Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS
AGREEMENT is made October 10, 2007, by and between BioTime,
Inc. (the "Company"), and Michael D. West
("Executive").
W I T N E S S E T H :
WHEREAS,
the Company desires to employ Executive, and Executive is
willing to accept such employment, all on the terms and
subject to the conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the parties hereto agree as
follows:
1.
Engagement
(a)
Position and
Duties . The Company agrees to employ
Executive in the position of Chief Executive
Officer. Executive shall perform the duties and
functions as are normally carried out by a Chief Executive Officer
of a developer of pharmaceutical or medical products of a size
comparable to the Company that has a class equity securities
registered under Section 12 of the Securities Exchange Act of 1934,
as amended, and as the Board of Directors of the Company (the
"Board of Directors") shall from time to time reasonably
determine. Without limiting the generality of the
immediately preceding sentence, Executive shall expand the scope of
the Company's research and development program into the field of
human stem cell research to the extent that the Company has or
obtains sufficient capital for such purpose, except to the extent
that the Board of Directors determines that the Company should
abandon, forego, or limit stem cell research and
development. Executive shall devote his best efforts,
skills and abilities, on a full-time basis, exclusively to the
Company's business pursuant to, and in accordance with, reasonable
business policies and procedures, as fixed from time to time by the
Board of Directors of the Company. Executive covenants
and agrees that he will faithfully adhere to and fulfill such
policies as are established from time to time by the Board of
Directors.
(b)
No Conflicting
Obligations . Executive represents and warrants
to the Company that he is under no obligations or commitments,
whether contractual or otherwise, that are inconsistent with his
obligations under this Agreement or that would prohibit him,
contractually or otherwise, from performing his duties as Chief
Executive Officer of the Company.
(c)
No Unauthorized
Use of Third Party Intellectual Property.
Executive represents and warrants that he will not use
or disclose, in connection with his employment by the Company, any
patents, trade secrets, confidential information, or other
proprietary information or intellectual property as to which any
other person has any right, title or interest, except to the extent
that the Company holds a valid license or other written permission
for such use from the owner(s) thereof. Executive
represents and warrants to the Company that he has returned all
property and confidential information belonging to any prior
employer.
2.
Compensation
(a)
Salary and
Bonuses . During the term of this Agreement, the
Company shall pay to the Executive:
(i)
Annual
Salary . The Company shall pay Executive an
annual salary of two hundred fifty thousand dollars ($250,000.00)
the ("Annual Salary"). Executive = s salary
shall be paid in equal bi-monthly installments, consistent with the
Company = s regular salary payment
practices. Executive = s salary may be adjusted from
time-to-time by the Company without affecting this
Agreement.
(ii)
Bonus
. In addition to his Annual Salary, Executive
shall be entitled to receive an annual bonus equal to the lesser of
(A) sixty-five thousand dollars ($65,000.00) or (B) the sum of 65%
of Consulting Fees and 6.5% of Grant Funds received by the Company
during each fiscal year; provided that (x) the grant that is the
source of the Grant Funds was obtained by the Company during the
term of Executive = s employment by the Company, (y)
the grant that is the source of the Grant Funds is not a renewal,
extension, modification, or novation of a grant (or a new grant to
fund the continuation of a study funded by a prior grant from the
same source) obtained by the Company prior to Executive
= s employment by the Company, and
(z) the grant that is the source of the Grant Funds was not
obtained by the Company substantially through the efforts of any
consultant or independent contractor compensated by the Company for
obtaining the grant. The bonus shall be paid on a
monthly basis, subject to the Company's receipt of the funds from
which the bonus it to be paid.
(A)
Grant
Funds means money actually paid to the Company during a fiscal year
as a research grant by any federal or state government agency or
any not for profit non-government organization, and expressly
excludes (1) license fees, (2) royalties, (3) Consulting Fees, (4)
capital contributions to the Company or any subsidiary of the
Company, or any joint venture of any kind (regardless of the legal
entity through which the joint venture is conducted) to which the
Company is a party, and (5) any other payments received by the
Company by a business or commercial enterprise for research and
development of products or technology pursuant to a contract or
agreement for the commercial development of a product or
technology.
(B)
Consulting
Fees means money actually received by the Company under
a contract that entitles the Company to receive a cash fee for
providing scientific and technical advice to third parties
concerning stem cells.
(b)
Expense
Reimbursements . The Company shall reimburse
Executive for reasonable travel and other business expenses
incurred by Executive in the performance of his duties hereunder,
subject to the Company's policies and procedures in effect from
time to time, and provided that Executive submits supporting
vouchers.
(c)
Benefit
Plans. Executive shall be eligible (to the
extent he qualifies) to participate in any retirement, pension,
life, health, accident and disability insurance, stock option plan
or other similar employee benefit plans which may be adopted by the
Company (or any other member of a consolidated group of which the
Company is a part) for its executive officers or other
employees.
(d)
Stock
Options/SARs . The Company will grant
Executive an option to purchase 1,500,000 of the Company
= s common shares (the A Option
@ ) under the Company = s 2002
Employee Stock Option Plan (the A Plan @
). The Option shall be paired with a stock appreciation
right ("SAR") with respect to 976,500 shares that may be exercised
only as provided in this Agreement.
(i)
The
exercise price of the Option and the SAR will be the greater of
$0.50 per share and the Fair Market Value of the Company
= s common shares on the date of
grant determined in accordance with the Plan. The Option
and the SAR will vest (as thereby become exercisable) as follows:
1/60th of the number of Option shares will vest at the end of each
full month of employment. Vesting will depend on
Executive = s continued employment with the
Company through the applicable vesting date, and will be subject to
the terms and conditions of the Plan and a Stock Option Agreement
consistent with the Plan and this paragraph. The
unvested portion of the Option and the SARs shall not be
exercisable.
(ii)
The
vested portion of the Option and the SAR shall expire on the
earliest of (A) seven (7) years from the date of grant, (B) three
months after Executive ceases to be an employee of the Company for
any reason other than Executive = s death or Disability (as
defined below), or (C) one year after Executive ceases to be an
employee of the Company due to his death or Disability; provided
that if Executive dies during the three month period described in
clause (B) of this paragraph, the expiration date of the vested
portion of the Option shall be one year after the date of his
death. In addition, (X) if the SAR is exercised, the
vested portion of the Option shall expire as to a number of shares
for which the SAR was exercised, and (Y) the vested and unvested
portion of the SAR shall expire when the shareholders of the
Company approve an amendment to the Plan described
below. The Option and the SAR, respectively, shall not
be exercisable after it has expired.
(iii)
Except
as specifically set forth in this Section, Executive = s rights
under the Plan, or any other stock option plan later adopted by the
Company, shall be governed solely by the terms of the Plan, or the
later adopted stock option plan.
(iv)
The
SAR may not be exercised, in whole or in part, until the vested
portion of the Option has been exercised in full. A
vested SAR may be exercised by the Executive by delivering a
written notice to the Company specifying the number of SAR shares
being exercised. Upon exercise of an SAR, Executive
shall be entitled to receive a payment of cash per SAR share
exercised equal to the amount by which the fair market value of a
Company common share on the date of exercise exceeds the exercise
price of the SAR. The fair market value of a Company common share
shall be determined by the Board of Directors in the manner
provided in the Plan. The amount payable
to
Executive upon exercise of an SAR shall be subject to all
applicable, federal, state, and local income tax withholdings,
FICA and similar state withholdings, and any other applicable
payroll tax withholding. SARs may not be
sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the
lifetime of the Executive, only by the Executive.
(v)
On the
date of this Agreement, the number of shares available for the
grant of options under the Plan, as approved by the shareholders of
the Company, is less than 1,500,000. The Board of
Directors has approved an amendment to the Plan that would increase
the number of shares available for the exercise of options;
however, the amendment is subject to approval by the shareholders
of the Company. The Company will submit the Plan
amendment to its shareholders for approval at its next annual
meeting of shareholders, and the Board of Directors will recommend
that the shareholders approve the amendment. The Board
of Directors has reserved 523,377 shares under the Plan, as
previously approved by the shareholders, for the Option granted to
Executive.
(e)
Vacation;
Sick Leave . Executive shall be entitled to three
weeks of vacation without reduction in compensation, during each
calendar year. Such vacation shall be taken at such time
as is consistent with the needs and policies of the
Company. All vacation days and sick leave days shall
accrue based upon days of service. Executive shall also
be entitled to leave from work, without reduction in compensation
for ten days during each calendar year, due to illness subject to
the policies and procedures of the Company, and subject to the
provisions of this Agreement governing termination due to
disability, sickness or illness. The Company may, from
time to time, adopt policies governing the disposition of unused
vacation days and sick leave days remaining at the end of the
Company's fiscal year; which policies may govern whether unused
vacation days or sick leave days will be paid, lost, or carried
over into subsequent fiscal years.
3.
Competitive
Activities . During the term of Executive
= s employment with the Company and
for three years thereafter, Executive shall not, for himself or any
third party, directly or indirectly employ, solicit for employment
or recommend for employment any person employed by the
Company. During the term of Executive = s
employment, he shall not, directly or indirectly as an employee,
contractor, officer, director, member, partner, agent, or equity
owner, engage in any activity or business that competes or could
reasonably be expected to compete with the business of the
Company. Executive acknowledges that there is a
substantial likelihood that the activities described in this
Section would (a) involve the unauthorized use or disclosure of the
Company = s Confidential Information and
that use or disclosure would be extremely difficult to detect, and
(b) result in substantial competitive harm to the Company's
business. Executive has accepted the limitations of this
Section as a reasonably practicable and unrestrictive
means of preventing such use or disclosure of Confidential
Information and preventing such competitive harm.
4.
Inventions/Intellectual
Property/Proprietary Information
(a)
Inventions
and Discoveries Belong to the Company . Any
and all inventions, discoveries, improvements or intellectual
property which Executive may conceive or make during the period of
employment relating to or in any way pertaining to or connected
with the systems, products, apparatus, or methods employed,
manufactured, constructed or researched by the Company shall be the
sole and exclusive property of the Company. The
obligations provided for by this Agreement, except for the
requirements as to disclosure in Section, do not apply to any
rights Executive may have acquired in connection with an invention,
discovery, improvement or intellectual property for which no
equipment, supplies, facility, or trade secret information of the
Company was used and which was developed entirely on the Executive
= s own time and (a) which at the
time of conception or reduction to practice does not relate
directly or indirectly to the business of the Company or to the
Company = s actual or demonstrable
anticipated research or development, or (b) which does not result
from any work performed by Executive for the Company. The parties
understand and agree that this limitation is intended to be
consistent with California Labor Code, Section 2870, a copy of
which is attached as Exhibit A. If Executive wishes to
clarify that something created by him prior to
