Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement by and between Keryx Biopharmaceuticals, Inc. ("Keryx"), a
Delaware corporation having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇▇▇, an individual residing at _________________________
("Bentsur").
WITNESSETH:
WHEREAS, the Corporation desires to employ Bentsur and Bentsur desires to
be employed by the Corporation as Vice President, Finance & Investor Relations
of Keryx, all pursuant to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT DUTIES
(a) Keryx hereby engages and employs Bentsur, and Bentsur accepts
engagement and employment, as Vice President, Finance & Investor Relations of
Keryx, to direct, supervise and have responsibilities for the financial affairs
and investor relations of Keryx and for any other appropriate areas and tasks
which may be assigned to him. Bentsur will devote his entire business time,
energy, abilities and experience to the performance of his duties, effectively
and in good faith. Further, during the Term, Bentsur shall not render services
as an employee, consultant or otherwise, whether or not during regular business
hours, for pay to any other party other than the Corporation without the written
permission of the Chief Executive Officer. Bentsur acknowledges and agrees that
the performance by Bentsur of his duties hereunder may require significant
domestic and international travel by Bentsur.
(b) Bentsur agrees to relocate to the New York City area as soon as
possible but no later than the later of August 1, 2003 or the date on which
Bentsur is authorized to begin working in the United States pursuant to a
validly issued L-1 Visa (the "Effective Date"). Keryx agrees to reimburse
Bentsur for relocation expenses in accordance with, and up to the limits set
forth in Paragraph 3(e), below.
2. TERM
This Agreement shall commence on the Effective Date and shall continue
unless sooner terminated as hereinafter provided in Paragraph 8 (the "Term").
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of Keryx,
Bentsur shall be compensated as follows:
(i) Base Salary and Annual Increases. Bentsur shall receive an
annual gross base salary of one hundred and sixty thousand dollars ($160,000)
payable in accordance with the Corporation's payroll policies and subject to
standard payroll deductions and withholdings. The payment of such base salary
shall begin upon the first day that Bentsur begins work in the Corporation's New
York office subsequent to the Effective Date. The Corporation's Board of
Directors shall review Bentsur's performance and the Corporation's financial and
operating results on at least an annual basis, and may adjust Bentsur's base
salary as it, in its reasonable discretion, deems appropriate based on such
review. In addition, it is agreed that his annual gross base salary will be
increased by ten thousand dollars
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($10,000), to one hundred and seventy thousand dollars ($170,000) as of the
first anniversary of the Effective Date.
(ii) Bonus. Bentsur shall be eligible to receive one or more bonuses
during any calendar year in the discretion of the Chief Executive Officer,
acting in consultation with the Board of Directors.
(b) Expenses. Keryx shall reimburse Bentsur for all normal, usual and
necessary expenses incurred by Bentsur in furtherance of the business and
affairs of Keryx, including travel and entertainment, against receipt by Keryx
of appropriate vouchers or other proof of Bentsur's expenditures and otherwise
in accordance with such Expense Reimbursement Policy as may from time to time be
adopted by the Board of Directors of Keryx.
(c) Annual Leave and Holidays. Bentsur shall be entitled during the term
of this Agreement to fifteen (15) business days of annual leave per year. In
addition, Bentsur shall be entitled to those holidays set forth, from time to
time, by the Company. The use and accrual of annual leave and holidays shall be
subject to the Company's policy.
(d) Employee Benefits. During the Term of his employment, Bentsur shall be
entitled to participate in all employee and fringe benefit plans and programs
generally offered to other members of the Corporation's management who are
similarly situated, including, without limitation, any pension, profit sharing,
incentive, retirement, insurance, health and disability benefits and plans, to
the extent that Bentsur is eligible under and subject to the provisions of such
plans. The Corporation reserves its right to modify or terminate any of its
employee and fringe benefit plans and programs at any time.
(e) Relocation Expenses. Upon the presentation of acceptable
documentation, Keryx will reimburse Bentsur for certain reasonable expenses
actually incurred in connection with his relocation to the NYC area, as follows:
(i) Costs incurred for himself and his spouse to travel to the New
York City area to find housing, including airfare, hotel,
rental car and food;
(ii) Out of pocket costs incurred in moving from his present
location in Israel to the NYC area, including transportation
for relocation for Bentsur (and his family).
(iii) Reimbursement up to a maximum of $10,000 for brokerage fees
associated with the leasing of a dwelling by Bentsur in the NY
area, moving expenses for personal belongings, and replacement
costs for certain home furnishings.
4. REPRESENTATIONS AND WARRANTIES BY BENTSUR AND KERYX
(a) Bentsur hereby represents and warrants to Keryx as follows:
(i) Neither the execution and delivery of this Agreement nor the
performance by Bentsur of his duties and other obligations hereunder violate any
statute, law, determination or award, or conflict with or constitute a default
under (whether immediately, upon the giving of notice or lapse of time or both)
any prior employment agreement, contract, or other instrument to which Bentsur
is a party or by which he is bound.
(ii) Bentsur has the full right, power and legal capacity to enter
and deliver this Agreement and to perform his duties and other obligations
hereunder. This
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Agreement constitutes the legal, valid and binding obligation of Bentsur
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for Bentsur to execute and deliver this
Agreement or perform his duties and other obligations hereunder.
(b) Keryx hereby represents and warrants to Bentsur as follows:
(i) Keryx is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite corporate power and
authority to own its properties and conduct its business in the manner presently
conducted.
(ii) Keryx has the full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(iii) The execution, delivery and performance by Keryx of this
Agreement does not conflict with or result in a material breach or violation of
or constitute a material default under (whether immediately, or upon the giving
of notice or lapse of time or both) the certificate of incorporation or by-laws
of Keryx, or any agreement or instrument to which Keryx is a party or by which
Keryx or any of its properties may be bound or affected.
5. CONFIDENTIAL INFORMATION
Bentsur agrees to sign and comply with the Corporation's Proprietary
Information and Inventions Agreement, annexed hereto as Attachment A.
6. NON-COMPETITION
(a) Bentsur understands and recognizes that his services to Keryx are
special and unique and agrees that, during the Term, and for a period of 12
months from the date of termination of his employment hereunder, he shall not in
any manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity ("Person"),
enter into or engage in any business directly competitive with Keryx's business,
either as an individual for his own account, or as a partner, joint venturer,
treasurer, agent, consultant, salesperson, employee, officer, director or
shareholder of a Person operating or intending to operate within the area that
Keryx is, at the date of termination, conducting its business (the "Restricted
Businesses"); provided, however, that nothing herein will preclude Bentsur from
holding one percent (1%) or less of the stock of any publicly traded
corporation. For a business to be "directly competitive", it would have to be
developing a drug in the same class and for the same indication. For example, a
company developing a GAG for Diabetic Nephropathy would be protected by this
clause, however, a company developing a GAG for another disease or developing a
drug other than a GAG for Diabetic Nephropathy would not be deemed directly
competitive.
(b) In the event that Bentsur breaches any provisions of this Section 6 or
there is a threatened breach, then, in addition to any other rights which Keryx
may have, Keryx shall be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce the
provisions of this Section 6, Bentsur shall not argue as a defense that there is
an adequate remedy at law nor shall Keryx be prevented from seeking any other
remedies that may be available.
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7. NON-SOLICITATION AND NON-INTERFERENCE
During the Term, and for 12 months thereafter, Bentsur shall not, directly
or indirectly, without the prior written consent of Keryx:
(a) solicit or induce any employee of Keryx or any subsidiary, parent,
affiliate or successor ("Affiliate") of Keryx to leave the employ of Keryx or
any Affiliate or hire for any purpose any employee of Keryx or any Affiliate or
any employee who has left the employment of Keryx or any Affiliate within six
months of the termination of said employee's employment with Keryx; or
(b) interfere with or disrupt or attempt to disrupt Keryx's or its
Affiliates' business relationship with any of their partners, service providers,
clients, customers and/or suppliers.
8. TERMINATION
(a) Either party may terminate Bentsur's employment with the Corporation
without cause at any time upon ninety (90) days' notice, provided, however that
if such termination occurs in the first nine (9) months following the Effective
Date, the Corporation shall pay Bentsur his full salary and benefits until the
first anniversary of the Effective Date. The Corporation shall have the right,
in its sole discretion, to require Bentsur to continue working for the
Corporation during the notice period. If the Corporation terminates Bentsur
without cause pursuant to this section, and only if Bentsur executes a waiver
and release of claims substantially in the form set forth in Attachment B,
attached hereto, the Board of Directors shall take the necessary steps so that
(i) any outstanding, but unvested, options granted to the Employee shall vest
upon the effective date of his termination; and (ii) the period during which the
Employee shall be permitted to exercise such options shall be extended until the
earlier of (A) two (2) years from the effective date of his termination as
defined in the Stock Option Plan governing the options in question and (B) the
expiration date of such options. Furthermore, in the event Bentsur is terminated
by the Company, except in the event of termination for cause as per 8(c) below,
within 12 months of the Effective Date, the Company shall pay Bentsur and his
family their relocation expenses to Israel, provided that such relocation occurs
within 4 months of the termination and, in the event that such relocation occurs
within 12 months of the Effective Date, shall assume Bentsur's remaining
obligations, if any, under his dwelling lease agreement for a period not to
exceed 12 months from the Effective Date.
(b) In the event Bentsur's employment is terminated by his death or
disability,) he shall be entitled to continue to receive his base salary for
three (3) months following his last day of actual employment by the Corporation.
(For purposes of this section, "disability" shall be deemed to have occurred if
Bentsur is unable, due to any physical or mental disease or condition, to
perform his normal duties of employment for 120 consecutive days or 180 days in
any twelve-month period. In addition, the Board of Directors shall take the
necessary steps so that (a) any outstanding, but unvested, options granted to
the Employee shall vest upon the effective date of his termination; and (b) the
period during which the Employee shall be permitted to exercise such options
shall be extended to the earlier of: (A) two (2) years from the effective date
of his termination as defined in the Share Option Plan governing the options in
question and (B) the expiration date of such options. Should the Employee's
employment be terminated as a result of his death, the benefits granted herein,
shall be granted instead to his lawful heir or heirs. In either case (disability
or death), accelerated vesting and extended exercise of the options will only be
granted if Bentsur or, in the case of his death, his legal successor, together
with his lawful heir or heirs, execute a waiver and release of claims
substantially in the form set forth in Attachment B hereto.
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Furthermore, in the event Bentsur is terminated due to death or disability, the
Corporation shall fund the immediate relocation of Bentsur and his immediate
family to Israel and, if such termination occurs within 12 months of the
Effective Date, the Corporation shall assume Bentsur's remaining obligations
under his dwelling lease agreement.
(c) Notwithstanding the foregoing, the Corporation may terminate Bentsur
immediately and without prior notice in the following circumstances: (a) a
material breach of Bentsur's obligations and/or warranties pursuant to Sections
1, 4(a), 5, 6 and/or 7; (b) a material breach by Bentsur of any other provision
of this Agreement, which is not cured by Bentsur within fifteen (15) days after
receiving notice thereof from the Corporation containing a description of the
breach or breaches alleged to have occurred; (c) the habitual neglect or gross
failure by Bentsur to adequately perform the duties of his position; (d) any act
of moral turpitude or criminal action connected to his employment with the
Corporation or his place of employment; or (e) Bentsur's repetitive refusal to
comply with or his violation of lawful instructions of the Chief Executive
Officer or the Board of Directors, unless cured within 15 days after receiving
notice thereof.
(d) In the event that Bentsur's employment has been terminated in
accordance with Section 8(c), above, Bentsur shall not be entitled to receive
any of the severance benefits set forth in Section 8(a) or (b), above.
9. INDEMNIFICATION
The Corporation shall take whatever steps are necessary to establish a
policy of indemnifying its officers, including, but not limited to Bentsur, for
all actions taken in good faith in pursuit of their duties and obligations to
the Corporation. Such steps shall include, but shall not necessarily be limited
to, the obtaining of an appropriate level of Directors and Officers Liability
coverage.
10. NOTICES
Any notice or other communication under this Agreement shall be in writing
and shall be deemed to have been given when delivered personally against receipt
thereof; two (2) business days after being sent by Federal Express or similar
internationally recognized courier service; or seven (7) business days after
being mailed registered or certified mail, postage prepaid, return receipt
requested, to either party at the address set forth above, or to such other
address as such party shall give by notice hereunder to the other party.
11. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
12. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth herein. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
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13. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, Keryx, its successors and assigns, including in
the event of a change of control of Keryx by way of a merger, acquisition of, or
a majority investment in Keryx, and upon Bentsur and his legal representatives.
This Agreement constitutes a personal service agreement, and the performance of
Bentsur's obligations hereunder may not be transferred or assigned by Bentsur.
14. NON-WAIVER
The failure of either party to insist upon the strict performance of any
of the terms, conditions and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
15. GOVERNING LAW
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law. Additionally, the prevailing party in any litigation shall
be entitled to an additional award of its attorney fees, cost and expenses.
16. REMEDIES FOR BREACH
Bentsur understands and agrees that any breach of Sections 1, 4(a) 5, 6
and/or 7 of this Agreement by him could cause irreparable damage to Keryx and to
the Affiliates, and that monetary damages alone would not be adequate and, in
the event of such breach, Keryx shall have, in addition to any and all remedies
of law, the right to an injunction, specific performance or other equitable
relief to prevent or redress the violation of Keryx's rights under such
Sections.
17. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMPLOYEE:
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
KERYX BIOPHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
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ATTACHMENT A
Proprietary Information and Inventions Agreement
In consideration of my employment or continued employment by Keryx
Biopharmaceuticals, Inc. (together with any subsidiary of Keryx
Biopharmaceuticals, Inc., the "Company"), and the compensation now and hereafter
paid to me, I hereby agree as follows:
1. Recognition of Company's Rights; Nondisclosure. At all times during the
term of my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing.
The term "Proprietary Information" shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Company. By way of
illustration but not limitation, "Proprietary Information" includes (a)
inventions, mask works, trade secrets, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter collectively
referred to as "Inventions"); and (b) information regarding plans for research,
development, new products, regulatory matters, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and information regarding the skills and compensation
of other employees of the Company.
2. Third Party Information. I understand, in addition, that the Company
has received, and in the future will receive, from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (except in connection with my work for the Company),
unless expressly authorized by an officer of the Company in writing.
3. Assignment of Inventions
3.1 Assignment
(a) I hereby assign to the Company all my right, title and
interest in and to any and all Inventions and all patent rights, copyrights,
mask work rights, trademarks, trade secret rights, all other rights throughout
the world in connection therewith, and the goodwill associated with all of the
foregoing (collectively, "Proprietary Rights"), whether or not patentable or
registrable under patent, copyright, trademark or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to, or as directed by, the Company under this Paragraph 3 are hereinafter
referred to as "Company Inventions". I agree, upon request, to execute, verify
and deliver assignments of the Proprietary Rights to the Company or its designee
and I hereby appoint the Company my attorney-in-fact with respect to the
Proprietary Rights for the purpose of effecting any or all of the Company's
rights to the Proprietary Rights.
3.1 Government. I also agree to assign to or as directed by the
Company all my right, title and interest in and to any and all Inventions, full
title to which is required to be assigned to the United States of America by a
contract between the Company and United States of America or any of its
agencies.
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3.2 Works for hire. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made for
hire", as that term is defined in the United States Copyright Act (17 U.S.C.
Section 101).
4. Enforcement of Proprietary Rights. From time to time, I will assist the
Company in every proper way to obtain and enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. My
obligation to assist the Company with respect to Proprietary Rights relating to
such Company Inventions in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time and expenses actually spent by
me at the Company's request on such assistance.
I hereby waive and quitclaim to the Company any and all claims, of any
nature whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.
5. Obligation to Keep Company Informed. During the period of my
employment, I will promptly disclose all Inventions to the Company fully and in
writing and will hold such Inventions in trust for the sole right and benefit of
the Company. In addition, after termination of my employment, I will promptly
disclose all patent applications filed by me within a year after termination of
employment with regard to Inventions.
6. Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth in Exhibit A attached hereto a complete list of all Inventions (i)
that I have, alone or jointly with others, conceived, developed or reduced to
practice or caused to be conceived, developed or reduced to practice prior to
the commencement of my employment with the Company, (ii) that I consider to be
my property or the property of third parties and (iii) that I wish to have
excluded from the scope of this Agreement. If disclosure of any such Invention
on Exhibit A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Inventions in Exhibit A but am to inform
the Company that all such Inventions have not been listed for that reason.
7. No Improper Use of Materials. During my employment by the Company, I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by that former employer or person.
8. No Conflicting Obligation. I represent that my performance of all the
terms of this Agreement and my performance of my duties as an employee of the
Company do not and will not breach any agreement to keep in confidence
information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith.
9. Return of Company Documents. When I leave the employ of the Company, I
will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, molecules, cells, storage media, including
software, documents and computer printouts, together with all copies thereof,
and any other material containing or disclosing any
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Company Inventions, Third Party Information or Proprietary Information of the
Company. I further agree that any property situated on the Company's premises
and owned by the Company, including disks and other storage media, filing
cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice. Prior to leaving, I will cooperate with the
Company in completing and signing the Company's termination statement for
technical and management personnel.
10. Legal and Equitable Remedies. Because my services are personal and
unique and because I may have access to and may become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond, without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement, and I waive the claim or defense that the Company has an adequate
remedy at law. I shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that such an adequate
remedy at law exists.
11. Notices. Any notices required or permitted hereunder shall be given to
me at the address specified below or at such other address as I shall specify in
writing. Such notice shall be deemed given upon personal delivery to the
appropriate address or if sent by certified or registered mail, three days after
the date of mailing.
12. General Provisions.
12.1 Governing Law. This Agreement is executed under seal and will
be governed by and construed according to the laws of the State of New York.
12.2 Entire Agreement. This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between us. No modification or
amendment of this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing, signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement. As used in this Agreement, the
period of my employment includes any time during which I may be retained by the
Company as a consultant.
12.3 Severability. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then the remaining provisions will
continue in full forced and effect.
12.4 Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns. I may not assign
any of my rights, or delegate any of my obligations, under this Agreement.
12.5 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
12.6 Employment. I agree and understand that nothing in this
Agreement shall confer on me any right with respect to continuation of my
employment with the Company, or shall it interfere in any way with my right or
the Company's right to terminate my employment at any time, with or without
cause.
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12.7 Waiver. No waiver by the Company of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a wavier of
any other right. The Company shall not be required to give notice to enforce
strict adherence to all terms of this Agreement.
12.8 Counterparts. This Agreement may be executed in counterparts,
all of which together shall for all purposes constitute one Agreement, binding
on each of the parties hereto notwithstanding that each such party shall not
have signed the same counterpart.
12.9 Jurisdiction and Venue; Waiver of Jury Trial. In case of any
dispute hereunder, the parties will submit to the exclusive jurisdiction and
venue of any court of competent jurisdiction sitting in New York County, New
York, and will comply with all requirements necessary to give such court
jurisdiction over the parties and the controversy. EACH PARTY HEREBY WAIVES ANY
RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
12.10 Disclosure. I shall disclose the existence and terms of this
Agreement to any employer or other person that I may work for or be engaged by
after the termination of my employment or engagement at the Company. I agree
that the Company may, after notification to me, provide a copy of this Agreement
to any business or enterprise (i) which I may directly or indirectly own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, or (ii) with which I may be
connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with which I may use
or permit my name to be used. I will provide the names and addresses of any of
such persons or entities as the Company may from time to time reasonably
request.
This Agreement shall be effective as of the first day of my employment
with the Company, namely _______________________.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHTS TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
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I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Signature:
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
Date: June 23, 2003
ACCEPTED AND AGREED TO:
Keryx Biopharmaceuticals, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Signature
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chairman & Chief Executive Officer
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Proprietary Information and Inventions Agreement
EXHIBIT A
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ATTACHMENT B
Employee Agreement And Release
Except as otherwise set forth in this Employee Agreement and Release (the
"Agreement") between the undersigned and Keryx Biopharmaceuticals, Inc. (the
"Corporation"), I hereby release, acquit and forever discharge the Corporation,
its parents, affiliates and subsidiaries, and their officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Corporation or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Corporation, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of compensation; claims pursuant to any federal, state or local law, statute, or
cause of action including, but not limited to, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. ss. 2000e et seq., the Age Discrimination in Employment Act,
29 U.S.C. ss. 621 et seq. ("ADEA"), the Americans With Disabilities Act of 1990,
42 U.S.C. ss. 12101 et seq., and the New York Human Rights Law, N.Y. Exec. Law,
Art. 15, ss. 290 et seq. and the New York City Human Rights Law, N.Y.C. Admin.
Code ss.8-101 et seq., all as amended, and all claims arising out of the Fair
Credit Reporting Act, 15 U.S.C. ss. 1681 et seq., the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. ss. 1001 et seq.; tort law; contract
law; wrongful discharge; discrimination; harassment; retaliation; fraud;
defamation; emotional distress; and breach of the implied covenants of good
faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under ADEA. I also acknowledge that the consideration given
for the waiver and release in the preceding paragraph hereof is in addition to
anything of value to which I was already entitled. I further acknowledge that I
have been advised by this writing, as required by the ADEA, that; (a) my waiver
and release do not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) I have been advised hereby that I have the
right to consult with an attorney prior to executing this Agreement; (c) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (d) I have seven (7) days following
the execution of this Agreement by the parties to revoke the Agreement; and (e)
this Agreement shall not be effective until the date upon which the revocation
period had expired, which shall be the eighth day after this Agreement is
executed by me.
In giving this release, which includes claims that may be unknown to me at
present, I hereby expressly waive and relinquish all rights and benefits under
any law of any jurisdiction with respect to my release of any such presently
unknown claims I may have against the Corporation.
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Dated:
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