EXHIBIT 10.9
BIO-I.T. (BIO INFORMATION TECHNOLOGIES) LTD.
EMPLOYMENT AGREEMENT
WITH
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
AGREEMENT dated as of October 31, 2000, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"EMPLOYEE"), whose address is [ADDRESS], and BIO-I.T. (BIO INFORMATION
TECHNOLOGIES) LTD. (the "COMPANY"), a corporation incorporated under the laws of
the State of Israel, having its address at ▇▇▇ ▇▇▇▇▇▇ ▇▇'▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
WITNESSETH
WHEREAS the Employee is a Co-Founder of the Company, and the Company desires to
employ the Employee as its Chief Operating Officer ("COO") with duties as set
forth in Section 2 below; and
WHEREAS the Employee represents she has the desired skills and knowledge to
serve in such positions.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment
From the Effective Date (as defined in Section 3), the Company hereby employs
Employee and Employee accepts employment with Company upon the conditions set
forth herein.
2. Duties
(a) The Company hereby engages Employee to serve as its COO to be
responsible for the following: (i) the Company's operational aspects; (ii)
assist and support the Company's research and development activities; (iii)
assist in the management of the Company's business and development; and (iv) to
perform other tasks, as shall be determined, from time to time by the Company's
board of directors (the "DUTIES"). During the term hereof, Employee shall report
to the Company's CEO.
(b) In addition to the discharge of her Duties hereunder in the premises
of the Company, Employee shall make her services hereunder available by
telephone during normal business hours, and at such times or at such other
places as may mutually be agreed upon between the Company and the Employee.
Without derogating from the foregoing, at the request and pursuant to the
instructions of the Company, Employee shall discharge her Duties and/or perform
any specific task hereunder outside of Israel.
(c) Employee shall provide the services hereunder on a full-time basis and
shall devote all necessary time and attention to the furtherance of the business
and interests of the
Company, and shall perform her Duties diligently and promptly for the benefit of
Company, strictly and faithfully upholding the Company's policies. During her
engagement hereunder, Employee shall not, without prior written consent of the
board of directors, undertake or accept any other paid or unpaid employment,
occupation or services as a consultant or otherwise, or engage in or be
associated with, directly or indirectly, any other businesses, duties or
pursuits, including without limitation, any academic occupation except for
strictly de-minimis non-commercial or non-business activities, which do not
affect the adequate performance of the Employee's obligations hereunder.
3. Term
(a) The Employee's employment under this Agreement shall commence
immediately after the Closing of the Company's 1st Round of Financing (as
defined in the Founders Agreement to which this Agreement constitutes a
schedule) (the "EFFECTIVE DATE") and shall end on the earliest of (i) the death
or disability (as defined herein) of the Employee, (ii) the termination of
Employee's services by Company for Cause (as defined herein); or (iii) four (4)
years from the Effective Date, unless earlier terminated without cause by either
party on sixty (60) days prior written notice to the other (the "INITIAL TERM").
This Agreement may be extended by the mutual written consent of the parties. Any
period of extension shall be referred to as an "EXTENDED TERM".
(b) For the purpose of this Section 3, "DISABILITY" shall mean any
physical or mental illness or injury as a result of which the Employee remains
absent from work for a period of two (2) successive months, or an aggregate of
two (2) months in any twelve (12) month period. Disability shall occur upon the
end of such two (2) month period.
(c) For the purpose of this Section 3, "CAUSE" shall exist if the Employee
(i) breaches any of the material terms or conditions hereof including without
limitation, any of the terms of Sections 7, 8, 9 and 10; (ii) fails to perform a
significant portion of her tasks as determined by the board of directors; or
(iii) engages in willful misconduct or acts in bad faith towards Company or any
of its subsidiaries and/or affiliates with and related to the employment
hereunder; or (iv) commits a felony or perpetrates fraud against the Company
and/or any of its subsidiaries and/or affiliates.
(d) During the sixty (60) day period following the notice of termination
by any party to this Agreement, Employee shall cooperate with Company and use
her best efforts to assist the integration into Company of the person or persons
who will assume Employee's responsibilities.
4. Compensation
(a) The Company shall pay Employee a salary payable monthly and in
accordance with Company's normal and reasonable payroll practices, in a yearly
gross amount of NIS 303,000 (the "YEARLY GROSS SALARY"). This Yearly Gross
Salary shall be payable over a period of twelve months, in equal monthly
payments of NIS 25,250 each (the "MONTHLY GROSS SALARY"). The Monthly Gross
Salary is exclusive of amounts payable by Company for the social benefits set
forth in Sections 4(c), 4(d) and 4(e) for the duration of this Agreement. The
Monthly Gross Salary shall be linked to the Israeli Consumer Price Index.
2
(a1) If and subject to the Company completing a second round of financing
in which the investors in such round invest at least USD$4,000,000 (the "2ND
FINANCING ROUND"), then following 2nd Financing Round the Employee's Yearly
Gross Salary shall be increased by ten percent (10%). This newly increased
Yearly Gross Salary shall be payable in accordance with the provisions of
sub-section (a) above and the other sub-sections of this Section 4.
(a2) Following the 2nd Financing Round, at the end of each year of
employment hereunder, the Company shall conduct a review of Employee's Yearly
Gross Salary. Any changes in Employee's Yearly Gross Salary after such 2nd
Financing Round shall be in the sole discretion of the Company's Board of
Directors. When reviewing the Employee's Yearly Gross Salary, the Board of
Directors shall take into account the following considerations: (i) the
Company's financial situation and profitability; (ii) whether or not the
Employee performed his duties hereunder to the Company's satisfaction and in
accordance with his projections and reports to the Company, and those other
considerations as may be appropriate in the circumstances. For the removal of
doubt, for as long as the Employee is an office holder in the Company (as
defined in the Companies Law 5759-1999, as same may be amended from time to time
[the "COMPANIES LAW"]), any change in the Employee's Yearly Gross Salary as
aforesaid and any other changes to the terms of employment hereunder, shall,
with respect to requirements of approval thereof, be subject to the provisions
of the Companies Law.
(b) If and subject to the Company completing a second round of financing
in which the investors in such round invest at least USD$4,000,000, then the
Employee's Yearly Gross Salary shall be increased by ten percent (10%).
(c) (I) The Company and Employee will obtain and maintain Managers
Insurance ("Bituach Menahalim") for the exclusive benefit of Employee and in
customary form, with respect to which the Company shall be the owner. The
Company shall contribute an amount equal to thirteen and one-third percent
(13.333%) of each Monthly Gross Salary payment (out of which 8.33% are
designated for severance payments and 5% are designated for premium payments)
(the "COMPANY CONTRIBUTION") and the Employee shall contribute five percent (5%)
of the Monthly Gross Salary payment (the "EMPLOYEE'S CONTRIBUTION") toward the
premiums payable in respect of such insurance, all amounts in the aggregate not
to exceed the Monthly Gross Salary of Employee (the "INSURANCE POLICY"). The
Employee hereby instructs the Company to make the necessary transfers to the
insurance company of the amount representing the Employee's and the Company's
Contributions on account of the Insurance Policy.
(II) It is hereby agreed that, should the Employee be or become
entitled to severance pay under any applicable Israeli law, the amounts accrued
in the Insurance Policy on account of that portion of the Company's Contribution
which is designated for severance pay, [i.e. the 8.33%] (the "SEVERANCE
PORTION") shall be in lieu thereof and in full and final substitution therefor.
Notwithstanding subsection (c)(II) above, if the Severance Portion
accrued in the Insurance Policy is less than the amount of severance pay the
Employee is or will be entitled to under applicable Israeli law, then the
Company shall pay the Employee the difference thereof.
3
(III) It is hereby agreed that upon termination of employment under
this Agreement, the Company shall release to the Employee all amounts accrued in
the Insurance Policy on account of both the Company's and Employee's
Contributions.
Notwithstanding subsection (c)(III) above, the Company will not be
obligated to release to the Employee the Severance Portion of the Insurance
Policy, or pay the Employee any other form of severance pay, under any one of
the following circumstances:
(xx) Termination of employment by the Company for `cause' (as
defined in Section 3(c) above); and
(yy) Termination of employment for reasons which under Israeli
law would deprive the Employee of rights to severance pay.
(d) The Company and the Employee shall open and maintain a Keren
Hishtalmut Fund (the "FUND") for the benefit of the Employee. The Company shall
contribute to the Fund an amount equal to 7.5% of each Monthly Gross Salary
payment and the Employee shall contribute to such Fund 2.5% of each Monthly
Gross Salary payment. It is hereby clarified, that any tax liabilities that are
due on account of the Company's contribution to the Fund shall be born solely by
the Employee. The Employee hereby instructs Company to make the necessary
transfers to the Fund the amounts representing both the Employee's and the
Company's contributions.
(d1) The Company shall obtain Disability Insurance ("OVDAN KOSHER AVODA"),
which may be included within the Insurance Policy, for the exclusive benefit of
the Employee and shall contribute therefor an amount up to two and a half
percent (2.5%) of each Monthly Gross Salary payment.
(e) Bonus The Company's board of directors shall in its sole discretion,
determine the amount of any bonus, the method of its computation, the periods
for which any such bonus shall be paid and the performance targets required to
be achieved by the Employee prior to receipt of any such bonus. When determining
the amount of bonus to be paid hereunder, the Company's board of directors shall
also consider factors such as the Company's financial condition and the
Employee's achievement of any of the targets set by the board of directors.
5. Vacation
(a) During the first year of employment hereunder, the Employee shall be
entitled to fifteen (15) working days of paid vacation.
(b) Thereafter, during each year of employment hereunder, the Employee
shall be entitled to an additional two (2) working days of paid vacation (i.e.,
in the second year of employment - 17 days, in the third year of employment - 19
days and so on), up to a maximum aggregate of twenty-one (21) working days of
paid vacation for any given year of employment hereunder.
(c) Vacation time may be taken at times subject to the reasonable approval
of the Company and may be accumulated for no more than thirty (30) days for a
period of two (2) years
4
after which time Employee shall forfeit any unused vacation remaining at the end
of such two year period.
(d) Accumulated vacation time shall be paid according to the regular
payroll practice in Company, only upon termination of the employment by Company.
5A. Company Car
The Company shall provide the Employee with an automobile for her exclusive use,
of a make, model and size as determined by the Company in its sole discretion.
The Company shall pay all actual maintenance, tax obligations and insurance
expenses in connection with the automobile. For the removal of doubt, the
Company shall not be liable to pay any tickets in connection with any traffic
violations, whether such tickets were issued by the police or by a municipality.
6. Expenses
The Company shall reimburse the Employee for all ordinary and reasonably
necessary business expenditures incurred directly in connection with or in
furtherance of a specific task or services rendered to the Company by the
Employee at the request of the Company (i.e. performance of activities outside
of Israel), upon presentation of the appropriate invoices, receipts, vouchers or
such other supporting information and documents as may be requested by the
Company from time to time. Notwithstanding the foregoing, expenses exceeding
USD$2,000 shall be subject to the prior written approval of the Company. Except
as provided for in this Section 6 or unless otherwise agreed to in writing by
the Company, the Company shall have no liability to reimburse the Employee for
any expenses incurred by her in connection with this Agreement or the discharge
of her regular or ordinary duties or services as an employee of the Company
hereunder. Employee will be reimbursed as soon as practicable following the
presentation to the Company of appropriate information and documentation
evidencing such expenses, as provided in this Section 6.
7. Undertaking
Simultaneously with the execution of this Agreement, the Employee shall execute
the undertaking attached hereto as EXHIBIT A, including any exhibits attached
thereto, including but not limited to the deeds of transfer of shares and the
escrow agreement.
8. Proprietary Rights and Information
Employee acknowledges and agrees that:
(a) any and all patentable and unpatentable inventions, discoveries, ideas
or applications conceived, originated or developed by Employee during the term
of her employment under this Agreement or in connection therewith and directly
relating to Company's business (which on the Effective Date relates to drug
discovery to membrane embedded proteins and De Novo protein design), and as may
be adjusted from time to time (the "COMPANY'S BUSINESS") shall be the sole and
exclusive property of Company in every territory in which Company conducts its
business, whether directly or indirectly. Without derogating from the foregoing,
Employee hereby irrevocably transfers and assigns to the Company for no
consideration any and
5
all such present and future patentable and unpatentable inventions, discoveries,
ideas or applications, including but not limited to any intellectual property
related rights to or in the same, which were invented, discovered, thought of,
produced, developed or applied during the term of employment hereunder. In
addition, without derogating from any of the foregoing provisions, the Employee,
at the request and sole expense of Company, shall execute such documents and
perform such acts as the Company or its counsel may deem necessary or advisable
to irrevocably confer upon the Company for no consideration all rights in and
title and interest to such invention, discovery or idea, and all patent
applications, patents and copyrights thereon, and to enable and assist the
Company in procuring, maintaining, enforcing and defending patents, copyrights
and other applicable statutory protection on any such invention, discovery, idea
or application which may be patentable or copyrightable.
(b) Employee shall promptly disclose to the Company in such form and
manner as the Company may reasonably require all inventions, systems, services
and other information or data directly relating to the Company's Business
conceived, originated, discovered or developed by the Employee hereunder and
during the term hereof. It is understood that such information is proprietary in
nature and shall (as between the Company and the Employee) be for the exclusive
use and benefit of the Company. In addition, the Employee shall keep the Company
informed on a regular basis of the progress of the Employee's research and
development efforts hereunder.
9. Secrecy and Nondisclosure
The Employee agrees to treat as secret and confidential all the processes,
methods, formulas, procedures, techniques, software, designs, data, drawings and
other information which are not of public knowledge or record pertaining at any
time to the Company's Business of which the Employee becomes aware. The Employee
agrees not to disclose, use, publish, or in any other manner reveal, directly or
indirectly, at any time during or after the term of this Agreement, without the
prior written consent of the Company in each instance, any such process,
methods, formulas, procedures, techniques, software, designs, data, drawings and
other information pertaining at any time to the Company's Business. The Company
undertakes to establish a policy or general guidelines relating to the
publication of scientific contributions by its employees which is intended to
encourage such publication and, at the same time, provide for the Company with
adequate protection of its intellectual property and proprietary rights. For the
removal of doubt, the Employee shall, prior to releasing any scientific or like
publication relating to the Company's proprietary information, present such
proposed publication materials to the Company's Chief Executive Officer or any
other person designated for such purpose by the Company's Chief Executive
Officer for his/her approval for such publication. For the purposes of this
Section 9, the Company's proprietary information shall include but not be
limited to information, in any form, obtained by the Employee for and on behalf
of the Company in the fulfillment of his duties hereunder.
10. Non-Competition
(a) Employee agrees that, during the term of this Agreement, including any
extensions thereto and for a period of eighteen (18) months thereafter, she will
not directly or indirectly, for her own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, consultant or
otherwise (except as an investor in a corporation whose stock
6
is publicly traded and in which Employee holds less than five (5%) percent of
the outstanding shares):
(i) in the following territories: Israel, U.S.A., Germany,
Switzerland, the United Kingdom, France and Japan, interest herself in, be
connected with or engage in any projects, which are competitive with the
Company's Business in which the Company is engaged or is actively pursuing
engagement, during the term of this Agreement or following termination, or is
proposed in writing by Company prior to the time of termination of this
Agreement, unless otherwise specifically permitted under this Agreement;
(ii) hire, engage or employ or solicit, contact or communicate with
for the purposes of hiring, employing or engaging, any person who is then or was
an employee and/or consultant of Company at any time within the twelve-month
period immediately prior thereto.
(b) The restrictions in subsection 8(a) shall not apply to any activities
that are disclosed by Employee in advance to the Company, and are consented to
in writing by the Company.
(c) Notwithstanding anything contained in this Section 10 to the contrary,
if the period of time or the geographical area specified under subsection 10(a)
above should be determined to be unreasonable in any judicial proceeding, then
the period of time and area of the restriction shall be reduced so that this
Agreement may be enforced in such area during such period of time as shall be
determined to be reasonable by such judicial proceeding.
11. Representations of Employee
Employee hereby represents and warrants to Company that:
(a) The execution and delivery of this Agreement and the fulfillment of
the terms hereof (including any duties and obligations of or transactions
executed by Employee hereunder) (i) do not and will not constitute a default
under or conflict with any agreement or other instrument to which she is a party
or by which she is bound, (ii) does not require the consent of any person or
entity, or alternatively, that if it does require the consent of any person or
entity, that such consent has been obtained, in writing, prior to the execution
of this Agreement, and (iii) do not and will not violate, interfere with or
infringe upon, any rights of any other person or entity; and
(b) This Agreement constitutes the valid and binding obligation of
Employee enforceable against her in accordance with its terms subject to
applicable bankruptcy, insolvency, moratorium and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to general
principles of equity (regardless if enforcement is sought in a proceeding in
equity or at law).
(c) Employee acknowledges that her Position requires a special measure of
personal trust, as defined in the Law of the Hours of Work and Rest - 1951, and
therefore, Employee shall not be entitled to any additional compensation for
extra hours of work.
7
12. Representations of Company
Company hereby represents and warrants to Employee that:
(a) The execution and delivery of this Agreement and the fulfillment of
the terms hereof (i) will not constitute a default under or conflict with any
agreement or other instrument to which Company is a party or by which it is
bound, and (ii) does not require the consent of any person or entity; and
(b) This Agreement constitutes the valid and binding obligation of Company
enforceable against it in accordance with its terms subject to applicable
insolvency, moratorium and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
if enforcement is sought in a proceeding in equity or at law).
13. Miscellaneous
13.1 Waiver. Failure by either party to insist upon compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
13.2 Severability. The invalidity or un-enforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
13.3 Benefit. Except as otherwise herein expressly provided, this
Agreement shall inure to the benefit of and be binding upon Company, its
successors and assigns, including, without limitation, any company which may
acquire all or substantially all of Company's assets or business or with or into
which the Company may be consolidated or merged, and to the benefit of, and be
binding upon, Employee, her heirs, executors, administrators and legal
representatives. Notwithstanding the foregoing, the obligations of Employee
hereunder shall not be assignable or delegable.
13.4 Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties hereto, supersedes any and all prior
discussions, agreements and correspondence with regard to the subject matter
hereof, and may not be amended, modified or supplemented in any respect, except
by a subsequent writing executed by both parties hereto. For the removal of
doubt, if a conflict exists between the provisions of this Agreement relating to
confidentiality and non-competition and any other agreement containing similar
undertakings of the Employee, then the provisions of this Agreement shall
prevail and supersede any such conflicting provisions.
13.5 From all payments made by the Company hereunder, all applicable taxes
will be deducted.
8
13.6 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally of sent by
facsimile or sent by certified, registered or express mail, postage prepaid. Any
such notice shall be deemed given when so delivered personally or sent by
facsimile transmission or, if mailed, five days after the date of deposit in the
mail, as follows:
(i) if to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
[ADDRESS]
(ii) if to Company:
▇▇▇ ▇▇▇▇▇▇ ▇▇'▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Any party may, by notice given in accordance with this Section 13.6 to the other
parties, designate another address or person for receipt of notices hereunder.
13.7 Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Israel, without giving
effect to principles of conflicts of law.
13.8 Jurisdiction. The parties agree that the District Courts located in
Tel Aviv shall have jurisdiction to settle any disputes that may arise out of or
in connection with this Agreement and that, accordingly, any suit, action or
proceeding arising out of or in connection with this Agreement may be brought in
such courts.
13.9 Counterparts. This Agreement may be executed in one or more
counterparts but all such separate counterparts shall constitute but one and the
same instrument; provided that, although executed in counterparts, the executed
signature pages of each such counterparts may be affixed to a single copy of
this Agreement as of the date first above written.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the first
date written above.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
9
BIO-I.T. (BIO INFORMATION TECHNLOGIES) LTD.
/s/ HAIM AVIV
-------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
10
TO: BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
FROM: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: October 31, 2000
UNDERTAKING
1. I, the undersigned, hereby agree and undertake to subject the 240,000
Ordinary Shares (the "SHARES") I hold in Bio-IT (Bio Information
Technologies) Ltd. (the "COMPANY") to my continued services to the Company
as an employee, such that if I do not complete four (4) years of service
(the "TERM OF SERVICE") portions of my Shares will revert back to the
Company or be transferred to the Repurchaser (as defined below), as
applicable, according to the following provisions:
(a) If at any time prior to the second anniversary of the Effective Date
as defined in the Employment Agreement entered into between myself and the
Company on October 31, 2000 (the "EMPLOYMENT AGREEMENT") I am no longer an
employee of the Company, except for termination of my services by the Company
without cause (as such term is defined in the Employment Agreement)
("TERMINATION WITHOUT CAUSE") then 180,000 of my Shares shall be transferred to
the Repurchaser, as defined below, for no consideration; and
(b) If at any time after the second anniversary but before the third
anniversary of the Effective Date of the Employment Agreement I am no longer an
employee of the Company, except for Termination Without Cause, then 120,000 of
my Shares shall be transferred to the Repurchaser for no consideration; and
(c) If at any time after the third anniversary but before the fourth
anniversary of the Effective Date of the Employment Agreement I am no longer an
employee of the Company, except for Termination Without Cause, then 60,000 of my
Shares shall be transferred to the Repurchaser for no consideration; and
(d) If on the fourth anniversary of the Effective Date of the Employment
Agreement I am still an employee of the Company then the Repurchaser shall no
longer be entitled to receive by way of transfer any portion of my Shares and if
the Repurchaser is the Company, then it shall not be entitled to a reversion
back to it of any portion of the Shares.
The "REPURCHASER" shall mean the Company, if it so desires and to the
extent it is permitted by law. Otherwise, Repurchaser shall mean such
entity designated by the Company which shall hold such repurchased shares
in escrow for future allocation to employees, directors and other service
providers of the Company and/or any subsidiary thereof, under an approved
Share Option Plan(s).
2.
(a) In order to facilitate the repurchase and/or transfer of the shares as
set forth above in an orderly fashion, I shall, simultaneously with the
execution of this Undertaking, execute three (3) deeds of transfer of shares, in
the form attached hereto as EXHIBIT A (the "DEEDS OF TRANSFER"). With these
Deeds of Transfer I hereby irrevocably authorize the Company or any designee
thereof to fill in the name of the transferee in these Deeds and to complete the
transfer of Shares according thereto.
2
(b) The number of Shares in each Deed of Transfer, during the period in
which the Deeds of Transfer are held by KH, shall be subject to automatic
adjustment (the "AUTOMATIC ADJUSTMENT") if the outstanding shares of the Company
shall be changed or exchanged by declaration of a share dividend, share split,
combination or exchange of shares, recapitalization, extraordinary dividend
payable in shares of a corporation other than the Company, or otherwise in cash,
or any other like event by or of the Company, and requiring that the number,
class and kind of the Shares be adjusted (each an "ADJUSTMENT EVENT"). The
mechanics of the Automatic Adjustment shall be as follows: if after the
occurrence of an Adjustment Event any Deed(s) of Transfer shall be released to
the Repurchaser according to the provisions of Section 1 above and the terms of
the Escrow Agreement annexed hereto as EXHIBIT B, then the number of Shares that
shall be transferred pursuant thereto shall be the number appearing in the
Deed(s) of Transfer as adjusted to the Adjustment Event.
(c) Noiman hereby acknowledges and agrees that upon receipt of notice from
the Company that an Adjustment Event has occurred, the Automatic Adjustment
mechanism will operate, and that if the Repurchaser shall become entitled to any
portion of the Shares following such Adjustment Event, then the Deed(s) of
Transfer shall be deemed to cover the number of Shares stated therein as
adjusted to such Adjustment Event.
(d) Noiman hereby further acknowledges and confirms that the Repurchaser
shall be entitled to rely upon the Deed(s) of Transfer with the number of Shares
as adjusted to an Adjustment Event. Noiman agrees that the corporate records of
the Company shall be conclusive evidence of an occurrence of any such Adjustment
Event.
3.
(a) The Deeds of Transfer shall be held in trust by K.H. Trustees Ltd.,
("KH"). Upon receipt of notice from the Company of the occurrence of an event of
termination of my employment, all in accordance with the provisions of Sections
1(a) through 1(c) above (the "COMPANY'S INSTRUCTIONS NOTICE"), K.H. shall,
within 3 business days of such notice, send me a copy of the Company's
Instructions Notice ("KH'S NOTICE"). Within 4 business days from the date of
KH's Notice, KH shall release to the Company the applicable number of Deeds of
Transfer (as adjusted to an Adjustment Event). The Company's Instructions Notice
shall be final and binding upon KH or any successor thereof, unless I provide KH
with an appropriate injuctive order, preventing such release to the Company,
issued by a court of competent jurisdiction prior to the end of such 4 days'
period.
(b) Following the second anniversary of the Effective Date of the
Employment Agreement, upon my written request to KH accompanied with a letter of
confirmation from the Company to the effect that until such anniversary I was an
employee of the Company, KH shall release one (1) Deed of Transfer (as adjusted
to an Adjustment Event) to my possession.
(c) Following the third anniversary of the Effective Date of the
Employment Agreement, upon my written request to KH accompanied with a letter of
confirmation from the Company to the effect that until such anniversary I was an
employee of the Company, KH shall release one (1) Deed of Transfer (as adjusted
to an Adjustment Event) to my possession, or two
3
(2) such Deeds of Transfer (as adjusted to an Adjustment Event), provided
however, that I did not previously request a release under sub-section (b)
above.
(d) Upon the fulfillment of the condition set forth in Section 1(d) above
and upon my written request accompanied by a written confirmation by the Company
to the effect that on the fourth anniversary of the Effective Date of the
Employment Agreement I was an employee of the Company, KH shall return all three
(3) Deeds of Transfer (as adjusted to an Adjustment Event) to my possession,
provided however, that I did not previously request a release under sub-sections
(b) and/or (c) above.
(e) Upon my written request accompanied with a written confirmation from
the Company to the effect that: (i) one of the events described in Sections 9.1
through 9.6 has occurred; and (ii) that until the occurrence of such event I was
an employee of the Company, KH shall release to my possession any remaining
Deeds of Transfer (as adjusted to an Adjustment Event) and that portion of my
Shares shall no longer be subject to the repurchase or reversion right of the
Repurchaser.
(f) Upon the written request of the executor of my estate accompanied
with: (i) a notarized copy of a death certificate issued upon my death; and (ii)
a written confirmation from the Company to the effect that until my death I was
an employee of the Company, KH shall release to the possession of such executor
any remaining Deeds of Transfer (as adjusted to an Adjustment Event).
4. The Ordinary Shares that may be repurchased according to the provisions of
this Undertaking shall confer upon their holder those rights attached to
the Ordinary Shares of the Company, as set forth in the Company's Articles
of Association as may be in effect from time to time.
5. In order to comply with the provisions of this Undertaking, with the
exception of transfer of the Shares that are no longer subject to
repurchase, I further undertake the following in addition to any other
restrictions on the my Shares in any other agreements and/or documents:
(a) Until the lapse of one (1) year following the Effective Date of the
Employment Agreement, I shall not transfer, undertake to transfer, otherwise
dispose of, pledge, charge or otherwise encumber (hereinafter a "DISPOSITION")
180,000 of my Shares (as adjusted an Adjustment Event); and
(b) After the period set forth in sub-section (a) above and until the
lapse of two (2) years following the Effective Date of the Employment Agreement,
I shall not cause a Disposition of 120,000 of my Shares (as adjusted to an
Adjustment Event); and
(c) After the period set forth in sub-section (b) above and until the
lapse of three (3) years following the Effective Date of the Employment
Agreement, I shall not cause a Disposition of 60,000 of my Shares (as adjusted
to an Adjustment Event).
(d) I hereby further acknowledge and expressly agree that the share
certificate(s) corresponding to the Shares (including any share certificate to
be issued instead of or in addition to such shares as detailed in Section 3
above) may bear a legend indicating that such shares are subject to the
restrictions provided for hereunder (the "RESTRICTIVE LEGEND"). Following the
actual release to my possession of the Deeds of Transfer or any one of them, as
applicable, upon delivery to the Company of my written request, I shall be
entitled to have the Restrictive Legend removed from the share certificate
issued to me by the Company, with respect to those Shares no longer subject to
the repurchase right
4
herein. In order to accomplish this I shall surrender my share certificate to
the Company for its replacement with a new share certificate(s), not bearing the
Restrictive Legend. Notwithstanding the foregoing, the new share certificate(s)
will continue to bear the following legend:
"The Shares represented by this certificate, have not been registered
under the Securities Act of 1933 or under the securities laws of any
state. These shares have been acquired for investment and not with a view
to distribution or resale, and may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement for
such shares under the Securities Act of 1933 and such state securities
laws as maybe applicable or the delivery to BIO-IT (BIO INFORMATION
TECHNOLOGIES) LTD. of an opinion of counsel, reasonably acceptable to it,
to the effect that registration is not required under such Act or such
state securities laws.
The foregoing restrictions terminate when the shares may be freely
transferred without restriction under Rule 144, under the Securities Act
of 1933, or any successor thereto, and may be disregarded thereafter.
The sale or transfer of the securities represented by this certificate is
subject to the terms and conditions of a certain Shareholders Agreement
dated _____________ and certain schedules thereto, by and among the holder
hereof and other shareholders of the Company. Copies of such agreement and
schedules may be obtained upon written request to the Company's
Secretary".
6. I hereby represent and warrant to the Repurchaser that the portion of the
Shares subject to repurchase in accordance with this Undertaking, when
transferred to the Repurchaser shall be free of any lien, encumbrance
and/or any right or obligation which may limit the right of the
Repurchaser in such Shares.
7. Notwithstanding the above, I reserve the right to transfer any portion of
my Shares to a Permitted Transferee (as such term is defined in the
Company's Articles of Association, as same may be amended from time to
time), provided that any such transferee shall undertake, in writing, to
fully comply with the provisions of this Undertaking, and shall, upon such
transfer to such transferee and as a condition precedent to its validity,
execute appropriate Deed(s) of Transfer, mutatis mutandis.
8. I hereby agree that I shall have no rights of a shareholder or otherwise
have any rights with respect to those Shares that have been repurchased,
or if the Repurchaser is the Company, then with respect to the Shares that
have reverted back to the Company, all in accordance with the provisions
set forth above. Subject to the restrictions appearing in this
undertaking, the Company's Articles of Association, or any other agreement
to which I am a party, I reserve all rights of a shareholder of the
Company with respect to those Shares that have not been repurchased or
have not reverted back to the Company, as applicable.
9. Notwithstanding anything to the contrary herein, upon the occurrence of
any one of the following events prior to the end of the Term of Service
and provided that until the occurrence of any such event I am an employee
of the Company, the Shares shall no longer be subject to the
repurchase/reversion provisions set forth above and the Repurchaser or the
Company, as applicable, shall thereafter have no right to have such Shares
revert back or transferred to it:
9.1 upon the consummation of a merger of the Company into another entity
where the Company is not the surviving entity of the merger transaction;
5
9.2 upon the consummation of an acquisition of all or substantially all of
the Company's assets;
9.3 upon the consummation of an acquisition of all or substantially all of
the Company's securities, except where the acquirer is at the time of such
acquisition a 25% or more shareholder in the Company;
9.4 upon my disability as such term is defined in the Employment
Agreement;
9.5 upon the consummation of the Company's initial public offering of its
securities to the public; and
9.6 upon Termination Without Cause; and
9.7 upon my death.
10. In connection with the deposit of the Deeds of Transfer with KH, both the
Company and myself will execute a form of escrow agreement with KH, in the
form attached hereto as EXHIBIT B (the "ESCROW AGREEMENT"). The Escrow
Agreement shall be executed simultaneously with the execution of this
Undertaking.
IN WITNESS WHEREOF, I have executed this undertaking as of October 31, 2000.
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Witness to Signature
Name: ______________________
Date: ______________________
Signature: _________________
We the undersigned, accept and acknowledge the terms of this Undertaking.
BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
/s/ Haim Aviv
-------------
By:
Title:
6
EXHIBIT A
Deed of Transfer of Shares
I, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, holder of Israeli identity card number
_________________________ (the "TRANSFEROR") does hereby transfer to
_________________, holder of _______________ (the "TRANSFEREE"), 60,000 Ordinary
Shares of nominal value NIS 0.01 each and as adjusted to an Adjustment Event (as
such term is defined in the Undertaking to which this deed constitutes an
exhibit), of BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD. (the "COMPANY"), to be
held by the Transferee, its executors, administrators, and assigns, subject to
the conditions on which the Transferor held the shares at the time this document
was signed, and the Transferee agrees to accept the shares on these terms.
IN WITNESS WHEREOF we hereby sign on __________ of _________, __________.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------- ______________________________
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Transferee]
Witness to signature: Witness to signature:
_______________________ ______________________________
Name: _________________ Name: ________________________
7
EXHIBIT B
ESCROW AGREEMENT
Entered into this 31st day of October, 2000 by and between K.H. TRUSTEES LTD.,
an Israeli company whose address is ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ (the
"TRUSTEE"), BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD. a company whose address
is ▇▇▇ ▇▇▇▇▇▇ ▇▇'▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (the "COMPANY") and ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, whose address is [ADDRESS] ("NOIMAN").
WITNESSETH
WHEREAS Noiman and the Company intend that the Trustee hold certain deeds of
transfer of shares in trust in accordance with the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the undertakings and premises herein, the
parties hereto hereby agree as follows:
1. GENERAL
All terms not defined herein shall have the meanings ascribed to them in the
Undertaking to which this Agreement constitutes an exhibit (the "UNDERTAKING")
or the Employment Agreement between Noiman and the Company dated as of October
31, 2000 (the "EMPLOYMENT AGREEMENT").
2. ESCROW AND RELEASE FROM ESCROW
2.1 By execution of this Escrow Agreement, the Company and Noiman, and
their respective successors and assigns, hereby irrevocably appoint the Trustee
to act in accordance with the provisions of this Agreement.
2.2 Simultaneously with the execution of this Agreement, Noiman shall
execute three Deeds of Transfer of shares in accordance with the provisions of
the Undertaking. Immediately following their execution, Noiman shall deposit
these Deeds of Transfer with the Trustee to be held in escrow until their
release in accordance with the provisions of the Undertaking and this Agreement.
2.3
(a) Upon the receipt of written notice from the Company of occurrence of
any one of the events described in Sections 1(a) through 1(c) of the Undertaking
(the "COMPANY'S INSTRUCTIONS NOTICE") the Trustee shall, within three (3)
business days of such notice, send Noiman a copy of the Company's Instructions
Notice (the "TRUSTEE'S NOTICE"). Within four (4) business days from the date of
the Trustee's Notice, Noiman hereby irrevocably instructs the Trustee to release
to Company Deed(s) of Transfer as follows, unless prior to end of such 4 days'
perioed Noiman provides the Trustee (with a copy to the Company) of an
appropriate injuctive order preventing such release, issued by a court of
competent jurisdiction:
(i) If said notice is issued in connection with Section 1(a) of the
Undertaking then the Trustee is hereby instructed to release to the Company all
three (3) Deeds of Transfer, for an aggregate of 180, 000 Ordinary Shares of the
Company (as adjusted to an Adjustment Event).
8
(ii) If said notice is issued in connection with Section 1(b) of the
Undertaking then the Trustee is hereby instructed to release to the Company two
(2) Deeds of Transfer, for an aggregate of 120,000 Ordinary Shares of the
Company (as adjusted to an Adjustment Event).
(iii) If said notice is issued in connection with Section 1(c) of the
Undertaking then the Trustee is hereby instructed to release to the Company one
(1) Deed of Transfer, for an aggregate of 60,000 Ordinary Shares of the Company
(as adjusted to an Adjustment Event).
(b) Unless the Deed(s) of Transfer have been released to the Company in
accordance with the provisions of the Undertaking or sub-section (a) above, the
Trustee may release the Deed(s) of Transfer to Noiman's possession in accordance
with the following provisions:
(i) Following the second anniversary of the Effective Date of the
Employment Agreement, upon receipt of Noiman's written request accompanied by a
letter of confirmation from the Company to the effect that Noiman was employed
by the Company on such anniversary, the Trustee shall release to Noiman one (1)
Deed of Transfer.
(ii) Following the third anniversary of the Effective Date of the
Employment Agreement, upon receipt of Noiman's written request accompanied by a
letter of confirmation from the Company to the effect that Noiman was employed
by the Company on such anniversary, the Trustee shall release to Noiman one (1)
Deed of Transfer, or two (2) Deeds of Transfer, provided however, that Noiman
did not previously request a release under sub-section (b)(i) above.
(c) Upon receipt of a written request from Noiman accompanied by a written
confirmation from the Company to the effect that on the fourth anniversary of
the Effective Date of the Employment Agreement Noiman was an employee of the
Company, the Trustee shall release all three (3) Deeds of Transfer to Noiman's
possession, provided however, that Noiman did not previously request a release
under sub-sections (b)(i) and/or (b)(ii) above.
(d) Upon receipt from Noiman of a written request accompanied by a written
confirmation from the Company to the effect that: (i) one of the events
described in Sections 9.1 through 9.6 of the Undertaking has occurred; and (ii)
that until the occurrence of any such event Noiman was an Employee of the
Company, the Trustee shall release to Noiman's possession any remaining Deeds of
Transfer not previously released.
(e) Upon the written request of the executor of Noiman's estate
accompanied with: (i) a notarized copy of a death certificate issued upon
Noiman's death; and (ii) written confirmation from the Company to the effect
that until Noiman's death she was an employee of the Company, the Trustee shall
release to the possession of such executor any remaining Deeds of Transfer.
(f) Noiman hereby acknowledges, upon receipt of notice from the Company
that an Adjustment Event has occurred during the term of this Escrow Agreement,
the Trustee shall be entitled to rely on such notice and that the Automatic
Adjustment mechanism shall become effective as to the number of Shares covered
by the Deed(s) of Transfer.
3. LIMITATIONS AS TO TRUSTEE
9
3.1 This Escrow Agreement sets forth all the duties of the Trustee with
respect to any and all matters relevant to the Deeds of Transfer. The Trustee
shall have no duty to make independent inquiries of the truth of the contents of
any notice issued by the parties. The Trustee shall be entitled to rely, without
further investigation, on any such notice and the identity and authority of the
person signing such notice.
3.2 Both the Company and Noiman hereby waive any and all claims and/or
causes of action against the Trustee arising out of or related to this Escrow
Agreement, including but not limited to the Trustee's right to rely on the
Company's notice that an Adjustment Event has occurred, except such as are
arising out of the Trustee's gross negligence or willful misconduct. In
addition, the Company and Noiman agree to indemnify and hold the Trustee
harmless from and against any and all liabilities and costs of any kind caused
by the Company and/or Noiman and arising out of or in connection with this
Escrow Agreement except for the Trustee's gross negligence or willful
misconduct. The provisions of this Article 3.2 shall survive termination of this
Agreement.
4. MISCELLANEOUS
4.1 All notices hereunder shall be sent to the parties at the respective
addresses set forth above by facsimile with written confirmation by mail or by
hard copy original sent by registered mail, return receipt requested, or such
other address as is notified to the parties in writing. In any event all notices
received by the Trustee from Noiman shall be delivered to the Company and all
notices received by the Trustee from the Company shall be delivered to Noiman.
4.2 This Escrow Agreement shall be construed in accordance with the laws
of the State of Israel and the courts of Tel-Aviv shall have full and exclusive
subject matter jurisdiction and full and exclusive personal jurisdiction over
the parties in connection with any claim, dispute or controversy arising out of
this Agreement.
4.3 This Escrow Agreement may only be modified by a written instrument
signed by all of the parties hereto. No waiver hereunder shall be effective
unless in writing signed by the party to be charged.
4.4 This Escrow Agreement shall terminate under upon the release of all
three (3) Deeds of Transfer to the Company or Noiman, as applicable, in
accordance with the provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the
date first above written.
K.H. TRUSTEES LTD. BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
/s/ ILLEGIBLE /s/ HAIM AVIV
------------- -------------
By: By:
Title: Title:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
BIO-I.T. (BIO INFORMATION TECHNOLOGIES) LTD.
AMENDED EMPLOYMENT AGREEMENT
WITH
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
AMENDMENT dated as of April 3, 2001, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "EMPLOYEE"),
whose address is [ADDRESS], and BIO-I.T. ( BIO INFORMATION TECHNOLOGIES) LTD.
(the "COMPANY"), a corporation incorporated under the laws of the State of
Israel, having its address at Beit Shap, 3 Hayetzirah Street, Ramat Gan, Israel.
WITNESSETH
WHEREAS the parties entered into an employment agreement dated as of October 31,
2000 (the "Original Employment Agreement"); and
WHEREAS the parties desire to amend certain provisions of the Original
Employment Agreement and/or the exhibits attached thereto and the undertaking in
connection therewith, all in accordance with the terms of this Amendment.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Effect of Employment Agreement
Except as expressly set forth herein the Original Employment Agreement remains
in full force and effect and is not amended, altered or modified.
2. Section 13.6 Notices. is modified to provide as follows:
"Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally of
sent by facsimile or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission or, if
mailed, five days after the date of deposit in the mail, as follows:
(i) if to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
[ADDRESS]
(ii) if to Company:
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
Any party may, by notice given in accordance with this Section 13.6
to the other parties, designate another address or person for receipt of
notices hereunder."
3. Counterparts. This Amendment may be executed in one or more counterparts but
all such separate counterparts shall constitute but one and the same instrument;
provided that, although
2
executed in counterparts, the executed signature pages or each such counterparts
may be affixed to a single copy of this Amendment as of the date first above
written.
4. The Undertaking referenced in Section 7 to the Original Employment Agreement
and attached thereto as EXHIBIT A is modified in the entirety to be in the form
attached hereto as ANNEX 4 (the "Amended Undertaking").
5. The Escrow Agreement referenced in Section 7 to the Original Employment
Agreement is modified to be in the form attached hereto as ANNEX 5 (the "Amended
Escrow Agreement").
IN WITNESS WHEREOF, the parties have executed this Amendment as of the first
date written above.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties have executed this Amended Employment Agreement
as of the date written above.
BIO-I.T. (BIO INFORMATION TECHNLOGIES) LTD.
/s/ CHEN ▇▇▇▇▇
-------------------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
4
ANNEX 4
TO: BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
FROM: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: April 3, 2001
AMENDED UNDERTAKING
1. I, the undersigned, hereby agree and undertake to subject the 240,000
Ordinary Shares (the "SHARES") I hold in Bio-IT (Bio Information
Technologies) Ltd. (the "COMPANY") to my continued services to the Company
as an employee, such that if I do not complete four (4) years of service
(the "TERM OF SERVICE") portions of my Shares will revert back to the
Company or be transferred to the Repurchaser (as defined below), as
applicable, according to the following provisions:
(a) If at any time prior to the second anniversary of the Effective Date
as defined in the Employment Agreement entered into between myself
and the Company on October 31, 2000 (the "ORIGINAL EMPLOYMENT
AGREEMENT"), as amended on April 3, 2001 (the "AMENDMENT" and
together with the Original Employment Agreement, the "EMPLOYMENT
AGREEMENT") I am no longer an employee of the Company, except for
termination of my services by the Company without cause (as such
term is defined in the Employment Agreement) ("TERMINATION WITHOUT
CAUSE") then 180,000 of my shares shall be transferred to the
Repurchaser, as defined below, for no consideration; and
(b) If at any time after the second anniversary but before the fourth
anniversary of the Effective Date of the Employment Agreement I am
no longer an employee of the Company, except for Termination Without
Cause, then for each three month period remaining between the date
on which I cease to be an employee of the Company and the fourth
anniversary of the Effective Date of the Employment Agreement 15,000
of my Shares shall be transferred to the Repurchaser for no
consideration; and
(c) [intentionally deleted]; and
(d) If on the fourth anniversary of the Effective Date of the Employment
Agreement I am still an employee of the Company then the Repurchaser
shall no longer be entitled to receive by way of transfer any
portion of my Shares and if the Repurchaser is the Company, then it
shall not be entitled to a reversion back to it of any portion of
the Shares.
The "REPURCHASER" shall mean the Company, if it so desires and to the
extent it is permitted by law. Otherwise, Repurchaser shall mean such entity
designated by the Company which shall hold such repurchased shares in escrow for
future allocation to employees, directors and other service providers of the
Company and/or any subsidiary thereof, under an approved Share Option Plan(s).
5
2. (a) In order to facilitate the repurchase and/or transfer of the Shares
as set forth above in an orderly fashion, I shall, simultaneously
with the execution of this Amended Undertaking, confirm that two (2)
deeds of transfer of shares, in the form attached hereto as EXHIBIT
A (the "DEEDS OF TRANSFER") executed by me in connection with
Sections 1(b) (for 120,000 Shares) and 1(c) (for 60,000 Shares) of
the original Undertaking were returned to me marked cancelled; and
that I executed eight (8) new Deeds of Transfer (each for 15,000
Shares) in connection with Section 1(b) of this Amended Undertaking.
With these Deeds of Transfer I hereby irrevocably authorize the
Company or any designee thereof to fill in the name of the
transferee in these Deeds and to complete the transfer of Shares
according thereto.
(b) The number of Shares in each Deed of Transfer, during the period in
which the Deeds of Transfer are held by KH, shall be subject to
automatic adjustment (the "AUTOMATIC ADJUSTMENT") if the outstanding
shares of the Company shall be changed or exchanged by declaration
of a share divided, share split, combination or exchange of shares,
recapitalization, extraordinary dividend payable in shares of a
corporation other than the Company, or otherwise in cash, or any
other like event by or of the Company, and requiring that the
number, class and kind of the Shares be adjusted (each an
"ADJUSTMENT EVENT"). The mechanics of the Automatic Adjustment shall
be as follows: if after the occurrence of an Adjustment Event any
Deed(s) of Transfer shall be released to the Repurchaser according
to the provisions of Section 1 above and the terms of the Amended
Escrow Agreement annexed to the Amendment as ANNEX 5, then the
number of Shares that shall be transferred pursuant thereto shall be
the number appearing in the Deed(s) of Transfer as adjusted to the
Adjustment Event.
(c) Noiman hereby further acknowledges and agrees that upon receipt of
notice from the Company that an Adjustment Event has occurred, the
Automatic Adjustment mechanism will operate, and that if the
Repurchaser shall become entitled to any portion of the Shares
following such Adjustment Event, then the Deed(s) of Transfer shall
be deemed to cover the number of shares stated therein as adjusted
to such Adjustment Event.
(d) Noiman hereby further acknowledges and confirms that the Repurchaser
shall be entitled to rely upon the Deed(s) of Transfer with the
number of Shares as adjusted to an Adjustment Event. Noiman agrees
that the corporate records of the Company shall be conclusive
evidence of an occurrence of any such Adjustment Event.
3. (a) The Deeds of Transfer shall be held in trust by K.H. Trustees Ltd.,
("KH"). Upon receipt of notice from the Company of the occurrence of
an event of termination of my employment, all in accordance with the
provisions of Sections 1(a) through 1(c) above (the "COMPANY'S
INSTRUCTIONS NOTICE"), K.H. shall, within 3 business days of such
notice, send me a copy of the Company's Instructions Notice ("KH's
NOTICE"). Within 4 business days from the date of KH's Notice, KH
shall release to the Company the applicable number of Deeds of
Transfer (as adjusted to an Adjustment Event). The Company's
Instructions Notice shall be final and binding upon KH or any
successor thereof, unless I provide KH with an appropriate
injunctive order, preventing such release to the Company, issued by
a court of competent jurisdiction prior to the end of such 4 days'
period.
6
(b) Following the second anniversary of the Effective Date of the
Employment Agreement, upon my written request to KH accompanied with
a letter of confirmation from the Company to the effect that until
such anniversary I was an employee of the Company, KH shall release
the first Deed of Transfer (for 180,000 Shares as adjusted to an
Adjustment Event) to my possession.
(c) Following the second anniversary of the Effective Date of the
Employment Agreement, upon my written request to KH accompanied with
a letter of confirmation from the Company to the effect that
following such anniversary I was an employee of the Company for a
successive period of three (3) months or any successive three (3)
month period thereafter (i.e., three (3), six (6), nine (9), twelve
(12), fifteen (15), eighteen (18), twenty-one (21) and/or
twenty-four (24) months after the second anniversary of the
Effective Date of the Employment Agreement), KH shall release one
(1) Deed of Transfer (for 15,000 Shares as adjusted to an Adjustment
Event) for each such three month period to my possession, as well as
the first Deed of Transfer (for 180,000 Shares as adjusted to an
Adjustment Event), provided however, that I did not previously
request a release under sub-section (b) above.
(d) Upon the fulfillment of the condition set forth in Section 1(d)
above and upon my written request accompanied by a written
confirmation by the Company to the effect that on the fourth
anniversary of the Effective Date of the Employment Agreement I was
an employee of the Company, KH shall return all nine (9) Deeds of
Transfer (as adjusted to an Adjustment Event) to my possession,
provided however, that I did not previously request a release under
sub-sections (b) and/or (c) above.
(e) Upon my written request accompanied with a written confirmation from
the Company to the effect that: (i) one of the events described in
Sections 9.1 through 9.6 has occurred; and (ii) that until the
occurrence of such event I was an employee of the Company, KH shall
release to my possession any remaining Deeds of Transfer (as
adjusted to an Adjustment Event) and that portion of my Shares shall
no longer be subject to the repurchase or reversion right of the
Repurchaser.
(f) Upon the written request of the executor of my estate accompanied
with: (i) a notarized copy of a death certificate issued upon my
death; and (ii) a written confirmation from the Company to the
effect that until my death I was an employee of the Company, KH
shall release to the possession of such executor any remaining Deeds
of Transfer (as adjusted to an Adjustment Event).
4. The Ordinary Shares that may be repurchased according to the provisions of
this Undertaking shall confer upon their holder those rights attached to
the Ordinary Shares of the Company, as set forth in the Company's Articles
of Association as may be in effect from time to time.
5. In order to comply with the provisions of this Undertaking, with the
exception of transfer of the Shares that are no longer subject to
repurchase, I further undertake the following in addition to any other
restrictions on the my Shares in any other agreements and/or documents.
(a) Until the lapse of one (1) year following the Effective Date of the
Employment Agreement, I shall not transfer, undertake to transfer,
otherwise dispose of, pledge,
7
charge or otherwise encumber (hereinafter a "DISPOSITION") 180,000
of my Shares (as adjusted to an Adjustment Event); and
(b) After the period set forth in sub-section (a) above and until the
lapse of two (2) years following the Effective Date of the
Employment Agreement, I shall not cause a Disposition of 120,000 of
my Shares (as adjusted to an Adjustment Event); and
(c) After the period set forth in sub-section (b) above and until the
lapse of three (3) years following the Effective Date of the
Employment Agreement, I shall not cause a Disposition of 60,000 of
my Shares (as adjusted to an Adjustment Event).
(d) I hereby further acknowledge and expressly agree that the share
certificate(s) corresponding to the Shares (including any share
certificate to be issued instead of or in addition to such shares as
detailed in Section 3 above) may bear a legend indicating that such
shares are subject to the restrictions provided for hereunder (the
"RESTRICTIVE LEGEND"). Following the actual release to my possession
of the Deeds of Transfer or any one of them, as applicable, upon
delivery to the Company of my written request, I shall be entitled
to have the Restrictive Legend removed from the share certificate
issued to me by the Company, with respect to those Shares no longer
subject to the repurchase right herein. In order to accomplish this
I shall surrender my share certificate to the Company for its
replacement with a new share certificate(s), not bearing the
Restrictive Legend. Notwithstanding the foregoing, the new share
certificate(s) will continue to bear the following legend:
"The Share represented by this certificate, have not been
registered under the Securities Act of 1933 or under the
securities laws of any state. These shares have been acquired
for investment and not with a view to distribution or resale,
and may not be sold, transferred, pledged or hypothecated in
the absence of an effective registration statement for such
shares under the Securities Act of 1933 and such state
securities laws as maybe applicable or the delivery to BIO-IT
(BIO INFORMATION TECHNOLOGIES) LTD. of an opinion of counsel,
reasonably acceptable to it, to the effect that registration
is not required under such Act or such state securities laws.
The foregoing restrictions terminate when the shares may be
freely transferred without restriction under Rule 144, under
the Securities Act of 1933, or any successor thereto, and may
be disregarded thereafter.
The sale or transfer of the securities represented by this
certificate is subject to the terms and conditions of a
certain Shareholders Agreement dated ___________ and certain
schedules thereto, by and among the holder hereof and other
shareholders of the Company. Copies of such agreement and
schedules may be obtained upon written request to the
Company's Secretary".
6. I hereby represent and warrant to the Repurchaser that the portion of the
Shares subject to repurchase in accordance with this Undertaking, when
transferred to the Repurchaser shall be
8
free of any lien, encumbrance and/or any right or obligation which may
limit the right of the Repurchaser in such Shares.
7. Notwithstanding the above, I reserve the right to transfer any portion of
my Shares to a Permitted Transferee (as such term is defined in the
Company's Articles of Association, as same may be amended from time to
time), provided that any such transferee shall undertake, in writing, to
fully comply with the provisions of this Undertaking, and shall, upon such
transfer to such transferee and as a condition precedent to its validity,
execute appropriate Deed(s) of Transfer, mutatis mutandis.
8. I hereby agree that I shall have no rights of a shareholder or otherwise
have any rights with respect to those Shares that have been repurchased,
or if the Repurchaser is the Company, then with respect to the Shares that
have reverted back to the Company, all in accordance with the provisions
set forth above. Subject to the restrictions appearing in this
undertaking, the Company's Articles of Association, or any other agreement
to which I am a party, I reserve all rights of a shareholder of the
Company with respect to those Shares that have not been repurchased or
have not reverted back to the Company, as applicable.
9. Notwithstanding anything to the contrary herein, upon the occurrence of
any one of the following events prior to the end of the Term of Service
and provided that until the occurrence of any such event I am an employee
of the Company, the Shares shall no longer be subject to the
repurchase/reversion provisions set forth above and the Repurchaser or the
Company, as applicable, shall thereafter have no right to have such Shares
revert back or transferred to it:
9.1 upon the consummation of a merger of the Company into another entity
where the Company is not the surviving entity of the merger
transaction;
9.2 upon the consummation of an acquisition of all or substantially all
of the Company's assets;
9.3 upon the consummation of an acquisition of all or substantially all
of the Company's securities, except where the acquirer is at the
time of such acquisition a 25% or more shareholder in the Company;
9.4 upon my disability as such term is defined in the Employment
Agreement;
9.5 upon the consummation of the Company's initial public offering of
its securities to the public; and
9.6 upon Termination Without Cause; and
9.7 upon my death.
10. In connection with the deposit of the Deeds of Transfer with KH, both the
Company and myself will execute a form of amended escrow agreement with
KH, in the form attached to the Amendment as ANNEX 5 (the "AMENDED ESCROW
AGREEMENT"). The Amended Escrow Agreement shall be executed simultaneously
with the execution of this Amended Undertaking.
9
IN WITNESS WHEREOF, I have executed this amended undertaking as of the date
written above.
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Witness to Signature
Name: Liora ▇▇▇-▇▇▇
----------------
Date: ____________________________
Signature: /s/ LIORA ▇▇▇-▇▇▇
-----------------------
We the undersigned, accept and acknowledge the terms of this Amended
Undertaking.
BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
/s/ CHEN ▇▇▇▇▇
---------------------------
By: Chen ▇▇▇▇▇
Title:
10
EXHIBIT A
Deed of Transfer of Shares
I, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, holder of Israeli identity card number
____________________ (the "TRANSFEROR") does hereby transfer to ___________,
holder of __________ (the "TRANSFEREE"), 15,000 Ordinary Shares of nominal value
NIS 0.01 each and as adjusted to an Adjustment Event (as such term is defined in
the Undertaking to which this deed constitutes an exhibit), of BIO-IT (BIO
INFORMATION TECHNOLOGIES) LTD. (the "COMPANY"), to be held by the Transferee,
its executors, administrators, and assigns, subject to the conditions on which
the Transferor held the shares at the time this document was signed, and the
Transferee agrees to accept the shares on these terms.
IN WITNESS WHEREOF we hereby sign on _____ of _______________, _______.
____________________________ ____________________________
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Transferee]
Witness to signature: Witness to signature:
____________________________ _____________________________
Name: ______________________ Name: _______________________
11
ANNEX 5
AMENDED ESCROW AGREEMENT
Entered into this 3 day of April, 2001 by and between K.H. TRUSTEES LTD., an
Israeli company whose address is ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ (the
"TRUSTEE"), BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD., a company whose address
is Beit Shap, 3 Hayetzirah Street, Ramat Gan, Israel (the "COMPANY") and ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, whose address is [ADDRESS] ("NOIMAN").
WITNESSETH
WHEREAS the parties entered into an Escrow Agreement on October 31, 2000 (the
"ORIGINAL ESCROW AGREEMENT") in connection with an Employment Agreement of the
same date between Noiman and the Company (the "ORIGINAL EMPLOYMENT AGREEMENT");
and
WHEREAS Noiman and the Company entered into an Amendment to the Employment
Agreement (the "AMENDED EMPLOYMENT AGREEMENT") as the date of this Amended
Escrow Agreement and in connection with such Amendment, Noiman and the Company
intend that the Trustee hold certain deeds of transfer of shares in trust in
accordance with the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the undertakings and premises herein, the
parties hereto hereby agree as follows:
1. GENERAL
The Original Escrow Agreement together with this Amended Escrow Agreement may be
referred to as the "ESCROW AGREEMENT". The Original Employment Agreement
together with the Amended Employment Agreement may be referred to as the
Employment Agreement. All terms not defined herein shall have the meanings
ascribed to them in the Amended Undertaking which constitutes an annex to the
Amended Employment Agreement (the "AMENDED UNDERTAKING") or the Employment
Agreement. Except as expressly set forth herein the Original Escrow Agreement
remains in full force and effect and is not amended, altered or modified.
SECTION 2 OF THE ORIGINAL ESCROW AGREEMENT SHALL BE REPLACED BY THE FOLLOWING:
2. ESCROW AND RELEASE FROM ESCROW
2.1 By execution of this Amended Escrow Agreement, the Company and Noiman, and
their respective successors and assigns, hereby irrevocably appoint the Trustee
to act in accordance with the provisions of the Escrow Agreement.
2.2 Simultaneously with the execution of this Amended Escrow Agreement, Trustee
shall deliver to Noiman two (2) Deeds of Transfer executed by Noiman in
connection with Sections 1(b) (for 120,000 Shares) and 1(c) (for 60,000 Shares)
of the original Undertaking (which was an exhibit to the Original Employment
Agreement) marked cancelled. Furthermore, simultaneously with the execution of
this Amended Escrow Agreement, Noiman shall execute eight (8) Deeds of Transfer
of shares (each for 15,000 Shares) in connection with Section 1(b) of the
Amended Undertaking. Immediately following their execution, Noiman shall deposit
these Deeds of Transfer with the
12
Trustee to be held in escrow until their release in accordance with the
provisions of the Amended Undertaking and this Amended Escrow Agreement.
2.3 (a) Upon the receipt of written notice from the Company of occurrence of any
one of the events described in Sections 1(a) through 1(c) of the Amended
Undertaking (the "COMPANY'S INSTRUCTIONS NOTICE") the Trustee shall, within
three (3) business days of such notice, send Noiman a copy of the Company's
Instructions Notice (the "TRUSTEE'S NOTICE"). Within four (4) business days from
the date of the Trustee's Notice, Noiman hereby irrevocably instructs the
Trustee to release to Company Deed(s) of Transfer as follows, unless prior to
the end of such 4 days' period Noiman provides the Trustee (with a copy to the
Company) of an appropriate injunctive order preventing such release, issued by a
court of competent jurisdiction:
(i) If said notice is issued in connection with Section 1(a)
of the Amended Undertaking then the Trustee is hereby instructed to
release to the Company all nine (9) Deeds of Transfer, for an
aggregate of 180,000 Ordinary Shares of the Company (as adjusted to
an Adjustment Event).
(ii) If said notice is issued in connection with Section 1(b)
of the Amended Undertaking then the Trustee is hereby instructed to
release to the Company such number of Deeds of Transfer,
representing the number of three month periods remaining between the
date of termination of employment and the fourth anniversary of the
Effective Date of the Employment Agreement (each such Deed of
Transfer for an aggregate of 15,000 Ordinary Shares of the Company
(as adjusted to an Adjustment Event).
(b) Unless the Deed(s) of Transfer have been released to the Company in
accordance with the provisions of the Undertaking or sub-section (a) above, the
Trustee may release the Deed(s) of Transfer to Noiman's possession in accordance
with the following provisions:
(i) Following the second anniversary of the Effective Date of
the Employment Agreement, upon receipt of Noiman's written request
accompanied by a letter of confirmation from the Company to the
effect that Noiman was employed by the Company on such anniversary,
the Trustee shall release to Noiman the first Deed of Transfer (for
180,000 Shares as adjusted to an Adjustment Event).
(ii) Following the second anniversary of the Effective Date of
the Employment Agreement, upon receipt of Noiman's written request
accompanied by a letter of confirmation from the Company to the
effect that Noiman was employed by the Company on such anniversary
for a successive period of three (3) months or any successive three
(3) month period thereafter (i.e., three (3), six (6), nine (9),
twelve (12), fifteen (15), eighteen (18), twenty-one (21) and/or
twenty-four (24) months after the second anniversary of the
Effective Date of the Employment Agreement), KH shall release one
(1) Deed of Transfer (for 15,000 Shares as adjusted to an Adjustment
Event) for each such three month period to Noiman, as well as the
such first Deed of Transfer (for 180,000 Shares as adjusted to an
Adjustment Event), provided however, that Noiman did not previously
request a release under sub-section (b)(i) above.
(c) Upon receipt of a written request from Noiman accompanied by a written
confirmation from the Company to the effect that on the fourth anniversary of
the Effective Date of
13
the Employment Agreement Noiman was an employee of the Company, the Trustee
shall release all nine (9) Deeds of Transfer to Noiman's possession, provided
however, that Noiman did not previously request a release under sub-sections
(b)(i) and/or (b)(ii) above.
(d) Upon receipt from Noiman of a written request accompanied by a written
confirmation from the Company to the effect that: (i) one of the events
described in Sections 9.1 through 9.6 of the Undertaking has occurred; and (ii)
that until the occurrence of any such event Noiman was an Employee of the
Company, the Trustee shall release to Noiman's possession any remaining Deeds of
Transfer not previously released.
(e) Upon the written request of the executor of Noiman's estate
accompanied with: (i) a notarized copy of a death certificate issued upon
Noiman's death; and (ii) written confirmation from the Company to the effect
that until Noiman's death she was an employee of the Company, the Trustee shall
release to the possession of such executor any remaining Deeds of Transfer.
(f) Noiman hereby acknowledges, upon receipt of notice from the Company
that an Adjustment Event has occurred during the term of this Escrow Agreement,
the Trustee shall be entitled to rely on such notice and that the Automatic
Adjustment mechanism shall become effective as to the number of Shares covered
by the Deed(s) of Transfer.
4. AMENDMENT OF SECTION 4.4 IN THE MISCELLANEOUS SECTION
Section 4.4 of the Original Escrow Agreement shall be amended as follows:
"4.4 This Escrow Agreement shall terminate under upon the release of all nine
(9) Deeds of Transfer to the Company or Noiman, as applicable, in accordance
with the provisions hereof.
5. COUNTERPARTS
This Amendment may be executed in one or more counterparts but all such separate
counterparts shall constitute but one and the same instrument; provided that,
although executed in counterparts, the executed signature pages of each such
counterparts may be affixed to a single copy of this Amendment as of the date
first above written.
IN WITNESS WHEREOF, the parties have executed this Amended Escrow Agreement as
of the date first above written.
K.H. TRUSTEES LTD. BIO-IT (BIO INFORMATION TECHNOLOGIES) LTD.
_______________________________ __________________________________________
By: By:
Title: Title:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
BIO-I.T. (BIO INFORMATION TECHNOLOGIES) LTD.
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
WITH
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECOND AMENDMENT dated as of August 29, 2001, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"EMPLOYEE"), whose address is [ADDRESS], and BIO-I.T. (BIO INFORMATION
TECHNOLOGIES) LTD. (the "COMPANY"), a corporation incorporated under the laws of
the State of Israel, having its address at Beit Shap, 3 Hayetzirah Street, Ramat
Gan, Israel.
WITNESSETH
WHEREAS the parties entered into an employment agreement dated as of October 31,
2000 as amended by the Amended Employment Agreement dated April 3, 2001, a copy
of which is attached hereto as Annex A (the "Employment Agreement"); and
WHEREAS following the closing of the transactions contemplated in a Share
Purchase Agreement dated August 29, 2001 (the "2001 SHARE PURCHASE AGREEMENT")
by and between the Company, Orbimed, Yozma, ▇▇▇▇▇ (as such terms are defined
thereunder) and the other shareholders of the Company, the parties desire to
amend certain provisions of the Employment Agreement, all in accordance with the
terms of this Second Amendment.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Effect of Employment Agreement
Except as expressly set forth herein the Employment Agreement remains in full
force and effect and is not amended, altered or modified.
2. Section 4 is modified to provide as follows:
"4(a) The Company shall pay Employee a salary payable monthly and in
accordance with Company's normal and reasonable payroll practices, in a yearly
gross amount of NIS 303,000 which, upon consummation of the closing of the 2001
Share Purchase Agreement, shall be increased and shall equal NIS 378,750 (the
"YEARLY GROSS SALARY"). This Yearly Gross Salary shall be payable over a period
of twelve months as of the month following the date of closing of the 2001 Share
Purchase Agreement, in equal monthly payments of NIS 31,562.5 each (the "MONTHLY
GROSS SALARY"). The Monthly Gross Salary is executive of amounts payable by
Company for the social benefits set forth in Sections 4(b), 4(c), 4(d) and 4(e)
and exclusive of the benefit in Section 5A below, for the duration of this
Agreement. The Monthly Gross Salary shall be linked to the Israeli Consumer
Price Index."
3. Section 4(e) is modified to provide as follows:
3.1 After the words "determine the amount" and before the words "of any
bonus", the words "and type" will be added.
3.2 After the words "when determining the amount" and before the words "of
bonus to be paid hereunder", the words "and type" will be added.
4. Section 4(f) shall be added as follows:
"4.(f) In the event that the Company effects a future financing round by
third party investors (i.e. by investors who are not shareholders of the Company
and/or Affiliates thereof) of at least USD$4,000,000 (net of expenses) in one
transaction, at a per share price of at least US $5.789, then Employee will be
granted options to purchase 11,240 Ordinary Shares of the Company immediately
prior to the closing of such next financing round at an exercise price of US
$3.859. Such options shall vest during a four years period (25% each year). The
number of shares into which such option is exercisable and/or the exercise price
of such option are subject to adjustments in the event of any debt financing
which involves the issuance and/or undertaking to issue any securities
convertible into shares of the Company, other than an Exempted Issuance, as
defined under the Company's Articles of Association, share split and/or reverse
split, issuance of bonus shares, reclassification and/or any similar events,
effected after consummation of the closing of the 2001 Share Purchase
Agreement."
5. Section 4(g) shall be added as follows:
"4.(g) In the event that at any time during the Initial Term or the
Extended Term, as defined in the Employment Agreement, the Company consummates a
merger, consolidation or acquisition, sale, lease or other disposal of all or
substantially all of the Company's assets ("Sale"), the Company undertakes to
extend the Employee's employment with the Company (or any successor to the
Company or its assets) under the terms set forth in the Employment Agreement and
any amendments thereto, for a minimum of six months following such Sale or to
pay the Employee the equivalent of six (6) months compensation as provided for
in Sections 4(a) through 4(f) of the Employment Agreement as amended."
IN WITNESS WHEREOF, the parties have executed this Amendment as of the first
date written above.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Employment Agreement as of the date written above.
/s/ HAIM AVIV
--------------------------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
PREDIX PHARMACEUTICALS LTD.
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
WITH
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
THIRD AMENDMENT dated as of May 12, 2003, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"EMPLOYEE"), whose address is [ADDRESS], and Predix Pharmaceuticals Ltd. (the
"COMPANY"), a corporation incorporated under the laws of the State of Israel,
having its address at Beit Shap, 3 Hayetzirah Street, Ramat Gan, Israel.
WITNESSETH
WHEREAS the parties entered into an employment agreement dated as of October
31, 2000, (the "EMPLOYMENT AGREEMENT") as amended by the Amended
Employment Agreement dated April 3, 2001, (the "FIRST AMENDMENT")
and by the Second Amendment to the Employment Agreement dated August
29, 2001 (the "SECOND AMENDMENT"); and
WHEREAS the Company is in need of additional funding and is contemplating
receiving a bridge loan from certain of its shareholders (the
"BRIDGE LOAN");
WHEREAS the Lenders had conditioned the Bridge Loan by certain conditions,
among which, the execution of this Third Amendment, NOW, THEREFORE,
in consideration of the promises and mutual agreements hereinafter
contained, the parties hereto agree as follows:
1. The Employee hereby agrees to waive her rights under Section 4(f) which
was added in the Second Amendment, and hence, said section is hereby
canceled and of no further force and effect.
2. Except as expressly set forth herein, the Employment Agreement, The
Amended Employment Agreement and the Second Amendment remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the
date written above.
/s/ HAIM AVIV
-------------------------------------
PREDIX PHARMACEUTICALS LTD.
Name: Haim Aviv
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
PREDIX PHARMACEUTICALS LTD.
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
WITH
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
FOURTH AMENDMENT dated as of August 8, 2003, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"EMPLOYEE"), whose address is [ADDRESS] and Predix Pharmaceuticals Ltd. (the
"COMPANY"), a corporation incorporated under the laws of the State of Israel,
having its address at Beit Shap, 3 Hayetzirah Street, Ramat Gan, Israel.
WITNESSETH
WHEREAS the parties entered into an employment agreement dated as of October
31, 2000, (the "EMPLOYMENT AGREEMENT"), as amended by the Amended
Employment Agreement, the Second Amendment to the Employment
Agreement and by the Third Amendment to the Employment Agreement
(jointly, the "AMENDMENTS"); and
WHEREAS the Company's shareholders have entered into an agreement with
Physiome Sciences Inc. ("PHYSIOME") whereby the Company is to become
a fully owned subsidiary of Physiome, whose name will be changed to
Predix Pharmaceuticals Holdings, Inc. (the "Parent") (the "M&A
TRANSACTION"); and
WHEREAS it has been agreed between the Company and the Employee that,
subject to and contingent upon the closing of the M&A Transaction
(the "CLOSING") and as of such Closing and until resolved otherwise
by the Company's Board of Directors, certain terms and conditions of
the Employee's employment with the Company shall be amended as set
forth herein;
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Except as expressly set forth herein, the Employment Agreement and all
Amendments thereto remain in full force and effect and is not amended,
altered or modified.
2. This Fourth Amendment will enter into full force and effect only subject
to and upon the closing of the M&A Transaction (the "CLOSING"). In the
event that the Closing does not occur by September 30th, 2003, then this
Fourth Amendment shall automatically expire and shall have no further
force and effect.
3. Subject to and contingent upon the Closing and as of such Closing and
until resolved otherwise by the Company's Board of Directors, the Employee
shall serve as the General Manager of the Company, and Senior Vice
President, Pipeline Management, reporting to the CEO of the Parent.
4. As of the Closing and subject thereto, Section 3(a) of the Employment
Agreement shall be modified, so that the prior written notice given by
either in case of termination without cause
shall be extended to three (3) months. The same period will apply to
Section 3(d) of the Employment Agreement.
5. As of the Closing and subject thereto, Section 4(a) of the Employment
Agreement shall be modified and replaced to provide as follows:
"The Company shall pay Employee a salary payable monthly and in
accordance with the Company's normal and reasonable payroll
practices. At the Closing (and subject thereto), the July salary
shall be increased from the amount of NIS 43,582 (the July salary)
by an amount in NIS equal to $1,667 converted into NIS at the
representative rate of exchange of the date of the Closing (the
"MONTHLY GROSS SALARY"). The Monthly Gross Salary shall henceforward
be in NIS and fully linked to the Israeli Consumer Price Index. The
Monthly Gross Salary is exclusive of amounts payable by the Company
for the social benefits set forth in Sections 4(b), 4(c) and 4(d)
and 4(e) and exclusive of the benefit in Section 5A below, for the
duration of this Agreement."
6. Upon the Closing, the Employee will be entitled to receive $10,000 (ten
thousand US Dollars) as a special one time bonus.
7. The Employee will be eligible for a performance-based bonus on July 31,
2004 (the "PERFORMANCE BONUS"). The base target amount for the performance
Bonus is $25,000 (twenty five thousand US Dollars), assuming that all
performance targets set by the Board and/or by the CEO are achieved
however, any payment of bonus shall be entirely under the discretion of
the Board, and subject to the recommendation of the CEO.
8. In addition to the above, following the Closing, the Employee shall be
entitled to receive shares and options under Appendix A of the Parent's
2003 Stock Incentive Plan, adjusted for Israeli residents (the "PLAN")
under all terms of the Plan and provided that the Employee executes the
applicable Option Agreements and further complies with all the terms of
the Plan, as follows:
8.1 65,553 shares of Class A Common Stock of the Parent. These shares will
be unrestricted.
8.2 Option to purchase 339,114 shares of Class A Common Stock of the
Parent, granted as follows:
8.2.1 Option to purchase 109,884 shares of Class A Common Stock of
the Parent, with a term of ten (10) years, at an exercise price of $0.10
per share, fully vested at the Closing.
8.2.2 Option to purchase 229,230 shares of Class A Common Stock of
the Parent, with a term of ten (10) years, at an exercise price of $0.10
per share, having the following vesting schedule:
- 57,307 shares vesting on July 31, 2004
- 57,307 shares vesting on July 31, 2005
- 57,307 shares vesting on July 31, 2006
- 57,309 shares vesting on July 31, 2007
9. Except as expressly set forth herein, the Employment Agreement and all
Amendments thereto remain in full force and effect and is not amended,
altered or modified.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as of the
date written above.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
PREDIX PHARMACEUTICALS LTD.
Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Predix ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, MD, PhD
Pharmaceuticals President and CEO
▇▇▇▇▇▇ ▇▇▇▇▇▇, PhD, MBA
General Manager, Israel
Senior Vice President
Pipeline Management
18 June 2004
Dear ▇▇. ▇▇▇▇▇▇,
This has been a truly transforming year for Predix. Despite much skepticism, we
successfully filed an IND, entered the clinic, and are near completion of our
second clinical trial. Although we had some delays in our second and third
programs - relative to our highly aggressive timelines - we are on track with at
least two more programs.
As a Founder of this Company, I am certain that you are very proud that the
technology that you, ▇▇▇▇ and the team have created is demonstrating incredible
potential. And as the site leader in Israel, as well as in your role of "chief
biologist" in the Company, you have done a fantastic job guiding the
computational team and contributing to the success of the programs.
Below, you will find my review of your performance this year. Given your
continued excellent performance, generally exceeding expectations, on behalf of
the Board of Directors and the Compensation Committee, I am very pleased to
present you with a salary increase to $160,000 US annually, beginning on 1 July
2004. In addition, you will receive a one-time bonus of $25,000 US (100% of
target), payable to you once our Series C financing has closed. At that time,
additional stock options are likely to become available.
Many thanks for your superb contributions to the Company. I very much look
forward to the coming year and bringing additional drug candidates into clinical
trials, and to advancing our promising 5-HT1A candidate in depression and/or
anxiety.
Best Regards,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Predix
Pharmaceuticals
June 9, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇, PhD, MBA
[ADDRESS]
RE: Extension of Employment Agreement dated as of October 31, 2000, as
amended in early 2001, August 29, 2001, May 12, 2003, August 11,
2003 and June 18, 2004, between ▇▇▇▇▇▇ ▇▇▇▇▇▇, PhD, MBA and Predix
Pharmaceuticals Ltd. (collectively, the "Employment Agreement")
Dear ▇▇. ▇▇▇▇▇▇:
As you may be aware, the Initial Term of the Employment Agreement has
expired and we would like to memorialize our understanding as to your continued
employment with us. Therefore, it is our desire to extend the term of the
Employment Agreement until December 31, 2005 and for one or more additional
one-year periods until otherwise terminated by either party in accordance with
Section 3 of the Employment Agreement, including by either party without cause
on three (3) months prior written notice to the other party.
To the extent that there are any conflicts between the terms of this
letter and the Employment Agreement, this letter will be deemed to have
superseded those of the Employment Agreement and shall govern the matter in
question.
I would appreciate it if you would provide me with your approval of the
extension of the Employment Agreement as set forth above by signing and dating
this letter as indicated below at the earliest opportunity.
Best regards,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The undersigned hereby acknowledges and agrees to the terms and conditions
above.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ June 9, 2005
------------------------------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, PhD, MBA Date
