EMPLOYMENT AGREEMENT
EXHIBIT 10.7
THIS AGREEMENT (the “Agreement”) is made this 1st day of January 2015, between Emerald Medical Applications Ltd., of 1 Xxxx Ayalon St., Modi’in, Israel (the “Company”), and Lior Wayn of 1 Xxxx Ayalon St., Modi’in, Israel (the “Executive” and each of the Company and the Executive, a “Party” and together the “Parties”).
WHEREAS, the Company desires to employ the Executive as the chief executive officer of the Company (“Position”) in accordance with the terms and conditions of this Agreement; and
WHEREAS, the Executive wishes to be employed by the Company in the Position and has the knowledge, skills, know-how, ability experience and expertise in order to fulfil his duties in connection with the Position.
NOW, THEREFORE, in consideration of the foregoing premises and the agreements and covenants herein set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. | Employment |
1.1 The Executive shall be employed in the Position and will report to the board of directors of the Company (“Board”).
1.2 The Executive shall be employed in a full time position. The weekly rest day of the Executive is Saturday.
1.3 The regular working days and hours of the Company, during which the Executive will be working, are Sunday through Thursday between 09:00 and 18:00; provided, however, that due to the seniority of the Executive’s position in the Company’s management requiring high degree of trust and the inability of the Company to supervise the actual working hours of the Executive, the Work and Rest Hours Law, 5710 – 1951 shall not apply to the relations between the Executive and the Company.
1.4 The Executive agrees to devote his full working time and professional attention to the business and affairs of the Company and to the performance of his duties hereunder and will carry out his job faithfully and devotedly, in accordance with the objectives of the Company, as they are defined from time to time by the Board. Nothing herein shall prevent the Executive from pursuing other activities provided such activities do not jeopardize the performance of his duties hereunder.
1.5 The Executive shall notify the Company immediately of every matter or transaction in which Executive has a personal interest and/or which might create a conflict of interest with Executive’s position in the Company.
1.6 The Executive shall not publicize or take any action that might result in adverse effect upon the Company’s reputation or business relationships, including, to the extent applicable, its clients, affiliates, business partners, officers, directors, owners or Executives.
1.7 The Executive represents and warrants to the Company that (i) entering into this Agreement does not result in any default under, or breach of any other Agreement or obligation to which Executive is a party to or bound by, (ii) the Executive has the requisite experience, capabilities, time and other resources needed to perform the duties of his employment.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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2. | Place of Employment |
2.1 The Executive’s regular place of employment shall be in the Company’s offices in Israel or elsewhere in Israel as otherwise informed by the Company, and may include travel and periods of stay abroad according to the requirements of the work to be performed for the Company, as determined by the Company from time to time.
3. | Salary |
3.1 The Company shall pay the Executive a monthly gross salary which, including all of the employer costs and social benefits associated with such salary (unless otherwise explicitly set forth in this Agreement), shall be equal to a sum of NIS46,000 (the “Salary”), paid within the first nine days of each calendar month, with respect to work performed during the preceding calendar month, during the term of the Executive’s employment hereunder. For the avoidance of doubt a copy of the expected pay slip of the Executive is attached to this Agreement as Exhibit A.
3.2 The Company and the Executive shall conduct discussions in good faith regarding increase of the Salary thirty days prior to each anniversary of this Agreement, such discussions and increase taking into consideration, inter alia, (i) increase in the scope of business of the Company and its activities and revenues, (ii) increase in the responsibilities and liabilities of the Executive, (iii) seniority of the Executive with the Company, and (iv) increase of the Israeli consumer price index.
3.3 Notwithstanding anything to the contrary, in the event that the Executive and the Company will decide that the Executive shall perform his duties not in Israel, the Parties shall discuss in good faith the new terms and conditions of the Executive’s employment, taking into consideration the country that the Executive is relocated to and a relocation payment to assist the Executive and his family to relocate. Such new terms and conditions may include, inter alia, health insurance for the Executive and his family, reimbursements of travel expenses to and from Israel to the Executive and his family, accommodation, participation in schools tuition, car expenses, etc. For the avoidance of doubt, all of the costs incurred by the Executive and his family due to the relocation shall be borne solely by the Company.
4. | Additional Compensation |
4.1 In addition to the Salary, the Executive shall be entitled to the following bonuses:
4.1.1 Revenue Based Bonus - a bonus in an amount equal to 5% of the monthly revenue of the Company during the calendar years ending December 31, 2015 and December 31, 2016. It is hereby clarified that for the purpose hereof, revenue shall include any income generated by the Company and/or any of its affiliates including, inter alia, license fees, royalty payments, exclusivity payment, etc. The Revenue Based Bonus shall be calculated on a monthly basis from the consolidated revenue of the Company, its subsidiaries and affiliates from time to time. The Revenue Based Bonus shall be paid 4 times a year, on March, June, September and December’s Salaries; and
4.1.2 An additional bonus in an amount equal to 7 month’s salary shall be payable only in the event that Zaxis International, Inc. (“Zaxis”) shall: (i) raise capital in the amount of at least US$1,150,000 through the sale of equity at a price of net less that US$0.80 per share; or (ii) warrants are exercised at not less than US$0.80 per share resulting in net proceeds to Zaxis of at least US$1,150,000.
4.2 Except as specifically set forth in this Agreement, any and all taxes and liabilities applicable from time to time in connection with the Salary, the foregoing bonuses, the Executive benefits provided for hereunder and/or any other payment which the Executive is entitled to Funder this Agreement, will be borne by the Executive solely and the Company shall be entitled to make any mandatory deduction and/or withholding.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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5. | Benefits |
5.1 The Executive shall be entitled to the following employee benefits and payments payable with respect to the Salary during his employment by the Company:
5.1.1 Pension Fund/Provident Fund/Managers Insurance.
The Company shall obtain and maintain either Managers Insurance (Bituach Menahalim) Policy, Pension Fund (Xxxxx Xxxxxx) Policy or Provident Fund Policy (Kupat Gemel) (either one referred as “Policy”), as designated by the Executive no later than three (3) days following the date hereof, which designation may be modified by the Executive, subject to applicable law, in a written notice to the Company to be provided within a reasonable time in advance, for the benefit of the Executive in accordance with applicable law.
The Pension Fund/Provident Fund/Managers Insurance will be calculate and paid from the total gross salary.
5.1.2 Severance Payment.
The Executive agrees and acknowledges that payments by the Company to the Policy under Section שגיאה! מקור ההפניה לא נמצא. above shall be in lieu of the Company’s statutory obligation to pay severance pay, in accordance with Section 14 of the Severance Pay Law, 5723-1963 and the approval of the Minister of Labor and Welfare, as amended on March 12, 2001, in the form attached hereto as Exhibit B (in Hebrew) which has been signed by the Executive concurrently herewith, and is hereby incorporated into this Agreement and constitutes an integral part hereof.
The Company hereby waives any right to receive any amount paid by the Company on account of the Policy, except in case Executive draws upon the Policy other than for an “Entitlement Event” (“Eruah Mezake” as defined in Exhibit B), and provided that (i) the Executive has, of Executive’s own and sole initiative, terminated employment without having given prior notice as provided in the Notice Period, except as a result of a termination due to circumstances beyond the Executive’s control, or (ii) the employment is terminated as a result of circumstances under which according to applicable law and/or employment agreement and/or judicial decision the Executive is not entitled to the full amount of severance pay that would otherwise be payable under the Severance Pay Law, 5723-1963, in such case those portions of the Policy constituting the Company’s severance payment contributions, should be refunded to the Company.
Upon the termination of the Executive’s employment, the Company shall release the Policy and transfer it into the name of the Executive, subject to, and without derogating from, the above provisions.
5.1.3 Sick Leave.
The Executive shall be entitled to sick leave in accordance with applicable law, provided, however, that the Executive shall be entitled to receive full payment for sick leave from the first such day of sick leave.
5.1.4 Annual Leave
The Executive shall be entitled to annual leave in accordance with the provisions applicable Israel law.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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5.1.5 Expense Reimbursement.
The Executive shall be entitled to receive reimbursement for actual business expenses arising out of travel, lodging, meals and entertainment in connection with the performance of duties hereunder, provided Executive submits proper documentation.
In addition, the Executive is entitled to receive reimbursement of up to NIS1,000 per month for ironing and dry cleaning, communication expenses, meals, entertainment, etc. against submittal of proper documentation.
5.1.6 Company Car
In addition to the Salary, the Executive will shall be entitled to receive a Company car for work related use only, subject to the Company’s policies as in effect from time to time and as communicated to the Executive. All maintenance expenses, gasoline expenses and applicable road tolls shall be borne by the Company. The Executive shall be responsible for any and all expenses or fines arising out of the Executive’s use of the Company car.
For the avoidance of doubt, any tax implications arising from any of the foregoing shall be borne solely by the Company (Gilum) in addition to the Salary.
5.1.7 Advanced Study Fund.
The Company shall contribute to an advanced study fund (Keren Hishtalmut) on the Executive’s behalf an amount equal to 2.5% of the Salary (which shall be deducted from the Executive’s gross Salary and paid to the advanced study fund), and on behalf of the Company, 7.5% of the Salary.
5.1.8 Recuperation Payment (“Dmei Havraah”).
The Executive shall be entitled to recuperation payments in accordance with applicable law and extension orders. The recuperation payments shall be made at such times as determined by the Company in accordance with the Company’s policy in effect from time to time, subject to applicable law and extension orders.
5.1.9 Mobile device.
The Executive shall be provided with a cellular smartphone and a cellular line with internet connection by the Company. All expenses in connection with the cellular smartphone and the cellular line shall be borne by the Company.
5.1.10 Memberships.
The Company shall bear all reasonable expenses incurred by the Executive relating to membership in any professional organization, social network, and other profession or career related memberships and expenses.
5.1.11 Others
The Employee will receive a computer for the work needs.
The employee is committed to take care and keep the computer from any damages.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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If the Employee will leave the Company (in any cases), he shell allows to buy the computer – in the 1st year, under a payment of 50% of the official price (as per ZAP), 25% at the 2nd year and 1% from the 3rd year and on.
6. | Electronic Mail Box |
6.1 The Company will provide the Executive with an electronic mail box (“Email”) for the Executive’s use in connection with his employment by the Company. The Email is intended for work related use only, and is and shall remain the exclusive property of the Company, as well as any messages, information or documentation contained therein. The Executive may use Executive’s own private electronic mail account for personal communication.
6.2 The Company may inspect the Email from time to time, as well as access, read, copy or erase messages and other information and documentation contained therein without prior notice.
7. | Intellectual Property Assignment and Confidentiality |
7.1 The Executive is aware that in the course of performance of this Agreement, the Executive will have access to and be entrusted with Confidential Information (as defined in Exhibit C) in respect of the Company and its affiliates and their respective dealings, transactions, affairs, customers or clients.
7.2 In addition, the Parties foresee that in the course of performance of this Agreement, the Executive will have access to and be entrusted with Confidential Information in respect of the Company and its affiliates and their respective dealings, transactions, affairs, customers or clients, and that the Executive may make, develop, discover or create any technology in the course of fulfilling his/her obligations pursuant to this Agreement, and agree that in this respect, the Executive has a special obligation to further the interests of the Company. In furtherance of the foregoing, the Executive, on or prior to the date hereof, has executed the Intellectual Property Assignment and Confidentiality Agreement, attached hereto as Exhibit C, which is hereby incorporated into this Agreement and constitutes an integral part hereof. For the avoidance of doubt, this Section 6 shall survive the termination of this Agreement for whatever reason.
7.3 The Executive acknowledges that the disclosure of the content of this Agreement to any third party, including any other employees, officers or other representatives of the Company, is reasonably likely to cause the Company severe damages. Therefore, the Executive agrees to keep this Agreement in confidence and not disclose its content to any Person.
8. | Non-competition, Non-solicitation |
8.1 Subject to applicable law, the Executive will not, during the Term (as defined below) and for the period of two (2) years following the termination of this Agreement (“Restricted Period”), without the prior written consent of the Board, on the Executive’s own behalf or on behalf of any Person (or as manager, agent, consultant or employee of any Person), either alone or jointly with others, directly or indirectly, carry on or be engaged by any means in any activity or business, which shall be similar to or in competition with the Business carried on by the Company on the relevant date during the Term or, with respect to any action taken following the termination of this Agreement, on the date of termination of this Agreement perform development activities, or develop technology, similar to the technology developed by or at the direction of the Company and in competition with the Company.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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8.2 For the avoidance of doubt, the stipulations set forth in this Non-competition provision do not apply to investments in shares and/or securities in any company traded on a recognized stock exchange, provided that, without the prior written consent of the Board, the Executive, on the Executive’s own behalf or on behalf of any Person (or as manager, agent, consultant or employee of any Person), either alone or jointly with others, directly or indirectly, shall acquire shares, with the exception of the acquisition of shares in a Company traded on a recognized stock exchange, not exceeding 5% (calculated on a fully diluted basis), in a Company that is engaged in a business that is the same or similar to the Business of the Company or is in regular business contact with the Company.
8.3 The Executive shall report to the Board if he becomes aware that a close relative of the Executive (which shall include the Executive’s spouse, parents, children, grandchildren and siblings, including adoptive relationships and relationships through marriage, or any other relative of Executive that shares the Executive’s home) has become an equity holder, a director or an officer of a Person, engaged in a business that is the same or similar to the Business of the Company or is in regular business contact with the Company.
8.4 Subject to applicable law, Executive shall not, during the Restricted Period, without the prior written consent of the Board, in connection with the carrying on of any business similar to or competing with the Business carried on by the Company on the relevant date during the Term or, with respect to any action taken following the termination of this Agreement, on the date of termination of this Agreement, on the Executive’s own behalf or on behalf of any Person (or as manager, agent, consultant or employee of any Person), either alone or jointly with others, directly or indirectly, (i) seek to procure orders from or conduct business with any Person, who has at any time during the period of two (2) years immediately preceding the relevant date, conducted business with or been a customer or client of the Company and with whom the Executive (in his capacity as representative or Executive of the Company) has had business dealings during the Term, or (ii) endeavor to entice away from the Company any employee or any service provider of the Company, who has at any time during the period of two (2) years immediately preceding the relevant date, been employed or engaged by the Company. Provided, however, that nothing herein shall prohibit (i) the seeking or procuring of orders or the conduct of any business not relating or similar to the Business, (ii) any general solicitation not directed specifically at the Company’s employees of service providers or (iii) any discussions with or employment of any person who approached the Executive on his own initiative.
8.5 The Executive acknowledges that the restrictions set under this Non-competition and Non-solicitation provision are fair and reasonable, and essential for protection of the Company’s business, the Company’s proprietary rights and other legitimate interests of the Company, in view of the nature of the business in which the Company is engaged and obligations it has undertaken.
8.6 Executive further acknowledges that the above restrictions are customarily complied with by persons situated in a similar position, correspond with fair dealing requirements and are adequate in light of the Executive’s usage of the Company’s resources during Executive’s employment hereunder and participation in the Company’s development activities. In addition, such restrictions are fully compensated for by the Salary, employee benefits and options granted hereunder, in the amount consisting of 15% of the Salary and of employee benefits (“Special Compensation”), are not likely to have a material adverse effect upon Executive’s professional position and promotion opportunities during the Restricted Period.
8.7 Executive further acknowledges that this Non-competition and Non-solicitation provision is material to the Company in light of its obligations and nature of activity, that the Company would not have entered into this Agreement without such undertaking by the Executive and that the Company shall be entitled to seek, in addition to any other remedies applicable, special performance and return of the special compensation.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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8.8 Notwithstanding anything contained herein, if any restriction under this Non-competition provision should be held by a court of competent jurisdiction to be unenforceable under applicable law to its fullest scope, then the restrictions hereunder shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the restrictions, as determined by such court of competent jurisdiction. For the avoidance of doubt, this Section שגיאה! מקור ההפניה לא נמצא. shall survive the termination of this Agreement for whatever reason.
9. | Term and Termination |
9.1 This Agreement and the Executive’s employment hereunder shall be in effect as of the date first set above and until terminated in accordance with the provisions of this Agreement.
9.2 At any time after the date of this Agreement, either the Company or the Executive may terminate this Agreement on at least one hundred and eighty days (180) days advance notice (the “Notice Period”). It is hereby clarified that during the first 90 days of the notice period the Executive shall be required, at the sole discretion of the Company, to attend his position in, and provide services to the Company, whereas, during the second half of the Notice period the Executive shall be entitled to receive all of the rights under this Agreement but shall not be required to provide any services to the Company.
9.3 The Company shall have the right, at its sole discretion, to ask the Executive to cease working or to continue to work during all or part of the Notice Period. The Executive will cooperate with the Company to ensure an orderly transfer of responsibilities and know-how to the Executive’s substitute and/or the Board.
9.4 The Company may terminate the Executive’s employment for Cause upon delivering a notice with immediate effect, without obligation for any severance payment. For purposes of this Agreement, termination for “Cause” shall mean and include: (i) breach of any undertaking relating to confidentiality, non-competition, non-solicitation or intellectual property towards the Company; (ii) severe breach of discipline, including any refusal to carry out a directive of the Board, which directive is capable of being lawfully performed, (iii) breach of fiduciary duty towards the Company; and (iv) any cause which allows the Company to terminate the Agreement without obligation to pay severance payment in accordance with applicable law.
9.5 Promptly upon request by the Company, and in any event immediately upon termination of this Agreement, the Executive shall hand over to the Company (i) all work related documents (without retaining any copies to Executive) in whatever form and irrespective of whether prepared by Executive or not, as well as documents that have otherwise come to Executive’s possession following her employment by the Company, and (ii) all other property of the Company. Executive shall assist the Company with due transition of the Executive’s know-how and responsibilities to the Executive’s substitute and/or and Supervisor.
10. | General |
10.1 This Agreement is personal and the terms and conditions of the employment shall be conclusively as set forth herein, and the provisions of any collective agreement, collective arrangement or other custom of any kind shall not apply as far as not mandatory upon the Parties. The Executive may not assign this Agreement or any of its terms, conditions, obligations or rights herein to any person and must perform personally all of the undertakings by him herein.
10.2 This Agreement is the entire agreement between the parties with respect to the subject matter hereof, supersedes all prior understandings, agreements and discussions between them, oral or written, and is for the sole benefit of the Parties.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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10.3 Any amendment or modification of this Agreement shall be made by writing only and signed by both Parties. No waiver by either party hereto of any of the requirements imposed by this Agreement on, or any breach of any condition or provision of this Agreement to be performed by, the other party shall be deemed a waiver of a similar or dissimilar requirement, provision or condition of this Agreement at the same or any prior or subsequent time. Any such waiver shall be express and in writing, and there shall be no waiver by conduct. Pursuit by either party of any available remedy, either in law or equity, or any action of any kind, does not constitute waiver of any other remedy or action. Such remedies are cumulative and not exclusive.
10.4 If any provision of this Agreement shall be held invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and the parties undertake to implement all efforts which are necessary, desirable and sufficient to amend, supplement or substitute all and any such invalid, illegal or unenforceable provisions with enforceable and valid provisions which would produce as nearly as may be possible the result previously intended by the parties without renegotiation of any material terms and conditions stipulated herein.
10.5 All notices, consents, approvals, agreements, authorizations, acceptances, rejections and waivers under this Agreement must be in writing and shall be deemed given when: (i) delivered by hand or private, prepaid courier service to the person specified for the receiving Party at the address specified above; or (ii) mailed to that addressee at that address by a recognized express mail carrier with package tracking capability or certified mail, return receipt requested, with postage fully prepaid; or (iii) transmitted by facsimile. A notice by facsimile shall be deemed given, subject to electronic confirmation of delivery, on the date of receipt if a business day, or on the following business day if received on a day that is not a business day. Each Party may change the address or person for notification upon 10 days’ notice to the other Party. The initial notification information is as set forth above.
10.6 This Agreement and the rights and obligations arising from it shall be governed by and construed in accordance with the laws of the State of Israel. The competent courts located in Tel Aviv, Israel, shall have sole jurisdiction regarding all matters arising from the matters herein or from the employment relations between the Parties.
10.7 No term of this Agreement shall survive expiry or termination of this Agreement unless expressly provided.
10.8 This Agreement is for the sole benefit of the Parties and their permitted assigns and each such Party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any Person other than the Parties, their permitted assigns.
10.9 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument. Signed counterparts of this Agreement may be delivered by facsimile and by scanned .pdf image.
10.10 Certain capitalized terms defined in Exhibit D shall have the respective meanings ascribed to them therein.
[Signature page to follow]
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on the day and year set forth above.
Company | Lior Wayn |
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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EXHIBIT A
[Sample of Pay Slip]
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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EXHIBIT B
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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EXHIBIT C
INTELLECTUAL PROPERTY ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS INTELLECTUAL PROPERTY ASSIGNMENT AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of 1 January 2015 (the “Effective Date”) by and between Emerald Medical Applications Ltd. (together with any current or future subsidiary, the “Company”) and Lior Wayn (the “Executive”).
I wish to enter into this Agreement, effective as of the Effective Date and agree that this Agreement shall constitute a material part of the consideration for my employment with the Company, and in consideration of the mutual promises and agreements contained herein and in my employment agreement with the Company, and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I agree as follows:
1. | Intellectual Property |
A. Assignment of Inventions. As between the Company and myself, I agree that all right, title, and interest in and to any and all ideas, copyrightable material, notes, records, data, formulas, source and object code, drawings, designs, inventions (whether patentable or not), improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with others, during the period of time I am employed by the Company (including during my off-duty hours), or with the use of Company’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, know-how, mask work rights or other intellectual property rights relating to the foregoing (collectively, “Inventions”), are the sole property of the Company. I also agree to promptly make full written disclosure to the Company of any Inventions, and to deliver and assign and do hereby irrevocably assign fully to the Company the entire right, title, and interest throughout the world in the Inventions, including all copyright registrations, patent applications (including, but not limited to, provisional applications, non-provisional applications, PCT applications, and national stage applications) relating thereto, and all divisions, continuations, continuations-in-part, reissues, and reexaminations thereof, and all rights of priority under International Conventions and any related Letters Patent, which may hereafter be granted or filed in any country, all extensions, renewals and reissues thereof. I agree that this assignment includes a present conveyance to the Company of ownership of Inventions and rights of priority under International Conventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and are protectable by copyright are “works created by employees” as these terms are defined in the Israeli Copyright Act, 2007, and are the sole property of the Company. I understand and agree that the decision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s sole benefit, and that no royalty or other consideration will be due to me as a result of the Company’s efforts to market, commercialize, license, or sell, or any such Inventions. I hereby irrevocably waive any claims and any rights in respect of the Inventions assigned or to be assigned to the Company under or by virtue of this Agreement. I acknowledge that 10% of my consideration is paid as special supplementary compensation in consideration for my Inventions created, conceived, discovered, authored, invented and/or developed during the period of time I am employed by the Company (including during my off-duty hours), or with the use of Company’s equipment, supplies, facilities, or Company’s Inventions (the “Special Invention Compensation”). I warrant and represent that the Special Invention Compensation constitutes a real, appropriate and full consideration to any prejudice I may suffer in connection with my Inventions.
I hereby irrevocably waive any past or future claims for compensation or royalties in connection with the Inventions under this Agreement, including, without limitation, any right to future payments in connection with the commercialization of IP under Section 134 of the Israeli Patents Law and any right to receive compensation in connection with “Service Inventions” under Section 134 of the Israeli Patent Law of 1967, or any other similar provision under any applicable law of any applicable jurisdiction. I shall indemnify and hold the Company harmless against any claims or demands (including all legal costs), submitted by me, on my behalf and/or by any other third party (including the Israeli tax authorities) against the Company or any of its affiliates in respect of the above.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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B. Pre-Existing Materials. I have attached hereto as Schedule 1, a list describing all inventions, discoveries, original works of authorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me or in which I have an interest prior to, or separate from, my employment with the Company, and which relate to the Company’s proposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, I represent and warrant that there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on Schedule 1, they will not materially affect my ability to perform all obligations under this Agreement. I will inform the Company in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course of my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related thereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Invention without the Company’s prior written permission.
C. Moral Rights. Any assignment to the Company of Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, I hereby acknowledge that all Inventions were made as “works created by employee” conceived, discovered, authored, invented, developed or reduced to practice by me, in accordance with the Company’s specific instructions, directions and interests for the sole benefit and use of the Company. Furthermore, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
D. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company. The records may be in the form of notes, sketches, drawings, electronic files, emails, reports, or any other format that may be specified by the Company. As between Company and myself, the records are and will be available to and remain the sole personal property of the Company at all times and the Company shall enjoy the benefits attributed to all such personal property. I also agree to assign and do hereby irrevocably assign fully to the Company the entire right, title, and interest throughout the world in the written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company. I agree that this assignment includes a present conveyance to the Company of ownership of the written records of all Inventions, rights of reference thereto, and rights of priority under International Conventions that are not yet in existence.
E. Further Assurances. I agree to assist the Company, or its designee, at the Company’s expense, in every reasonable way to secure the Company’s rights in the Inventions, the written records of all Inventions, the rights of reference thereto, and the rights of priority under International Conventions in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, declarations, assignments, and all other instruments that the Company shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and interest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions, the written records of all Inventions, the rights of reference thereto, and the rights of priority under International Conventions. I further agree that my obligations under this Section 1.E shall continue after the termination of this Agreement.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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F. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, unwillingness to participate, mental or physical incapacity, or for any other reason to secure my signature with respect to any Inventions, the written records of all Inventions, the rights of reference thereto, and the rights of priority under International Conventions including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations seeking to protect the same, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact, to act for and on my behalf to execute and file any papers and oaths, or declarations and to do all other lawfully permitted acts with respect to such Inventions, the written records of all Inventions, the rights of reference thereto, and the rights of priority under International Conventions so as to acquire protection for such property and/or further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.
2. | Confidentiality |
A. Confidential Information. I am aware that the Company possesses valuable information which has commercial value to the Company, and that in the course of my employment with the Company, I had or will have access to and be entrusted with technical or business information (and documentation) of the Company, its Affiliates, clients, customers, suppliers (including contractors) and other third parties doing business with the Company, whether disclosed to, accessed by or otherwise learned by the Company, including: (i) all information marked as confidential (or with words of similar meaning); (ii) information that is received from a third-party under conditions of confidentiality; (iii) all information relating to the products, formulations, specifications, Inventions, manufacturing processes and business affairs of the Company; (iv) anything developed by reference to the information described in this definition and any notes, analysis summaries and similar documents prepared in connection therewith; (v) “inside information,” including any material, non-public, price-sensitive corporate or market information relating to the Company, its Affiliates, clients, customers, suppliers (including contractors) and other third parties doing business with the Company, that is acquired in connection with the development of products by the Company for any third party, and (vi) certain health and/or medical information of individuals using the Company’s services (the “Confidential Information”).
B. Confidentiality. I shall keep all Confidential Information in strict confidence and shall not (except in the proper course of my duties), during or at any time after the employment and for as long as this Agreement requires, including Section E below, disclose to any person or otherwise make use of (and shall use my reasonable best endeavors to prevent the publication or disclosure of) any Confidential Information except in connection with my employment with the Company where sharing the information is needed for me to perform my duties.
C. Surrender of Confidential Information. All notes, memoranda, documents and/or other written Confidential Information (including in electronic form) concerning the business, Inventions, operations and affairs of the Company, or any of its or their suppliers, agents, distributors or customers, which shall be acquired, received or made by me during the course of the employment, shall be the property of the respective entity and shall be surrendered by me to that entity at the termination of the employment, or at the request of the Company’s chief executive officer, at any time during the course of the employment.
D. Exceptions. This clause 2 shall not apply to information: (i) that is on the Effective Date, or has subsequently come into the public domain otherwise than by the breach by me of this Agreement or any other obligation of confidentiality by which I am bound contractually, by law and/or regulation of any form and nature; or (ii) disclosed as mandatorily required by law or regulation, legal process, judicial order, or other governmental order, or stock exchange regulations.
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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E. Confidential Information of Third Parties. I will not disclose to the Company, or induce the Company to use, any confidential information belonging to others for which I am not authorized to share with Company. I will not directly or indirectly use any other party’s confidential information in connection with my employment with the Company, unless authorized by the other party. I will honor any and all legal obligations I have to previous employers or other persons or companies with respect to such parties’ confidential information.
F. Confidentiality Obligations Survive. My obligations hereunder shall survive for three (3) years following any termination or expiration of my employment with the Company, or this Agreement, provided, that confidentiality obligations with respect to Confidential Information constituting trade secrets shall continue for as long as such Confidential Information shall be eligible for trade secret protection under applicable law.
G. Breach of Confidentiality. I hereby acknowledge that a breach of an obligation under this clause 2 shall contradict the nature of the special trust and relationship of loyalty between the Company and me, the fair and proper business practices, the duty of good faith and fairness between the Company and me, shall harm the Company, and shall constitute a material breach of this Agreement and the trade secrets, Confidential Information, and other privileged interests of the Company. The Company shall be entitled to seek specific performance to enforce my obligations in this Agreement.
H. Medical Information and Privacy. Without derogating form the foregoing, I am aware that I might be exposed to certain health and/or medical information of individuals, subject to various privacy and security requirements of different jurisdictions, including (but not limited to) Israeli legislation and U.S legislation, such as the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic & Clinical Health Act and Reinvestment Act of 2009 (“HIPAA”), all of which are deemed Confidential Information. I am aware that disclosure of such medical Confidential Information is likely to cause grave personal, financial and other damages to the Company and to individuals to whom such information belongs, and anything to the contrary herein notwithstanding, such medical and/or health related Confidential Information must be kept in strict confidence, may not be copied or removed from the premises of the Company and may not be disclosed at any time to any person without prior written instruction by the Company. The provisions of this Section H shall remain in force and effect perpetually during the term of this Agreement and following its termination for any reason whatsoever.
3. | Miscellaneous |
A. Validity. If any provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions will nonetheless be enforceable according to their terms. Further, if any provision is held to be overbroad as written that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.
[Signature page to follow]
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR REPRESENTIONS HAVE BEEN MADE TO ME IN ORDER TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.
/s/: Lior Wayn | ||
Name: | LIOR WAYN | |
Date: | 01/01/2015 |
Accepted and agreed:
/s/: Lior Wayn | |
EMERALD MEDICAL APPLICATIONS LTD. | |
Name: Lior Wayn | |
Date: 01/01/2015 |
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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Schedule 1
Pre-Existing Inventions
None
Emerald Medical Applications Ltd.
1 Xxxx Ayalon St. Modiin 7170634, Israel
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EXHIBIT D
Certain Definitions
“Business” | means the business conducted by the Company from time to time. |
“Person” | means any entity, corporation, company, joint stock company, partnership, limited liability company, trust, organization, individual (including personal representatives, executors and heirs or a deceased individual), trustee, receiver or liquidator, or governmental or any other regulatory agency. |
“Technology” | means all Israeli and non-Israeli: (i) patents and applications therefor, including all continuations, continuations-in-part, divisions, extensions, provisionals, re-examinations, reissues and renewals thereof; (ii) trademarks, service marks, trade dress, trade names, taglines, brand names, logos, symbols, corporate names and all other indicia of origin, all registrations and applications for all of the foregoing, including all extensions, modifications and renewals thereof and all goodwill related thereto; (iii) published and unpublished works of authorship (including software in both source code and object code), mask works and moral rights, copyrights therein and thereto, and all registrations and applications for all of the foregoing, including all extensions, renewals, restorations and reversions thereof; (iv) trade secrets, know-how, inventions, discoveries, ideas (whether patentable or not), technical information, processes, procedures, databases, designs, confidential business information, specifications and other proprietary information and rights; (v) domain names and Internet addresses; and (vi) all other intellectual property or proprietary rights and claims or causes of action arising out of or related to any infringement, misappropriation or other violation of any of the foregoing, including rights to recover for past, present and future violations thereof. |
Emerald Medical Applications Ltd.
1 Xxxx Xxxxxx Xx. Xxxxxx 0000000, Xxxxxx
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