law, it shall not be deemed as a waiver of such right and he shall be entitled to reuse these rights. Delay or waiver claims shall not be available to the violating Party. |
| 11.5 | Any change in the provisions of this agreement or a waiver of any Party shall be in force and effect only if approved by that Party in writing. |
| 11.6 | The addresses of the Parties for the purpose of this agreement are as specified in the preamble of this agreement. Any notice sent by registered mail to the other Party according to its address, as aforesaid, shall be deemed as if it was received by the addressee three days after its delivery to the post office and if it was hand delivered – upon its delivery. |
| 11.7 | Upon signing this agreement, all agreements, documents and understandings among the Parties are null and void and any change of this agreement shall be made in writing only. |
| 11.8 | This agreement constitutes a written notice to the Employee regarding his work conditions as required by the Notice to Employee Law (Work Conditions) – 2002. |
In witness whereof we executed this agreement
| /s/ Cellect Biotechnology Ltd. | /s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Cellect Biotechnology Ltd. | ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ |
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Appendix A
Public and other activities
| 1. | Activities to promote the biotechnology industry in Israel. |
| 2. | Activities in the framework of Bionegev Ltd. |
| 3. | Representing the State in the framework of OECD authorities. |
| 4. | Activity in the framework of Rosetta EP and/or ▇▇▇▇ with respect to intellectual property management and commercialization. |
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Appendix B – summary of employment conditions and monetary conditions
Name of employee: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Position: CEO of the Company
Employment commencement date: May 1, 2013
| 1. | Scope of position: full time position |
| 2. | Wages: |
| 2.1 | The Company shall pay the CEO gross wage of NIS 45,000 per month. The wage shall be updated according to the increase in the cost of living as paid to employees from time to time to employees (the “Base Wage”). |
| 2.2 | The CEO shall be entitled to a onetime bonus of NIS 100,000 to be paid to the CEO upon consummating the share exchange transaction with the Public Company. |
| 2.3 | Effective from the date on which the Public Company and the Company shall consummate a aggregate capital raising of $2 million (the “Investment Event”), the CEO shall be entitled to an increased Base Wage by 10% and to a further increase of the Base Wage by an additional 10% for consummating an additional Investment Event of $2 million (the “Updated Wage”). |
| 2.4 | The Base Wage and the Updated Wage shall be called in Appendix A the “Wage", as the case may be. |
| 2.5 | The Wage shall be paid to the CEO until the ninth day for each calendar month for the previous calendar month provided that this day is a business day. |
| 2.6 | The Wage shall represent the basis for calculating vacation, sick leave, severance pay, early notice, provisions to pension funds/managers insurance, provident funds and advanced study funds. |
| 3. | Bonus: |
| 3.1 | in addition to the Wage specified in the above section 2, in the event that the Public Company and the Company shall consummate an aggregate capital raising, the CEO shall be entitled to a bonus as detailed below: |
| 3.1.1 | To the extent that the aggregate capital raising shall be between $1 million to $2 million, the CEO shall be entitled to an onetime bonus of 0.75% of the total aggregate capital raising. |
| 3.1.2 | To the extent that the aggregate capital raising shall be in excess of $2 million, the CEO shall be entitled to an onetime bonus of 1% of the total aggregate capital raising. |
| 4. | Company car: |
| 4.1 | The Company shall provide the CEO with a private car of group 4 and shall pay for the maintenance according to the law and gross up its value for tax purposes. It is agreed that the provision of the car releases the Company from the payment of the Company's participation for the CEO's travel expenses. The CEO shall be charged with the car use value as required by the income tax regulations. |
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| 4.2 | The Company car shall be used by the CEO for work and for his personal needs where a preference shall be given to work over any other need. |
| 5. | Reimbursement of travel expenses: |
| 5.1 | in addition to the Wage specified in the above section 2, the CEO shall be entitled to reimbursement of travel expenses in the course of works in the Company. In the framework of foreign travel on behalf of the Company, the CEO shall be entitled to fly in business class and the accommodation expenses abroad shall be paid by the Company. The Company shall issue general insurance policy and full medical insurance for the CEO during his stay abroad. |
| 6. | Mobile phone |
| 6.1 | The Company shall provide the CEO with a mobile phone for the purpose of fulfilling his position and shall pay for all maintenance costs up to a maximum amount to be determined by the Company from time to time. The CEO shall return the phone to the Company upon the termination of his employment. The CEO shall be charged with the phone use value as required by the income tax regulations. |
| 7. | Managers' insurance: |
| 7.1 | According to the Wage, effective from the commencement date of the CEO’s employment and subject to directives to be provided from time to time by the income tax commission and the maximum deductible amount, the Company shall pay a recognized insurance company under the managers' insurance an amount equal to 8 1/3% for severance pay and 5% for compensation from the Wage. In addition, 5% of the Wage shall be provided by the Company to the insurance company out of the total Wage, as a participation of the CEO for the managers' insurance for compensation. |
| 7.2 | All of the Company's provisions at a rate of 8 1/3% including linkage differentials, interest and any other gain deriving therefrom, shall be on account and in lieu of severance pay for the CEO or his survivors if such entitlement is resulted according to the general approval granted by the minister of labor and welfare and pursuant to the provisions of section 14 of the Severance Pay Law – 1963 Appendix B. |
| 7.3 | All amounts accumulated from the above provisions shall be fully owned by the manager from the date of the provision and the Company may not delay them in any way whatsoever unless the manager was dismissed under circumstances that do not entitle him to severance pay where then the Company may deny/reduce the severance pay amount according to the law. |
| 8. | Advanced study fund: |
| 8.1 | The CEO shall be entitled to advanced study fund, at his choice, effective from the commencement of his employment. |
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| 8.2 | The Company shall provide every month 7.5% of the Wage to the advanced study fund and deduct and provide 2.5% of the CEO's Wage to such fund. The amounts provided shall be owned and in the name of the CEO from the provision date. |
| 9. | Annual vacation: |
| 9.1 | The CEO shall be entitled to paid annual vacation of 25 days every year. |
| 9.2 | The right to accumulate vacation shall not exceed the total vacation days accumulated in two years. |
| 10. | Sick leave: |
| 10.1 | The CEO shall be entitled to paid sick leave according to the law. |
| 11. | Recreation: |
11.1 The CEO shall be entitled to paid recreation days according to the law.
In witness whereof we executed this document:
| /s/ Cellect Biotechnology Ltd. | /s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Cellect Biotechnology Ltd. | ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ |
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Appendix C
A General Approval regarding Employers' Payments to a Pension Fund and Insurance Fund in lieu of Severance Pay
Under Severance Pay Law – 1963
Pursuant to the authority vested in me under Section 14 of the Severance Pay Law, - 1963 (the "Law"), I hereby confirm that the payments paid by an employer effective with publication date of publication of this approval for his employees to a comprehensive pension in a provident fund that is not an insurance fund within the meaning of the Income Tax Regulations (rules on the approval and management of provident funds) - 1964 (the "Pension Fund"), or to managers' insurance including the possibility of an annuity or a combination of payments to annuity plan and to a plan that is not for a pension in such insurance fund (the "insurance fund"), including payments paid through a combination of payments to a pension and insurance funds, whether or not there is a pension plan in the insurance fund (the "Employer Payments"), will be in lieu of the severance pay due to the employee in respect of the salary from which said payments were made and for the period payments were made (Exempt wages) provided that all of the following were met:
| 1. | Employer payments |
| a. | To a pension fund, payments that are not less than 14 -1/3% of the exempt wages or 12% of the exempt wages if the employer pays for his employee payments in addition to supplement severance pay to the severance pay fund or to insurance fund in the name of employee at a rate of 2-1/3% of the exempt wages. If the employer does not pay in addition to 12% the 2-1/3% as above, the payments will be in lieu of only 72% of the employee's severance pay; |
| b. | To an insurance fund, payments that are not less than one of the following: |
| 1) | 13-1/3% of the exempt wages if the employer pays for his employee also payments to secure monthly income in the event of work disability in a plan approved by the commissioner of capital market and insurance and savings in the Ministry of Finance at a rate required to secure at least 75% of the exempt wages or 2.5% of the exempt wages, whichever is lower ("payment for work disability insurance"); |
| 2) | 11% of the exempt wages if the employer paid insurance payments for work disability insurance and in this case the employer payments will be in lieu of 72% of the severance pay of the employee provided that; the employer paid in addition to these payments also payments for supplementing the severance pay severance to severance pay fund or to an insurance fund in the name of the employee at the rate of 2-1/3% of the exempt wages, the employer payments will be in lieu of 100% of the employee's severance pay. |
| 2. | Not later than three months after making the employer payments, a written agreement entered into between the employer and the employee containing the following – |
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| a) | the employee's consent to the arrangement according to this approval under the version specifying the payments of the employer and the pension fund and insurance fund, as the case may be; the agreement also shall include the version of this approval; |
| b) | a waiver of the employer in advance of any right it may have for a refund of monies from his payments unless the employee's right to severance pay was denied in a ruling under sections 16 or 17 of the law and to the extent such right was denied, or in the event that the employee withdrew money from the pension fund or the insurance fund not due to a qualifying event; In this regard, "qualifying event" - death, disability, or retirement at age of sixty or more. This approval does not derogate from the employee's severance pay right under the law, collective agreement, expansion order or labor agreement in respect of wages in excess of the exempt wages. |
| 3. | This approval does not derogate from the employee's severance pay right under the law, collective agreement, expansion order or labor agreement in respect of wages in excess of the exempt wages. |
| /s/ Cellect Biotechnology Ltd. | /s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Cellect Biotechnology Ltd. | ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ |
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