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Form 10-K Orgenesis Inc. For: Dec 31

March 9, 2021 12:18 PM EST

 

Exhibit 10.45

 

EXECUTIVE DIRECTORSHIP AGREEMENT

 

This Executive Directorship Agreement (the “Agreement”) is made and entered into as of November 19, 2020, by and between Orgenesis Inc., a Nevada corporation (“Company”) and Vered Caplan (“Director” or “Chairperson”).

 

WHEREAS, Director and Company are currently parties to an Executive Employment Agreement dated March 30, 2017 (the “Prior Agreement”), pursuant to which Director serves on behalf of the Company as (i) Chairperson of the Board of Directors, (ii) Chief Executive Officer, and (iii) President;

 

WHEREAS, Company and Director desire to enter into this Agreement pursuant to which Director will continue to serve as Chairperson of the Board of Directors of the Company (the “Board”); and,

 

WHEREAS, this Agreement will supersede and replace in its entirety the Prior Agreement (and any related secondment or similar agreements Director entered into while the Prior Agreement was in effect), and as a result the Prior Agreement (and any related secondment or similar agreements Director entered into while the Prior Agreement was in effect), shall be of no further force or effect.

 

NOW, THEREFORE, in consideration of the mutual promises, terms, provisions, and conditions contained herein, the parties agree as follows:

 

1)Roles and Duties.

 

(a)Chairperson of the Board of Directors. Subject to the terms and conditions of this Agreement, Company shall continue to appoint Director as its Chairperson of the Board.
   
(b)Duties. The duties and responsibilities of Director shall include the duties and responsibilities for the position as Chairperson as set forth in the Company’s bylaws, and such other duties and responsibilities as the Board may from time to time reasonably assign to Director.
   
(c)Classification. Director in her capacity of Chairperson of the Board shall be classified as an independent contractor of the Company for Federal income tax purposes.
   
(d)No Conflicting Obligation. Director represents and warrants to Company that she is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with her obligations under this Agreement.
   
(e)Chairperson Term and Termination.

 

(i)Term. This Agreement shall be in effect commencing as of October __, 2020 (the “Commencement Date”) and shall continue in full force and effect until terminated pursuant to the terms hereof.

 

 
 

 

(ii)Termination. Director’s appointment as Chairperson may be terminated by either party, at any time, pursuant to the delivery of ninety (90) days prior written notice (the “Notice Period”); provided however, if Company terminates Director as the Chairperson of the Board but she remains as a regular Director, such termination of only the Chairperson position shall nonetheless be treated as a termination event under this Agreement.

 

(1)During the Notice Period and unless otherwise determined by Company, Director shall continue to perform her duties as Chairperson until the conclusion of the Notice Period, and cooperate with the Company in assisting the integration of the person who will assume Chairperson’s responsibilities.
   
(2)Notwithstanding the aforementioned, Company shall have the right not to take advantage of the full Notice Period and may terminate Director’s appointment as the Chairperson at any time during the Notice Period (regardless of whether notice of termination was delivered by the Company or whether such notice was delivered by Director). In the event of such termination, Company shall pay Director her Chairperson level Board fees due to her hereunder as she would have been entitled to receive for the remaining period of the Notice Period.
   
(3)Payments Upon Termination:

 

a.For the purposes of this Agreement, “Accrued Obligations” means: (i) the portion of Director’s fee that has accrued, prior to the end of the present Agreement and has not yet been paid or compensated; and (ii) the amount of any expenses properly incurred by Director on behalf of Company prior to the end of the present Agreement and not yet reimbursed. Director’s entitlement to any other compensation or benefit under any plan of Company shall be governed by and determined in accordance with the terms of such plans, except as otherwise specified in this Agreement.
   
b.As used herein, a “Change of Control” shall mean the occurrence of any of the following events: (A) The approval by shareholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or (B). The approval by the shareholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.

 

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c.In the event of termination of this Agreement by Company other than for cause or by Director for any reason whatsoever, Director shall be entitled to receive, in addition to the Accrued Obligations, a lump sum payment equal to the sum of (x) Director’s annual regular Board fee at the rate in effect as of the termination date (i.e., as of the last day of the Notice Period), and (y) the greater of actual or target annual performance bonus if so approved by the compensation committee to which Director may have been entitled as of the termination date (i.e., as of the last day of the Notice Period), in each case less all customary and required taxes and related deductions.
   
d.In the event that a Change of Control (as defined above) occurs and that, within a period of one (1) year following the Change of Control, then this Agreement is terminated either by Company other than for cause, or by Director for any reason whatsoever, then, in addition to the Accrued Obligations, Director shall receive a lump sum payment equal to one and a half times the sum of (x) Director’s annual regular Board fee at the rate in effect as of the termination date (i.e., as of the last day of the Notice Period), and (y) the target annual performance remuneration to which Director may have been entitled as of the termination date (i.e., as of the last day of the Notice Period), in each case less all customary and required taxes and related deductions as approved by the compensation committee.

 

2)Compensation.

 

(a)Board Fees. Director shall receive in consideration for her serving as Chairperson of the Board an annual regular Board fee in the amount of $75,000 payable by Company in equal quarterly installments in advance. In addition, Director may be eligible for non-recurring special Board fees as reviewed and approved by Company’s Compensation Committee and then reviewed and ratified by the Board.
   
(b)Reimbursement of Expenses. Company shall reimburse Director for all ordinary and reasonable out-of-pocket business expenses incurred by Director in furtherance of the Board’s business in accordance with Company’s policies with respect thereto as in effect from time to time. Director must submit any request for reimbursement no later than ninety (90) days following the date that such business expense is incurred.
   
(c)Stock Options. Director may be granted options awards from time to time, as per the discretion of the compensation committee of Company.

 

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3)Miscellaneous Provisions.

 

(a)Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of Director, mailed notices shall be addressed to her at the home address, which she most recently communicated to Company in writing. In the case of Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
   
(b)Modifications and Waivers. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Director and by an authorized officer of the Company (other than Director). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
   
(c)Whole Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof. No other agreements, representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth in such agreements have been made or entered into by either party with respect to the subject matter hereof.
   
(d)Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.
   
(e)Choice of Law and Severability. This Agreement shall be interpreted in accordance with the laws of the State of Nevada. If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision shall be stricken and the remainder of this Agreement shall continue in full force and effect. Should there ever occur any conflict between any provision contained in this Agreement and any present or future statute, law, ordinance or regulation contrary to which the parties have no legal right to contract, then the latter shall prevail but the provision of this Agreement affected thereby shall be curtailed and limited only to the extent necessary to bring it into compliance with applicable law. All the other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation. To the extent applicable, the payments under this Agreement are intended to be exempt from the application of, or to comply with the requirements of, Section 409A and Section 457A of the Internal Revenue Code of 1986, as amended, and to the extent permitted this Agreement, and any ambiguity herein, shall be interpreted, construed and administered in accordance with such intent.

 

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(f)Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, or the Director’s appointment as Chairperson or the termination thereof, shall be settled in New York, New York, by arbitration in accordance with the National Rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding on the parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties hereby agree that the arbitrator shall be empowered to enter an equitable decree mandating specific enforcement of the terms of this Agreement. Company and the Director shall share equally all fees and expenses of the arbitrator. Director hereby consents to personal jurisdiction of the state and federal courts located in the State of New York for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants.
   
(g)Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

[Signature Page to Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

VERED CAPLAN ORGENESIS INC
         
    By:            
Signature     Name:   
Address:     Title:  

 

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Exhibit 10.46

 

PERSONAL EMPLOYMENT AGREEMENT

 

THIS AGREEMENT (“Agreement”) is made and entered into November 19, 2020 and is effective as of October 1, 2020 (“Effective Date”), by and between Orgenesis Services Sàrl, a Swiss corporation (the “Company”), and Vered Caplan (the “Employee”).

 

WHEREAS, the Company is a wholly-owned, direct subsidiary of Orgenesis, Inc. (“Parent”);

 

WHEREAS, it is intended that the Company will enter into a services agreement with Parent to provide strategic services to the Parent pursuant to a Services Agreement dated as of November 10, 2020; (“Services Agreement”):

 

WHEREAS, Employee will be a material provider of services in the Services Agreement;

 

WHEREAS, the Employee, pursuant to a separate appointment by the Parent, will continue as the Chairperson and a member of the board of directors of Parent.

 

NOW, THEREFORE, in consideration of the mutual premises, covenants and undertakings contained herein, the parties hereto have hereby agreed as follows:

 

1.Employment, Position And Duties.

 

1.1Position. Effective as of October 1, 2020 (the “Start Date”), the Employee will serve as the Chief Executive Officer (“CEO”) and President of the Company and, in such other related capacity as the Company may from time to time reasonably require. The Employee will also continue to serve as the Chairperson of the Board of Directors of the Company (the “Company Board”).
   
1.2Duties. The Employee will perform such duties as are regularly and customarily performed by the CEO and President of a company, including but not limited to, being accountable and responsible for overall direction, strategy, research, development and operations of the Company, including fundraising and regulatory compliance.
   
1.3Location. The Employee will carry out her work from her home office in Switzerland or out of the offices of the Company in Switzerland, at her discretion. The Employee acknowledges that she may be required to travel in connection with the performance her duties for the Company and in her capacity as Chairperson of Parent.
   
1.4Reporting. The Employee shall take directions from the Company’s Board.
   
1.5Time and Efforts. During the Employee’s employment with the Company, the Employee will:

 

1.5.1diligently, honestly and faithfully serve the Company and use her best efforts to promote and advance the interests of the Company;

 

 
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1.5.2devote significant time and effort and attention to the business and affairs of the Company and its affiliates and subsidiaries; and,
   
1.5.3perform her duties in accordance with applicable laws and in accordance with the policies and procedures of the Company as the same may be established and revised by the Company from time to time.

 

2.Remuneration, Expenses And Other Benefits

 

2.1.Salary.

 

2.1.1.For fulfilment of the Employee’s obligations as CEO and President of the Company under this Agreement, commencing October 1, 2020, the Company shall pay the Employee a gross monthly salary of CHF 13,345.05 (the “Base Salary”), payable in accordance with the Company’s payroll practices, but in no event less frequently than monthly.
   
2.1.2.The Employee acknowledges that the Base Salary includes all compensation for overtime. Thus, no overtime shall be paid or compensated.
   
2.1.3.The Employee agrees and acknowledges that her position is one that requires a special measure of personal trust and loyalty and constitutes a high leadership position according to Article 3 lit. d of the Swiss Federal Act of March 13, 1964 on Work in Industry, Trade and Commerce (LTr).
   
2.1.4.Any employment relationship in the Company is built on trust and on work during flexible hours. According to this principle, the Employee’s work and rest hours are determined according to the Company’s needs, taking into consideration the Employee’s needs and the needs of the Company. Therefore, insofar as this shall be required by virtue of work needs, the Employee shall be expected to be available to the Company also during irregular and exceptional hours, beyond the normal workday in Company.
   
2.1.5.The Base Salary includes the last cost of living allowance that has been paid before signing this Agreement. The Base Salary shall be updated according to the cost of living allowance that shall be in force from time to time, and it shall be paid to the Employee not later than the ninth day of each month, for the previous month.

 

2.2.Representation fees. The Company will pay Employee CHF 24,000 annual representation fees in monthly instalments of CHF 2,000 per month.
   
2.3.Pension plan.

 

2.3.1.For the work performed for the Company, the Employee shall participate in the Company’s pension plan. The contributions and the benefits are determined by the rules and regulations of the pension plan, as amended from time to time. The Employee’s contributions are deducted by the Company from the gross Salary.

 

 
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2.4.Cellular Phone and Internet Services.

 

2.4.1.The Company shall provide the Employee with a cellular phone (the “Cellular Phone”) to be placed at the Employee’s disposal for her use in the course of performing her obligations under this Agreement, provided that the Company’s procedures in respect thereof are followed.
   
2.4.2.The Employee shall return the Cellular Phone (together with any other equipment supplied) to the Company’s principal office upon termination of her employment under this Agreement. The Employee shall have no property rights with respect to the Cellular Phone and/or any of said other equipment.
   
2.4.3.The Employee shall bear any taxes levied in connection with the Cellular Phone and/or the use thereof.
   
2.4.4.The Company shall pay for internet services provided to the Employee for her home computer. The Employee shall bear any taxes that may be levied in connection therewith.

 

2.5.Travel allowance. The Company shall provide the Employee with a travel allowance of CHF 1,200 per month, which shall be paid monthly in accordance with the Company’s payroll practices.
   
2.6.Stock Options. The Employee may be granted options awards from time to time, as per the discretion of the compensation committee of Parent.
   
2.7.Bonus. Any bonus payable to the Employee for any year is at the absolute discretion of the Company and its compensation committee. In particular, the eligibility criteria as well as any payment under the bonus plan, if applicable, will be determined by the Company and its compensation committee at their absolute discretion. The Company may modify or repeal the discretionary bonus plan, if applicable, at its discretion at any time. Furthermore, any bonus payment for one or more years does not grant a right to any future bonuses.
   
2.8.Expenses. The Company will reimburse the Employee for expenses reasonably and properly incurred by her in the performance of her duties and responsibilities under this Agreement, in accordance with a budget that will be pre-approved.
   
2.9.Vacation. The Employee will be entitled to five (5) weeks paid vacation each calendar year to be taken at such time or times as the Employee may select and as the Company Board may reasonably approve, having regard to the business affairs and operations of the Company.
   
2.10.Indemnity and D&O Insurance. The Company agrees to arrange to allow the Employee to benefit from any director and officer liability insurance coverage policy carried by either of them. In addition, the Company shall provide Employee with an indemnification agreement at least as favorable as those provided to other senior executive officers and directors of Parent.

 

 
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3.Employment Period and Termination Thereof.

 

3.1.The Employee’s employment by the Company shall commence on the date specified in this Agreement, and shall not be limited in time.
   
3.2.The Employee’s employment may be terminated by either party subject to the delivery of prior written notice by the terminating party, as follows: (i) at least six (6) months in advance if the termination is by the the Employee for any reason or by the Company other than for just cause according to Article 337 Swiss Code of Obligations (SCO) as described in Appendix A hereto “Just Cause”); and (ii) at least twelve (12) months in advance, if termination is by the Company following a Change of Control (as defined below) other than for Just Cause and (iii) on the day of termination if the termination is for Just Cause (the “Notice Period”).
   
3.3.The provisions of Section 2 of Appendix A attached hereto shall apply to the terms of termination of Employee’s employment.

 

4.Social Security Contributions.

 

The Employee and the Company shall each pay half of the contributions, which are owed as a matter of law for AVS (Old Age and Survivors’ Insurance), AI (Invalidity Insurance), APG (Loss of Earnings Insurance), AC (Unemployment Insurance). The Employee’s contributions are deducted by the Company from the gross Salary.

 

5.Sick Leave.

 

In case the Employee is unable to perform her duties under this Agreement due to illness, the Company’s obligation to continue to pay the Employee’s salary is determined by Article 324a of the SCO.

 

6.Payments upon Termination.

 

6.1.Definition of Accrued Obligations. For the purposes of this Agreement, “Accrued Obligations” means: (i) the portion of the Employee’s Base Salary that has accrued, including vacation time, prior to the end of the present Agreement and has not yet been paid or compensated; and (ii) the amount of any expenses properly incurred by the Employee on behalf of the Company prior to the end of the present Agreement and not yet reimbursed. The Employee’s entitlement to any other compensation or benefit under any plan of the Company shall be governed by and determined in accordance with the terms of such plans, except as otherwise specified in this Agreement.

 

 
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6.2.Definition of Change of Control. As used herein, a “Change of Control” shall mean the occurrence of any of the following events: (A) The approval by shareholders of the Parent of a merger or consolidation of the Parent with any other corporation, other than a merger or consolidation which would result in the voting securities of the Parent outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Parent or such surviving entity outstanding immediately after such merger or consolidation; or (B) The approval by the shareholders of the Parent of a plan of complete liquidation of the Parent or an agreement for the sale or disposition by the Parent of all or substantially all of the Parent’s assets.
   
6.3.Severance Payment in the Case of Termination by Company Without Cause or by the Employee. In the event of termination of this Agreement by the Company other than for cause or by the Employee for any reason whatsoever, the Employee shall be entitled to receive, in addition to the Accrued Obligations, a lump sum payment equal to the sum of (x) the Employee’s annual Base Salary at the rate in effect as of the termination date, and (y) the greater of actual or target Annual Performance Bonus to which the Employee may have been entitled for the year in which the Employee’s employment terminates, in each case less all customary and required taxes and employment-related deductions and subject to the terms and conditions described in Section 6.5 (including the Employee’s execution of a release of claims).
   
6.4.Severance Payment in the Case of Termination by Company Without Cause or by the Employee Following a Change of Control. In the event that a Change of Control (as defined in Section 6.2) occurs and that, within a period of one (1) year following the Change of Control, the present Agreement is terminated either by the Company other than for cause, or by the Employee for any reason whatsoever, then, in addition to the Accrued Obligations, the Employee shall receive a lump sum payment equal to one and a half times the sum of (x) the Employee’s annual Base Salary at the rate in effect as of the termination date, and (y) the target Annual Performance Bonus to which the Employee may have been entitled for the year in which the Employee’s employment terminates, in each case less all customary and required taxes and employment-related deductions and subject to the terms and conditions described in Section 6.5 (including the Employee’s execution of a release of claims).
   
6.5.Execution of Release of Claims. The Company shall not be obligated to pay the Employee any of the severance payments under Sections 6.3 and 6.4 unless and until the Employee has executed (without revocation) a timely release of claims in a form that is acceptable to the Company, and which includes standard and reasonable terms regarding items such as mutual non-disparagement, confidentiality, cooperation and the like, which must be provided to the Employee after thirty (30) days following separation from service, and must be effective and irrevocable prior to the 60th day following the Employee’s separation from service (the “Review Period”), and which shall include a general release of claims against Company and its affiliated entities and each of their officers, directors, employees and others associated with the Company and its affiliated entities. If the Employee fails or refuses to return such agreement, or revokes the agreement, within the Review Period, the Employee’s severance payments hereunder and benefits shall be forfeited.

 

 
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7.Confidentiality, Non-Competition, Non-solicitation and Intellectual Property.

 

7.1.The Employee hereby declares that she is obliged to the provisions of the Confidentiality, Non-Competition, Non-solicitation and Assignment of Intellectual Property clause, as described in Section 3 of Appendix A attached hereto.
   
7.2.In addition to the terms and conditions specified above, the other terms and conditions of the Employee’s employment shall be in accordance with the provisions of Appendix A attached hereto, and the policies of the Company, as may be amended from time to time.

 

8.General.

 

8.1.Amendment. No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Employee and an authorized officer of the Company.
   
8.2.Compliance with Policies and Laws. The Employee agrees to abide by all the policies and procedures, including without limitation, the code of conduct the Company. The Employee also agrees to abide by all laws applicable to the Company, in each jurisdiction in which the aforementioned do business.
   
8.3.Governing Law and Venue. This Agreement and all rights and duties of the parties hereunder shall be exclusively governed by and interpreted in accordance with the laws of Switzerland. The competent courts of Lausanne, canton of Vaud, Switzerland, shall have the exclusive jurisdiction over the parties with regard to this Agreement, its execution, interpretation and performance.
   
8.4.Notices. Any notice given or required to be given under this Agreement will be in writing and signed by or on behalf of the party giving it. Such notice may be served personally and in either case may be sent by priority post to the addresses of the parties noted on page one of this Agreement, or by fax, email or other electronic transmission. Any notice served personally will be deemed served immediately, and if mailed by priority post will be deemed served seventy two (72) hours after the time of posting, and if by electronic transmission, upon successful transmission.
   
8.5.Severability. If any provision contained herein is determined to be void or unenforceable for any reason, in whole or in part, it will not be deemed to affect or impair the validity of any other provision contained herein and the remaining provisions will remain in full force and effect to the fullest extent permissible by law.
   
8.6.Assignment of Rights. The Company will have the right to assign this Agreement to another party. The Employee shall not assign the Employees rights under this Agreement or delegate to others any of the Employees’ functions and duties under this Agreement, without the prior express written consent of the Company, which consent may be withheld at the sole discretion of the Company.
   
8.7.Entire Agreement. This Agreement contains the entire understanding and agreement between the parties concerning the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the parties with respect thereto.
   
8.8.Headings. The headings contained herein are for reference purposes only and will not in any way affect the construction or interpretation of this Agreement.

 

[Signature page to follow.]

 

 
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INTENDING TO BE LEGALLY BOUND, the parties hereunto have signed this Agreement as of the November 19, 2020

 

FOR ORGENESIS SERVICES SARL

 

__________________________

By: [NAME]

Authorized Signatory

Title: [TITLE]

 

SIGNED by VERED CAPLAN

 

 

__________________________

Signature

 

 
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APPENDIX A TO PERSONAL EMPLOYMENT AGREEMENT

 

1.General

 

 1.1This agreement constitutes an integral part of the personal employment agreement dated October 1, 2020 between Ms. Vered Caplan (the “Employee”) and Orgenesis Services Sàrl (the “Company”) (the “Agreement”).
   
1.2The Employee warrants, confirms and undertakes that she is entitled to enter into this Agreement and to assume all the obligations pursuant hereto, that there is no contractual or other impediment to her entering into this Agreement.
   
1.3The Employee hereby warrants that she has no medical or other problems, which might prevent her from performing her obligations to work for the Company. The Employee shall notify the Company of any change in her state of health.

 

2.Employment Period and Termination Thereof

 

2.1During the Notice Period as described in Section 3 of the Agreement, the Employee shall continue to render services to the Company until the end of the Notice Period, unless otherwise instructed by the Company. Nevertheless, the Company shall have the right to put the Employee on garden leave at any time during the Notice Period. In the event of such termination, the Company shall pay the Employee her Salary during the remainder of the Notice Period. If the Employee is put on garden leave, she shall continue to provide her services to the extent deemed necessary by the Company to ensure a smooth transition of her duties and continuation of the Company’s activities. Any severance due the Employee following or upon the termination of employment shall be due following the expiration of the applicable Notice Period.
   
  For the avoidance of any doubt, it is hereby expressed that the Company reserves this right in both the event the notice of termination of employment was delivered by it or in the event that it was delivered by the Employee, and a latter case shall not constitute a dismissal of employment by the Company.
   
2.2Notwithstanding the foregoing, the Company may also terminate the employment without notice for just cause according to Article 337 SCO. Just cause exists in particular in, but not limited to, the case of a breach of her fiduciary duty by the Employee, including but not limited to a commission of a felonious crime connected with her employment and/or in the case of a breach of her obligations regarding confidentiality, non-competition and intellectual property, as defined in Section 3 henceforth.

 

 
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2.3The Employee undertakes that immediately upon the termination of her employment with the Company (which is effective immediately following the expiration of the applicable Notice Period), for any reason, or prior thereto, as per the Company’s instructions, she shall act as follows:

 

2.3.1She shall deliver and/or return to the Company all the documents, diskettes or other magnetic media, letters, notes, reports and other papers in her possession and relating to her employment with the Company, as well as any equipment and/or other property belonging to the Company which was placed at her disposal;
   
2.3.2She shall delete any information relating to the Company or its business from her personal computer, if any;
   
2.3.3She shall coordinate her resignation with the Company Board and shareholders of the Company according to the timetable determined by her supervisors, and she shall hand over her duties in an orderly fashion and in accordance with the Company procedures, the documents and all the other matters dealt with by her to whomever the Company instructs, and all to the satisfaction of the Company.

 

3.Confidentiality, Non-Competition/Non-solicitation and Intellectual Property
   
  The Employee warrants and undertakes that for as long as she is employed by the Company, and after the termination of such employment, for any reason, she shall maintain in complete confidence any matters that relate to the Company the affairs and/or business thereof, including regarding the terms and conditions of her employment pursuant to this Agreement, and that she shall not harm the goodwill or reputation of the Company and she agrees to the provisions of the confidentiality, non-competition, non- solicitation and intellectual property clauses as specified below.
   
  The Employee’s obligations pursuant to this Section derive from her status and her position in the Company, along with all matters connected therewith, and the terms and conditions of the Employee’s employment pursuant to this Agreement, including her Salary, have been determined in part, inter alia, in consideration of this undertaking and constitute sufficient consideration for her obligations hereunder.

 

 
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 3.1Confidentiality

 

3.1.1The Employee undertakes to maintain the Confidential Information (as defined below) of the Company, including its Parent and their affiliates, during the term of her employment with the Company and after the termination of such employment, for any reason.
   
3.1.2Without derogating from the generality of the foregoing, the Employee hereby agrees that she shall not, directly or indirectly, disclose or transfer to any person or entity, at any time, either during or subsequent to her employment period, any trade secrets or other confidential information, whether patentable or not, of the Company and/or Parent and/or their affiliates, including but not limited to, any (i) processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, survey, specifications, data and know-how; (ii) marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets, projections, product plans and pricing; (iii) personnel information, including organizational structure, salary, and qualifications of Employees; (iv) customer and supplier information, including identities, product sales and purchase history or forecasts and agreements; and (v) any other information which is not known to the public (collectively, “Confidential Information”), of which the Employee is or becomes informed or aware during the employment period, whether or not developed by the Employee.
   
3.1.3The Employee undertakes not to directly or indirectly give and/or transfer, directly or indirectly, to any person or entity, any material and/or raw material and/or product and/or part of a product and/or model and/or document and/or diskette and/or other information storage media and/or photocopied and/or printed and/or duplicated object containing any or all of the Confidential Information.
   
3.1.4The Employee undertakes not to make any use, including duplication, production, sale, transfer, imitation and distribution, of all or any of the Confidential Information, without the prior written consent of the Company.
   
3.1.5The Employee will not use or disclose any confidential information or trade secrets, if any, of any former employer or any third party or any information in respect of which the Employee has confidentiality obligations, and will not bring onto the premises of the Company any such information, unless express written consent was provided by such former employer or third party.
   
3.1.6In the event the Employee is in breach of any of her above obligations, she shall be liable to indemnify, compensate and hold the Company harmless in respect of all damages and/or expenses incurred by the Company as a result of such breach, including trial costs and legal fees and applicable taxes, and such being without derogating from any other relief and/or remedy available to the Company by virtue of any law.

 

 
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3.2Non-Competition/ Non-Solicitation

 

3.2.1The Employee undertakes that during the period of her employment with the Company and for a period of twelve (12) months after the termination thereof, for any reason, she shall not, anywhere in the world, do business, as an employee, independent contractor, consultant or otherwise, and shall not directly or indirectly participate in or accept any position, proposal or job offer that may directly or indirectly compete with or harm the Company, Parent, or their affiliates, or in the field in which the Company engages, is engaged or is about to engaged (the “Competitive Occupation”).

 

  The foregoing shall apply irrespective of whether the Competitive Occupation is carried out by the Employee alone or in cooperation with others and shall apply to the participation of the Employee in a Competitive Occupation, whether as a controlling shareholder or as an interested party.
   
3.3Intellectual Property, Copyright and Patents

 

3.3.1The Employee hereby acknowledges and agrees that the Company owns and shall own any and all Intellectual Property Rights created, made or discovered by the Employee or employee or personal that reports to Employee either: during the term of employment; and/or in connection therewith; and/or in connection with the Company, its business (actual and/or contemplated), products, technology and/or know how or that of Parent (“Company IPR”). Intellectual Property Rights means all worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) moral rights; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property including ideas; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

 

 
-12-

 

3.3.2The Employee hereby assigns to the Company and/or its designee, all right, title and interest in and to Company IPR upon its creation. The Employee will assist the Company to obtain, and from time to time enforce, any Company IPR worldwide, including without limitation, executing, verifying and delivering such documents and performing such other acts as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Company IPR. Such obligation shall remain in effect beyond the termination of the Employee’s relationship with the Company, all for no additional consideration provided that Employee shall not be required to bear any expenses as a result of such assignment. In the event the Company is unable for any reason, after reasonable effort, to secure Employee’s signature on any document required, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as its agent and attorney in fact to act for and in its behalf to further the above purposes.
   
3.3.3The Employee hereby waives, releases and forever discharges any claims and/or demands whatsoever, whether in law, in equity or otherwise, in relation to the Company IPR, including without limitation any moral rights and rights to receive royalties in connection therewith and expressly waive any rights to receive royalties under Swiss law.
   
3.3.4The Employee represents and warrants that upon execution hereof it has not created and does not have any right, title or interest in and to any Intellectual Property Rights related and/or similar to Company’s business, products or Intellectual Property Rights. The Employee undertakes not to incorporate any prior inventions in any Company IPR.
   
3.3.5The Employee undertakes to immediately inform and deliver to the Company, written notice of any Company IPR conceived/ invented by her and/or personal of the Company and/or its successors who are subordinate to her, immediately upon the discovery thereof.

 

 
-13-

 

3.3.6The Employee’s obligations pursuant to this Section shall survive the termination of her employment with the Company and/or its successors and assigns with respect to inventions conceived by her during the term of her employment or as a result of her employment with the Company.

 

3.4Employee acknowledges that the restricted period of specified hereunder are reasonable, in view of her position and the nature of the business in which the Company is engaged, the Employee’s knowledge of the Company’s business and the compensation she receives. Notwithstanding anything contained herein to the contrary, if the period of time specified herein should be determined to be unreasonable in any judicial proceeding, then the period of time and area of the restriction shall be reduced so that this Agreement may be enforced in such area and during such period of time as shall be determined to be reasonable by such judicial proceeding. The Employee acknowledges that the compensation and benefits granted to her by the Company under this Agreement were determined, inter alia, in consideration for her obligations under this Section 3.

 

4.Taxes
   
  The Employee shall bear all the taxes deriving from the rights and benefits received by her pursuant to this Agreement. It is hereby expressed that all the amounts specified in this contract are gross and statutory tax shall be deducted from them.

 

I have carefully read this agreement and its appendices thereto, I have understood the contents, the terms and conditions included therein and undertake to perform all the thereof and I agree to the obligations therein.

 

Signature: ____________________________  
     
Employee’s name: Vered Caplan  
Date: [date]  

 

 

 

Exhibit 21.1

 

ORGENESIS INC.

 

List of Subsidiaries

 

Orgenesis Korea Co. Ltd.
   
Orgenesis Belgiuim SRL
   
Orgenesis Ltd.
   
Orgenesis Maryland Inc.
   
Orgenesis Switzerland Sarl
   
Orgenesis Biotech Israel Ltd.
   
Koligo Therapeutics Inc.

 

 

 

 

 

Exhibit 23.1

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-223777, No. 333-237261 and 333-250127) and Form S-8 (No. 333-242195) of Orgenesis Inc. of our report dated March 9, 2021 relating to the consolidated financial statements, which appears in this Form 10-K.

 

/s/ Kesselman & Kesselman

 

Certified Public Accountants (Isr.)

A member firm of PricewaterhouseCoopers International Limited

 

Tel-Aviv, Israel

March 9, 2021

 

   

 

Exhibit 31.1

 

ORGENESIS INC.

CEO CERTIFICATE

PURSUANT TO SECTION 302

 

I, Vered Caplan, certify that:

 

1. I have reviewed this Annual Report on Form 10-K for the year ended December 31, 2020 of Orgenesis Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
     
  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
  c. Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
  d. Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
     
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):
     
  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting.

 

Date: March 9, 2021  
     
By: /s/ Vered Caplan  
Name: Vered Caplan  
Title: Chief Executive Officer (Principal Executive Officer)  

 

 

 

 

Exhibit 31.2

 

ORGENESIS INC.

CFO CERTIFICATE

PURSUANT TO SECTION 302

 

I, Neil Reithinger, certify that:

 

1. I have reviewed this Annual Report on Form 10-K for the year ended December 31, 2020 of Orgenesis Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
     
  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
  c. Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
  d. Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
     
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):
     
  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting.

 

Date: March 9, 2021  
     
By: /s/ Neil Reithinger  
Name: Neil Reithinger  
Title: Chief Financial Officer, Secretary and Treasurer (Principal Financial Officer and Principal Accounting Officer)  

 

 

 

 

Exhibit 32.1

 

ORGENESIS INC.

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with this Annual Report on Form 10-K of Orgenesis Inc. (the “Company”) for the year ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to her knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company.

 

Date: March 9, 2021  
     
By: /s/ Vered Caplan  
Name: Vered Caplan  
Title: Chief Executive Officer (Principal Executive Officer)  

 

 

 

 

Exhibit 32.2

 

ORGENESIS INC.

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with this Annual Report on Form 10-K of Orgenesis Inc. (the “Company”) for the year ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
   
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company.

 

Date: March 9, 2021  
     
By: /s/ Neil Reithinger  
Name: Neil Reithinger  
Title: Chief Financial Officer, Secretary and Treasurer (Principal Financial Officer and Principal Accounting Officer)  

 

 

 

 



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