VP Finance & Investor Relations (Ron Bentsur) Employment Agreement

Exhibit 10.1


EMPLOYMENT AGREEMENT


This Agreement by and between Keryx Biopharmaceuticals, Inc. ("Keryx"), a Delaware corporation having an address at 750 Lexington Avenue, New York, New York 10022, and Ron Bentsur, an individual residing at _________________________ ("Bentsur").


WITNESSETH:


WHEREAS, the Corporation desires to employ Bentsur and Bentsur desires to be employed by the Corporation as Vice President, Finance & Investor Relations of Keryx, all pursuant to the terms and conditions hereinafter set forth;


NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants herein contained, it is agreed as follows:


1. EMPLOYMENT DUTIES


(a) Keryx hereby engages and employs Bentsur, and Bentsur accepts engagement and employment, as Vice President, Finance & Investor Relations of Keryx, to direct, supervise and have responsibilities for the financial affairs and investor relations of Keryx and for any other appropriate areas and tasks which may be assigned to him. Bentsur will devote his entire business time, energy, abilities and experience to the performance of his duties, effectively and in good faith. Further, during the Term, Bentsur shall not render services as an employee, consultant or otherwise, whether or not during regular business hours, for pay to any other party other than the Corporation without the written permission of the Chief Executive Officer. Bentsur acknowledges and agrees that the performance by Bentsur of his duties hereunder may require significant domestic and international travel by Bentsur.


(b) Bentsur agrees to relocate to the New York City area as soon as possible but no later than the later of August 1, 2003 or the date on which Bentsur is authorized to begin working in the United States pursuant to a validly issued L-1 Visa (the "Effective Date"). Keryx agrees to reimburse Bentsur for relocation expenses in accordance with, and up to the limits set forth in Paragraph 3(e), below.


2. TERM


This Agreement shall commence on the Effective Date and shall continue unless sooner terminated as hereinafter provided in Paragraph 8 (the "Term").


3. COMPENSATION


(a) As compensation for the performance of his duties on behalf of Keryx, Bentsur shall be compensated as follows:


(i) Base Salary and Annual Increases. Bentsur shall receive an annual gross base salary of one hundred and sixty thousand dollars ($160,000) payable in accordance with the Corporation's payroll policies and subject to standard payroll deductions and withholdings. The payment of such base salary shall begin upon the first day that Bentsur begins work in the Corporation's New York office subsequent to the Effective Date. The Corporation's Board of Directors shall review Bentsur's performance and the Corporation's financial and operating results on at least an annual basis, and may adjust Bentsur's base salary as it, in its reasonable discretion, deems appropriate based on such review. In addition, it is agreed that his annual gross base salary will be increased by ten thousand dollars


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($10,000), to one hundred and seventy thousand dollars ($170,000) as of the first anniversary of the Effective Date.


(ii) Bonus. Bentsur shall be eligible to receive one or more bonuses during any calendar year in the discretion of the Chief Executive Officer, acting in consultation with the Board of Directors.


(b) Expenses. Keryx shall reimburse Bentsur for all normal, usual and necessary expenses incurred by Bentsur in furtherance of the business and affairs of Keryx, including travel and entertainment, against receipt by Keryx of appropriate vouchers or other proof of Bentsur's expenditures and otherwise in accordance with such Expense Reimbursement Policy as may from time to time be adopted by the Board of Directors of Keryx.


(c) Annual Leave and Holidays. Bentsur shall be entitled during the term of this Agreement to fifteen (15) business days of annual leave per year. In addition, Bentsur shall be entitled to those holidays set forth, from time to time, by the Company. The use and accrual of annual leave and holidays shall be subject to the Company's policy.


(d) Employee Benefits. During the Term of his employment, Bentsur shall be entitled to participate in all employee and fringe benefit plans and programs generally offered to other members of the Corporation's management who are similarly situated, including, without limitation, any pension, profit sharing, incentive, retirement, insurance, health and disability benefits and plans, to the extent that Bentsur is eligible under and subject to the provisions of such plans. The Corporation reserves its right to modify or terminate any of its employee and fringe benefit plans and programs at any time.


(e) Relocation Expenses. Upon the presentation of acceptable documentation, Keryx will reimburse Bentsur for certain reasonable expenses actually incurred in connection with his relocation to the NYC area, as follows:


(i) Costs incurred for himself and his spouse to travel to the New
York City area to find housing, including airfare, hotel,
rental car and food;


(ii) Out of pocket costs incurred in moving from his present
location in Israel to the NYC area, including transportation
for relocation for Bentsur (and his family).


(iii) Reimbursement up to a maximum of $10,000 for brokerage fees
associated with the leasing of a dwelling by Bentsur in the NY
area, moving expenses for personal belongings, and replacement
costs for certain home furnishings.


4. REPRESENTATIONS AND WARRANTIES BY BENTSUR AND KERYX


(a) Bentsur hereby represents and warrants to Keryx as follows:


(i) Neither the execution and delivery of this Agreement nor the performance by Bentsur of his duties and other obligations hereunder violate any statute, law, determination or award, or conflict with or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement, contract, or other instrument to which Bentsur is a party or by which he is bound.


(ii) Bentsur has the full right, power and legal capacity to enter and deliver this Agreement and to perform his duties and other obligations hereunder. This


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Agreement constitutes the legal, valid and binding obligation of Bentsur enforceable against him in accordance with its terms. No approvals or consents of any persons or entities are required for Bentsur to execute and deliver this Agreement or perform his duties and other obligations hereunder.


(b) Keryx hereby represents and warrants to Bentsur as follows:


(i) Keryx is duly organized, validly existing and in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business in the manner presently conducted.


(ii) Keryx has the full power and authority to enter into this Agreement and to incur and perform its obligations hereunder.


(iii) The execution, delivery and performance by Keryx of this Agreement does not conflict with or result in a material breach or violation of or constitute a material default under (whether immediately, or upon the giving of notice or lapse of time or both) the certificate of incorporation or by-laws of Keryx, or any agreement or instrument to which Keryx is a party or by which Keryx or any of its properties may be bound or affected.


5. CONFIDENTIAL INFORMATION


Bentsur agrees to sign and comply with the Corporation's Proprietary Information and Inventions Agreement, annexed hereto as Attachment A.


6. NON-COMPETITION


(a) Bentsur understands and recognizes that his services to Keryx are special and unique and agrees that, during the Term, and for a period of 12 months from the date of termination of his employment hereunder, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("Person"), enter into or engage in any business directly competitive with Keryx's business, either as an individual for his own account, or as a partner, joint venturer, treasurer, agent, consultant, salesperson, employee, officer, director or shareholder of a Person operating or intending to operate within the area that Keryx is, at the date of termination, conducting its business (the "Restricted Businesses"); provided, however, that nothing herein will preclude Bentsur from holding one percent (1%) or less of the stock of any publicly traded corporation. For a business to be "directly competitive", it would have to be developing a drug in the same class and for the same indication. For example, a company developing a GAG for Diabetic Nephropathy would be protected by this clause, however, a company developing a GAG for another disease or developing a drug other than a GAG for Diabetic Nephropathy would not be deemed directly competitive.


(b) In the event that Bentsur breaches any provisions of this Section 6 or there is a threatened breach, then, in addition to any other rights which Keryx may have, Keryx shall be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained herein. In the event that an actual proceeding is brought in equity to enforce the provisions of this Section 6, Bentsur shall not argue as a defense that there is an adequate remedy at law nor shall Keryx be prevented from seeking any other remedies that may be available.


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7. NON-SOLICITATION AND NON-INTERFERENCE


During the Term, and for 12 months thereafter, Bentsur shall not, directly or indirectly, without the prior written consent of Keryx:


(a) solicit or induce any employee of Keryx or any subsidiary, parent, affiliate or successor ("Affiliate") of Keryx to leave the employ of Keryx or any Affiliate or hire for any purpose any employee of Keryx or any Affiliate or any employee who has left the employment of Keryx or any Affiliate within six months of the termination of said employee's employment with Keryx; or


(b) interfere with or disrupt or attempt to disrupt Keryx's or its Affiliates' business relationship with any of their partners, service providers, clients, customers and/or suppliers.


8. TERMINATION


(a) Either party may terminate Bentsur's employment with the Corporation without cause at any time upon ninety (90) days' notice, provided, however that if such termination occurs in the first nine (9) months following the Effective Date, the Corporation shall pay Bentsur his full salary and benefits until the first anniversary of the Effective Date. The Corporation shall have the right, in its sole discretion, to require Bentsur to continue working for the Corporation during the notice period. If the Corporation terminates Bentsur without cause pursuant to this section, and only if Bentsur executes a waiver and release of claims substantially in the form set forth in Attachment B, attached hereto, the Board of Directors shall take the necessary steps so that (i) any outstanding, but unvested, options granted to the Employee shall vest upon the effective date of his termination; and (ii) the period during which the Employee shall be permitted to exercise such options shall be extended until the earlier of (A) two (2) years from the effective date of his termination as defined in the Stock Option Plan governing the options in question and (B) the expiration date of such options. Furthermore, in the event Bentsur is terminated by the Company, except in the event of termination for cause as per 8(c) below, within 12 months of the Effective Date, the Company shall pay Bentsur and his family their relocation expenses to Israel, provided that such relocation occurs within 4 months of the termination and, in the event that such relocation occurs within 12 months of the Effective Date, shall assume Bentsur's remaining obligations, if any, under his dwelling lease agreement for a period not to exceed 12 months from the Effective Date.


(b) In the event Bentsur's employment is terminated by his death or disability,) he shall be ent ...