Exhibit 10.5
Spherix
Incorporated
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “Agreement”)
, is entered into as of the 23rd day
of March, 2004, between Spherix Incorporated, a Delaware
corporation (the “Corporation”), and Gilbert V. Levin
(the “Executive”).
WITNESSETH:
WHEREAS, the Corporation is engaged in providing
information services in health, pharmaceutical and civic areas; in
providing services in the areas of chemistry, biology, exobiology,
microbiology, occupational health, air and water pollution and
hazardous wastes control, industrial hygiene; and in the
development of proprietary products; and
WHEREAS, the Executive has been engaged as an expert and
corporate executive in major enterprises in the areas indicated
above; and
WHEREAS , the Executive is presently, and has been since
the formation of the Corporation, an Executive of the Corporation;
and
WHEREAS, the Executive has led the Company’s effort
to commercialize its non—fattening sugar as a major food
products ingredient and for other non-food uses, and its
safe—for—humans pesticides; and
WHEREAS, the Executive has relinquished the positions of
CEO and President of Spherix as of September 1,
2003,
WHEREAS, the Company desires the Executive to continue to
serve out the term of this Employment Agreement in the capacity of
Executive Officer for Science, and the Executive desires to do
so,
NOW, THEREFORE
, in consideration of the mutual
promises and covenants herein set forth and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Corporation and the Executive do hereby agree, each with the other,
as follows:
1.
Full-time Employment of
Executive.
1.1.
Duties and Status.
1.1.1.
The Corporation hereby engages the
Executive for the period (the “Employment Period”)
specified in Section 4 and the Executive accepts such
employment, on the terms and conditions set forth in this
Agreement. During the Employment Period, the Executive shall serve
as Executive Officer for Science, reporting directly to the Chief
Executive Officer of the Corporation.
1.1.2.
During the Employment Period, the
Executive shall (i) devote his full-time and efforts to the
business of the Corporation and its subsidiaries or affiliates,
primarily, but without limitation, to the business of the
BioSpherix Division, and will not engage in consulting work or any
trade or business for his own account or for or on behalf of any
other person, firm or corporation which competes, conflicts or
interferes with the performance of his duties hereunder in any way
and (ii) accept such additional office or offices to which he may
be elected by the Board of Directors of the Corporation or its
subsidiaries or affiliates, including, without limitation, any
joint venture or subsidiary formed to commercialize the
BioSpherix’s Division’s products, processes or
services.
1.1.3.
The Executive shall be required to
perform the services and duties provided for in Section 1.1.1.
only at the location where the Executive was employed immediately
prior to the effective date of this Agreement, or at the Annapolis
location of the BioSpherix Division. The Executive may
schedule telecommuting via the internet from home as approved
by the Compensation Committee and the Board of Directors of the
Company at their May 15, 2002, Meetings. The Executive shall be
entitled to vacation, leave of absence, and leave for illness or
temporary disability in accordance with the policies of the
Corporation in effect, which shall not be less favorable
than
those in effect at the date of this
Agreement; and any leave on account of illness or temporary
disability which is short of total disability, as defined in the
Corporation’s long-term disability insurance plan
(“Total Disability”), shall not constitute a breach by
the Executive of his agreements hereunder.
1.2.
Compensation and General
Benefits. The Executive
shall be compensated as follows:
1.2.1.
The Corporation shall pay the
Executive an annual base salary of $118,000, effective
January 1, 2004 . Such salary shall be payable in
equal, semi-monthly installments.
1.2.2.
The Executive shall be eligible to
participate in such profit—sharing, stock option, bonus,
incentive and performance award programs which provide
opportunities to receive compensation which are the greater of the
opportunities (i) then provided by the Corporation to executives
with reasonably comparable authority and duties (and in any event
not lesser than those provided to executives with junior authority
or duties), or (ii) available to the Executive immediately prior to
the effective date of this Agreement.
1.2.3.
The Executive shall be entitled to
receive employee benefits, including, without limitation, pension,
disability, group life, sickness, accident and health insurance
programs and split-dollar life insurance programs, and perquisites
provided by the Corporation to executives which are the greater of
the employee benefits and perquisites (i) then provided by the
Corporation to executives with comparable authority or duties (and
in any event not lesser than those provided to executives with
junior authority or duties), or (ii) available to the Executive
immediately prior to the effective date of this Agreement. The
health insurance benefits received by the Executive shall continue
for the Executive and the Executive’s spouse following the
retirement of the Executive and until the death of the survivor of
the Executive and the Executive’s spouse.
1.2.4.
The Corporation shall pay for
continuous, lifetime, long-term care insurance for Dr. and Mrs.
Levin in recognition of their years of service to the
Company.
1.2.5.
The Corporation shall reimburse the
Executive for all reasonable expenses incurred by the Executive in
the performance of his duties hereunder.
1.2.6.
Following his complete retirement
from the Corporation, the Executive is to receive a cash payment of
$12,500 each quarter of each year for life. Such payments
will be made within 10 days after the end of each calendar quarter
and shall be subject to any deductions the Corporation is required
to make under applicable State or Federal law.
2.
Competition; Confidential
Information.
2.1.
General. The Executive and the Corporation recognize that
due to the nature of his prior association with the Corporation and
of his engagements hereunder, and the relationship of the Executive
to the Corporation, both in the past as an executive and in the
future hereunder, the Executive has had access to and has acquired,
will have access to and will acquire, and has assisted in and may
assist in developing, confidential and proprietary information
relating to the business and operations of the Corporation and its
affiliates, including, without limiting the generality of the
foregoing, information with respect to their present and
prospective research projects; products, systems and processes
(whether or not patentable); customers and agents; and sales and
marketing methods. The Executive acknowledges that such information
has been and will continue to be of central importance to the
business of the Corporation and its affiliates and that disclosure
of it to or its use by others could cause substantial loss to the
Corporation. The Executive and the Corporation also recognize that
an important part of the Executive’s duties will be to
develop good will for the Corporation and its affiliates through
his personal contact with customers, agents and others having
business relationships with the Corporation and its affiliates, and
that there is a danger that this good will, a proprietary asset of
the Corporation and its affiliates, may follow the Executive if and
when his relationship with the Corporation is terminated. The
Executive accordingly agrees as follows:
2.2.
Non-Competition.
2.2.1.
During the Employment Period the
Executive will not, directly or indirectly, either individually or
as owner, partner, agent, employee, consultant or otherwise, except
for the account of and on behalf of
2
the Corporation or their affiliates,
engage in any activity competitive with the business of the
Corporation or its affiliates, nor will he, in competition with the
Corporation or its affiliates, solicit or otherwise attempt to
establish for himself or any other person, firm or entity, any
business relationships with any person, firm or corporation which
was, at any time during the Employment Period, a customer of the
Corporation or one of its affiliates.
2.2.2.
Nothing in this Section 2.2.
shall be construed to prevent the Executive from owning, as an
investment, not more than 1% of a class of equity securities issued
by any competitor of the Corporation or its affiliates and publicly
traded and registered under Section 12 of the Securities
Exchange Act of 1934.
2.3.
Trade Secrets.
The Executive will keep
confidential any trade secrets or confidential or proprietary
information of the Corporation and its affiliates which are now
known to him or which hereafter may become known to him as a result
of his employment or ass
