UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported): September 21, 2015
AKARI
THERAPEUTICS PLC
(Exact Name of Registrant as Specified
in its Charter)
England and Wales |
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001-36288 |
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98-1034922 |
(State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
The Gridiron Building
One Pancras Square
C/O Pearl Cohen Zedek Latzer Baratz UK
LLP
London, N1C 4AG, United Kingdom
(Address of Principal Executive Offices
and zip code)
Registrant’s telephone number,
including area code +44-203-318-3004
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers |
(e) CEO Employment Agreement
On September 21, 2015, Akari Therapeutics Plc (“Akari”
or the “Company”), upon the recommendation of the Compensation Committee of the Company’s Board of Directors
(the “Compensation Committee”), entered into the Executive Employment Agreement by and between the Company and
its Chief Executive Officer, Gur Roshwalb, M.D. (the “CEO Employment Agreement”). The CEO Employment Agreement
is effective as of September 18, 2015, and has a term of one year with automatic renewals for successive one-year periods unless
terminated by either party upon three-months’ notice prior to the expiration of the current term. Pursuant to the terms of
the CEO Employment Agreement, Dr. Roshwalb will receive an annual base salary of $375,000, subject to review on an annual basis.
Dr. Roshwalb will also be entitled to an annual cash bonus with a target of 40% of base salary, provided that the actual amount
of such bonus may be greater or less that the target amount.
The CEO Employment Agreement also provides that Dr. Roshwalb
will be entitled to a stock option grant to purchase 32,543,700 Ordinary Shares (equivalent to 325,437 American Depositary Shares
(“ADSs”)), par value par value £0.01, of the Company (“Ordinary Shares”). This option
grant was granted on September 21, 2015, with a share exercise price equal to $0.3221 per share (or $32.21 per ADS), which is the
fair market value on the date of grant, as defined in the Company’s 2014 Equity Incentive Plan (the “Plan”).
The option grant was granted pursuant to and is governed by the terms of the Plan.
Upon termination of Dr. Roshwalb’s employment Without
Cause (as defined therein), by Dr. Roshwalb for Good Reason or upon Expiration of the Term (as defined therein), in addition to
any accrued but unpaid base salary and expense reimbursement, he shall be entitled to receive an amount equal to 12 months of base
salary at the highest annualized rate in effect at any time before the employment terminates payable in substantially equal installments.
Dr. Roshwalb shall also be entitled to COBRA continuation coverage paid in full by the Company for up to a maximum of 12 months
following the date of termination.
Upon termination of Dr. Roshwalb’s employment Without
Cause (as defined therein) or by Dr. Roshwalb for Good Reason following a Change of Control (as defined therein), unless the Change
of Control happens for less than $225 million, in addition to any accrued but unpaid base salary and expense reimbursement, he
shall be entitled to receive an amount equal to 18 months of one and a half times annual base salary at the highest annualized
rate in effect at any time before the employment terminates payable in substantially equal installments and the target annual performance
bonus that he would have been entitled to for the year in which termination was effective. Dr. Roshwalb shall also be entitled
to COBRA continuation coverage paid in full by the Company for up to a maximum of 18 months following the date of termination.
The Company is entitled to terminate Dr. Roshwalb’s employment immediately, under certain terms as specified in the CEO Employment
Agreement.
The CEO Employment Agreement also contains restrictive covenants
for the Company’s benefit and Dr. Roshwalb is required to maintain the confidentiality of the Company’s confidential
information.
The foregoing description of the CEO Employment Agreement does
not purport to be complete and is qualified in its entirety by reference to the CEO Employment Agreement which is attached as Exhibit
10.1 to this Current Report on Form 8-K.
CFO Employment Agreement
On September 21, 2015, the Company, upon the recommendation
of the Compensation Committee, entered into the Executive Employment Agreement by and between the Company and its Chief Financial
Officer, Dov Elefant (the “CFO Employment Agreement”). The CFO Employment Agreement is effective as of September
18, 2015, and has a term of one year with automatic renewals for successive one-year periods unless terminated by either party
upon three-months’ notice prior to the expiration of the current term. Pursuant to the terms of the CFO Employment Agreement,
Mr. Elefant will receive an annual base salary of $200,000, subject to review on an annual basis. Mr. Elefant will also be entitled
to an annual cash bonus with a target of 25% of base salary, provided that the actual amount of such bonus may be greater or less
than the target amount.
The CFO Employment Agreement also provides that Mr. Elefant
will be entitled to a stock option grant to purchase 4,067,963 Ordinary Shares (equivalent to 40,679 ADSs). This option grant was
granted on September 21, 2015, with a share exercise price equal to $0.3221 per share (or $32.21 per ADS), which is the fair market
value on the date of grant, as defined in the Plan. The option grant was granted pursuant to and is governed by the terms of the
Plan.
Upon termination of Mr. Elefant’s employment Without Cause
(as defined therein), by Mr. Elefant for Good Reason or upon Expiration of the Term (as defined therein), in addition to any accrued
but unpaid base salary and expense reimbursement, he shall be entitled to receive an amount equal to 12 months of base salary at
the highest annualized rate in effect at any time before the employment terminates payable in substantially equal installments.
Mr. Elefant shall also be entitled to COBRA continuation coverage paid in full by the Company for up to a maximum of 12 months
following the date of termination.
Upon termination of Mr. Elefant’s employment Without Cause
(as defined therein) or by Mr. Elefant for good reason following a Change of Control (as defined therein), in addition to any accrued
but unpaid base salary and expense reimbursement, he shall be entitled to receive an amount equal to 18 months of one and a half
times annual base salary at the highest annualized rate in effect at any time before the employment terminates payable in substantially
equal installments and the target annual performance bonus that he would have been entitled to for the year in which termination
was effective. Mr. Elefant shall also be entitled to COBRA continuation coverage paid in full by us for up to a maximum of 18 months
following the date of termination. The Company is entitled to terminate Mr. Elefant’s employment immediately, under certain
terms as specified in the CFO Employment Agreement.
The CFO Employment Agreement also contains restrictive covenants
for the Company’s benefit and Mr. Elefant is required to maintain the confidentiality of the Company’s confidential
information.
The foregoing description of the CFO Employment Agreement does
not purport to be complete and is qualified in its entirety by reference to the CFO Employment Agreement which is attached as Exhibit
10.2 to this Current Report on Form 8-K.
COO Employment Contract
On September 21, 2015, the Company, upon the receommendation
of the Compensation Committee, approved and entered into the Employment Contract by and between the Company and its Chief Operating
Officer, Clive Richardson (the “COO Employment Agreement”). The COO Employment Agreement is effective as of
September 16, 2015, and shall continue until terminated by either party upon not less than six months’ prior written notice.
Pursuant to the terms of the COO Employment Agreement, Mr. Richardson will receive an annual base salary of £210,000, subject
to review on an annual basis. Mr. Richardson will also be entitled to an annual cash bonus with a target of 40% of base salary.
The COO Employment Agreement also provides that Mr. Richardson
will be entitled to a stock option grant to purchase 16,271,850 Ordinary Shares (equivalent to 162,718 ADSs). This option grant
was granted on September 21, 2015, with a share exercise price equal to $0.3221 per share (or $32.21 per ADS), which is the fair
market value on the date of grant, as defined in the Plan. The option grant was granted pursuant to and is governed by the terms
of the Plan.
Upon termination of Mr. Richardson’s employment, he shall
be entitled to receive an amount equal to one and a half times the sum of his annual base salary in effect on the termination date
and the target annual performance bonus that he would have been entitled to for the year in which Mr. Richardson’s termination
was effective.
The COO Employment Agreement also contains restrictive covenants
for the Company’s benefit and Mr. Richardson is required to maintain the confidentiality of the Company’s confidential
information.
The foregoing description of the COO Employment Agreement does
not purport to be complete and is qualified in its entirety by reference to the COO Employment Agreement which is attached as Exhibit
10.3 to this Current Report on Form 8-K.
Director Option Grants
On September 21, 2015, the Board of Directors of the Company,
upon the recommendation of the Compensation Committee, approved the grant of stock options to purchase Ordinary Shares (the “Options”)
pursuant to the Company’s Non-Employee Director Compensation Policy adopted by the Board of Directors on February 11, 2015.
Options were granted in the amounts indicated to the following directors:
| · | Mark Cohen: 85,000 (equivalent to 850 ADSs) (consisting of 25,000 Ordinary Shares for Annual Option Grant, 40,000 Ordinary
Shares for Chairman/Vice Chairman, 20,000 Ordinary Shares for being Chairman of Nominating and Governance Committee) |
| · | James Hill: 45,000 (equivalent to 450 ADSs) (consisting of 25,000 Ordinary Shares Initial Option Grant for Newly Appointed
Directors and 20,000 Ordinary Shares for being Chairman of Compensation Committee) |
| · | Allan Shaw: 45,000 (equivalent to 450 ADSs) (consisting of 25,000 Ordinary Shares for Annual Option Grant and 20,000 Ordinary
Shares for being Chairman of Audit Committee) |
| · | Stuart Ungar: 25,000 (equivalent to 250 ADSs) (consisting of Initial Option Grant for Newly Appointed Directors) |
The Options were granted under the Plan and (i) vest in one
year on the anniversary of the date of grant, subject to the Non-Employee Director’s continued service on the Board of Directors;
(ii) have an exercise price equal to $0.3221 per share (or $32.21 per ADS), which is the fair market value of the Ordinary Shares
as determined in the Plan on the grant date (September 21, 2015); (iii) terminate ten years after the grant date, (iv) become fully
vested immediately prior to a change of control (as defined in the Non-Employee Director Compensation Policy) and (v) contain such
other terms and conditions as set forth in the form of option agreement.
Additional Director Option Grants
On September 21, 2015, the Board of Directors of the Company,
upon the recommendation of the Compensation Committee, approved the grant of stock options to purchase 186,278 Ordinary Shares
(equivalent to 1,862 ADSs) (the “Additional Options”) to each of the non-employee and non-executive directors:
Mark Cohen, James Hill, Allan Shaw, and Stuart Ungar. The Compensation Committee determined to make the foregoing option grants
in light of the relatively low value of Ordinary Shares underlying options that are to be granted under the Company’s Non-Employee
Director Compensation Policy as compared to peer companies. The Compensation Committee intends to evaluate the current policy and
compare it to the policies of peer companies and may establish a new Non-Employee Director Compensation Policy.
The Additional Options were granted under the Plan and (i) vest
in one year on the anniversary of the date of grant, subject to the Non-Employee Director’s continued service on the Board
of Directors; (ii) have an exercise price equal to $0.3221 per share (or $32.21 per ADS), which is the fair market value of the
Ordinary Shares as determined in the Plan on the grant date (September 21, 2015); (iii) terminate ten years after the grant date,
(iv) become fully vested immediately prior to a change of control (as defined in the Non-Employee Director Compensation Policy)
and (v) contain such other terms and conditions as set forth in the form of option agreement.
Item 9.01. |
Financial Statements and Exhibits. |
Exhibit No. |
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Description |
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10.1 |
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Executive Employment Agreement, dated as of September 21, 2015, by and between the Company and Gur Roshwalb, M.D. |
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10.2 |
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Executive Employment Agreement, dated as of September 21, 2015, by and between the Company and Dov Elefant. |
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10.3 |
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Employment Contract, dated as of September 21, 2015, by and between the Company and Clive Richardson. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AKARI THERAPEUTICS, PLC |
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By: |
/s/ Gur Roshwalb, M.D. |
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Name: |
Gur Roshwalb, M.D. |
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Title: |
Chief Executive Officer |
Date: September 22, 2015
Item 9.01. |
Financial Statements and Exhibits. |
Exhibit No. |
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Description |
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10.1 |
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Executive Employment Agreement, dated as of September 21, 2015, by and between the Company and Gur Roshwalb, M.D. |
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10.2 |
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Executive Employment Agreement, dated as of September 21, 2015, by and between the Company and Dov Elefant. |
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10.3 |
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Employment Contract, dated as of September 21, 2015, by and between the Company and Clive Richardson. |
Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement
(the “Agreement”), made and entered into this 21st day of September, 2015 by and between Akari Therapeutics
PLC, a company organizaed under the law of England and Wales
(the “Company”), and Gur Roshwalb (“Executive”).
WHEREAS, the
Executive and the Company are currently parties to an Executive Service Agreement dated March 4, 2013 (the “Prior Agreement”);
WHEREAS, the
Company anticipates entering into a Share Exchange Agreement
(the “Exchange Agreement”) relating to the acquisition of
Volution Immuno Pharmaceuticals SA pursuant to which the Company will survive the transaction and the Executive will
continue to be employed by the Company (the “Transaction”); and
WHEREAS, Company
and the Executive wish to enter into this Agreement in connection with the Transaction effective as of the Date of Completion (as
such term is defined in the Exchange Agreement) at which time this Agreement will supersede and replace in its entirety the Prior
Agreement, and the Prior Agreement shall be of no further force or effect;
NOW, THEREFORE,
in consideration of the mutual promises, terms, provisions, and conditions contained herein, the parties agree as follows:
1. Roles
and Duties.
(a) Chief
Executive Officer Role. Subject to the terms and conditions of this Agreement, Company shall continue to employ Executive as
its Chief Executive Officer reporting to Company’s Board of Directors (“Board”). Executive accepts such employment
upon the terms and conditions set forth herein, and agrees to perform to the best of Executive’s ability the duties normally
associated with such position and as determined by Company in its sole discretion. During Executive’s employment, Executive
shall devote all of Executive’s business time and energies to the business and affairs of Company, provided
that nothing contained in this Section 1 shall prevent or limit Executive’s right to manage Executive’s personal investments
on Executive’s own personal time, including, without limitation the right to make passive investments in the securities of:
(a) any entity which Executive does not control, directly or indirectly, and which does not compete with Company, or (b) any publicly
held entity so long as Executive’s aggregate direct and indirect interest does not exceed two percent (2%) of the issued
and outstanding securities of any class of securities of such publicly held entity. During Executive’s employment, Executive shall not engage in any other non-Company related business activities of any nature whatsoever
(including board memberships) without the Company’s prior written consent,. In addition, and so long as such activities
do not interfere materially with Executive’s performance of Executive’s duties hereunder, Executive also may participate
in civic, charitable and
professional activities, but shall not serve in any official capacity, including as a member of a board, without the
prior written consent of the Company’s Board.
(b) Board
Membership. Executive shall serve as a member of the Board, during Executive’s employment hereunder, subject to any required
approval. Executive’s service as a Board member shall be without further compensation. Executive shall resign from the Board
effective immediately upon the termination of Executive’s employment with Company for any reason.
2. Term
of Employment.
(a) Term.
The term of this Agreement shall commence on the Closing Date (the “Commencement Date”) and shall continue for a period
of one year (the “Term”), unless terminated earlier pursuant to Section 2(b). The Term shall renew automatically for
successive one-year periods, unless either party has given written notice three-months prior to the expiration of the Term that
such party elects not to renew the Term. In the event of non-renewal, this Agreement and the Executive’s employment hereunder
shall terminate automatically at the close of business on the last day of the Term.
(b) Termination.
Notwithstanding anything else contained in this Agreement, Executive’s employment hereunder shall terminate prior to the
end of the Term upon the earliest to occur of the following:
(i) Death.
Immediately upon Executive’s death;
(ii) Termination
by Company.
(A) If
because of Executive’s Disability (as defined below in Section 2(c)), written notice by Company to Executive that Executive’s
employment is being terminated as a result of Executive’s Disability, which termination shall be effective on the date of
such notice or such later date as specified in writing by Company;
(B) If
for Cause (as defined below in Section 2(d)), written notice by Company to Executive that Executive’s employment is being
terminated for Cause which termination shall be effective on the date of such notice or such later date as specified in writing
by Company; or
(C) If
by Company for reasons other than under Sections 2(b)(ii)(A) or (B), written notice by Company to Executive that Executive’s
employment is being terminated, which termination shall be effective thirty (30) days after the date of such notice or
such later date as specified in writing by Company.
(iii) Termination
by Executive.
(A) If
for Good Reason (as defined below in Section 2(e)), written notice by Executive to Company that Executive is terminating Executive’s
employment for Good Reason and that sets forth the factual basis supporting the alleged Good Reason, which termination shall be
effective thirty (30) days after the date of such notice; provided that if Company has cured the circumstances giving rise
to the Good Reason, then such termination shall not be effective; or
(B) If
without Good Reason, written notice by Executive to Company that Executive is terminating Executive’s employment, which termination
shall be effective at least thirty (30) days after the date of such notice.
Notwithstanding anything
in this Section 2(b), Company may at any point terminate Executive’s employment for Cause prior to the effective date of
any other termination contemplated hereunder.
(c) Definition
of “Disability”. For purposes of this Agreement, “Disability” shall mean Executive’s incapacity
or inability to perform Executive’s duties and responsibilities as contemplated herein for one hundred twenty (120) days
or more within any one (1) year period (cumulative or consecutive), because Executive’s physical or mental health has become
so impaired as to make it impossible or impractical for Executive to perform the duties and responsibilities contemplated hereunder.
Determination of Executive’s physical or mental health shall be determined by Company after consultation with a medical expert
appointed by mutual agreement between Company and Executive who has examined Executive. Executive hereby consents to such examination
and consultation regarding Executive’s health and ability to perform as aforesaid.
(d) Definition
of “Cause”. Cause” shall include: (i) Executive’s willful engagement in dishonesty, illegal conduct
or gross misconduct, which is, in each case, is materially injurious to Company or any affiliate; (ii) Executive’s deliberate
insubordination; (iii) Executive’s substantial malfeasance or nonfeasance of duty; (iv) Executive’s unauthorized disclosure
of confidential information; (v) Executive’s embezzlement, misappropriation or fraud, whether or not related Executive’s
employment with Company; or (vi) Executive’s breach of a material provision of any employment, non-disclosure, invention
assignment, non-competition, or similar agreement between Executive and Company. In all cases, Company shall provide Executive
with written notice of the specific conduct or events that Company believes constitutes Cause and, in case of (ii) and (iii) above,
Executive shall have thirty (30) days to effect a cure of the claimed conduct or events.
(e) Definition
of “Good Reason”. As used herein, a “Good Reason” shall mean: (i) relocation
of Executive’s principal business location to a location
more than fifty (50) miles from Executive’s then-current business location;
(ii) a material diminution in Executive’s duties, authority
or responsibilities; or (iii) a material reduction in the Executive’s
Base Salary; provided that (A) Executive provides Company with written
notice that Executive intends to terminate Executive’s employment hereunder for one of the grounds set forth in this Section
2(e) within fifteen (15) days of such ground occurring, (B) if such ground is capable of being cured, the Company has failed to
cure such ground within a period of thirty (30) days from the date of such written notice, and (C) Executive terminates Executive’s
employment within sixty (60) days from the date of notice. For purposes of clarification, the above-listed conditions shall apply
separately to each occurrence of Good Reason and failure to adhere to such conditions in the event of Good Reason shall not disqualify
Executive from asserting Good Reason for any subsequent occurrence of Good Reason. For purposes of this Agreement, “Good
Reason” shall be interpreted in a manner, and limited to the extent necessary, so that it shall not cause adverse tax consequences
for either party with respect to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the
“Code”) and any successor statute, regulation and guidance thereto.
3. Compensation.
(a) Base
Salary. Company shall pay Executive a base salary (the “Base Salary”) at the annual rate of $375,000. The Base
Salary shall be payable in substantially equal periodic installments in accordance with Company’s payroll practices as in
effect from time to time. Company shall deduct from each such installment all amounts required to be deducted or withheld under
applicable law or under any employee benefit plan in which Executive participates. The Board or an appropriate committee thereof
shall review the Base Salary on an annual basis.
(b) Annual
Performance Bonus. Executive shall be eligible to receive an annual cash bonus (the “Annual Performance Bonus”),
with the target amount of such Annual Performance Bonus equal to forty percent (40%) of Executive’s Base Salary in the year
to which the Annual Performance Bonus relates, provided that the actual amount of the Annual Performance Bonus may be greater
or less than such target amount. The amount of the Annual Performance Bonus shall be determined by the Board or an appropriate
committee thereof in its sole discretion, and shall be paid to Executive no later than January 31st of the calendar
year immediately following the calendar year in which it was earned. Except as otherwise provided for in this Agreement, Executive
must be employed by Company on the date on which the Annual Performance
Bonus is paid in order to be eligible for, and to be deemed as having earned, such Annual Performance Bonus. Company shall deduct
from the Annual Performance Bonus all amounts required to be deducted or withheld under applicable law or under any employee benefit
plan in which Executive participates.
(c) Equity.
Subject to approval of the Board or an appropriate committee thereof, Company shall grant Executive on the Commencement Date or
as soon as practicable thereafter pursuant to the terms of the Celsus Therapeutics PLC 2014 Equity Incentive Plan (the “Plan”),
a stock option (the “Option”) to purchase 32,543,700 shares of common stock of the Company, at a per share exercise
price equal to the Fair Market Value (as defined in the Plan) of the Company’s common stock on the date of grant, which Option
shall be, to the maximum extent permissible, treated as an “incentive stock option” within the meaning of Section 422
of the Code. The Option shall vest ratably on a semi-annual basis over four (4) years on each anniversary of the Commencement Date,
provided that Executive remains employed by Company on the vesting date; provided, further, that there is
a minimum 25% vesting and, however, that the Option shall vest fully immediate prior to a Change of Control (as defined below)
or upon the non-renewal of this Agreement. The Option shall be evidenced in writing by, and subject to the terms and conditions
of, the Plan and the Company’s standard form of stock option agreement, which agreement shall expire ten (10) years from
the date of grant except as otherwise provided in the stock option agreement or the Plan.
(d) Paid
Time Off. Executive may take up to four (4) weeks of paid time off (“PTO”) per year, to be scheduled to minimize
disruption to Company’s operations, pursuant to the terms and conditions of Company policy and practices as applied to Company
senior executives.
(e) Fringe
Benefits. Executive shall be entitled to participate in all benefit/welfare plans and fringe benefits provided to Company senior
executives. Executive understands that, except when prohibited by applicable law, Company’s benefit plans and fringe benefits
may be amended by Company from time to time in its sole discretion.
(f) Professional
Associations. The Company will pay Executive’s annual membership fees associated with his membership in the American
College of Physicians.
(g) Reimbursement
of Expenses. Company shall reimburse Executive for all ordinary and reasonable out-of-pocket business expenses incurred by
Executive in furtherance of Company’s business in accordance with Company’s policies with respect thereto as in effect
from time to time. Executive must submit any request for reimbursement no later than
ninety (90) days following the date that such business expense is incurred. All reimbursements provided under this Agreement
shall be made or provided in accordance with the requirements of Section 409A including, where applicable, the requirement that
(i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified
in this Agreement); (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible
for reimbursement in any other calendar year; (iii) the reimbursement of an eligible expense shall be made no later than the last
day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in kind benefits
is not subject to liquidation or exchange for another benefit.
(h) Indemnification.
Executive shall be entitled to indemnification with respect to Executive’s services provided hereunder pursuant to English
law, the terms and conditions of Company’s articles of incorporation, Company’s directors and officers (“D&O”)
liability insurance policy and Company’s standard indemnification agreement for directors and officers as executed by Company
and Executive.
4. Payments
Upon Termination.
(a) Definition
of Accrued Obligations. For purposes of this Agreement, “Accrued Obligations” means: (i) the portion of Executive’s
Base Salary that has accrued, including vacation time, prior to any termination of Executive’s employment with Company and
has not yet been paid; and (ii) the amount of any expenses properly incurred by Executive on behalf of Company prior to any such
termination and not yet reimbursed. Executive’s entitlement to any other compensation or benefit under any plan of
Company shall be governed by and determined in accordance with the terms of such plans, except as otherwise specified in this Agreement.
(b) Termination
by Company for Cause, by Executive Without Good Reason, or as a Result of Executive’s Disability or Death. If Executive’s
employment hereunder is terminated by Company for Cause, by Executive without Good Reason, as a result of Executive’s Disability
or death, then Company shall pay the Accrued Obligations to Executive promptly following the effective date of such termination
and shall have no further obligations to Executive.
(c) Termination
by Company Without Cause, by Executive For Good Reason or Upon Expiration of the Term. In the event that Executive’s
employment is terminated by action of Company other than for Cause, Executive terminates Executive’s employment for Good
Reason or due to non-renewal of the Term, then, in addition to the Accrued Obligations, Executive shall receive the following,
subject to the terms and conditions described in Section 4(e) (including Executive’s execution of a release of claims):
(i) Severance
Payments. An amount equal to the sum of (x) Executive’s annual Base Salary at the rate in effect as of the termination
date, and (y) the greater of actual or target Annual Performance Bonus to which Executive may have been entitled for the year
in which Executive’s employment terminates, in each case less all customary and required taxes and employment-related deductions;
provided that this bonus payment shall not be made in the event the termination is solely due to non-renewal of the Term the Company.
The severance payment provided for in this Section 4(c)(i) shall be paid over a 12-month period in accordance with Company’s
normal payroll practices (provided such payments shall be made at least monthly), commencing on the first payroll date following
the date on which the release of claims required by Section 4(e) becomes effective and non-revocable, but not after sixty (60)
days following the effective date of termination from employment; provided, that if the 60th day falls in the
calendar year following the year during which the termination or separation from service occurred, then the payments will commence
in such subsequent calendar year; provided, further that if such payments commence in such subsequent year, the
first such installment shall include an amount equal to the payments that would have been paid if the payments had commenced in
the first month following the termination of employment.
(ii) Benefits
Payments. The Company shall pay to Executive an amount equal to the Company’s share of the premium paid for Executive
while Executive was an active employee for medical insurance coverage under the Company’s health care plan (the “Healthcare
Subsidy”) for a period of twelve (12) months following Executive’s termination date. The Healthcare Subsidy shall be
paid, less required withholdings, in the same manner and the same time as the payments under Section 4(c)(i) are paid.
Payment of the above
described severance payments and benefits are expressly conditioned on Executive’s execution without revocation of the release
of claims under Section 4(e) and return of Company property under Section 6
and continued compliance with the Executive’s obligations in the Restrictive Covenant Agreement (as defined below). In the
event that Executive is eligible for the severance payments and benefits under this Section 4(c), Executive shall not be eligible
for and shall not receive any of the severance payments and benefits as provided in Section 4(d).
(d) Termination
by Company Without Cause or by Executive For Good Reason Following a Change of Control. In the event that a Change of Control (as
defined below) occurs and within a period of one (1) year following the Change of Control, either Executive’s employment
is terminated other than for Cause, or Executive terminates Executive’s employment for Good Reason, then, in addition
to the Accrued Obligations, Executive shall receive the following, subject to the terms and conditions described in Section 4(e)
(including Executive’s execution of a release of claims):
(i) Severance
Payment. An amount equal to one and a half times the sum of (x) Executive’s annual Base Salary at the rate in effect
as of the termination date, and (y) the target Annual Performance Bonus to which Executive may have been entitled for the year
in which Executive’s employment terminates, in each case less all customary and required taxes and employment-related deductions.
The severance payment provided for in this Section 4(d)(i) shall be paid over a 18-month period in accordance with Company’s
normal payroll practices (provided such payments shall be made at least monthly), commencing on the first payroll date following
the date on which the release of claims required by Section 4(e) becomes effective and non-revocable, but not after sixty (60)
days following the effective date of termination from employment; provided, that if the 60th day falls in the calendar
year following the year during which the termination or separation from service occurred, then the payments will commence in such
subsequent calendar year; provided further that if such payments commence in such subsequent year, the first such installment
shall include an amount equal to the payments that would have been paid if the payments had commenced in the first month following
the termination of employment.
(ii) Benefit
Payments. The Company shall pay to Executive the Healthcare Subsidy for a period of eighteen (18) months following Executive’s
termination date. The Healthcare Subsidy shall be paid, less required withholdings, in the same manner and the same time as the
payments under Section 4(d)(i) are paid.
Payment of the above
described severance payments and benefits are expressly conditioned on Executive’s execution without revocation of the release
of claims under Section 4(e) and return of Company property under Section 6 and continued compliance with Executive’s obligations
in the Restrictive Covenant Agreement. In the event that Executive is
eligible for the severance payments and benefits under this Section 4(d), Executive shall not be eligible for and shall not receive
any of the severance payments and benefits as provided in Section 4(c).
As
used herein, a “Change of Control” shall mean the occurrence of any of the following events: (A) The approval
by shareholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of
the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or (B) The approval by the shareholders of the Company of a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
except if company’s valuation is less then that at the time of the merger on the 16th September 2015, as calculated
including any prior distribution of funds, dividends or sales proceeds
(e) Execution
of Release of Claims. Company shall not be obligated to pay Executive any of the severance payments or benefits described in
this Section 4 unless and until Executive has executed (without revocation) a timely release of claims in a form that is acceptable
to Company, and which includes standard and reasonable terms regarding items such as mutual non-disparagement, confidentiality,
cooperation and the like, which must be provided to Executive within fifteen (15) days following separation from service, and must
be effective and irrevocable prior to the 60th day following Executive’s separation from service (the “Review
Period”), and which shall include a general release of claims against Company and its affiliated entities and each of their
officers, directors, employees and others associated with Company and its affiliated entities. If Executive fails or refuses to return
such agreement, or revokes the agreement, within the Review Period, Executive’s severance payments hereunder and benefits
shall be forfeited.
(f) No
Other Payments or Benefits Owing. The payments and benefits set forth in this Section 4 shall be the sole amounts owing to
Executive upon termination of Executive’s employment for the reasons set forth above and Executive shall not be eligible
for any other payments or other forms of compensation or benefits. The payments and benefits set forth in Section 4 shall be the
sole remedy, if any, available to Executive in the event that Executive brings any claim against Company relating to the termination
of Executive’s employment under this Agreement.
5. Prohibited
Competition And Solicitation. Executive expressly acknowledges that: (a) there are competitive and proprietary aspects of the business
of Company; (b) during the course of Executive’s employment, Company shall furnish, disclose or make available to Executive
confidential and proprietary information and may provide Executive with unique and specialized training; (c) such Confidential
Information and training have been developed and shall be developed by Company through the expenditure of substantial time, effort
and money, and could be used by Executive to compete with Company; and (d) in the course of Executive’s employment, Executive
shall be introduced to customers and others with important relationships to Company, and any and all “goodwill” created
through such introductions belongs exclusively to Company, including, but not limited to, any goodwill created as a result of direct
or indirect contacts or relationships between Executive and any customers of Company. In light of the foregoing acknowledgements
and as a condition of employment hereunder, Executive agrees to execute and abide by Company’s Confidentiality, Intellectual
Property, Non-Competition and Non-Solicitation Agreement (the “Restrictive Covenant Agreement”).
6. Property
and Records. Upon the termination of Executive’s employment hereunder for any reason or for no reason, or if Company otherwise
requests, Executive shall: (a) return to Company all tangible business information and copies thereof (regardless how such Confidential
Information or copies are maintained), and (b) deliver to Company any property of Company which may be in Executive’s possession,
including, but not limited to, Blackberry-type devices, smart phones, laptops, cell phones, products, materials, memoranda, notes,
records, reports or other documents or photocopies of the same.
7. Code
Sections 409A and 280G.
(a) In
the event that the payments or benefits set forth in Section 4 of this Agreement constitute “non-qualified deferred compensation”
subject to Section 409A, then the following conditions apply to such payments or benefits:
(i) Any
termination of Executive’s employment triggering payment of benefits under Section 4 must constitute a “separation
from service” under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits
can commence. To the extent that the termination of Executive’s employment does not constitute a separation of service under
Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated
to be provided by Executive to Company at the time Executive’s employment terminates), any such payments under Section 4
that constitute deferred compensation under Section 409A shall be delayed until after the date of a subsequent event constituting
a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification,
this Section 7(a) shall not cause any forfeiture of benefits on Executive’s part, but shall only act as a delay until such
time as a “separation from service” occurs.
(ii) Notwithstanding
any other provision with respect to the timing of payments under Section 4 if, at the time of Executive’s termination, Executive
is deemed to be a “specified employee” of Company (within the meaning of Section 409A(a)(2)(B)(i) of the Code), then
limited only to the extent necessary to comply with the requirements of Section 409A, any payments to which Executive may become
entitled under Section 4 which are subject to Section 409A (and not otherwise exempt from its application) shall be withheld until
the first (1st) business day of the seventh (7th) month following the termination of Executive’s employment,
at which time Executive shall be paid an aggregate amount equal to the accumulated, but unpaid, payments otherwise due to Executive
under the terms of Section 4.
(b) It
is intended that each installment of the payments and benefits provided under Section 4 of this Agreement shall be treated as a
separate “payment” for purposes of Section 409A. Neither Company nor Executive shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
(c) Notwithstanding
any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner
that avoids the inclusion of compensation in income under Section 409A, or the payment of increased taxes, excise taxes or other
penalties under Section 409A. The parties intend this Agreement to be in compliance with Section 409A. Executive acknowledges and
agrees that Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under
this Agreement, including but not limited to consequences related to Section 409A.
(d) If
any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive
receives pursuant to a Change of Control (for purposes of this section, a “Payment”) would: (i) constitute a “parachute
payment” within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed
by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either: (A) the full amount of such Payment;
or (B) such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of
the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state
and local employments taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of
the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.
8. General.
(a) Notices.
Except as otherwise specifically provided herein, any notice required or permitted by this Agreement shall be in writing and shall
be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
Notices to Executive
shall be sent to the last known address in Company’s records or such other address as Executive may specify in writing.
Notices to Company
shall be sent to:
24 West 40th Street,
8th Floor
Attention: Chairman of the Board
or to such other Company representative
as Company may specify in writing.
(b) Modifications
and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(c) Waivers
and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only
by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall
be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(d) Assignment.
Company may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of Company’s
business or that aspect of Company’s business in which Executive is principally involved. Executive may not assign Executive’s
rights and obligations under this Agreement without the prior written consent of Company.
(e) Governing
Law/Dispute Resolution. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the law of the State of New York, without giving effect
to the conflict of law principles thereof. Any legal action or proceeding with respect to this Agreement shall be brought in the
courts of the Supreme Court of the State of New York, New York County, or of the United States of America for the Southern District
of New York. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts.
(f) Jury
Waiver. ANY, ACTION, DEMAND, CLAIM, OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY A JUDGE
ALONE AND EACH OF COMPANY AND EXECUTIVE WIAVES ANY RIGHT TO A JURY TRIAL THEREOF.
(g) Headings
and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only
and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
(h) Entire
Agreement. This Agreement, together with the other agreements specifically referenced herein, embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written
agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement
of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms
and provisions of this Agreement.
(i) Counterparts.
This Agreement may be executed in two or more counterparts, and by different parties hereto on separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument. For all purposes a signature
by fax shall be treated as an original.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first written above.
GUR ROSHWALB |
|
CELSUS THERAPEUTICS PLC |
|
|
|
/s/Gur Roshwalb |
|
By: |
/s/ Ray Prudo |
Signature |
|
|
Name: Ray Prudo |
Address: |
|
|
Title: Executive Chairman |
Appendix A
Confidentiality, Intellectual Property,
Non-Competition and Non-Solicitation Agreement
This Confidentiality, Intellectual Property,
Non-Competition and Non-Solicitation Agreement (the “Agreement”) is entered into as of _______, 2015,
by and between Celsus Therapeutics PLC (the “Company”), and Gur Roshwalb, an individual (the “Executive”).
RECITALS
WHEREAS, concurrently
upon the execution of this Agreement, the Company and Executive are entering into that certain Executive Employment Agreement under
which Executive shall continue to be employed by the Company; and
WHEREAS Executive
acknowledges that: (i) there are competitive and proprietary aspects of the business of Company; (ii) during the course of Executive’s
employment, Company has furnished, disclosed and/or made available and shall furnish, disclose and/or make available to Executive
confidential and proprietary information and may have provided and may provide Executive with unique and specialized training;
(iii) such Confidential Information and training have been developed and shall be developed by Company through the expenditure
of substantial time, effort and money, and could be used by Executive to compete with Company; and (iv) in the course of Executive’s
employment, Executive was introduced and shall be introduced to customers and others with important relationships to Company,
and any and all “goodwill” created through such introductions belongs exclusively to Company, including, but not limited
to, any goodwill created as a result of direct or indirect contacts or relationships between Executive and any customers of Company;
and
WHEREAS, in light of the foregoing
acknowledgements the Company requires that Executive make certain proprietary information, invention assignment, non-compete and
non-solicitation commitments as a condition to the continuation of his employment;
THEREFORE, in
consideration of Executive’s continued employment with the Company, and the compensation received by Executive from the Company,
from time to time, Executive and Company hereby agree as follows:
1. Definitions. For purposes of this
Agreement, the following terms are defined as follows:
1.1. “Affiliate”
of the Company means an entity that, directly or indirectly, controls, is controlled by, or is under common control with the Company.
1.2. "Company
Intellectual Property" means Intellectual Property Rights created, conceived, conducted, developed, reduced to practice,
compiled, written, authored, made and/or produced by Executive (whether jointly or alone), whether prior to or during the course
of Executive employment with the Company, whether or not during working hours, and/or conceived, conducted, developed, reduced
to practice, compiled, written, authored, made and/or produced by Executive, prior to, during the term of Executive's employment
or thereafter using Company's premises, intellectual property (including without limitation Company Intellectual Property) materials,
products, and/or resources, all whether or not recorded in material form.
1.3. “Confidential
Information” any and all information, data, materials, Know-How and Documents in whatever form, including but not
limited to technical and scientific information, data, information regarding research and development related to actual or anticipated
products, laboratory records, analytical and quality control data, trial data, case report forms, data analyses, reports or summaries
and information contained in submissions to, and information from regulatory authorities', inventions, whether patentable or non-patentable,
discoveries, conceptions, intellectual property rights, data rights, records, results, formulations, methods, processes, techniques,
compilation, program, devices, systems, compounds, innovations, designs, drawings, sketches, diagrams, formulas, computer files,
product definitions, product research, manuals, selection processes, data, methods of manufacture, planning processes, trade secrets,
business secrets, business plans, copyrights, proprietary information, customer lists, names of customers, list of suppliers, marketing
plans, strategies, forecasts, business forecasts, processes, finances, costing, sales, prices, terms of payment, details of employees
and officers and of the remuneration and other benefits paid to them, improvements and any other data related to the business or
affairs of Company, its Affiliates and/or their respective customers, including customers with whom Company is negotiating, which
is: (i) disclosed by or on behalf of Company, Affiliates and/or their respective customers to Executive; (ii) was or may be otherwise
acquired by Executive during his employment with the Company; and/or (iii) was and/or may be generated and/or developed by Executive
as a result of: (a) use by Executive of any Confidential Information of the Company, its Affiliates and/or their respective customers;
and/or (b) Executive's employment by Company, all whether or not in the case of documents or other written materials or any materials
in electronic format they are or were marked as confidential and whether or not, in the case of other information, such information
is identified or treated by the Company or any of its Affiliates as being confidential.
1.4. "Documents"
means documents, records, notebooks, results, agreements, calculations in each case whether electronic or in hard copy.
1.5. “Inventions”
means all Know-How, Documents and business methods, inventions, discoveries, formulas, ideas, results, records, concepts, processes,
techniques, developments, improvements, innovations, new uses, derivatives, processes, procedures formulae, models, assays prototypes,
methods, designs, techniques, compounds, conceptions, results, data, data rights, know how, materials, records, documentation,
technology, products, works of authorship, laboratory records, analytical and quality control data, trial data, case report forms,
data analyses, reports or summaries, all whether or not patentable, copyrightable or capable of registration, and whether or not
recorded in any medium.
1.6. "Intellectual
Property Rights" means patents, Inventions, copyright and related rights, trade marks, trade names, service marks
and domain names, rights in get-up, goodwill, rights to sue for passing off, design rights, semi-conductor topography rights, database
rights, confidential information, moral rights, proprietary rights, data rights, enforcement rights, royalty rights and any other
intellectual property rights in each case whether registered or unregistered and including all applications or rights to apply
for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will
subsist now or in the future in any part of the world.
1.7. "Know
How" means a package of expertise, practical information or skills, resulting from experience and testing relating
to any inventions, formulae, designs, drawings, procedures or methods.
2. Confidential Information.
Executive hereby covenants and undertakes as follows:
2.1. Nondisclosure
of Confidential Information. Executive shall not at any time during his employment nor at any time after its termination
except for the benefit of the Company or its Affiliates, directly or indirectly use or assist a third party to use; divulge, disclose,
publish, transfer or communicate; and/or permit or cause any unauthorized disclosure of any Confidential Information relating to
the Company, its Affiliates, and/or their respective customers, prospective customers or suppliers. Notwithstanding
any other provision of this agreement, Executive may communicate with the government about possible legal violations without violating
the provisions of the Agreement.
2.2. The
restrictions in clause do not apply to:
2.2.1. any
disclosure required for the proper performance of the Executive's duties during his employment or as authorized by the Company's
Board of Directors;
2.2.2. any
disclosure made to any person authorized by the Company to possess the relevant information;
2.2.3. any
information or knowledge that was known to the Executive prior to the commencement date of his employment; or
2.2.4. any
information which becomes available to the public generally otherwise than through the default of the Executive.
2.3. Any
and all Confidential Information, Documents and Company Intellectual Property including, without limitation, lists of customers
and suppliers, employees correspondence, documents, computer and other discs and tapes, data listings, codes, designs and drawings
and other documents and materials whatsoever in Executive's possession or under Executive's control and whether or not made or
created by Executive, relating to the business and/or the financial affairs of the Company, its Affiliates, and/or their respective
agents, customers, prospective customers and/or suppliers, are and shall remain the exclusive property of the Company or its relevant
Affiliate; will be handed over by Executive to the Company on demand and, in any event, immediately on the termination of Executive's
employment and Executive will certify that all such property has been so handed over; and will on demand and, in any event, immediately
on the termination of Executive's employment, will be permanently deleted from any computer system in Executive's possession or
under Executive's control.
3. Intellectual
Property
3.1. The
parties acknowledge that Executive may have created in the past and/or may create in the future Inventions (alone or jointly),
prior to, during the course of Executive's employment with the Company and/or thereafter and that Executive has a special obligation
to further the interests of the Company in relation to such Inventions. Executive shall, promptly following creation, disclose
to the Company all such Inventions and works embodying Company Intellectual Property.
3.2. All
rights, title and interests in and to the Company Intellectual Property shall be solely and exclusively owned by the Company. Executive
acknowledges and agrees that any and all such Company Intellectual Property, including any marketing, advertising and promotional
materials, and other works of authorship, are “works made for hire” for purposes of the Company’s rights under
copyrights laws. Executive hereby assigns and undertakes to assign to the
Company any and all rights, title and interests he may have or acquire in such Company Intellectual Property, without any further
remuneration or compensation.
3.3. During
the period in which the Executive is employed by the Company and/or otherwise provides services to the Company, and after termination
of such period, the Executive will:
3.3.1. Upon
the request of the Company, to execute all such documents, both during and after his employment, as the Company may require to
vest in the Company all right, title and interest pursuant to this Agreement;
3.3.2. to
provide all such information and assistance and do all such further things as the Company may require to enable it to protect,
maintain and exploit the Company Intellectual Property to the best advantage, including (without limitation), at the Company's
request, applying for the protection of Inventions throughout the world;
3.3.3. to
assist the Company in applying for the registration of any registerable Company Intellectual Property, enable it to enforce the
Company Intellectual Property against third parties and to defend claims for infringement of third party
Intellectual Property Rights;
3.3.4. not
to apply for the registration of any Company Intellectual Property in the United States or any other part of the world without
the prior written consent of the Company; and
3.3.5. to
treat all Company Intellectual Property as Company's Confidential Information unless the Company has consented in writing to its
disclosure by Executive.
3.4. Executive
hereby irrevocably appoint the Company as Executive's attorney in his name to sign, execute, do or deliver on Executive's behalf
any deed, document or other instrument and to use Executive name for the purpose of giving full effect to this Section 3.
4. Additional
Undertakings and Representations
4.1. The
Executive has not and shall not disclose to the Company or induce the Company to use any Inventions and/or confidential information
belonging to any third party.
4.2. The
Executive hereby represents and warrants that he has no continuing obligations with respect to assignment or disclosure of Confidential
Information and/or Company Intellectual Property to any previous employers or other person. The Executive further certifies that
he does not claim any previous unpatented or non-published inventions or expressions, respectively, within the scope of this Agreement.
4.3. The
Executive represents and warrants that the consummation by him of the transactions described herein will not result in or constitute
any of the following: a breach of any term or condition of this Agreement; a default or an event that, with notice or lapse of
time or both, would constitute a default, breach or violation of any agreement, instrument or arrangement to which the Executive
is a party or an event that would permit any third party to terminate an agreement or to accelerate the maturity of one of the
duties or obligations owed to it by the Executive.
4.4. Executive
and the Company agree that it is important for any prospective employer to be aware of this Agreement, so that disputes concerning
this Agreement can be avoided in the future. Therefore, the Executive agrees that, following termination of employment
with the Company, the Company may forward a copy of this Agreement to any future prospective or actual employer, and the Executive
releases the Company from any claimed liability or damage caused to the Executive by virtue of the Company’s act in making
that prospective or actual employer aware of this Agreement.
5. Covenant
not to Compete; Non-Solicitation.
5.1. As the CEO
of the Company, the Executive had and will continue to have access to the Company’s most sensitive and commercially valuable
Confidential Information. The Executive hereby covenants that the Executive shall not, for a period of twelve (12) months after
the termination of the Executive’s employment (the "Restricted Period"), do any of the following directly
or indirectly without the prior written consent of the Company in its sole discretion:
5.1.1. engage
or participate, directly or indirectly, in any business activity defined as involving C5 complement inhibitors which is in direct
competition with the business of the Company as conducted during the term of the Executive’s Employment and/or as to Executive's
knowledge is to be carried out by the Company and/or by any of its Affiliates at any time during the Restricted Period (collectively
the "Business");
5.1.2. become
an employee, agent, distributor, consultant or other service provider to any person or entity engaged in a business that is competitive
with the Business of the Company;
5.1.3. influence
or attempt to influence any customer or potential customer of the Company to terminate or modify any written or oral agreement
or course of dealing with the Company and/or any of its Affiliates; or
5.1.4. influence
or attempt to influence any person to terminate or modify its employment, consulting, agency, distributorship or other arrangement
with the Company and/or any of its Affiliates.
5.2. The
Executive acknowledges that the Executive has carefully read and considered the provisions of this Section 5. The Executive acknowledges
that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business similar to the Company’s
business, but the Executive nevertheless acknowledges that he has received, and will receive, sufficient consideration and other
benefits in connection with the Executive’s employment with the Company to justify such restrictions, which restrictions
the Executive does not believe would prevent the Executive from earning a living in businesses that are not competitive with the
Company’s business and without otherwise violating the restrictions set forth herein.
6. General
Provisions.
6.1. The
Executive acknowledges that the Company and any person, corporation, partnership or other entity affiliated with the Company will
suffer immediate and irreparable harm as a result of any violation, breach or threatened breach of this Agreement by the Executive.
The Company shall be entitled, and the Executive hereby consents to the issuance in any court of competent jurisdiction, with or
without notice, and in addition to any other remedy, including damages, which may be available at law or in equity, to temporary,
preliminary and permanent orders and injunctions, without bond or undertaking, restraining and enjoining such breach or violation
by the Executive and any other person, corporation, partnership or other entity including their officers, directors, shareholders,
employers, servants or agents who may be acting in concert with the Executive or to whom such Company Confidential Information
may have been disclosed. If the Company is successful in any legal action seeking enforcement of this Agreement or damages relating
thereto it shall be entitled to reimbursement of its out-of-pocket expenses, including reasonable legal fees and disbursements,
in connection therewith.
6.2. Executive
acknowledges that: (i) this Agreement has been specifically bargained between the parties and reviewed by Executive,
(ii) Executive has had an opportunity to obtain legal counsel to review this Agreement, and (iii) the covenants made by and duties
imposed upon Executive hereby are fair, reasonable and minimally necessary to protect the legitimate business interests of the
Company, and such covenants and duties will not place an undue burden upon Executive’s livelihood in the event of termination
of Executive’s employment by the Company and the strict enforcement of the covenants contained herein.
6.3. Except
as otherwise specifically provided herein, any notice required or permitted by this Agreement shall be in writing and shall be
delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
| Notices to Executive shall be sent to the last known address in Company’s records or
such other address as Executive may specify in writing. |
Notices
to Company shall be sent to:
24 West
40th Street, 8th Floor
Attention:
Chairman of the Board
or to such other Company representative as Company may specify in writing.
6.4. This
Agreement may be altered, amended or modified only in writing, signed by both of the parties hereto.
6.5. Headings
included in this Agreement are for convenience only and are not intended to limit or expand the rights of the parties hereto. References
to Sections herein shall mean sections of the text of this Agreement, unless otherwise indicated.
6.6. This
Agreement and the rights and duties set forth herein may not be assigned by Executive without the express written consent of the
Company.
6.7. If
any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity
or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and
in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum
valid and enforceable effect to the intent of the parties expressed therein.
6.8. The
waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either party.
6.9. The
rights and obligations under this Agreement shall survive the termination of Executive's employment and/or the termination of this
Agreement, for aby reason, and shall remain in full force and effect thereafter.
6.10. This
Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the law
of the State of New York, without giving effect to the conflict of law principles thereof. Any legal action or proceeding with
respect to this Agreement shall be brought in the courts of the Supreme Court of the State of New York, New York County, or of
the United States of America for the Southern District of New York. By execution and delivery of this Agreement, each of the parties
hereto accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts.
6.11. Jury
Waiver. ANY, ACTION, DEMAND, CLAIM, OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY A JUDGE ALONE
AND EACH OF COMPANY AND EXECUTIVE WAIVES ANY RIGHT TO A JURY TRIAL THEREOF.
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first written above.
GUR ROSHWALB |
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CELSUS THERAPEUTICS PLC |
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By: |
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Signature |
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Name: |
Address: |
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Title: |
Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement
(the “Agreement”), made and entered into this 21st day of September, 2015 by and between Akari Therapeutics PLC, a
company organizaed under the law of England and Wales (the “Company”), and Dov Elefant (“Executive”).
WHEREAS, the
Executive and the Company are currently parties to an Executive Service Agreement dated February 24, 2012 (the “Prior Agreement”);
WHEREAS, the
Company anticipates entering into a Share Exchange Agreement (the “Exchange Agreement”) relating to the acquisition
of Volution Immuno Pharmaceuticals SA pursuant to which the Company will survive the transaction and the Executive will continue
to be employed by the Company (the “Transaction”); and
WHEREAS, Company
and the Executive wish to enter into this Agreement in connection with the Transaction effective as of the Date of Completion (as
such term is defined in the Exchange Agreement) at which time this Agreement will supersede and replace in its entirety the Prior
Agreement, and the Prior Agreement shall be of no further force or effect;
NOW, THEREFORE,
in consideration of the mutual promises, terms, provisions, and conditions contained herein, the parties agree as follows:
1. Roles
and Duties.
(a) Chief
Financial Officer Role. Subject to the terms and conditions of this Agreement, Company shall continue to employ Executive as
its Chief Financial Officer reporting to the Company’s Chief Executive Officer. Executive accepts such employment upon the
terms and conditions set forth herein, and agrees to perform to the best of Executive’s ability the duties normally associated
with such position and as determined by Company in its sole discretion. During Executive’s employment, Executive shall devote
all of Executive’s business time and energies to the business and affairs of Company, provided that nothing
contained in this Section 1 shall prevent or limit Executive’s right to manage Executive’s personal investments on
Executive’s own personal time, including, without limitation the right to make passive investments in the securities of:
(a) any entity which Executive does not control, directly or indirectly, and which does not compete with Company, or (b) any publicly
held entity so long as Executive’s aggregate direct and indirect interest does not exceed two percent (2%) of the issued
and outstanding securities of any class of securities of such publicly held entity. During Executive’s employment, Executive
shall not engage in any other non-Company related business activities of any nature whatsoever (including board memberships) without
the Company’s prior written consent. In addition, and so long as such activities do not interfere materially with Executive’s
performance of Executive’s duties hereunder, Executive also may participate in civic, charitable and professional activities,
but shall not serve in any official capacity, including as a member of a board, without the prior written consent of the Company’s
Board of Directors (“Board”).
2. Term
of Employment.
(a) Term.
The term of this Agreement shall commence on the Closing Date (the “Commencement Date”) and shall continue for a period
of one year (the “Term”), unless terminated earlier pursuant to Section 2(b). The Term shall renew automatically for
successive one-year periods, unless either party has given written notice three-months prior to the expiration of the Term that
such party elects not to renew the Term. In the event of non-renewal, this Agreement and the Executive’s employment hereunder
shall terminate automatically at the close of business on the last day of the Term.
(b) Termination.
Notwithstanding anything else contained in this Agreement, Executive’s employment hereunder shall terminate prior to the
end of the Term upon the earliest to occur of the following:
(i) Death.
Immediately upon Executive’s death;
(ii) Termination
by Company.
(A) If
because of Executive’s Disability (as defined below in Section 2(c)), written notice by Company to Executive that Executive’s
employment is being terminated as a result of Executive’s Disability, which termination shall be effective on the date of
such notice or such later date as specified in writing by Company;
(B) If
for Cause (as defined below in Section 2(d)), written notice by Company to Executive that Executive’s employment is being
terminated for Cause which termination shall be effective on the date of such notice or such later date as specified in writing
by Company; or
(C) If
by Company for reasons other than under Sections 2(b)(ii)(A) or (B), written notice by Company to Executive that Executive’s
employment is being terminated, which termination shall be effective thirty (30) days after the date of such notice or such later
date as specified in writing by Company.
(iii) Termination
by Executive.
(A) If
for Good Reason (as defined below in Section 2(e)), written notice by Executive to Company that Executive is terminating Executive’s
employment for Good Reason and that sets forth the factual basis supporting the alleged Good Reason, which termination shall be
effective thirty (30) days after the date of such notice; provided that if Company has cured the circumstances giving rise
to the Good Reason, then such termination shall not be effective; or
(B) If
without Good Reason, written notice by Executive to Company that Executive is terminating Executive’s employment, which termination
shall be effective at least thirty (30) days after the date of such notice.
Notwithstanding anything
in this Section 2(b), Company may at any point terminate Executive’s employment for Cause prior to the effective date of
any other termination contemplated hereunder.
(c) Definition
of “Disability”. For purposes of this Agreement, “Disability” shall mean Executive’s incapacity
or inability to perform Executive’s duties and responsibilities as contemplated herein for one hundred twenty (120) days
or more within any one (1) year period (cumulative or consecutive), because Executive’s physical or mental health has become
so impaired as to make it impossible or impractical for Executive to perform the duties and responsibilities contemplated hereunder.
Determination of Executive’s physical or mental health shall be determined by Company after consultation with a medical expert
appointed by mutual agreement between Company and Executive who has examined Executive. Executive hereby consents to such examination
and consultation regarding Executive’s health and ability to perform as aforesaid.
(d) Definition
of “Cause”. Cause” shall include: (i) Executive’s willful engagement in dishonesty, illegal conduct
or gross misconduct, which is, in each case, is materially injurious to Company or any affiliate; (ii) Executive’s deliberate
insubordination; (iii) Executive’s substantial malfeasance or nonfeasance of duty; (iv) Executive’s unauthorized disclosure
of confidential information; (v) Executive’s embezzlement, misappropriation or fraud, whether or not related Executive’s
employment with Company; or (vi) Executive’s breach of a material provision of any employment, non-disclosure, invention
assignment, non-competition, or similar agreement between Executive and Company. In all cases, Company shall provide Executive
with written notice of the specific conduct or events that Company believes constitutes Cause and, in case of (ii) and (iii) above,
Executive shall have thirty (30) days to effect a cure of the claimed conduct or events.
(e) Definition
of “Good Reason”. As used herein, a “Good Reason” shall mean: (i) relocation
of Executive’s principal business location to a location
more than fifty (50) miles from Executive’s then-current business location;
(ii) a material diminution in Executive’s duties, authority
or responsibilities; or (iii) a material reduction in the Executive’s
Base Salary; provided that (A) Executive provides Company with written
notice that Executive intends to terminate Executive’s employment hereunder for one of the grounds set forth in this Section
2(e) within fifteen (15) days of such ground occurring, (B) if such ground is capable of being cured, the Company has failed to
cure such ground within a period of thirty (30) days from the date of such written notice, and (C) Executive terminates Executive’s
employment within sixty (60) days from the date of notice. For purposes of clarification, the above-listed conditions shall apply
separately to each occurrence of Good Reason and failure to adhere to such conditions in the event of Good Reason shall not disqualify
Executive from asserting Good Reason for any subsequent occurrence of Good Reason. For purposes of this Agreement, “Good
Reason” shall be interpreted in a manner, and limited to the extent necessary, so that it shall not cause adverse tax consequences
for either party with respect to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the
“Code”) and any successor statute, regulation and guidance thereto.
3. Compensation.
(a) Base
Salary. Company shall pay Executive a base salary (the “Base Salary”) at the annual rate of $200,000. The Base
Salary shall be payable in substantially equal periodic installments in accordance with Company’s payroll practices as in
effect from time to time. Company shall deduct from each such installment all amounts required to be deducted or withheld under
applicable law or under any employee benefit plan in which Executive participates. The Board or an appropriate committee thereof
shall review the Base Salary on an annual basis.
(b) Annual
Performance Bonus. Executive shall be eligible to receive an annual cash bonus (the “Annual Performance Bonus”),
with the target amount of such Annual Performance Bonus equal to twenty-five (25%) of Executive’s Base Salary in the year
to which the Annual Performance Bonus relates, provided that the actual amount of the Annual Performance Bonus may be greater
or less than such target amount. The amount of the Annual Performance Bonus shall be determined by the Board or an appropriate
committee thereof in its sole discretion, and shall be paid to Executive no later than January 31st of the calendar
year immediately following the calendar year in which it was earned. Except as otherwise provided for in this Agreement, Executive
must be employed by Company on the date on which the Annual Performance
Bonus is paid in order to be eligible for, and to be deemed as having earned, such Annual Performance Bonus. Company shall deduct
from the Annual Performance Bonus all amounts required to be deducted or withheld under applicable law or under any employee benefit
plan in which Executive participates.
(c) Equity.
Subject to approval of the Board or an appropriate committee thereof, Company shall grant Executive on the Commencement Date or
as soon as practicable thereafter pursuant to the terms of the Celsus Therapeutics PLC 2014 Equity Incentive Plan (the “Plan”),
a stock option (the “Option”) to purchase 4,067,963 shares of common stock of the Company, at a per share exercise
price equal to the Fair Market Value (as defined in the Plan) of the Company’s common stock on the date of grant, which Option
shall be, to the maximum extent permissible, treated as an “incentive stock option” within the meaning of Section 422
of the Code. The Option shall vest ratably on a semi-annual basis over four years on each anniversary of the Commencement Date,
provided that Executive remains employed by Company on the vesting date; provided, further, however, that
the Option shall vest fully immediate prior to a Change of Control (as defined below) or upon the non-renewal of this Agreement.
The Option shall be evidenced in writing by, and subject to the terms and conditions of, the Plan and the Company’s standard
form of stock option agreement, which agreement shall expire ten (10) years from the date of grant except as otherwise provided
in the stock option agreement or the Plan.
(d) Paid
Time Off. Executive may take up to four (4) weeks of paid time off (“PTO”) per year, to be scheduled to minimize
disruption to Company’s operations, pursuant to the terms and conditions of Company policy and practices as applied to Company
senior executives.
(e) Fringe
Benefits. Executive shall be entitled to participate in all benefit/welfare plans and fringe benefits provided to Company senior
executives. Executive understands that, except when prohibited by applicable law, Company’s benefit plans and fringe benefits
may be amended by Company from time to time in its sole discretion.
(f) Reimbursement
of Expenses. Company shall reimburse Executive for all ordinary and reasonable out-of-pocket business expenses incurred by
Executive in furtherance of Company’s business in accordance with Company’s policies with respect thereto as in effect
from time to time. Executive must submit any request for reimbursement no later than
ninety (90) days following the date that such business expense is incurred. All reimbursements provided under this Agreement
shall be made or provided in accordance with the requirements of Section 409A including, where applicable, the requirement that
(i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified
in this Agreement); (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible
for reimbursement in any other calendar year; (iii) the reimbursement of an eligible expense shall be made no later than the last
day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in kind benefits
is not subject to liquidation or exchange for another benefit.
(g) Indemnification.
Executive shall be entitled to indemnification with respect to Executive’s services provided hereunder pursuant to English
law, the terms and conditions of Company’s articles of incorporation, Company’s directors and officers (“D&O”)
liability insurance policy and Company’s standard indemnification agreement for directors and officers as executed by Company
and Executive.
4. Payments
Upon Termination.
(a) Definition
of Accrued Obligations. For purposes of this Agreement, “Accrued Obligations” means: (i) the portion of Executive’s
Base Salary that has accrued, including vacation time, prior to any termination of Executive’s employment with Company and
has not yet been paid; and (ii) the amount of any expenses properly incurred by Executive on behalf of Company prior to any such
termination and not yet reimbursed. Executive’s entitlement to any other compensation or benefit under any plan of
Company shall be governed by and determined in accordance with the terms of such plans, except as otherwise specified in this Agreement.
(b) Termination
by Company for Cause, by Executive Without Good Reason, or as a Result of Executive’s Disability or Death. If Executive’s
employment hereunder is terminated by Company for Cause, by Executive without Good Reason, as a result of Executive’s Disability
or death, then Company shall pay the Accrued Obligations to Executive promptly following the effective date of such termination
and shall have no further obligations to Executive.
(c) Termination
by Company Without Cause, by Executive For Good Reason or Upon Expiration of the Term. In the event that Executive’s
employment is terminated by action of Company other than for Cause, Executive terminates Executive’s employment for Good
Reason or due to non-renewal of the Term, then, in addition to the Accrued Obligations, Executive shall receive the following,
subject to the terms and conditions described in Section 4(e) (including Executive’s execution of a release of claims):
(i) Severance
Payments. An amount equal to the sum of (x) Executive’s annual Base Salary at the rate in effect as of the termination
date, and (y) the greater of actual or target Annual Performance Bonus to which Executive may have been entitled for the year
in which Executive’s employment terminates, in each case less all customary and required taxes and employment-related deductions;
provided that this bonus payment shall not be made in the event the termination is solely due to non-renewal of the Term the Company.
The severance payment provided for in this Section 4(c)(i) shall be paid over a 12-month period in accordance with Company’s
normal payroll practices (provided such payments shall be made at least monthly), commencing on the first payroll date following
the date on which the release of claims required by Section 4(e) becomes effective and non-revocable, but not after sixty (60)
days following the effective date of termination from employment; provided, that if the 60th day falls in the
calendar year following the year during which the termination or separation from service occurred, then the payments will commence
in such subsequent calendar year; provided, further that if such payments commence in such subsequent year, the
first such installment shall include an amount equal to the payments that would have been paid if the payments had commenced in
the first month following the termination of employment.
(ii) Benefits
Payments. The Company shall pay to Executive an amount equal to the Company’s share of the premium paid for Executive
while Executive was an active employee for medical insurance coverage under the Company’s health care plan (the “Healthcare
Subsidy”) for a period of twelve (12) months following Executive’s termination date. The Healthcare Subsidy shall be
paid, less required withholdings, in the same manner and the same time as the payments under Section 4(c)(i) are paid.
Payment of the above
described severance payments and benefits are expressly conditioned on Executive’s execution without revocation of the release
of claims under Section 4(e) and return of Company property under Section 6 and continued
compliance with the Executive’s obligations in the Restrictive Covenant Agreement (as defined below). In the event that Executive
is eligible for the severance payments and benefits under this Section 4(c), Executive shall not be eligible for and shall not
receive any of the severance payments and benefits as provided in Section 4(d).
(d) Termination
by Company Without Cause or by Executive For Good Reason Following a Change of Control.
In the event that a Change of Control (as defined below) occurs and within a period of one (1) year following the Change of Control,
either Executive’s employment is terminated other than for Cause, or Executive terminates Executive’s employment for
Good Reason, then, in addition to the Accrued Obligations, Executive shall receive the following, subject to the terms
and conditions described in Section 4(e) (including Executive’s execution of a release of claims):
(i) Severance
Payment. An amount equal to one and a half times the sum of (x) Executive’s
annual Base Salary at the rate in effect as of the termination date, and (y) the target Annual Performance Bonus to which Executive
may have been entitled for the year in which Executive’s employment terminates, in each case less all customary and required
taxes and employment-related deductions. The severance payment provided for in this Section 4(d)(i) shall be paid over a 18-month
period in accordance with Company’s normal payroll practices (provided such payments shall be made at least monthly),
commencing on the first payroll date following the date on which the release of claims required by Section 4(e) becomes effective
and non-revocable, but not after sixty (60) days following the effective date of termination from employment; provided, that if
the 60th day falls in the calendar year following the year during which the termination or separation from service occurred,
then the payments will commence in such subsequent calendar year; provided further that if such payments commence in such subsequent
year, the first such installment shall include an amount equal to the payments that would have been paid if the payments had commenced
in the first month following the termination of employment.
(ii) Benefit
Payments. The Company shall pay to Executive the Healthcare Subsidy for a period of eighteen (18) months following Executive’s
termination date. The Healthcare Subsidy shall be paid, less required withholdings, in the same manner and the same time as the
payments under Section 4(d)(i) are paid.
Payment of the above
described severance payments and benefits are expressly conditioned on Executive’s execution without revocation of the release
of claims under Section 4(e) and return of Company property under Section 6 and continued compliance with Executive’s obligations
in the Restrictive Covenant Agreement. In the event that Executive is eligible for
the severance payments and benefits under this Section 4(d), Executive shall not be eligible for and shall not receive any of the
severance payments and benefits as provided in Section 4(c).
As
used herein, a “Change of Control” shall mean the occurrence of any of the following events: (A) The approval
by shareholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of
the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or (B) The approval by the shareholders of the Company of a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
Except if company’s valuation is less then that at the time of the merger on the 16th September 2015, as calculated
including any prior distribution of funds, dividends or sales proceeds
(e) Execution
of Release of Claims. Company shall not be obligated to pay Executive any of the severance payments or benefits described in
this Section 4 unless and until Executive has executed (without revocation) a timely release of claims in a form that is acceptable
to Company, and which includes standard and reasonable terms regarding items such as mutual non-disparagement, confidentiality,
cooperation and the like, which must be provided to Executive within fifteen (15) days following separation from service, and must
be effective and irrevocable prior to the 60th day following Executive’s separation from service (the “Review
Period”), and which shall include a general release of claims against Company and its affiliated entities and each of their
officers, directors, employees and others associated with Company and its affiliated entities. If Executive fails or refuses to return
such agreement, or revokes the agreement, within the Review Period, Executive’s severance payments hereunder and benefits
shall be forfeited.
(f) No
Other Payments or Benefits Owing. The payments and benefits set forth in this Section 4 shall be the sole amounts owing to
Executive upon termination of Executive’s employment for the reasons set forth above and Executive shall not be eligible
for any other payments or other forms of compensation or benefits. The payments and benefits set forth in Section 4 shall be the
sole remedy, if any, available to Executive in the event that Executive brings any claim against Company relating to the termination
of Executive’s employment under this Agreement.
5. Prohibited
Competition And Solicitation. Executive expressly acknowledges that: (a) there are competitive and proprietary aspects of the business
of Company; (b) during the course of Executive’s employment, Company shall furnish, disclose or make available to Executive
confidential and proprietary information and may provide Executive with unique and specialized training; (c) such Confidential
Information and training have been developed and shall be developed by Company through the expenditure of substantial time, effort
and money, and could be used by Executive to compete with Company; and (d) in the course of Executive’s employment, Executive
shall be introduced to customers and others with important relationships to Company, and any and all “goodwill” created
through such introductions belongs exclusively to Company, including, but not limited to, any goodwill created as a result of direct
or indirect contacts or relationships between Executive and any customers of Company. In light of the foregoing acknowledgements
and as a condition of employment hereunder, Executive agrees to execute and abide by Company’s Confidentiality, Intellectual
Property, Non-Competition and Non-Solicitation Agreement (the “Restrictive Covenant Agreement”).
6. Property
and Records. Upon the termination of Executive’s employment hereunder for any reason or for no reason, or if Company otherwise
requests, Executive shall: (a) return to Company all tangible business information and copies thereof (regardless how such Confidential
Information or copies are maintained), and (b) deliver to Company any property of Company which may be in Executive’s possession,
including, but not limited to, Blackberry-type devices, smart phones, laptops, cell phones, products, materials, memoranda, notes,
records, reports or other documents or photocopies of the same.
7. Code
Sections 409A and 280G.
(a) In
the event that the payments or benefits set forth in Section 4 of this Agreement constitute “non-qualified deferred compensation”
subject to Section 409A, then the following conditions apply to such payments or benefits:
(i) Any
termination of Executive’s employment triggering payment of benefits under Section 4 must constitute a “separation
from service” under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits
can commence. To the extent that the termination of Executive’s employment does not constitute a separation of service under
Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated
to be provided by Executive to Company at the time Executive’s employment terminates), any such payments under Section 4
that constitute deferred compensation under Section 409A shall be delayed until after the date of a subsequent event constituting
a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification,
this Section 7(a) shall not cause any forfeiture of benefits on Executive’s part, but shall only act as a delay until such
time as a “separation from service” occurs.
(ii) Notwithstanding
any other provision with respect to the timing of payments under Section 4 if, at the time of Executive’s termination, Executive
is deemed to be a “specified employee” of Company (within the meaning of Section 409A(a)(2)(B)(i) of the Code), then
limited only to the extent necessary to comply with the requirements of Section 409A, any payments to which Executive may become
entitled under Section 4 which are subject to Section 409A (and not otherwise exempt from its application) shall be withheld until
the first (1st) business day of the seventh (7th) month following the termination of Executive’s employment,
at which time Executive shall be paid an aggregate amount equal to the accumulated, but unpaid, payments otherwise due to Executive
under the terms of Section 4.
(b) It
is intended that each installment of the payments and benefits provided under Section 4 of this Agreement shall be treated as a
separate “payment” for purposes of Section 409A. Neither Company nor Executive shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
(c) Notwithstanding
any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner
that avoids the inclusion of compensation in income under Section 409A, or the payment of increased taxes, excise taxes or other
penalties under Section 409A. The parties intend this Agreement to be in compliance with Section 409A. Executive acknowledges and
agrees that Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under
this Agreement, including but not limited to consequences related to Section 409A.
(d) If
any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive
receives pursuant to a Change of Control (for purposes of this section, a “Payment”) would: (i) constitute a “parachute
payment” within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed
by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either: (A) the full amount of such Payment;
or (B) such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of
the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state
and local employments taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of
the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.
8. General.
(a) Notices.
Except as otherwise specifically provided herein, any notice required or permitted by this Agreement shall be in writing and shall
be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
Notices to Executive
shall be sent to the last known address in Company’s records or such other address as Executive may specify in writing.
Notices to Company
shall be sent to:
24 West 40th Street,
8th Floor
Attention: Chairman of the Board
or to such other Company representative
as Company may specify in writing.
(b) Modifications
and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(c) Waivers
and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only
by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall
be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(d) Assignment.
Company may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of Company’s
business or that aspect of Company’s business in which Executive is principally involved. Executive may not assign Executive’s
rights and obligations under this Agreement without the prior written consent of Company.
(e) Governing
Law/Dispute Resolution. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance
with and governed by the law of the State of New York, without giving effect to the conflict of law principles thereof. Any legal
action or proceeding with respect to this Agreement shall be brought in the courts of the Supreme Court of the State of New York,
New York County, or of the United States of America for the Southern District of New York. By execution and delivery of this Agreement,
each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts.
(f) Jury
Waiver. ANY, ACTION, DEMAND, CLAIM, OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY A JUDGE
ALONE AND EACH OF COMPANY AND EXECUTIVE WIAVES ANY RIGHT TO A JURY TRIAL THEREOF.
(g) Headings
and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only
and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
(h) Entire
Agreement. This Agreement, together with the other agreements specifically referenced herein, embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written
agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement
of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms
and provisions of this Agreement.
(i) Counterparts.
This Agreement may be executed in two or more counterparts, and by different parties hereto on separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument. For all purposes a signature
by fax shall be treated as an original.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first written above.
DOV ELEFANT |
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CELSUS THERAPEUTICS PLC |
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/s/ Dov Elefant |
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By: |
/s/ Gur Roshwalb |
Signature |
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Name: Gur Roshwalb |
Address: |
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Title: Chief Executive Officer |
Appendix A
Confidentiality, Intellectual Property,
Non-Competition and Non-Solicitation Agreement
This Confidentiality, Intellectual Property,
Non-Competition and Non-Solicitation Agreement (the “Agreement”) is entered into as of _______, 2015,
by and between Celsus Therapeutics PLC (the “Company”), and Dov Elefant, an individual (the “Executive”).
RECITALS
WHEREAS, concurrently
upon the execution of this Agreement, the Company and Executive are entering into that certain Executive Employment Agreement under
which Executive shall continue to be employed by the Company; and
WHEREAS Executive
acknowledges that: (i) there are competitive and proprietary aspects of the business of Company; (ii) during the course of Executive’s
employment, Company has furnished, disclosed and/or made available and shall furnish, disclose and/or make available to Executive
confidential and proprietary information and may have provided and may provide Executive with unique and specialized training;
(iii) such Confidential Information and training have been developed and shall be developed by Company through the expenditure
of substantial time, effort and money, and could be used by Executive to compete with Company; and (iv) in the course of Executive’s
employment, Executive was introduced and shall be introduced to customers and others with important relationships to Company,
and any and all “goodwill” created through such introductions belongs exclusively to Company, including, but not limited
to, any goodwill created as a result of direct or indirect contacts or relationships between Executive and any customers of Company;
and
WHEREAS, in
light of the foregoing acknowledgements the Company requires that Executive make certain proprietary information, invention assignment,
non-compete and non-solicitation commitments as a condition to the continuation of his employment;
THEREFORE,
in consideration of Executive’s continued employment with the Company, and the compensation received by Executive from the
Company, from time to time, Executive and Company hereby agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms are defined as follows:
1.1. “Affiliate”
of the Company means an entity that, directly or indirectly, controls, is controlled by, or is under common control with the Company.
1.2. "Company
Intellectual Property" means Intellectual Property Rights created, conceived, conducted, developed, reduced to practice,
compiled, written, authored, made and/or produced by Executive (whether jointly or alone), whether prior to or during the course
of Executive employment with the Company, whether or not during working hours, and/or conceived, conducted, developed, reduced
to practice, compiled, written, authored, made and/or produced by Executive, prior to, during the term of Executive's employment
or thereafter using Company's premises, intellectual property (including without limitation Company Intellectual Property) materials,
products, and/or resources, all whether or not recorded in material form.
1.3. “Confidential
Information” any and all information, data, materials, Know-How and Documents in whatever form, including but not
limited to technical and scientific information, data, information regarding research and development related to actual or anticipated
products, laboratory records, analytical and quality control data, trial data, case report forms, data analyses, reports or summaries
and information contained in submissions to, and information from regulatory authorities', inventions, whether patentable or non-patentable,
discoveries, conceptions, intellectual property rights, data rights, records, results, formulations, methods, processes, techniques,
compilation, program, devices, systems, compounds, innovations, designs, drawings, sketches, diagrams, formulas, computer files,
product definitions, product research, manuals, selection processes, data, methods of manufacture, planning processes, trade secrets,
business secrets, business plans, copyrights, proprietary information, customer lists, names of customers, list of suppliers, marketing
plans, strategies, forecasts, business forecasts, processes, finances, costing, sales, prices, terms of payment, details of employees
and officers and of the remuneration and other benefits paid to them, improvements and any other data related to the business or
affairs of Company, its Affiliates and/or their respective customers, including customers with whom Company is negotiating, which
is: (i) disclosed by or on behalf of Company, Affiliates and/or their respective customers to Executive; (ii) was or may be otherwise
acquired by Executive during his employment with the Company; and/or (iii) was and/or may be generated and/or developed by Executive
as a result of: (a) use by Executive of any Confidential Information of the Company, its Affiliates and/or their respective customers;
and/or (b) Executive's employment by Company, all whether or not in the case of documents or other written materials or any materials
in electronic format they are or were marked as confidential and whether or not, in the case of other information, such information
is identified or treated by the Company or any of its Affiliates as being confidential.
1.4. "Documents"
means documents, records, notebooks, results, agreements, calculations in each case whether electronic or in hard copy.
1.5. “Inventions”
means all Know-How, Documents and business methods, inventions, discoveries, formulas, ideas, results, records, concepts, processes,
techniques, developments, improvements, innovations, new uses, derivatives, processes, procedures formulae, models, assays prototypes,
methods, designs, techniques, compounds, conceptions, results, data, data rights, know how, materials, records, documentation,
technology, products, works of authorship, laboratory records, analytical and quality control data, trial data, case report forms,
data analyses, reports or summaries, all whether or not patentable, copyrightable or capable of registration, and whether or not
recorded in any medium.
1.6. "Intellectual
Property Rights" means patents, Inventions, copyright and related rights, trade marks, trade names, service marks
and domain names, rights in get-up, goodwill, rights to sue for passing off, design rights, semi-conductor topography rights, database
rights, confidential information, moral rights, proprietary rights, data rights, enforcement rights, royalty rights and any other
intellectual property rights in each case whether registered or unregistered and including all applications or rights to apply
for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will
subsist now or in the future in any part of the world.
1.7. "Know
How" means a package of expertise, practical information or skills, resulting from experience and testing relating
to any inventions, formulae, designs, drawings, procedures or methods.
2. Confidential
Information. Executive hereby covenants and undertakes as follows:
2.1. Nondisclosure
of Confidential Information. Executive shall not at any time during his employment nor at any time after its termination
except for the benefit of the Company or its Affiliates, directly or indirectly use or assist a third party to use; divulge, disclose,
publish, transfer or communicate; and/or permit or cause any unauthorized disclosure of any Confidential Information relating to
the Company, its Affiliates, and/or their respective customers, prospective customers or suppliers. Notwithstanding
any other provision of this agreement, Executive may communicate with the government about possible legal violations without violating
the provisions of the Agreement.
2.2. The
restrictions in clause do not apply to:
2.2.1. any
disclosure required for the proper performance of the Executive's duties during his employment or as authorized by the Company's
Board of Directors;
2.2.2. any
disclosure made to any person authorized by the Company to possess the relevant information;
2.2.3. any
information or knowledge that was known to the Executive prior to the commencement date of his employment; or
2.2.4. any
information which becomes available to the public generally otherwise than through the default of the Executive.
2.3. Any
and all Confidential Information, Documents and Company Intellectual Property including, without limitation, lists of customers
and suppliers, employees correspondence, documents, computer and other discs and tapes, data listings, codes, designs and drawings
and other documents and materials whatsoever in Executive's possession or under Executive's control and whether or not made or
created by Executive, relating to the business and/or the financial affairs of the Company, its Affiliates, and/or their respective
agents, customers, prospective customers and/or suppliers, are and shall remain the exclusive property of the Company or its relevant
Affiliate; will be handed over by Executive to the Company on demand and, in any event, immediately on the termination of Executive's
employment and Executive will certify that all such property has been so handed over; and will on demand and, in any event, immediately
on the termination of Executive's employment, will be permanently deleted from any computer system in Executive's possession or
under Executive's control.
3. Intellectual
Property
3.1. The
parties acknowledge that Executive may have created in the past and/or may create in the future Inventions (alone or jointly),
prior to, during the course of Executive's employment with the Company and/or thereafter and that Executive has a special obligation
to further the interests of the Company in relation to such Inventions. Executive shall, promptly following creation, disclose
to the Company all such Inventions and works embodying Company Intellectual Property.
3.2. All
rights, title and interests in and to the Company Intellectual Property shall be solely and exclusively owned by the Company. Executive
acknowledges and agrees that any and all such Company Intellectual Property, including any marketing, advertising and promotional
materials, and other works of authorship, are “works made for hire” for purposes of the Company’s rights under
copyrights laws. Executive hereby assigns and undertakes to assign to the
Company any and all rights, title and interests he may have or acquire in such Company Intellectual Property, without any further
remuneration or compensation.
3.3. During
the period in which the Executive is employed by the Company and/or otherwise provides services to the Company, and after termination
of such period, the Executive will:
3.3.1. Upon
the request of the Company, to execute all such documents, both during and after his employment, as the Company may require to
vest in the Company all right, title and interest pursuant to this Agreement;
3.3.2. to
provide all such information and assistance and do all such further things as the Company may require to enable it to protect,
maintain and exploit the Company Intellectual Property to the best advantage, including (without limitation), at the Company's
request, applying for the protection of Inventions throughout the world;
3.3.3. to
assist the Company in applying for the registration of any registerable Company Intellectual Property, enable it to enforce the
Company Intellectual Property against third parties and to defend claims for infringement of third party
Intellectual Property Rights;
3.3.4. not
to apply for the registration of any Company Intellectual Property in the United States or any other part of the world without
the prior written consent of the Company; and
3.3.5. to
treat all Company Intellectual Property as Company's Confidential Information unless the Company has consented in writing to its
disclosure by Executive.
3.4. Executive
hereby irrevocably appoint the Company as Executive's attorney in his name to sign, execute, do or deliver on Executive's behalf
any deed, document or other instrument and to use Executive name for the purpose of giving full effect to this Section 3.
4. Additional
Undertakings and Representations
4.1. The
Executive has not and shall not disclose to the Company or induce the Company to use any Inventions and/or confidential information
belonging to any third party.
4.2. The
Executive hereby represents and warrants that he has no continuing obligations with respect to assignment or disclosure of Confidential
Information and/or Company Intellectual Property to any previous employers or other person. The Executive further certifies that
he does not claim any previous unpatented or non-published inventions or expressions, respectively, within the scope of this Agreement.
4.3. The
Executive represents and warrants that the consummation by him of the transactions described herein will not result in or constitute
any of the following: a breach of any term or condition of this Agreement; a default or an event that, with notice or lapse of
time or both, would constitute a default, breach or violation of any agreement, instrument or arrangement to which the Executive
is a party or an event that would permit any third party to terminate an agreement or to accelerate the maturity of one of the
duties or obligations owed to it by the Executive.
4.4. Executive
and the Company agree that it is important for any prospective employer to be aware of this Agreement, so that disputes concerning
this Agreement can be avoided in the future. Therefore, the Executive agrees that, following termination of employment
with the Company, the Company may forward a copy of this Agreement to any future prospective or actual employer, and the Executive
releases the Company from any claimed liability or damage caused to the Executive by virtue of the Company’s act in making
that prospective or actual employer aware of this Agreement.
5. Covenant
not to Compete; Non-Solicitation.
5.1. As
the CEO of the Company, the Executive had and will continue to have access to the Company’s most sensitive and commercially
valuable Confidential Information. The Executive hereby covenants that the Executive shall not, for a period of twelve (12) months
after the termination of the Executive’s employment (the "Restricted Period"), do any of the following directly
or indirectly without the prior written consent of the Company in its sole discretion:
5.1.1. engage
or participate, directly or indirectly, in any business activity defined as involving C5 complement inhibitors which is in direct
competition with the business of the Company as conducted during the term of the Executive’s Employment and/or as to Executive's
knowledge is to be carried out by the Company and/or by any of its Affiliates at any time during the Restricted Period (collectively
the "Business");
5.1.2. become
an employee, agent, distributor, consultant or other service provider to any person or entity engaged in a business that is competitive
with the Business of the Company;
5.1.3. influence
or attempt to influence any customer or potential customer of the Company to terminate or modify any written or oral agreement
or course of dealing with the Company and/or any of its Affiliates; or
5.1.4. influence
or attempt to influence any person to terminate or modify its employment, consulting, agency, distributorship or other arrangement
with the Company and/or any of its Affiliates.
5.2. The
Executive acknowledges that the Executive has carefully read and considered the provisions of this Section 5. The Executive acknowledges
that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business similar to the Company’s
business, but the Executive nevertheless acknowledges that he has received, and will receive, sufficient consideration and other
benefits in connection with the Executive’s employment with the Company to justify such restrictions, which restrictions
the Executive does not believe would prevent the Executive from earning a living in businesses that are not competitive with the
Company’s business and without otherwise violating the restrictions set forth herein.
6. General
Provisions.
6.1. The
Executive acknowledges that the Company and any person, corporation, partnership or other entity affiliated with the Company will
suffer immediate and irreparable harm as a result of any violation, breach or threatened breach of this Agreement by the Executive.
The Company shall be entitled, and the Executive hereby consents to the issuance in any court of competent jurisdiction, with or
without notice, and in addition to any other remedy, including damages, which may be available at law or in equity, to temporary,
preliminary and permanent orders and injunctions, without bond or undertaking, restraining and enjoining such breach or violation
by the Executive and any other person, corporation, partnership or other entity including their officers, directors, shareholders,
employers, servants or agents who may be acting in concert with the Executive or to whom such Company Confidential Information
may have been disclosed. If the Company is successful in any legal action seeking enforcement of this Agreement or damages relating
thereto it shall be entitled to reimbursement of its out-of-pocket expenses, including reasonable legal fees and disbursements,
in connection therewith.
6.2. Executive
acknowledges that: (i) this Agreement has been specifically bargained between the parties and reviewed by Executive,
(ii) Executive has had an opportunity to obtain legal counsel to review this Agreement, and (iii) the covenants made by and duties
imposed upon Executive hereby are fair, reasonable and minimally necessary to protect the legitimate business interests of the
Company, and such covenants and duties will not place an undue burden upon Executive’s livelihood in the event of termination
of Executive’s employment by the Company and the strict enforcement of the covenants contained herein.
6.3. Except
as otherwise specifically provided herein, any notice required or permitted by this Agreement shall be in writing and shall be
delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
Notices to Executive shall be
sent to the last known address in Company’s records or such other address as Executive may specify in writing.
Notices
to Company shall be sent to:
24 West
40th Street, 8th Floor
Attention:
Chairman of the Board
or to such
other Company representative as Company may specify in writing.
6.4. This
Agreement may be altered, amended or modified only in writing, signed by both of the parties hereto.
6.5. Headings
included in this Agreement are for convenience only and are not intended to limit or expand the rights of the parties hereto. References
to Sections herein shall mean sections of the text of this Agreement, unless otherwise indicated.
6.6. This
Agreement and the rights and duties set forth herein may not be assigned by Executive without the express written consent of the
Company.
6.7. If
any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity
or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and
in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum
valid and enforceable effect to the intent of the parties expressed therein.
6.8. The
waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either party.
6.9. The
rights and obligations under this Agreement shall survive the termination of Executive's employment and/or the termination of this
Agreement, for aby reason, and shall remain in full force and effect thereafter.
6.10. This
Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the law
of the State of New York, without giving effect to the conflict of law principles thereof. Any legal action or proceeding with
respect to this Agreement shall be brought in the courts of the Supreme Court of the State of New York, New York County, or of
the United States of America for the Southern District of New York. By execution and delivery of this Agreement, each of the parties
hereto accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts.
6.11. Jury
Waiver. ANY, ACTION, DEMAND, CLAIM, OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY A JUDGE ALONE
AND EACH OF COMPANY AND EXECUTIVE WAIVES ANY RIGHT TO A JURY TRIAL THEREOF.
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first written above.
GUR ROSHWALB |
|
CELSUS THERAPEUTICS PLC |
|
|
|
|
|
By: |
|
Signature |
|
Name: |
Address: |
|
Title: |
Exhibit 10.3
Dated: |
21st September 2015 |
AKARI THERAPEUTICS PLC
and
Clive richardson
Employment
Contract
THIS AGREEMENT is made on the 21st
day of September 2015
Parties
| (1) | AKARI THERAPEUTICS PLC incorporated and registered in England and Wales with company number
5252842 whose registered office is at 42-50 Hersham Road, Walton-on-Thames, Surrey, KT12 1RZ (the "Company");
and |
| (2) | Clive Richardson of 28 Parsons Green, London, SW6 4UH (the "Employee"). |
It
is hereby agreed
| 1.1 | The definitions and rules of interpretation in this clause 1 apply in this Agreement. |
"Appointment":
the employment of the Employee by the Company on the terms of this Agreement.
"Associated Employer":
has the meaning given to it in the Employment Rights Act 1996.
"Board": the
board of directors of the Company (including any committee of the board duly appointed by it).
“Capacity”: as
agent, consultant, director, employee, owner, partner, shareholder or in any other capacity, whether executive or non-executive.
"Commencement Date":
16th September 2015.
"Company Intellectual
Property" means Intellectual Property Rights created, conceived, invented, conducted,
developed, reduced to practice, compiled, written, authored, made and/or produced by the Employee (whether jointly or alone) during
the course of their employment with the Company (whether before or after the date of this Agreement), whether or not during working
hours, and/or conceived, invented, conducted, developed, reduced to practice, compiled, written, authored, made and/or produced
by the Employee during the term of their employment or thereafter using Company's premises, intellectual property (including without
limitation Company Intellectual Property) materials, products, and/or resources, all whether or not recorded in material form.
"Confidential Information";
information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to
the business, products, affairs and finances of any Group Company for the time being confidential to any Group Company and trade
secrets including, without limitation, technical data and know-how relating to the business of any Group Company or any of their
business contacts, including in particular (by way of illustration only and without limitation) complement inhibitors and/or leukotriene
B4 related areas.
"Documents"
means documents, notes, records, notebooks, results, agreements, calculations in each case whether electronic or in hard copy
"Garden Leave":
any period during which the Company has exercised its rights under clause 14.
"Group Company":
the Company, its Subsidiaries or Holding Companies from time to time and any Subsidiary of any Holding Company from time to
time.
"Incapacity": any
sickness, injury or other medical disorder or condition which prevents the Employee from carrying out his duties.
"Intellectual Property
Rights" means patent, patent application, Inventions, copyright and related rights, trade marks, trade names, service
marks and domain names, rights in get-up, goodwill, rights to sue for passing off, design rights, semi-conductor topography rights,
database rights, confidential information, moral rights, proprietary rights, data rights, enforcement rights, royalty rights and
any other intellectual property rights in each case whether registered or unregistered and including all applications or rights
to apply for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist
or will subsist now or in the future in any part of the world in relation to areas concerning complement inhibitors and/or leukotriene
B4 applications.
"Invention"
means any invention, idea, discovery, conception, development, composition of matters, improvement or innovation, new uses, derivatives,
processes, procedures, formulae, formulation, models, assays prototypes, methods, designs, techniques, compounds, results, data,
data rights, know how, materials, records, documentation, technology, process, products, works of authorship, laboratory records,
analytical and quality control data, trial data, case report forms, data analyses, reports or summaries, all whether or not patentable,
copyrightable or capable of registration, and whether or not recorded in any medium.
"Know-How" means
a package of expertise, information, technology, or skills, resulting from experience and testing relating to any data, Documents,
formulations, materials, methods, processes, products, results, and/or resources of the Company or any Group Company and/or Company
Intellectual Property.
"SSP": statutory
sick pay.
"Subsidiary and Holding
Company": in relation to a company mean "subsidiary" and "holding company" as defined in section 1159
of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections
1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another
person (or its nominee), whether by way of security or in connection with the taking of security, or (b) a nominee.
| 1.2 | The headings in this Agreement are inserted for convenience only and shall not affect its construction. |
| 1.3 | A reference to a particular law is a reference to it as it is in force for the time being taking
account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made
under it. |
| 1.4 | Unless the context otherwise requires, a reference to one gender shall include a reference to the
other genders. |
| 1.5 | Unless the context otherwise requires, words in the singular include the plural and in the plural
include the singular. |
| 1.6 | The schedules to this Agreement form part of (and are incorporated into) this Agreement. |
| 1.7 | The Company accepts the benefits in this Agreement on its own behalf and on behalf of all Group
Companies. The Company shall be entitled to assign its rights and those of other Group Companies in connection with this Agreement
to any other Group Company at any time with immediate effect on giving written notice to the Employee. |
| 2.1 | The Appointment commenced on the Commencement Date and shall continue, subject to the remaining
terms of this Agreement, until terminated by either party giving the other not less than 6 months' prior notice in writing. |
| 2.2 | No employment with a previous employer counts towards the Employee's period of continuous employment
with the Company. |
| 2.3 | The Employee consents to the transfer of his employment under this Agreement to an Associated Employer
at any time during the Appointment. |
| 3.1 | The Employee represents and warrants to the Company that, by entering into this Agreement or performing
any of his obligations under it, he will not be in breach of any court order or any express or implied terms of any contract or
other obligation binding on him and undertakes to indemnify the Company against any claims, costs, damages, liabilities or expenses
which the Company may incur as a result if he is in breach of any such obligations. |
| 3.2 | The Employee warrants that he is entitled to work in the United Kingdom without any additional
approvals and will notify the Company immediately if he ceases to be so entitled during the Appointment. |
| 4. | Duties and Outside Interests |
Duties
| 4.1 | The Employee shall serve the Company as Commercial Director and perform the duties set out at Schedule
1 to this Agreement. |
| 4.2 | During the Appointment the Employee shall: |
| (a) | unless prevented by Incapacity, devote the whole of his time, attention and abilities to the business
of the Company and any Group Company of which he is an officer or consultant; |
| (b) | diligently exercise such powers and perform such duties as may from time to time be assigned to
him by the Company; |
| (c) | comply with all reasonable and lawful directions given to him by the Company; |
| (d) | promptly make such reports to the Chief Executive Officer in connection with the affairs of any
Group Company on such matters and at such times as are reasonably required; |
| (e) | report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director
of any Group Company to the Board immediately on becoming aware of it; |
| (f) | use his best endeavours to promote, protect, develop and extend the business of any Group Company;
and |
| (g) | consent to the Company monitoring and recording any use that he makes of the Company's electronic
communications systems for the purpose of ensuring that the Company's rules are being complied with and for legitimate business
purposes. |
| 4.3 | The Employee shall comply with the Company's anti-corruption and bribery policy and related procedures
at all times. |
| 4.4 | All documents, manuals, hardware and software provided for the Employee's use by the Company, and
any data or documents (including copies) produced, maintained or stored on the Company's computer systems or other electronic equipment
(including mobile phones), remain the property of the Company. |
Outside
interests
| 4.5 | Subject to clause 4.6, during the Appointment the Employee shall not, except as a representative
of the Company or with the prior written approval of the Company whether paid or unpaid, be directly or indirectly engaged, concerned
or have any financial interest in any Capacity in any other business, trade, profession or occupation (or the setting up of any
business, trade, profession or occupation). |
| 4.6 | Notwithstanding clause 4.5, the Employee may hold an investment by way of shares or other securities
of not more than 5% of the total issued share capital of any company (whether or not it is listed or dealt in on a recognised stock
exchange) where such company does not carry on a business similar to or competitive with any business for the time being carried
on by any Group Company from time to time. |
| 4.7 | The Employee agrees to disclose to the Company any matters relating to him, his spouse or civil
partner (or anyone living as such), children or parents which may, in the reasonable opinion of the Company, be considered to interfere,
conflict or compete with the proper performance of the Employee's obligations under this Agreement. |
| 5.1 | The Employee's normal place of work is 75 Wimpole Street, London, W1G 9RT or such other place within
50 miles which the Company may reasonably require for the proper performance and exercise of his duties. |
| 5.2 | The Employee agrees to travel on the Company's business (both within the United Kingdom or abroad)
as may be required for the proper performance of his duties under the Appointment. |
| 5.3 | During the Appointment the Employee shall not be required to work outside the United Kingdom for
any continuous period of more than one month. |
The Employee's normal working
hours shall be 9 am to 5.30 pm on Mondays to Fridays and such additional hours as are necessary for the proper performance of his
duties. The Employee acknowledges that he shall not receive further remuneration in respect of such additional hours.
Salary
| 7.1 | The Employee shall be paid an initial salary of £210,000 per annum. |
| 7.2 | The Employee's salary shall accrue from day to day and be payable monthly in arrears on or about
the 28th of each month directly into the Employee's bank or building society account. |
| 7.3 | The Employee's salary shall be reviewed by the Chief Executive Officer annually. The Company is
under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been
given by either party to terminate the Appointment. |
Bonus
| 7.4 | The Employee will be paid an annual bonus of up to 40% of his base salary at year end, subject
to performance criteria which will be agreed on an annual basis for each year. |
| 7.5 | If the Company makes a bonus payment to the Employee in respect of a particular financial year
of the Company, it shall not be obliged to make subsequent bonus payments in respect of subsequent financial years of the Company. |
| 7.6 | The Company may alter the terms of any bonus targets or withdraw them altogether at any time without
prior notice. |
| 7.7 | Notwithstanding clause 7.5, the Employee shall be entitled to a pro-rated bonus calculated up to
the termination date if: |
| (a) | he has not been employed throughout the whole of the relevant financial year of the Company; or |
| (b) | his employment terminates for any reason or he is under notice of termination (whether given by
the Employee or the Company) at or prior to the date when a bonus might otherwise have been payable. |
Share options
| 7.8 | The Employee will be entitled to participate in a share option scheme (“Scheme”), details
of which will be provided to the Employee separately. The Employee’s participation in
the Scheme will be subject to the rules of Scheme from time to time. |
| 7.9 | The Company in its sole and absolute discretion reserves the right to discontinue, vary or amend
the Scheme at any time on reasonable notice to the Employee. |
| 7.10 | The Company may deduct from the salary, or any other sums owed to the Employee, any money owed
to any Group Company by the Employee. |
| 7.11 | Equity. Subject to approval of the Board or an appropriate committee thereof, Company shall grant
Executive on the Commencement Date or as soon as practicable thereafter pursuant to the terms of the Celsus Therapeutics PLC 2014
Equity Incentive Plan (the “Plan”), a stock option (the “Option”) to purchase 16,271,850 shares of common
stock of the Company, at a per share exercise price equal to the Fair Market Value (as defined in the Plan) of the Company’s
common stock on the date of grant, which Option shall be, to the maximum extent permissible, treated as an “incentive stock
option” within the meaning of Section 422 of the Code. The Option shall vest rateably on a semi-annual basis over four (4)
years on each anniversary of the Commencement Date, provided that Executive remains employed by Company on the vesting date; provided
further, that there is a minimum 25% vesting and, however, that the Option shall vest fully immediate prior to a Change of Control
(as defined below) or upon the non-renewal of this Agreement. The Option shall be evidenced in writing by, and subject to the terms
and conditions of, the Plan and the Company’s standard form of stock option agreement, which agreement shall expire and the
Company’s standard form of stock option agreement, which agreement shall expire ten (10) years from the date of grant except
as otherwise provided in the stock option agreement or the Plan. |
Severance Payment. An amount
equal to one and a half times the sum of (x) Executive’s annual Base Salary at the rate in effect as of the termination date
and (y) the target Annual Performance Bonus to which Executive may have been entitled for the year in which Executive’s employment
terminated, in each case less all customary and required taxes and employment-related deductions.
As used herein, a “Change
of Control” shall mean the occurrence of any of the following events:
(A) the approval by shareholders
of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or
consolidation; or
(B) the approval by the shareholders
of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
Except if the Company’s valuation is less than that at the time of the merger on 16th September 2015 as calculated
including any prior distribution of funds, dividends, sale proceeds etc
| 8.1 | The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly
and necessarily incurred by the Employee in the course of the Appointment, subject to production of VAT receipts or other appropriate
evidence of payment. |
| 8.2 | The Employee shall be entitled to participate in the Company's life assurance scheme which shall
pay to the Employee's dependants a sum equal to £840,000 if the Employee dies during the Appointment. Participation is subject
to: |
| (a) | the insurance provider accepting the Employee into its scheme; |
| (b) | the terms of the Company's life assurance scheme, as amended from time to time; |
| (c) | the rules or the insurance policy of the relevant insurance provider, as amended from time to time;
and |
| (d) | the Employee satisfying the normal underwriting requirements of the relevant insurance provider
and the premium being at a rate which the Company considers reasonable. |
| (e) | The payment of medical healthcare insurance policy for you and your family. |
| 8.3 | If the insurance provider refuses for any reason to provide life assurance benefit to the Employee
the Company shall not be liable to provide to the Employee any replacement benefit of the same or similar kind or to pay any compensation
in lieu of such benefit. |
| 8.4 | The Company in its sole and absolute discretion reserves the right to discontinue, vary or amend
its life assurance scheme (including the level of the Employee's cover) at any time on reasonable notice to the Employee. |
| 9.1 | The Employee shall be entitled to 25 days' paid holiday in each holiday year together with the
usual public holidays England. The Company's holiday year runs between 1 January and 31 December. If the Appointment commences
or terminates part way through a holiday year, the Employee's entitlement during that holiday year shall be calculated on a pro-rata
basis rounded up to the nearest half day. |
| 9.2 | Holiday shall be taken at such time or times as shall be approved in advance by the Chief Executive
Officer The Employee shall not carry forward more than five accrued but untaken holiday entitlement to a subsequent holiday year
unless the Employee has been unavoidably prevented from taking such holiday during the relevant leave year because of sickness
absence or statutory maternity, paternity or adoption leave. |
| 9.3 | The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday except
on termination of the Appointment. The amount of such payment in lieu shall be 1/260th of the Employee's salary for each untaken
day of the entitlement under clause 9.1 for the holiday year in which termination takes place and any untaken days carried forward
from the preceding holiday year. |
| 9.4 | If the Company has terminated or would be entitled to terminate the Appointment under clause 13
or if the Employee has terminated the Appointment in breach of this Agreement any payment due under clause 9.3 shall be limited
to the Employee's statutory entitlement under the Working Time Regulations 1998 and any paid holidays (including paid public holidays)
taken shall be deemed first to have been taken in satisfaction of that statutory entitlement. |
| 9.5 | If on termination of the Appointment the Employee has taken in excess of his accrued holiday entitlement,
the Company shall be entitled to recover from the Employee by way of deduction from any payments due to the Employee or otherwise
one day's pay calculated at 1/260th of the Employee's salary for each excess day. |
If either party has served notice
to terminate the Appointment, the Company may require the Employee to take any accrued but unused holiday entitlement during the
notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave.
| 10.1 | If the Employee is absent from work due to Incapacity, the Employee shall notify the Chief Executive
Officer of the reason for the absence as soon as possible but no later than 10 am on the first day of absence. |
| 10.2 | The Employee shall certify his absence until he is required to obtain a fit note from his GP. |
| 10.3 | Subject to his compliance with this Agreement, the Employee shall be entitled to receive his full
salary and contractual benefits during any periods of sickness absence up to a maximum of 10 days in any 52 week period. Those
payments shall be inclusive of any SSP due. |
| 10.4 | The Employee agrees to consent to medical examinations (at the Company's expense) by a doctor nominated
by the Company should the Company so require. The Employee agrees that any report produced in connection with any such examination
may be disclosed in its complete form to the Company and the Company may discuss the contents of the report with the relevant doctor. |
| 10.5 | If the Incapacity is or appears to be occasioned by actionable negligence, nuisance or breach of
any statutory duty on the part of a third party in respect of which damages are or may be recoverable, the Employee shall immediately
notify the Chief Executive Officer of that fact and of any claim, settlement or judgment made or awarded in connection with it
and all relevant particulars that the Chief Executive Officer may reasonably require. The Employee shall if required by the Company,
co-operate in any related legal proceedings and refund to the Company that part of any damages or compensation recovered by him
relating to the loss of earnings for the period of the Incapacity as the Chief Executive Officer may reasonably determine less
any costs borne by him in connection with the recovery of such damages or compensation, provided that the amount to be refunded
shall not exceed the total amount paid to the Employee by the Company in respect of the period of Incapacity. |
| 10.6 | The rights of the Company to terminate the Appointment under the terms of this Agreement apply
even when such termination would or might cause the Employee to forfeit any entitlement to sick pay or other benefits. |
| 11. | Confidential Information |
| 11.1 | The Employee acknowledges that in the course of the Appointment and his prior employment with the
Company he will have and will have had access to Confidential Information. The Employee has therefore agreed to accept the restrictions
in this clause 11. |
| 11.2 | The Employee shall not (except in the proper course of his duties), either during the Appointment
or at any time after its termination (however arising), use or disclose to any person, company or other organisation whatsoever
(and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This shall not apply
to: |
| (a) | any use or disclosure authorised by the Board or required by law; |
| (b) | any information which is already in, or comes into, the public domain other than through the Employee's
unauthorised disclosure; or |
| (c) | any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. |
| 11.3 | Before disclosing, or allowing the disclosure, or any Confidential Information to any person, company
or other organisation, the Employee shall ensure that such person, company or other organisation is subject to appropriate obligations
of confidentiality in respect of such Confidential Information. |
| 11.4 | The Employee shall not make any public statement (whether written or oral) to the media or otherwise
relating to the affairs of the Company or any Group Company and shall not write any article for publication on any matter concerned
with the Business or other affairs of the Company or the Group without the prior written consent of. |
| 12. | Payment in lieu of notice |
| 12.1 | Notwithstanding clause 2, the Company may, in its sole and absolute discretion, terminate the Appointment
at any time and with immediate effect by notifying the Employee that the Company is exercising its right under this clause 12 and
that it will make a payment in lieu of notice equal to the basic salary (as at the date of termination) which the Employee would
have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already
been given, during the remainder of the notice period) less income tax and National Insurance contributions (“Payment
in Lieu”). |
| 12.2 | The Company may pay any sums due under clause 12.1 in equal monthly instalments until the date
on which the notice period referred to at clause 2 would have expired if notice had been given. The Employee shall be obliged to
seek alternative income during this period and to notify the Company of any income so received. The instalment payments shall then
be reduced by the amount of such income. |
| 12.3 | The Employee shall have no right to receive a Payment in Lieu unless the Company has exercised
its discretion in clause 12.1. Nothing in this clause 12 shall prevent the Company from terminating the Appointment in breach. |
| 12.4 | Notwithstanding clause 12.1 the Employee shall not be entitled to any Payment in Lieu if the Company
would otherwise have been entitled to terminate the Appointment without notice in accordance with clause 13. In that case the Company
shall also be entitled to recover from the Employee any Payment in Lieu (or instalments thereof) already made. |
| 13. | Termination without notice |
| 13.1 | The Company may also terminate the Appointment with immediate effect without notice and with no
liability to make any further payment to the Employee (other than in respect of amounts accrued due at the date of termination)
if the Employee: |
| (a) | is guilty of any gross misconduct affecting the business of any Group Company; |
| (b) | commits any serious or repeated breach or non-observance of any of the provisions of this Agreement
or refuses or neglects to comply with any reasonable and lawful directions of the Company; |
| (c) | is, in the reasonable opinion of the Company, negligent and incompetent in the performance of his
duties; |
| (d) | is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a
county court administration order made against him under the County Court Act 1984; |
| (e) | is convicted of any criminal offence (other than an offence under any road traffic legislation
in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed) or any offence under any regulation or
legislation relating to insider dealing; |
| (f) | becomes of unsound mind (which includes lacking capacity under the Mental Capacity Act 2005), or
a patient under any statute relating to mental health; |
| (g) | ceases to be eligible to work in the United Kingdom; |
| (h) | is guilty of any fraud or dishonesty or acts in any manner which in the opinion of the Company
brings or is likely to bring the Employee or any Group Company into disrepute or is materially adverse to the interests of the
Company; |
| (i) | is in breach of the Company's anti-corruption and bribery policy and related procedures; or |
| (j) | is guilty of a serious breach of any rules issued by the Company from time to time regarding its
electronic communications systems. |
| 13.2 | The rights of the Company under clause 13.1 are without prejudice to any other rights that it might
have at law to terminate the Appointment or to accept any breach of this Agreement by the Employee as having brought the agreement
to an end. Any delay by the Company in exercising its rights to terminate shall not constitute a waiver thereof. |
| 14.1 | Following service of notice to terminate the Appointment by either party, or if the Employee purports
to terminate the Appointment in breach of contract, the Company may by written notice place the Employee on Garden Leave for the
whole or part of the remainder of the Appointment. |
| 14.2 | During any period of Garden Leave: |
| (a) | the Company shall be under no obligation to provide any work to the Employee and may revoke any
powers the Employee holds on behalf of any Group Company; |
| (b) | the Company may require the Employee to carry out alternative duties or to only perform such specific
duties as are expressly assigned to the Employee, at such location (including the Employee's home) as the Company may decide; |
| (c) | the Employee shall continue to receive his basic salary and all contractual benefits in the usual
way and subject to the terms of any benefit arrangement; |
| (d) | the Employee shall remain an employee of the Company and bound by the terms of this Agreement (including
any implied duties of good faith and fidelity); |
| (e) | the Employee shall ensure that the Chief Executive Officer knows where he will be and how he can
be contacted during each working day (except during any periods taken as holiday in the usual way); |
| (f) | the Employee shall not commence any other employment or engagement; |
| (g) | the Company may exclude the Employee from any premises of any Group Company; and |
| (h) | the Company may require the Employee not to contact or deal with (or attempt to contact or deal
with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business
contact of any Group Company. |
| 14.3 | The Employee shall on termination of the Appointment or, if earlier, at the start of a period of
Garden Leave: |
| (a) | subject to clause 14.4 deliver to the Company all materials, records and other information (including,
without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located)
made, compiled or acquired by him during the Appointment and relating to any Group Company or its business contacts, any keys,
credit cards and any other property of any Group Company including any car provided by the Company which is in his possession,
custody, care or control; |
| (b) | irretrievably delete any information relating to the business of any Group Company stored on any
magnetic or optical disk or memory and all matter derived from such sources which is in his possession, custody, care or control
outside the premises of the Company; |
| (c) | resign immediately without compensation from any office that he holds in or on behalf of any Group
Company; and |
| (d) | confirm in writing his compliance with his obligations under this clause 14.3 if requested to do
so by the Company and provide it with such reasonable evidence of compliance as it may request. |
| 14.4 | Where the Employee has been placed on Garden Leave he shall not be required by clause 14.3 to return
until the end of the Garden Leave period any property provided to him as a contractual benefit for use during the Appointment. |
| 14.5 | The Employee irrevocably appoints the Company to be his attorney in his name and on his behalf
to sign, execute or do any such instrument or thing and generally to use his name in order to give the Company (or its nominee)
the full benefit of the provisions of clause 14.3(c). |
| 15. | Obligations on termination |
| 15.1 | On termination of the Appointment (however arising) the Employee shall: |
| (a) | Immediately deliver to the Company all documents, books, materials, records, correspondence, papers
and information (on whatever media and wherever located) relating to the business or affairs of any Group Company or its business
contacts, any keys, credit card and any other property of any Group Company including any car provided to the Employee, which is
in his possession or under his control; |
| (b) | irretrievably delete any information relating to the business of any Group Company stored on any
magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside
the Company's premises; and |
| (c) | provide a signed statement that he has complied fully with his obligations under this clause 15.1
together with such reasonable evidence of compliance as the Company may request. |
| 15.2 | On termination of the Appointment however arising the Employee shall not be entitled to any compensation
for the loss of any rights or benefits under any share option, bonus, long-term incentive plan or other profit sharing scheme operated
by any Group Company in which he may participate. |
| 16.1 | The parties acknowledge that the Employee may have created and/or may create in the future Inventions
(alone or jointly) during the course of their employment with the Company and/or thereafter and that the Employee has a special
obligation to further the interests of the Company in relation to such Inventions. The Employee shall, promptly following creation,
disclose to the Company all such Inventions and works embodying Company Intellectual Property. |
| 16.2 | The Employee acknowledges that (except to the extent prohibited by or ineffective in law) all Company
Intellectual Property, materials, products, Documents, Know-How and Confidential Information embodying them shall automatically
exclusively and solely belong to the Company as from creation for the full term of those rights and (except to the extent prohibited
by or ineffective in law) the Employee hereby irrevocably and unconditionally assigns, by way of present and future assignment,
any and all right, title and interest therein to the Company. |
| 16.3 | To the extent that any Company Intellectual Property does not vest in the Company automatically
pursuant to clause 16.2 (and except to the extent prohibited by or ineffective in law), the Employee holds such property on
trust for the Company and hereby grants to the Company an exclusive, irrevocable, worldwide, royalty free licence to exploit, use,
develop, perform, modify, change, reproduce, publish and distribute, with the right to sublicense and assign such rights, and all
claims and causes of action of any kind with respect to any of the foregoing, in and to such property in its discretion for any
purpose whatsoever until such Company Intellectual Property fully vests in the Company. |
| 16.4 | To the extent that any Inventions or Company Intellectual Property created by the Employee (whether
alone or jointly) at any time during the course of their employment are prohibited by or prevented in law from automatically vesting
with the Company pursuant to clause 16.2 or clause 16.3, the Employee shall, immediately upon creation of such rights, grant
the Company a right of first refusal, in writing, to acquire them on arm's length terms to be agreed between the parties. If the
parties cannot agree on such terms within 30 days of the Company receiving the offer, the Company shall refer the dispute
to an independent expert who shall be appointed by the Company. The independent expert shall act as an expert and not as an arbitrator.
The independent expert's decision shall be final and binding on the parties in the absence of manifest error and the costs of the
independent expert's determination shall be borne equally by the parties. The parties will be entitled to make submissions to the
independent expert and will provide (or procure that others provide) the independent expert with such assistance and documents
as the independent expert reasonably requires for the purpose of reaching a decision. The Employee agrees that the provisions of
this clause 16.4 shall apply to all Company Intellectual Property and Inventions to which this clause 16.4 applies until such time
as the Company (in its sole discretion) has agreed in writing that the Employee may offer them for sale to a third party. |
| (a) | to execute all such documents, both during and after their employment, as the Company may require
to vest in the Company all right, title and interest in any Inventions and Company Intellectual Property pursuant to this agreement,
including without limitation, assignment forms as provided by the Company; |
| (b) | to provide all such information and assistance and do all such further things as the Company may
require to enable it to protect, maintain and exploit the Company Intellectual Property to the best advantage, including (without
limitation), at the Company's request, applying for the protection of Inventions throughout the world; |
| (c) | to assist the Company in applying for the registration of any registrable Company Intellectual
Property, enable it to enforce and defend the Company Intellectual Property against third parties; and to enforce and defend claims
for infringement of third party Intellectual Property Rights or misappropriation of any Company Intellectual Property, Know-How,
Documents or materials or products; |
| (d) | not to apply for the registration of any Company Intellectual Property without the prior written
consent of the Company; and |
| (e) | to keep strictly confidential all Confidential Information unless the Company has consented in
writing to its disclosure by the Employee. |
| 16.6 | As against the Company, its successors and assigns and any licensee of any of the foregoing, the
Employee hereby irrevocably and unconditionally waives all of their present and future moral rights which arise under the Copyright
Designs and Patents Act 1988 and all similar rights in other jurisdictions relating to the Company Intellectual Property and
the Employee agrees not to support, maintain or permit any claim for infringement of moral rights in such copyright works. |
| 16.7 | The Employee acknowledges that, except as provided by law, no further remuneration or compensation,
other than that provided for in this agreement, is or may become due to them in respect of their compliance with this clause. This
clause is without prejudice to the Employee’s rights under the Patents Act 1977. |
| 16.8 | The Employee irrevocably appoints the Company as their attorney in their name to sign, execute,
do or deliver on your behalf any deed, document or other instrument and to use the Employee’s name for the purpose of giving
full effect to this clause. The Employee acknowledges that a certificate in writing, signed by any director or the secretary of
the Company, or that any instrument or act falls within the authority conferred by this agreement shall be conclusive evidence
that such is the case so far as any third party is concerned. |
| 16.9 | Rights and obligations under this agreement shall continue in force after termination of this agreement
or the Employee’s employment in respect of any Company Intellectual Property and/or Confidential Information. |
| 17. | Post Termination Restrictions |
The Employee
agrees to enter into the restrictions at Schedule 2 to this Agreement.
| 18. | Disciplinary and grievance procedures |
| 18.1 | As at the date of this agreement, there are no Company disciplinary and grievance procedures which
apply to the Employee. |
| 18.2 | If the Employee wants to raise a grievance, he may apply in writing to the Chief Executive Officer. |
| 18.3 | If the Employee wishes to appeal against a disciplinary decision he may apply in writing to the
Chairman of the Board. |
| 18.4 | The Company may suspend the Employee from any or all of his duties during any period in which the
Company is investigating any disciplinary matter involving the Employee or while any disciplinary procedure against the Employee
is outstanding. |
| 18.5 | During any period of suspension: |
| (a) | the Employee shall continue to receive his basic salary and all contractual benefits in the usual
way and subject to the terms of any benefit arrangement; |
| (b) | the Employee shall remain an employee of the Company and bound by the terms of this Agreement; |
| (c) | the Employee shall ensure that the Chief Executive Officer knows where he will be and how he can
be contacted during each working day (except during any periods taken as holiday in the usual way); |
| (d) | the Company may exclude the Employee from his place of work or any other premises of any Group
Company; and |
| (e) | the Company may require the Employee not to contact or deal with (or attempt to contact or deal
with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business
contact of any Group Company. |
| 19.1 | There is no pension scheme in force in relation to the Employee’s employment. The Employee
will be notified when he becomes eligible for auto enrolment into a pension scheme. |
| 19.2 | A contracting-out certificate is not in force in respect of the Appointment. |
| 20. | Anti-bribery and Corruption |
| 20.1 | The Company expects the highest standards of integrity in relation to employees' dealings with
the Company's customers, suppliers, agents and subcontractors and with any government official. |
| 20.2 | For the purposes of this clause: |
| (a) | A bribe is any gift, loan, fee, reward or other advantage given to or received from any person
in order to obtain, retain or direct business or to secure any other improper advantage in the conduct of business and includes
a kickback on any portion of a contract payment; and |
| (b) | Hospitality, entertainment and gifts includes but is not limited to the offer or receipt of gifts,
meals, goods, services, favours, loans, trips, accommodation and the use of property or invitations to events, functions or other
social gatherings. |
| 20.3 | The Employee is prohibited from offering, giving, authorising or accepting a bribe in any form.
The Employee is also prohibited from using any other route or channel to provide a bribe to or receive a bribe from the Company's
customers, suppliers, agents or subcontractors or any government official. |
| 20.4 | The Employee is required not to give or receive hospitality, entertainment or gifts if these are
intended, or could be reasonably interpreted, as a reward or encouragement for a favour or preferential treatment in connection
with the Company's business. |
| 20.5 | The Employee is prohibited from making any direct or indirect contributions to political parties,
organisations or individuals engaged in politics, or any charitable contribution or sponsorship as a way of obtaining advantage
in business transactions. |
| 20.6 | The Employee is prohibited from making any direct or indirect illicit or secret payments or transfers
of value to government officials and from giving hospitality, entertainment or gifts to government officials. |
| 20.7 | Where the Employee suspects, believes or knows that an act of bribery or corruption is being considered
or carried out, the Employee is required to report this to the Company. |
| 21. | DATA PROTECTION AND USE OF COMPANY COMPUTER |
| 21.1 | The Employee's personal data will be held by the Company in its manual and automated filing systems.
The Company will process and may disclose such data and the Employee consents to the processing and disclosure of such data both
inside and, where necessary, outside the European Economic Area (including in particular, but without limitation, the USA for the
following purposes: |
| (a) | in order for the Appointment and this agreement to be performed; |
| (b) | in order to comply with any legal obligations imposed on the Company or any Group Company; |
| (c) | for decisions to be made regarding the Employee's employment or continued employment; |
| (d) | for obtaining or carrying out work from or for customers or potential customers; |
| (e) | for the purpose of any potential sale of over 50 per cent of the shares of the Company or any Holding
Company of the Company or other change of control or any potential transfer of the Employee's employment under the Transfer of
Undertaking (Protection of Employment) Regulations 2006. |
| 21.2 | Disclosure may include, in the case of sale, change of control or transfer, disclosure to the potential
purchaser or investor and their advisors and, in the case of obtaining or carrying out work, disclosure to customers or potential
customers. |
| 21.3 | The Company will process and may disclose sensitive data and the Employee consents to the processing
and disclosure of such data as follows: |
| (a) | information about the Employee's physical or mental health or condition for the purpose of the
performance of the Appointment and this agreement, monitoring sickness absence, dealing with sick pay and determining the Employee's
fitness to carry out duties on behalf of the Group; |
| (b) | information about the Employee's sex, marital status, race, ethnic origin or disability for the
purpose of monitoring to ensure equality of opportunity and compliance with equal opportunities legislation; |
| (c) | information relating to any criminal proceedings in which the Employee has been involved for insurance
purposes and in order to comply with legal requirements and obligations to third parties. |
| 21.4 | The Employee shall use all reasonable endeavours to keep the Company informed of any changes to
his personal data. |
| 21.5 | The Employee acknowledges that in the course of this Appointment he shall have access to personal
and sensitive data relating to other employees and he agrees to comply with the Company's data protection policy at all times. |
| 21.6 | The Employee further acknowledges that computer provided to it, placed at his disposal and/or for
his use any Group Company ("Company Computer") is the property of such Group Company and upon termination shall
promptly return it to such Group Company. The Employee shall refrain from any illegal or immoral use of the Company Computer. In
addition, the Employee undertakes to act with respect to the Company Computer any and all other computers, electronic telecommunications
devices and other equipment of any Group Company, if and to the extent placed at the Employee's disposal and/or for his use, in
accordance with and subject to the Company’s policies, as shall be in effect from time to time. Without derogating from the
above, it is explicitly clarified that the Employee is prohibited from downloading, uploading or otherwise installing in any manner
whatsoever, any software and/or hardware, on to the Company Computer and/or any other Company equipment, without the Company’s
prior written approval. |
| 21.7 | The Employee is aware that the Company, may, from time to time, monitor its employees’ activities
in the framework of their work, including without limitation by means of monitoring, either constantly or sporadically, the activity
at the Company and/or the Company’s incoming and outgoing e-mail telecommunications and the Employee hereby willingly agrees
to such activity and declares and confirms that said activity (and the results thereof) shall not constitute a breach of the Employee's
privacy. The Employee further declares that the e-mail box assigned to him is intended for working purposes only and that any information
and/data which shall be on the Company’s computers, including for the avoidance of doubt the Company Computer, and/or data
systems shall be the Company’s property. |
There is no collective agreement
which directly affects the Appointment.
| 23. | Reconstruction and amalgamation |
If the Appointment is terminated
at any time by reason of any reconstruction or amalgamation of any Group Company, whether by winding up or otherwise, and the Employee
is offered employment with any concern or undertaking involved in or resulting from the reconstruction or amalgamation on terms
which (considered in their entirety) are no less favourable to any material extent than the terms of this Agreement, the Employee
shall have no claim against the Company or any such undertaking arising out of or connected with the termination.
| 24.1 | A notice given to a party under this Agreement shall be in writing in the English language and
signed by or on behalf of the party giving it. It shall be delivered by hand or sent to the party at the address given in this
Agreement or as otherwise notified in writing to the other party. |
| 24.2 | Any such notice shall be deemed to have been received: |
| (a) | if delivered by hand, at the time the notice is left at the address or given to the addressee;
and |
| (b) | in the case of pre-paid first class UK post or other next working day delivery service, at 9.00
am on the second business day after posting or at the time recorded by the delivery service. |
| 24.3 | A notice shall have effect from the earlier of its actual or deemed receipt by the addressee. For
the purpose of calculating deemed receipt: |
| (a) | all references to time are to local time in the place of deemed receipt; and |
| (b) | if deemed receipt would occur on a Saturday or Sunday or a public holiday when banks are not open
for business, deemed receipt is at 9.00 am on the next business day. |
| 24.4 | A notice required to be given under this Agreement shall not be validly given if sent by email. |
| 24.5 | This clause does not apply to the service of any proceedings or other documents in any legal action. |
| 25.1 | This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes
all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or
oral, relating to its subject matter. |
| 25.2 | Each party acknowledges that in entering into this Agreement it does not rely on, and shall have
no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is
not set out in this Agreement. |
| 25.3 | Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent
misstatement based on any statement in this Agreement. |
| 25.4 | Nothing in this clause shall limit or exclude any liability for fraud. |
No variation or agreed termination
of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
| 27.1 | This Agreement may be executed in any number of counterparts, each of which when executed shall
constitute a duplicate original, but all the counterparts shall together constitute the one agreement. |
| 27.2 | No counterpart shall be effective until each party has executed at least one counterpart. |
No one other than a party to
this Agreement shall have any right to enforce any of its terms.
This Agreement and any dispute
or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims)
shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees
that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection
with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Executed as a deed by AKARI THERAPEUTICS
PLC
acting by Gur Roshwalb, a director, in
the presence of:
Witness signature: /s/ Gur Roshawalb__________
Witness name: Gur Roshawalb_______________
Witness address___________________________
________________________________________
Witness occupation________________________ |
|
_________________________
Director |
Signed as a deed by Clive Richardson
in the presence of:
Witness signature: /s/ Clive Richardson_________
Witness name: Clive Richardson______________
Witness address___________________________
________________________________________
Witness occupation________________________ |
|
_________________________
|
SCHEDULE 1
JOB DESCRIPTION
| 1. | Drug manufacturing – product and substance and drug development; |
| 3. | Corporate activity including M&A and fundraisings |
| 6. | Supporting CEO and Chairman as part of the Executive Team |
| 7. | Any other duties as appropriate working with Chairman and CEO |
SCHEDULE 2
POST TERMINATION RESTRICTIONS
The definitions and rules of
interpretation in this clause apply in this Schedule.
"Employment": the
employment of the Employee by the Company on the terms of this Agreement.
"Board": the
board of directors of the Company (including any committee of the board duly appointed by it).
"Capacity": as
agent, consultant, director, employee, owner, partner, shareholder or in any other capacity, whether executive or non-executive.
"Confidential Information":
as defined in the main body of the Agreement.
"Garden Leave":
any period during which the Company has exercised its rights under clause 14.
"Group Company":
as defined in the main body of the Agreement.
"Restricted Business":
those parts of the business of the Company and any Group Company with which the Employee was involved to a material extent
or had management responsibility for (or had substantial Confidential Information (as defined in the main body of the Agreement)
regarding in either case at any time in the 12 months before Termination.
"Restricted Customer":
any firm, company or person who, during the 12 months before Termination, was a customer or prospective customer of, or in
the habit of dealing with any Group Company and from whom the Employee had obtained business on behalf of the Company or any Group
Company or to whom the Employee had provided or arranged the provision of goods or services on behalf of the Company or any Group
Company or for whom the Employee had management responsibility, at any time during the 12 months immediately before Termination.
"Restricted Person":
anyone employed by any Group Company who could materially damage the interests of any Group Company if they were involved in
any Capacity in any business concern which competes with any Restricted Business and with whom the Employee dealt (including by
working with or managing) in the 12 months before Termination in the course of his employment.
"Restricted Territory":
England, Scotland, Wales and Northern Ireland together with any other country in which the Company or any other Group
Company:
(a) carried on any Restricted
Business or provided any goods or services in connection with any Restricted Business at Termination; or
(b) carried on any Restricted
Business or provided any goods or services in connection with any Restricted Business at any time during the period of six months
immediately prior to Termination; or
(c) is to the knowledge of
the Employee to carry out any Restricted Business at any time during the period of six months immediately following Termination;
and regarding which country
at any time during the period of 12 months immediately prior to Termination the Employee was materially concerned or worked in;
and/or had management responsibility for; and/or obtained Confidential Information.
"Subsidiary and Holding
Company": as defined in the main body of the Agreement.
"Termination":
the termination of the Employee's employment with the Company howsoever caused.
| 2. | Post-termination restrictions |
| 2.1 | In order to protect the Confidential Information and business connections of the Company and each
Group Company to which he has access as a result of the Employment, the Employee covenants with the Company (for itself and as
trustee and agent for each Group Company) that he shall not: |
| (a) | for twelve months after Termination, solicit or endeavour to entice away from any Group Company
the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition
with any Restricted Business; |
| (b) | for twelve months after Termination, offer to employ or engage or otherwise endeavour to entice
away from any Group Company any Restricted Person; |
| (c) | for twelve months after Termination, employ or engage or otherwise facilitate the employment or
engagement of any Restricted Person, whether or not such person would be in breach of contract as a result of such employment or
engagement; |
| (d) | for six months after Termination, within the Restricted Territory, be involved in any Capacity
with any business concern which is (or intends to be) in competition with any Restricted Business; |
| (e) | for twelve months after Termination, be involved with the provision of goods or services to (or
otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition
with any Restricted Business; or |
| (f) | at any time after Termination, represent himself as connected with any Group Company in any Capacity,
other than as a former employee, or use any registered names or trading names associated with any Group Company. |
| 2.2 | None of the restrictions in clause 2.1 shall prevent the Employee from holding an investment by
way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed
or dealt in on a recognised stock exchange. |
| 2.3 | The restrictions imposed on the Employee by this clause 2 apply to him acting: |
| (a) | directly or indirectly; and |
| (b) | on his own behalf or on behalf of, or in conjunction with, any firm, company or person. |
| 2.4 | The period for which the restrictions in clause 2.1 apply shall be reduced by any period that the
Employee spends on Garden Leave immediately before Termination. |
| 2.5 | If the Employee receives an offer to be involved in a business concern in any Capacity during the
Employment, or before the expiry of the last of the covenants in this clause 2, the Employee shall give the person making the offer
a copy of this clause 2 and shall tell the Company the identity of that person as soon as possible after accepting the offer. |
| 2.6 | If, at any time during the Employee's employment, two or more Restricted Persons have left their
employment, appointment or engagement with the Company to perform Restricted Business for a business concern which is, or intends
to be, in competition with any Restricted Business, the Employee will not at any time during the six months following the last
date on which any of those Restricted Persons were employed or engaged by the Company, be employed or engaged in any way with that
business concern under which the Employee will perform Restricted Business on the behalf of that business concern. |
| 2.7 | The Company and the Employee entered into the restrictions in this clause 2 having been separately
legally advised. |
| 2.8 | Each of the restrictions in this clause 2 is intended to be separate and severable. If any of the
restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with
such deletion as may be necessary to make it valid or effective. |
| 2.9 | If the Employee's employment is transferred to any firm, company, person or entity other than a
Group Company (the "New Employer") pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006,
the Employee will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding
to those restrictions in this clause 2, protecting the confidential information, trade secrets and business connections of the
New Employer. |
| 2.10 | The Employee will, at the request and expense of the Company, enter into a separate agreement with
any Group Company in which he agrees to be bound by restrictions corresponding to those restrictions in this clause 2 (or such
of those restrictions as may be appropriate) in relation to that Group Company. |
Akari Therapeutics Plc (NASDAQ:CLTX)
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