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Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT ("Agreement") is made, entered into and
effective
as of the 20th day of March, 2006 between Omrix Biopharmaceuticals,
Inc., a
Delaware corporation having registered offices in Wilmington,
Delaware (the
"Company"), and Robert Taub, residing in Brussels, Belgium and New
York, New
York (the "Executive").
WHEREAS, the Executive and the Company are parties to an
Employment
Agreement dated as of December 31, 1998, as amended, (the "Former
Employment
Agreement"), pursuant to which, inter alia, the Executive is
employed by the
Company as its Chief Executive Officer ("CEO"); and
WHEREAS, the parties have mutually agreed that it would inure to
their
respective benefit for the Executive to remain as President and CEO
of the
Company under a new employment agreement and that all prior
agreements regarding
the Executive's employment with the Company including without
limitation, the
Former Employment Agreement, shall be superseded and hereby
terminated;
NOW,
THEREFORE, in consideration of the covenants and promises
contained
herein, and for other good and valuable consideration, the
sufficiency and
receipt of which are hereby acknowledged, the Company and the
Executive agree as
follows:
1.
Employment Period.
a.
The Company offers to employ the Executive, and the Executive
agrees to
be employed by the Company, in accordance with the terms and
subject to the
conditions of this Agreement during the Term, as defined below,
unless
terminated prior thereto in accordance with the provisions of
paragraph 7 herein
below, in which case the provisions of paragraph 7 herein below
shall govern the
parties' rights and obligations upon termination. The Initial Term
of this
Agreement and the Executive's employment hereunder shall commence
upon the
completion of a public offering of the Company's securities (the
"Commencement
Date") and terminate on the third anniversary of the date of the
Commencement
Date (the "Scheduled Separation Date"), provided, however, that
commencing on
the Scheduled Separation Date and each anniversary thereafter, the
term of this
Agreement shall automatically be extended for one additional year
unless, not
later than six months prior to such anniversary, the Company or the
Executive
shall have given written notice to the other party that the Term
shall not be
extended (the Initial Term and the period of any extended term
hereunder shall
hereinafter be referred to as the "Term").
2.
Position and Duties.
a.
During the Term of the Executive's employment hereunder, the
Executive
will serve in the position, and assume and perform, to the
satisfaction of the
Company's Board of Directors, the duties and responsibilities
consistent with
the position of President and Chief Executive Officer, as well as
such further
and other duties and responsibilities required from time to time by
the
Company's Board of Directors. In the performance of his duties
and
responsibilities, the Executive shall follow such rules and
procedures as may be
required by the Company's Board of Directors, including, without
limitation,
compliance with all internal rules and procedures promulgated or
established by
the Company's Board of Directors.
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b.
During the Term of the Executive's employment hereunder, the
Executive
agrees diligently and conscientiously to devote all of his business
time, skill,
energy and best business efforts to performing his duties and
responsibilities
hereunder, subject to the provisions of this Agreement; provided,
however, that
it shall not be considered a violation of the foregoing for the
Executive to
manage his or her personal investments or to serve on corporate or
industry
boards or committees listed on Exhibit A hereto. The Company
acknowledges that
the Executive's engaging in such activities is permitted by, and
does not
conflict with or violate this Agreement (including, without
limitation, the
Executive's obligations set forth in paragraphs 2(b), 3, 8 and 9),
provided
however, that the Executive's engagement in such activities
specified in Exhibit
A does not unreasonably interfere with his ability to perform his
duties and
responsibilities under this Agreement or cause material competitive
harm to the
Company and/or its affiliates. To the extent that in the future the
Executive
desires to serve on a corporate or industry board or committee not
listed on
Exhibit A, the Company's Board of Directors will consider the
Executive's
request, which shall include an indication of whether such new
activity is a
replacement for or an addition to an activity on Schedule A. The
Company's Board
of Directors will promptly consider and not unreasonably withhold
its approval
of such a request by the Executive.
c.
The Executive represents and warrants that he has the full right
and
authority to enter into this Agreement and to render the services
as required
under this Agreement, and that by executing this Agreement he is
not breaching
any contract or legal obligation he owes to any third party. The
Executive
agrees that, in the event that he commits a breach of this
paragraph 2(c), he
will indemnify and hold harmless the Company and its officers,
directors,
shareholders, parents, affiliates, subsidiaries, successors,
predecessors,
licensees, assigns and agents, to the farthest extent of the law,
from and
against any and all claims, losses, damages (including, without
limitation,
compensatory, statutory, incidental and punitive damages) and
expenses
(including, without limitation, reasonable attorney's fees and
disbursements)
arising out of or related to such breach.
d.
The Executive represents and warrants that no obligation exists
between
the Executive and any other entity which would prevent or impede
the Executive's
immediate and full performance of his obligations under this
Agreement in all
material respects.
3.
No Conflicts. The Executive covenants and agrees that for so long
as he
is employed by the Company, the Executive shall inform the Company
of each and
every business opportunity related to the business of the Company
of which the
Executive becomes aware, and that the Executive will not, directly
or
indirectly, exploit any such opportunity for the Executive's own
account, nor
will the Executive render any services to any other person or
business, acquire
any interest of any type in any other business or engage in any
activities that
conflict with the Company's best interests or which is in
competition with the
Company.
4.
Hours of Work. The Executive's normal days and hours of work
shall
coincide with the Company's regular business hours. The nature of
the
Executive's employment with the Company requires flexibility in the
days and
hours that the Executive must work, and may necessitate that the
Executive work
on other or additional days and hours.
5.
Location. The focus of the Executive's employment with Company
shall be
wherever appropriate, including: New York, New York (or other such
location in
the U.S. as determined by the Executive); the Company's facilities
at Chaussee
de Waterloo, 200 1640 Rhode-St. Genese, Belgium; and the Company's
facilities in
Israel.
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6.
Compensation.
a.
Base Salary. During the Term of the Executive's employment
hereunder,
the Company shall pay or cause to be paid to the Executive, and the
Executive
agrees to accept, in consideration for the Executive's services,
monthly pro
rata payments, as earned and consistent with the Company's
then-existing payroll
practices, of the annualized base salary of $400,000.00. All items
of
compensation payable to Executive pursuant to this paragraph 6
shall be paid
directly to Executive or to an entity under his control, as
Executive may
direct, in either case less all applicable taxes and other
appropriate
deductions. The Executive shall receive an annual performance
review, but the
decision to modify the Executive's base salary, and the amount of
any such
modification, shall be at the sole discretion of the Company's
Board of
Directors.
b.
Stock And Equity Incentive Plans.
1. During the Term of the Executive's employment hereunder, the
Executive shall be eligible to participate in the Company's 2004
Equity
Incentive Plan or its successor plan (the "Plan") in accordance
with the terms
and conditions of the Plan and of any agreements between the
parties or grant
documents relating thereto. Except as set forth in paragraph
6(b)(2) herein
below, the decision to grant any award to the Executive pursuant to
the Plan,
and the amount of any such award, shall be within the sole
discretion of the
Company's Board of Directors.
2. (a) In addition, subject to paragraphs 6(b)(2)(b) and 7
herein
below, the Company shall cause the Executive to be granted an
aggregate of
100,000 shares of stock of the Company pursuant to the Plan (the
"Granted
Shares"), the vesting schedule of which shall be as follows: 75,000
shares shall
become vested on the date of this Agreement and 25,000 shares shall
vest on the
earlier of an IPO or the first anniversary of the date of this
Agreement (the
"First Anniversary") or the occurrence of a "Change of
Control."
(b) The Executive's rights in respect of vesting of the Granted
Shares
described in paragraph 6(b)(2)(a) are conditional upon the
following: (i) the
Executive has not voluntarily resigned from his employment with the
Company and
as a member of the Company's Board of Directors prior to the First
Anniversary;
and (ii) the Executive has not been removed and/or been terminated
for "Cause"
from his employment with the Company and from the Company's Board
of Directors
prior to the First Anniversary. In either case, any of such Granted
Shares that
have not previously vested shall not vest by operation of this
paragraph, and
the Company shall have the right thereafter to repurchase any
Granted Shares
that have not yet vested as of the date of such termination for a
purchase price
of $0.01 per share by delivering such notice and such purchase
price to the
Executive within thirty (30) days of such termination or
removal.
(c) All options to purchase Common Stock of the Company that
were
previously granted to the Executive pursuant to the equity
compensation plans
maintained by the Company, including without limitation the
Company's 1998 Stock
Incentive Plan, shall remain subject to the terms and conditions of
such option
grant(s) and the plan under which such options were granted.
(d) For purposes of this Agreement, "Change of Control" shall mean
the
first to occur of any of the following:
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1. any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than (A) the Company, (B) any
trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, and
(C) any corporation owned, directly or indirectly, by the
stockholders of the
Company in substantially the same proportions as their ownership of
Stock), is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange
Act), directly or indirectly, of securities of the Company
representing 30% or
more of the combined voting power of the Company's then outstanding
voting
securities (excluding any person who becomes such a beneficial
owner in
connection with a transaction immediately following which the
individuals who
comprise the Board immediately prior thereto constitute at least a
majority of
the Board, the entity surviving such transaction or, if the Company
or the
entity surviving the transaction is then a subsidiary, the ultimate
parent
thereof);
2. the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who,
on the Effective Date, constitute the Board and any new director
(other than a
director whose initial assumption of office is in connection with
an actual or
threatened election contest, including but not limited to a
consent
solicitation, relating to the election of directors of the Company)
whose
appointment or election by the Board or nomination for election by
the Company's
stockholders was approved or recommended by a vote of at least
two-thirds (2/3)
of the directors then still in office who either were directors on
the Effective
Date or whose appointment, election or nomination for election was
previously so
approved or recommended;
3. there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with
any other
corporation, other than a merger or consolidation immediately
following which
the individuals who comprise the Board immediately prior thereto
constitute at
least a majority of the Board, the entity surviving such merger or
consolidation
or, if the Company or the entity surviving such merger is then a
subsidiary, the
ultimate parent thereof; or
4. the stockholders of the Company approve a plan of
complete liquidation of the Company or there is consummated an
agreement for the
sale or disposition by the Company of all or substantially all of
the Company's
assets (or any transaction having a similar effect), other than a
sale or
disposition by the Company of all or substantially all of the
Company's assets
to an entity, immediately following which the individuals who
comprise the Board
immediately prior thereto constitute at least a majority of the
board of
directors of the entity to which such assets are sold or disposed
of or, if such
entity is a subsidiary, the ultimate parent thereof.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to have
occurred by virtue of (x) an offering of securities of the Company
that is
registered with the Securities and Exchange Commission or (y) the
consummation
of any transaction or series of integrated transactions immediately
following
which the holders of the Stock immediately prior to such
transaction or series
of transactions continue to have substantially the same
proportionate ownership
in an entity which owns all or substantially all of the assets of
the Company
immediately following such transaction or series of
transactions.
(e) For purposes of this Agreement, "Cause" shall mean: (i) the
failure by the Executive to render services to the Company in
accordance with
his assigned duties and responsibilities under this Agreement
(other than any
such failure resulting from the
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Executive's Disability), which failure continues for a period of
more than
thirty (30) days after written notice thereof has been provided to
the Executive
by the Company's Board of Directors; (ii) willful misconduct or
gross negligence
of the Executive in the performance of his duties and
responsibilities for the
Company or any of its subsidiaries or affiliates under this
Agreement; (iii) the
Executive's conviction of, or plea of guilty or nolo contendre to,
a felony,
whether or not committed in the course of performing his duties for
the Company
or any of its subsidiaries or affiliates; (iv) the Executive's
disloyalty,
deliberate dishonesty, breach of fiduciary duty or material breach
of the terms
of this Agreement; (v) the commission by the Executive of
embezzlement, theft or
any other fraudulent act or omission; (vi) the commission by the
Executive of
any act or omission in deliberate disregard of the rules or
policies of the
Company that results in material loss, damage or injury to the
Company or any of
its subsidiaries or affiliates or materially adversely affects the
business
activities, reputation, goodwill or image of the Company or any of
its
subsidiaries or affiliates; (vii) the unauthorized disclosure by
the Executive
of any "Confidential Information," as that term is defined in
paragraph 8 herein
below, that results in material loss, damage or injury to the
Company or any of
its subsidiaries or materially adversely affects the business
activities,
reputation, goodwill or image of the Company or any of its
subsidiaries or
affiliates; (viii) the commission by the Executive of any act that
constitutes
unfair competition with the Company or any of its subsidiaries or
affiliates;
(ix) the material breach by the Executive of any agreement to which
he and the
Company or any of its subsidiaries or affiliates are parties that
results in
material loss, damage or injury to the Company or any of its
subsidiaries or
affiliates, or materially adversely affects the business
activities, reputation,
goodwill or image of the Company or any of its subsidiaries or
affiliates.
c.
Group Health Insurance. During the Term of the Executive's
employment
hereunder, the Company shall continue to pay or reimburse Executive
for premium
payments and other costs actually paid or incurred by the Executive
to maintain
Executive's health and medical insurance policy for himself and his
family with
Signal Versicherungen (or with such other health care provider as
the Executive
shall choose), and will pay or reimburse Executive for any
additional or
incremental costs for health and medical insurance coverage
required in
connection with Executive's performance of services hereunder in
the United
States provided however, that the Executive shall cooperate with
the Company in
obtaining such policy and other coverage on the most cost-efficient
terms.
d.
Vacation. During the Term of the Executive's employment hereunder,
the
Executive shall be entitled to twenty-five (25) vacation days per
fiscal year,
which amount shall be pro-rated for any partial fiscal year during
which the
Executive is employed by the Company. The Executive shall be
entitled to carry
over 10 (ten) unused vacation days earned in any fiscal year
through the first
half of the next fiscal year, following which period any such
unused vacation
days shall be forfeited.
e.
Holidays. During the Term of the Executive's employment hereunder,
the
Executive shall be entitled to all legal holidays observed by the
Company in its
offices in Belgium or the United States, according to where the
Executive is
working on such a day, in addition to his vacation days described
in paragraph
6(d) herein above.
f.
Retirement Plan. During the Term of the Executive's employment
hereunder, the Executive shall be eligible to participate in the
Company's
retirement plan, in accordance with the terms and conditions of
such plan, if
and when the Company adopts such a plan and as such plan may be in
effect from
time to time.
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g.
Life Insurance. During the Term of the Executive's employment
hereunder,
the Company shall reimburse the Executive for the premiums actually
paid by him
to procure and maintain a term life insurance policy for the
benefit of the
beneficiary designated by the Executive (or to maintain an existing
term life
insurance policy) having a death benefit equal to two times the
Executive's base
salary (as in effect from time to time). In the event that the
Executive
currently maintains a term life insurance policy having a death
benefit greater
than two times his base salary, in lieu of the Executive procuring
a new term
life insurance policy that has a death benefit not greater than two
times his
base salary, the Company shall pay a pro-rata share of the premium
for such
policy calculated by multiplying the premium payment by a fraction,
the
numerator of which is equal to two times the Executive's base
salary and the
denominator of which is the death benefit of such policy, provided
however, that
the Executive shall cooperate with the Company in obtaining such
policy on the
most cost-efficient terms.
h.
Annual Bonus. During the Term of the Executive's employment
hereunder,
the Executive shall be eligible to participate in the Company's
management bonus
plan, as shall be set forth from time to time, and in accordance
with the terms
and provisions thereof ("Annual Bonus"). In the event that the
Executive becomes
entitled to an Annual Bonus in accordance with the terms and
conditions of such
a plan, the Executive's annual bonus shall be no less than 25
percent of his
then-current base salary.
i.
Automobile. During the Term of the Executive's employment
hereunder, the
Company shall continue to provide an Audi A6 automobile to the
Executive
pursuant to the lease arrangements in effect on the date of this
Agreement for
use by the Executive in connection with his performance of services
in Brussels,
Belgium. The Company shall pay all reasonable expenses incurred by
the Executive
for the operation, maintenance and repair of such automobile. If
this Agreement
is still in effect at such time as the acquisition of a new
automobile is
appropriate, as determined by the Company in its sole discretion,
the Company
shall provide the Executive with a new automobile comparable to the
present Audi
A6. The Company shall not be required to provide Executive with an
automobile in
connection with his performance of services in the U.S.
j.
Relocation Expenses. The cost of relocating the executive and his
wife
to the U.S. and the cost of the return back to Belgium will be paid
by Omrix.
Such costs will include real estate fees, household moving
expenses, if any, and
costs customarily involved in personnel relocations.
During the Term of the Executive's employment hereunder, if
Executive
relocates to the U.S. (initially, New York City), (i) the Company
shall either
lease a suitable fully furnished, fully serviced, two-bedroom
apartment in
Manhattan, New York City (the "Apartment"), for the Executive to
reside in or
reimburse the Executive for lease payments actually incurred by the
Executive in
respect of renting such an apartment; (ii) pay or reimburse the
Executive for
all relocation expenses paid or incurred by him in connection with
his move to
such premises; (iii) in the event Executive leases the Apartment,
pay or
reimburse Executive for all expenses paid or incurred by him in
connection with
the leasing and occupancy of such apartment, including broker's or
agent's
commissions, furniture and furnishings, advance of any required
security deposit
(which security deposit, upon reimbursement to the Executive shall
be remitted
by the Executive back to the Company); and (iv) in addition to air
fare and
travel expenses incurred by the Executive related to performing his
duties and
responsibilities hereunder, the Company shall pay or reimburse the
Executive and
his wife for the business class air fare for up to 4 round trips
between
Brussels,
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Belgium and New York, New York in each year of the term of this
Agreement. To
obtain reimbursement of any expenses, the Executive shall be
required to submit
receipts or other appropriate documentation to the Company
evidencing the
Executive's actual expenditures.
During the temporary assignment in Manhattan, the Executive may
incur
living costs that exceed what the Executive customarily has been
paying in
Belgium for such costs. In order to compensate for this difference,
Omrix will
reimburse the Executive up to $5,000 for every month spent in New
York, New
York.
If
the reimbursement of any of the above-described expenses is
required to
be included in the Executive's U.S. taxable income, Omrix will make
a gross-up
payment to the Executive to equalize any resulting taxes.
As a
general statement, it is not intended that the Executive's move to
the
U.S. should generate any incremental income taxes to him. However,
in the event
that the move does generate incremental income taxes, the Company
will make such
payments necessary to equalize the income tax situation to what
existed prior to
his moving to the U.S. The Company will bear the cost of a third
party tax
auditor who will determine the extent of any incremental taxes due
to the
employee.
In
the event that the relocation of the Company's U.S. offices is
determined to be in a place other than New York, New York, the same
provisions
of section j immediately above will apply.
7.
Termination.
a.
Death.
1. In the event that, during the Initial Term, the Executive
dies,
this Agreement and the Executive's employment with the Company
shall
automatically terminate on the date of the Executive's death, and
the Company
shall have no further obligations or liability to the Executive or
his heirs,
administrators or executors with respect to compensation and
benefits
thereafter, except for the obligation to pay the Executive's
heirs,
administrators or executors (a) any earned but unpaid base salary
and any unused
and unforfeited accrued vacation through the date of death; (b) an
amount equal
to the Executive's base salary payable in accordance with the
procedures set
forth in paragraph 6(a) herein above through the Scheduled
Separation Date or
for a period of one year from the date of the Executive's date of
death,
whichever is longer; and (c) an amount to cover the cost of
relocation of the
Executive's family back to Belgium.
2. In the event that the Initial Term is extended or renewed by
operation of paragraph 1.a. for a period of at least one year
subsequent to the
Scheduled Separation Date and the Executive shall die during the
extended Term,
this Agreement and the Executive's employment with the Company
shall
automatically terminate on the date of the Executive's death, and
the Company
shall have no further obligations or liability to the Executive or
his heirs,
administrators or executors with respect to compensation and
benefits
thereafter, except for the obligation to pay the Executive's
heirs,
administrators or executors (a) any earned but unpaid base salary
and any unused
and unforfeited accrued vacation through the date of death; (b) an
amount equal
to a pro rata portion of any Annual Bonus awarded to the Executive
in respect of
the bonus year in which his death occurred; (c) an amount equal to
the
Executive's base salary payable in accordance with the procedures
set
<PAGE>
forth in paragraph 6(a) herein above for the one-year period of one
year from
the date of death; (d) an amount equal to the most recent full or
pro rata, as
applicable, Annual Bonus paid to the Executive prior to his death;
and (e) an
amount to cover the cost of relocation of the Executive's family
back to
Belgium.
b.
Disability.
1. In the event that, during the Term of this Agreement, including
any
extension or renewal period thereof, the Executive shall be
prevented from
performing his duties and responsibilities hereunder to the full
extent required
by the Company by reason of illness, injury or incapacity, with or
without
reasonable accommodation that does not impose undue hardship on the
Company, for
a period of not less than ninety (90) consecutive days
("Disability"), then the
Company, in its sole discretion, may terminate this Agreement and
the
Executive's employment with the Company with immediate effect by
providing
written notice to the Executive.
2. In the event that the Company terminates this Agreement and
the
Executive's employment with the Company during the Initial Term of
the
Executive's employment hereunder, because of a Disability, the
Company shall
thereafter have no further obligations or liability to the
Executive with
respect to compensation and benefits thereafter, except for the
obligation to
pay to the Executive (a) any earned but unpaid base salary any
unused and
unforfeited accrued vacation through the date of termination; (b)
an amount
equal to the Executive's base salary payable in accordance with the
procedures
set forth in paragraph 6(a) herein above through the Scheduled
Separation Date
or for a period of one year from the date of termination, whichever
is longer;
and (c) an amount to cover the cost of relocation of the
Executive's family back
to Belgium.
3. In the event that the Initial Term is extended or renewed by
operation of paragraph 1.a. for a period of at least one year
subsequent to the
Scheduled Separation Date and the Company terminates this Agreement
and the
Executive's employment with the Company because of a Disability
during the
extended Term, the Company shall have no further obligations or
liability to the
Executive with respect to compensation and benefits, except for the
obligation
to pay to the Executive (a) any earned but unpaid base salary and
any unused and
unforfeited accrued vacation through the date of termination; (b) a
pro rata
portion of any Annual Bonus awarded to the Executive in respect of
the bonus
year in which his termination occurred; (c) the Executive's base
salary payable
in accordance with the procedures set forth in paragraph 6(a)
herein above for a
period of one year from the date of termination; and (d) an amount
equal to the
most recent full or pro rata, as applicable, Annual Bonus paid to
the Executive
prior to his termination; and (e) an amount to cover the cost of
relocation of
the Executive's family back to Belgium.
c. By The Company For
"Cause"