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EXHIBIT 10.38
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of August 28,
2006
by and between Omrix Biopharmaceuticals, Inc., a Delaware
corporation (the
"Company") and Nanci I Prado (the "Executive").
In consideration of the mutual covenants contained herein and
other
good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged, the parties hereto agree as follows:
1. Term of
Employment; Executive Representation.
a. Employment Term. Subject to the provisions of Section 6 of this
Agreement,
Executive shall be employed by the Company for a period commencing
on August 28,
2006 (the "Effective Date") and ending on the third anniversary of
the Effective
Date (including any extensions thereof as detailed below, the
"Employment Term")
on the terms and subject to the conditions set forth in the
Agreement. Unless
earlier terminated in accordance with the terms hereof, on the
third anniversary
of the Effective Date the Employment Term will be automatically
extended for
successive one year terms, unless the Company or the Executive
gives the other
party 90 days' prior written notice of an intention not to renew
the agreement.
b. Executive Representation. Executive hereby represents to the
Company that the
execution and delivery of this Agreement by Executive and the
Company and the
performance by Executive of the Executive's duties hereunder shall
not
constitute a breach of, or otherwise contravene, the terms of any
employment
agreement or other agreement or policy to which Executive is a
party or
otherwise bound.
2.
Position; Place of Performance.
a. During the Employment Term, Executive shall serve as Vice
President, General
Counsel and Secretary of the Company. In such position, Executive
shall have
such duties and authority commensurate with such position as shall
be reasonably
assigned to her by the Chief Executive Officer ("CEO") and the
Company's Board
of Directors and shall be given such executive and administrative
powers and
authority as may be needed to carry out those duties. The Executive
shall report
to the CEO. Executive's responsibilities will be those customary
for the
position of Vice President, General Counsel and Secretary.
b. During the Employment Term, Executive shall devote Executive's
full business
time and best efforts to the performance of Executive's duties
hereunder and
will not engage in any other business, profession or occupation
(including in an
advisory capacity, consulting capacity, or otherwise) for
compensation or
otherwise which would conflict with the rendition of such services
either
directly or indirectly, without the prior written consent of the
CEO; provided
that
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Executive shall be permitted to participate in such charitable
and
community-related activities as Executive may choose; provided
further that such
services do not interfere or conflict with her duties
hereunder.
c. During the Employment Term, Executive shall be located in the
Company's
offices in New York, New York, except for required travel on the
Company's
business.
3.
Compensation.
a. During the Employment Term, the Company shall pay Executive a
base salary
(the "Base Salary") at the annual rate of $210,000 (less applicable
withholding
taxes), payable in regular installments in accordance with the
Company's usual
payment practices but no less than monthly. Executive shall be
entitled to such
increases in Executive's Base Salary, if any, as may be determined
from time to
time in the sole discretion of the CEO and the Board.
b. With respect to each year during the Employment Term, provided
the Executive
is employed and in good standing at the time bonuses are
distributed, Executive
shall be eligible to receive an annual bonus award (an "Annual
Bonus")
calculated based on Company and individual performance measures
established by
the Board each year. During the Employment Term, the Executive's
target annual
bonus award shall be 40% of her Base Salary and the Executive may
receive
between 10% and her target percentage (pro-rated to reflect the
partial year of
employment), based on the level of achievement of such performance
measures as
determined in the sole discretion of the CEO, as approved by the
Compensation
Committee.
c. During the Term of the Executive's employment hereunder, the
Executive shall
be eligible to participate in the Company's 2006 Equity Incentive
Plan or its
successor plan (the "Equity Incentive Plan") in accordance with the
terms and
conditions of the Equity Incentive Plan. Except as set forth in
paragraph 3(d)
below, the decision to grant any award to the Executive pursuant to
the Equity
Incentive Plan, and the amount of any such award, shall be within
the sole
discretion of the Company's Board of Directors.
d. The Company shall cause the Executive to be granted stock
options to purchase
36,000 shares of Company common stock pursuant to the Equity
Incentive Plan (the
"Stock Options") as soon as practicable following the Effective
Date. The
exercise price of the Stock Options shall be the fair market value
of the Stock
Options on the date of grant, and the Stock Options shall vest over
four years,
with 9,000 Stock Options vesting each year based on continued
employment
(subject to acceleration upon a Change in Control, as set forth in
paragraph
6(c)(iii) herein below). The complete terms and condition of the
Stock Options
shall be set forth in a separate stock option agreement between the
Executive
and the Company.
4. Business Expenses. During the Employment Term, reasonable,
documented
business travel expenses and other business expenses incurred by
Executive in
the performance of Executive's duties hereunder shall be reimbursed
by the
Company in accordance with Company policies, including without
limitation,
documented expenses up to a total aggregate of US$3,500 incurred by
Executive in
connection with complying with mandatory continuing legal credit
courses per
year and bar association dues for the states of New York and
California.
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5. Benefits; Vacation. The Company does not currently maintain any
employee
benefits plans, and has agreed to pay directly, or reimburse the
Executive, for
the Executive's actual, documented costs in connection with: (i)
establishing
and maintaining a 401(k) plan or other comparable deferred tax
savings plan for
the benefit of the Executive, up to a maximum of $1,000 a year; and
(ii)
purchasing health insurance coverage if the Executive is not
otherwise entitled
to health insurance coverage through her spouse's employer. If such
health
insurance coverage is obtained by the Company for the Executive,
the cost of
such coverage will be reduced from the Base Salary paid to
Executive. The
Executive shall be solely responsible for any income tax liability
resulting
from this Company payments or reimbursements. During the first year
of the
Employment Term, the Executive shall be entitled to fifteen (15)
paid vacation
days per calendar year, which amount shall be pro-rated for any
partial calendar
year during which the Executive is employed by the Company and
eighteen (18)
paid vacation days for each subsequent calendar year of the
Employment Term.
Executive shall accrue such vacation days in accordance with the
policies of the
Company as in effect from time to time. Executive shall also be
entitled to all
U.S. Federal holidays. The Company shall provide Executive with the
right to
participate in and to receive benefits from accident, disability,
medical,
pension, bonus, stock, profit-sharing and savings plans and similar
benefits
made available to all employees of the Company located in the
United States or
all other Company executives as such plans and benefits may be
adopted by the
Company.
6. Termination. The Employment Term and Executive's employment
hereunder may be
terminated by either party at any time and for any reason; provided
that
Executive and the Company will be required to give the other party
hereto at
least 30 days advance written notice of any resignation or
termination, as the
case may be of Executive's employment. Notwithstanding any other
provision of
this Agreement, the provisions of this Section 6 shall exclusively
govern
Executive's rights upon termination of employment with the Company
and its
affiliates.
a. By the Company For Cause; By Executive for any Reason (other
than Good
Reason); Expiration of the Employment Term.
(i) The
Employment Term and Executive's employment hereunder may be
terminated
by the Company for Cause (as defined below) or by the Executive
for any
reason (other than Good Reason (as defined below)), subject to
the
notice
period required by this Section 6.
For purposes of this Agreement, "Cause" shall mean: (i) the
habitual,
intentional or willful failure of by the Executive to render
services to the
Company in accordance with her reasonably assigned duties and
responsibilities
under this Agreement (other than any such failure resulting from
the Executive's
Disability); (ii) willful misconduct or gross negligence of the
Executive in the
performance of her duties and reasonably assigned 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 her 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 violation of the
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reasonable 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 the Undertaking or any other breach of the
Undertaking
(defined below) other than as is reasonably believed to comply with
lawful legal
or administrative process; (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 she 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; provided, that in the event of (i)
above, the
Company shall provide written notice to Executive describing the
nature of such
event and Executive shall thereafter have thirty (30) business days
to cure such
event.
(ii) If
Executive's employment is terminated by the Company for Cause,
or
if
Executive terminates her employment hereunder for any reason other
than
Good
Reason (as defined below), Executive shall be entitled to receive
the
following
amounts (collectively, the "Accrued Obligations"):
(A) the
Base Salary through the date of termination;
(B) any
Annual Bonus earned but unpaid as of the date of termination
for
any
previously completed full calendar year;
(C) any
vacation days earned but unpaid as of the termination date for
previously
completed calendar year;
(D) any
vacation days earned but not taken; and
(E)
reimbursement for any unreimbursed business expenses properly
incurred
by
Executive in accordance with Company policy prior to the date
of
Executive's termination.
In addition, if the Employment Term and Executive's employment
under
this
Agreement is terminated by reason of the expiration of the
Employment
Term
following a notice of non-renewal by the Company or Executive,
Executive
shall be entitled to receive the Accrued Obligations.
Following such termination of Executive's employment by the
Company
for Cause,
by Executive for any
