Exhibit 10.5




 




Spherix Incorporated




 






















 




AMENDED AND RESTATED


EMPLOYMENT AGREEMENT




 




THIS AMENDED AND RESTATED EMPLOYMENT

AGREEMENT (this “Agreement”), is entered into as of

the 15th day of May, 2002, between Spherix Incorporated, a Delaware corporation

(the “Corporation”), and Gilbert V. Levin (the “Executive”).




 




WITNESSETH:




 




Whereas,

the Corporation is engaged in providing information services in health,

pharmaceutical and civic areas; in providing services in the areas of

chemistry, biology, exobiology, microbiology, occupational health,. air and

water pollution and hazardous wastes control, industrial hygiene; and in the

development of proprietary products; and




 




Whereas,

the Executive has been engaged as an expert and corporate executive in major

enterprises in the areas indicated above; and




 




Whereas,

the Executive is presently, and has been since the formation of the

Corporation, an Executive of the Corporation; and




 




Whereas,

during the period of the Executive’s employment the Corporation has greatly

enhanced its activities and prestige largely as a result of the activities on

behalf of the Corporation by the Executive; and




 




Whereas, the

Executive has led the Company’s effort to commercialize its non—fattening sugar

as a major food products ingredient and for other non-food uses, and its

safe—for—humans pesticides; and




 




Whereas,

the value of the services provided by the Executive to the Corporation in the

past have had a value in excess of the compensation actually paid to the

Executive by the Corporation; and




 




Whereas,

the Corporation desires to provide additional compensation to the Executive for

the services previously rendered to the Corporation in order to assure that the

Executive will continue to render substantial services to the Corporation and

to any joint venture or subsidiary which may be formed to exploit its products

and services,




 




NOW, THEREFORE, in

consideration of the mutual promises and covenants herein set forth and other

good and valuable consideration, the receipt of which is hereby acknowledged,

the Corporation and the Executive do hereby agree, each with the other, as

follows:




 




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1.             Full-time Employment of Executive.




 




1.1.         Duties

and Status.




 




1.1.1.       The Corporation hereby engages the Executive

as a full-time executive employee for the period (the “Employment Period”)

specified in Section 4 and the Executive accepts such employment, on the terms

and conditions set forth in this Agreement. During the Employment Period, the

Executive shall exercise such authority and perform such executive duties as

are commensurate with the authority being exercised and duties being performed

by the Executive for the Corporation immediately prior to the effective date of

this Agreement.




 




1.1.2.       During the Employment Period, the

Executive shall (i) devote his full time and efforts to the business of the

Corporation and its subsidiaries or affiliates, including, without limitation,

efforts to commercialize its non—fattening sugar and/or other products and will

not engage in consulting work or any trade or business for his own account or

for or on behalf of any other person, firm or corporation which competes,

conflicts or interferes with the performance of his duties hereunder in any way

and (ii) accept such additional office or offices to which he may be elected by

the Board of Directors of the Corporation or its subsidiaries or affiliates,

including, without limitation, any joint venture or subsidiary formed to

commercialize the Company’s non—fattening sugar and/or other products, provided

that the performance of the duties of such office or offices shall be

consistent with the scope of the duties provided for in Section 1.1.1.




 




1.1.3.       The Executive shall be required to

perform the services and duties provided for in Section 1.1.1. only at the

location where the Executive was employed immediately prior to the effective

date of this Agreement or such other location of the principal executive

offices of the Corporation in the Washington, D.C. greater metropolitan area as

the Board of Directors of the Corporation may designate, and/or scheduled

telecommuting via the internet from home as approved by the Compensation

Committee and the Board of Directors of the Company at their May 15, 2002,

Meetings. The Executive shall be entitled to vacation, leave of absence, and

leave for illness or temporary disability in accordance with the policies of

the Corporation in effect, which shall not be less favorable than those in

effect at the date of this Agreement; and any leave on account of illness or

temporary disability which is short of total disability, as defined in the

Corporation’s long-term disability insurance plan (“Total Disability”), shall

not constitute a breach by the Executive of his agreements hereunder.




 




1.2.         Compensation

and General Benefits. As compensation for his services

under this Agreement, the Executive shall be compensated as follows:




 




1.2.1.       The Corporation shall pay the Executive

an annual base salary of $233,500. 

Such salary shall increase annually by the greater of (i) three percent

(3%) over the previous year or (ii) at such greater amount as is determined by

the Board of Directors of the Corporation. Such salary shall be payable in

equal, semi-monthly installments. Such salary shall be subject to normal

periodic review at least annually for increases based on the policies of the

Corporation and contributions to the enterprises, but in no event shall such

base salary be adjusted downward.




 




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1.2.2.       The Executive shall be eligible to

participate in such profit—sharing, stock option, bonus, incentive and

performance award programs which provide opportunities to receive compensation

which are the greater of the opportunities (i) then provided by the Corporation

to executives with reasonably comparable authority and duties (and in any event

not lesser than those provided to executives with junior authority or duties),

or (ii) available to the Executive immediately prior to the effective date of

this Agreement.




 




1.2.3.       The Executive shall be entitled to

receive employee benefits, including, without limitation, pension, disability,

group life, sickness, accident and health insurance programs and split-dollar

life insurance programs, and perquisites provided by the Corporation to

executives which are the greater of the employee benefits and perquisites (i)

then provided by the Corporation to executives with comparable authority or

duties (and in any event not lesser than those provided to executives with

junior authority or duties), or (ii) available to the Executive immediately

prior to the effective date of this Agreement. The health insurance benefits

received by the Executive shall continue for the Executive and the Executive’s

spouse following the retirement of the Executive and until the death of the

survivor of the Executive and the Executive’s spouse.




 




1.2.4.       The Corporation shall pay for continuous,

lifetime, long-term care insurance for Dr. and Mrs. Levin in recognition of

their years of service to the Company.




 




1.2.5.       The Corporation shall reimburse the

Executive for all reasonable expenses incurred by the Executive in the

performance of his duties hereunder.




 




2.             Competition; Confidential

Information.




 




2.1.         General.

The Executive and the Corporation recognize that due to the nature of his prior

association with the Corporation and of his engagements hereunder, and the

relationship of the Executive to the Corporation, both in the past as an

executive and in the future hereunder, the Executive has had access to and has

acquired, will have access to and will acquire, and has assisted in and may

assist in developing, confidential and proprietary information relating to the

business and operations of the Corporation and its affiliates, including,

without limiting the generality of the foregoing, information with respect to

their present and prospective research projects; products, systems and

processes (whether or not patentable); customers and agents; and sales and

marketing methods. The Executive acknowledges that such information has been

and will continue to be of central importance to the business of the

Corporation and its affiliates and that disclosure of it to or its use by

others could cause substantial loss to the Corporation. The Executive and the

Corporation also recognize that an important part of the Executive’s duties

will be to develop good will for the Corporation and its affiliates through his

personal contact with customers, agents and others having business

relationships with the Corporation and its affiliates, and that there is a

danger that this good will, a proprietary asset of the Corporation and its

affiliates, may follow the Executive if and when his relationship with the

Corporation is terminated. The Executive accordingly agrees as follows:




 




2.2.         Non-Competition.




 




2.2.1.       During the Employment Period the

Executive will not, directly or indirectly, either individually or as owner,

partner, agent, employee, consultant or otherwise, except for the account of

and on behalf of the Corporation or their affiliates, engage in any activity




 




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competitive with the business

of the Corporation or its affiliates, nor will he, in competition with the

Corporation or its affiliates, solicit or otherwise attempt to establish for

himself or any other person, firm or entity, any business relationships with

any person, firm or corporation which was, at any time during the Employment

Period, a customer of the Corporation or one of its affiliates.




 




2.2.2.       Nothing in this Section 2.2. shall be

construed to prevent the Executive from owning, as an investment, not more than

1% of a class of equity securities issued by any competitor of the Corporation

or its affiliates and publicly traded and registered under Section 12 of the

Securities Exchange Act of 1934.




 




2.3.         Trade

Secrets.  The

Executive will keep confidential any trade secrets or confidential or

proprietary information of the Corporation and its affiliates which are now

known to him or which hereafter may become known to him as a result of his

employment or association with the Corporation and shall not at any time

directly or indirectly disclose any such information to any person, firm or

corporation, or use the same in any way other than in connection with the business

of the Corporation or its affiliates during and at all times after the

expiration of the Employment Period. For purposes of this Agreement, “trade

secrets or confidential or proprietary information” means information unique to

the Corporation or any of its affiliates which has a significant business

purpose and is not known or generally available from sources outside the

Corporation or any of its affiliates or typical of industry practice.




 




2.4. Intellectual

Property. Throughout the Employment Period, the

Executive will disclose to the Corporation all processes, operations, products

or improvements developed by him which relate directly or indirectly to the

business of the Corporation or its affiliates which may be patentable or

copyrightable. The Executive agrees that such will be the property of the

Corporation and that he will, at the Corporation’s request and cost, do

whatever is necessary to secure the rights thereto by patent or copyright.




 




3.             Corporation’s Remedies for Breach.

It is recognized that damages in the event of breach of Section 2 by the

Executive would be difficult, if not impossible, to ascertain, and it is

therefore agreed that the Corporation, in addition to and without limiting any

other remedy or right they may have, shall have the right to an injunction or

other equitable relief in any court of competent jurisdiction, enjoining any

such breach, and the Executive hereby waives any and all defenses he may have

on the ground of lack of jurisdiction or competence of the court to grant such

an injunction or other equitable relief. The existence of this right shall not

preclude any other rights and remedies at law or in equity which the

Corporation may have.




 




4.             Employment

Period.




 




4.1.         Duration.

 The Employment

Period shall commence on the effective date of this Agreement and shall

continue until the earlier of (i) close of business on December 31, 2004 or

(ii) any termination of this Agreement that does not constitute an improper

termination as defined in Section 4.3.1.




 




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4.2.         Termination Payments.




 




4.2.1.       In the event of an improper termination

of this Agreement (as defined in Section 4.3.1. of this Agreement), the

Corporation shall pay to the Executive and provide him with the following:




 




4.2.1.1.    During the remainder of the Employment

Period, the Corporation shall continue to pay the Executive his salary at the

rate and as required by Section 1.2.1 and in effect immediately prior to the

date of termination.




 




4.2.1.2.    During the remainder of the Employment

Period, the Executive shall continue to be treated as an executive (at the

level provided for in Section 1.1.1.) under the provisions of the Corporation’s

profit—sharing, bonus, incentive and performance award programs and any other incentive

compensation arrangement described in Section 1.2.2. In addition, the Executive

shall continue to be entitled to all benefits and service credits for benefits

under any pension plan, or medical, insurance, split-dollar life

insurance and other employee benefit plans, programs and arrangements of the

Corporation described in Section 1.2.3. as if he were still employed during

such period under this Agreement




 




4.2.1.3.    If, despite the provisions of Section

4.2.1.2., benefits or the right to accrue further benefits under any profit

sharing, bonus, incentive or performance award programs or other long—term

incentive compensation arrangement described in Section 1.2.2. shall not be

provided under any such arrangement to the Executive, or his dependents, beneficiaries

and estate, because he is no longer an employee of the Corporation, the

Corporation shall, to the extent necessary, provide, pay or provide for payment

of amounts equal to the after tax benefits to the Executive, his dependents,

beneficiaries and estate.




 




4.2.1.4.    If, despite the provisions of Section

4.2.1.2., benefits or service credits under any employee benefit plan,

including, without limitation, benefits under any pension plan, or any medical,

insurance, split—dollar life insurance and other employee benefit plans,

programs and arrangements described in Section 1.2.3. shall not be payable or

provided under any such plan to the Executive, or his dependents, beneficiaries

and estate, because he is no longer an employee of the Corporation, the Corporation

shall, to the extent necessary, pay or provide for payment of equivalent after

tax benefits and service credits for such after tax benefit~ to the Executive,

his dependents, beneficiaries and estate.




 




4.2.1.5.    The Executive shall not be required to

mitigate the amount of any payment: provided for in this Section 4.2. by

seeking employment or otherwise, nor shall the amount of any payment provided

for in this Section 4.2 be reduced by any compensation or remuneration earned

by the Executive as the result of employment by another employer, or

self-employment, or as a partner, after the date of termination or otherwise.




 




4.2.2.       In the event of an improper termination,

the Executive may elect, within 60 days after such termination, to elect to be

paid a lump sum severance allowance, in lieu of termination payments, in an

amount which is equal to the sum of all of the salary payments which he would

have been entitled to receive in accordance with Section 4.2.1.1.  In the event that the Executive makes an

election pursuant to the preceding sentence to receive a lump sum severance




 




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allowance, then, in addition to

such amount, he shall accelerate all future payments due with respect to (i)

the pension benefits he would have accrued under any pension benefit plan

maintained by the Corporation if he had remained in the employ of the

Corporation for the remainder of the Employment Period, which benefits will be

paid concurrently with, and in addition to, the benefits provided under such

pension benefit plan, (ii) incentive compensation (including, but not limited

to the right to participate in all of the Corporation’s profit sharing plans

and to receive and exercise stock options and stock appreciation rights and to

receive bonuses and performance awards and similar incentive compensation

benefits) to which he would have been entitled under this Agreement if he had

remained in the employ of the Corporation for the remainder of the Employment

Period, and (iii) employee benefits (including, but not limited to, coverage

under any disability, group life, sickness, accident and health insurance

programs, split—dollar life insurance arrangements or programs and

prerequisite) to which he would have been entitled under this Agreement if he

had remained in the employ of the Corporation for the remainder of the

Employment Period. By accelerating all future payments as described in this

Section 4.2.2., the Executive will have the right to receive an amount equal to

the commuted actuarial value of those payments within sixty (60) days after the

date of Executive’s termination.




 




4.2.3. In the

event of a termination other than an improper termination, the Executive shall

be entitled to any salary accrued to the date of the termination, but shall not

be entitled to any further salary or any further payments hereunder.




 




4.3.         Definitions.

The following terms shall have the specified meanings when used in the Sections

specified:




 




4.3.1.       In this Section 4, the term “improper

termination” means termination (i) by the Corporation of the employment of the

Executive with the Corporation for any reason other than death or Total

Disability of the Executive, or cause; or (ii) of the employment of the

Executive by resignation of the Executive due to (A) a significant change in

the nature or scope of his authorities or duties from those contemplated in

Section 1.1.1., (B) a merger or consolidation of the Corporation or other

similar transaction which is likely to materially and adversely affect the

financial ability of the Corporation or any successor assign thereto that

agrees in writing to assume the obligations of the Corporation hereunder to

perform this Agreement, (C) a reduction in total compensation and benefits from

that provided in Section 1.2, or (D) the breach by the Corporation in any

material respect of any other provision of this Agreement.




 




4.3.2.       In Section 4.3.1. the term “cause” means

(i) a final judicial finding that Executive has been guilty of fraud,

misappropriation or intentional material damage to the property or business of

the Corporation or the commission of a felony; (ii) continuance of willful and

repeated failure by the Executive to perform his duties in compliance with this

Agreement after written notice to the Executive by the Board of Directors

specifying such failure, provided that such “cause” shall have been found by a

majority vote of the Board of Directors of the Corporation after at least 10

days’ written notice to the Executive specifying the cause proposed to be

claimed and after an opportunity for the Executive to be heard at meetings of

such Boards of Directors; or (iii) a violation of Section 2 of this Agreement.




 




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4.3.3.       In Section 4.2., “Employment Period”

shall mean the full period for which the Employment Period would have

continued, without any improper termination, under Section 4.3.1.




 




4.3.4.       In Section 2.2.1., “Employment Period”

shall mean the full period for which the Employment Period would have continued

under Section 4.1. in the event of any termination of the employment of the

Executive which is not an improper termination as defined in Section 4.3.1.




 




5.             Legal Costs. If

the Corporation shall fail to pay or provide for payment of any amounts required

to be paid or provided for hereunder at any time, the Executive shall be

entitled to consult with counsel, and the Corporation agrees to pay the

reasonable fees and expenses of independent counsel for the Executive in

advising him or in bringing any proceedings, or in defending any proceedings,

involving the Executive’s rights under this Agreement, such right to

reimbursement to be immediate upon the presentment by Executive of written

billings for such reasonable fees and expenses. The Executive shall be entitled

to the prime rate of interest established from time to time at Bank of America,

or its successors or successors in interest for any payments of such expenses,

or any other payments under this Agreement, that are overdue.




 




6.             Notices. Any

notices, requests, demands and other communications provided for by this

Agreement shall be sufficient if in writing and if sent by registered or

certified mail to the Executive at the last address he has filed in writing

with the Corporation or, in the case of the Corporation, at its principal

executive offices.




 




7.             Binding Agreement. This

Agreement shall be effective as of the effective date hereof and shall be

binding upon and inure to the benefit of the Executive, his executors,

administrators and personal representatives. The rights and obligations of the

Corporation under this Agreement shall inure to the benefit of and shall be

binding upon any successor of the Corporation as defined in Section 1-101(u) of

the Maryland General Corporation Law as now in effect; provided, that this

Agreement may not be assigned by the Corporation without the consent of the

Executive, and in the case of a successor by transfer of all or substantially

all of the assets of the Corporation, or any other successor in which the Corporation

does not cease to exist by operation of the transaction in question as a matter

of law, the Corporation shall not be relieved of its obligations hereunder.




 




8.             Entire Agreement.

This Agreement constitutes the entire understanding of the Executive and the

Corporation with respect to the subject matter hereof and supersedes any and

all prior understandings written or oral (including but not limited to the

Employment Agreement dated as of November 17, 1995, as amended, between the

Corporation and the Executive). This Agreement may not be changed, modified, or

discharged orally, but only by an instrument in writing signed by the parties.

This Agreement shall be governed by the laws of the State of Maryland and the

invalidity or unenforceability of any provisions hereof shall in no way affect

the validity or enforceability of any other provision.




 




9.             Indemnification.  In addition to any indemnification rights the

Executive may have by statute, by—law or otherwise, the Corporation to the

fullest extent permitted by, and in accordance with and subject to the

requirements of, the General Corporation Law of the State of Delaware, (i)

shall indemnify the Executive and hold him harmless for all losses, costs,

expenses or liabilities




 




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(whether or not arising during

the Employment and pay all expenses, including reasonable attorneys’ fees and

court fees, actually and necessarily incurred by the Executive in connection

with the investigation or defense of, or being a witness in, any such action,

suit or proceeding and in connection with any appeal thereof.




 




10.          Other Agreements. Each

of the Supplemental Executive Retirement Plan Agreement dated as of February

17, 1993, by and between the Corporation and the Executive (the “SERP

Agreement”), and the Consulting Agreement dated as of February 17, 1993, by and

between the Corporation and the Executive (the “Consulting Agreement”) are

amended by deleting from Section 1 thereof the phrase “Employment Agreement

dated December 31, 1987” and substituting in lieu thereof the phrase “Amended

and Restated Employment Agreement dated May 15, 2002”.




 




The Deferred Compensation

Agreement dated as of March 13, 1981, by and between the Corporation and the

Executive, and amended on October 14, 1982, and December 31, 1987, is amended

by deleting from the second Whereas of the December 31, 1987 Amendment the

phrase “January 27, 1995” and substituting in lieu thereof the phrase “until

the end of the Employment Period as defined in Section 4.1 of the Executive’s

Employment Agreement dated May 15, 2002.”




 




In all other respects, the SERP

Agreement, the Consulting Agreement, and the Deferred Compensation Agreement

are ratified and confirmed as of the date hereof.




 




IN WITNESS WHEREOF,

the parties have executed, under seal, and delivered this Agreement the date

first above written.




 




	

   


  	

   


  	

  SPHERIX

  INCORPORATED


  
	

   


  	

   


  	

  Board of

  Directors


  
	

  (SEAL)


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  ATTEST:


  	

   


  	

   


  	

  By:


  	

   


  
	

   


  	

  Katherine

  M. Brailer


  	

   


  	

  Lionel

  V. Baldwin, Chair


  
	

   


  	

  Corporate

  Secretary


  	

   


  	

  Compensation

  Committee


  
	

   


  	

   


  	

   


  	

   


  
	

  WITNESS:


  	

   


  	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

   


  	

  Gilbert V.

  Levin


  





 




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