Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made and entered into as of November 16, 2004 by and between
(i) LUMENIS LTD., with its principal offices at Yokneam Industrial Park, Yokneam, Israel
(“Company”), and (ii) Xxxxxx Xxxxx (“Executive”).
WHEREAS, the Company desires to
employ and secure for itself the services of the Executive and the Executive desires to
accept employment with the Company all upon the terms and subject to the conditions
specified herein; and
WHEREAS, the parties intend for the
terms of this Agreement to replace and supersede all previous agreements, understandings
and provisions relating to services rendered by the Executive to the Company.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants, terms and conditions hereinafter set forth, and for
other good and valuable consideration, the receipt of which is hereby specifically
acknowledged, the parties hereto agree as follows:
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a. |
The
Company hereby employs the Executive in the capacity of Vice President, General
Counsel and Corporate Secretary, under the direction and control of the CEO
upon the terms and subject to the conditions set forth below. |
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b. |
The
Executive hereby accepts employment with the Company in such capacity upon the
terms and subject to the conditions set forth below. |
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a. |
Executive
shall devote her full business time and attention to the business of the
Company and shall perform her duties diligently and promptly for the benefit of
the Company. During her engagement hereunder, Executive shall not, without the
prior written consent of the CEO, undertake or accept any other paid or unpaid
employment or occupation or engage in or be associated with, directly or
indirectly any other business, duties or pursuits except for de minimis
non-commercial or non-business activities. The Executive shall have
responsibility for the legal affairs of the Company and its subsidiaries, with
the powers and duties as customarily assigned to such office and/or as
otherwise may be defined by the CEO from time to time. |
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b. |
The
Executive acknowledges and agrees that Executive’s position with the
Company is one that requires a special measure of personal trust as defined
under the Work and Rest Hours Law, 5711-1951, and therefore, the provisions of
such law shall not apply to the Executive. The Executive further acknowledges
and agrees that her duties and responsibilities may entail irregular work hours
and extensive traveling, for which she is adequately rewarded by the
compensations provided for in this Agreement. |
Page 1 of 9
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c. |
While
performing services for the Company, the Executive shall not engage in any
activities that may interfere or conflict with the proper discharge of her
duties hereunder. The Executive shall notify the Company immediately of every
matter or transaction in which the Executive has a significant personal
interest and/or which might create a conflict of interest with Executive’s
position in the Company. |
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a. |
This
Agreement shall be effective from the date hereof. The Executive will commence
work on February 1, 2004 subject to the terms hereof. |
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b. |
The
Agreement and the Executive’s employment may be terminated (i) at any time
at the option of either the Executive or the Company, upon ninety (90) days
prior written notice (“Prior Notice”); (ii) upon the death of
the Executive; (iii) in the event of the inability of the Executive to perform
her duties hereunder, whether by reason of injury (mental or physical), illness
or otherwise (other than as permitted by applicable law), incapacitating the
Executive for a continuous period exceeding 60 consecutive days or a total of
60 non-consecutive days in any six month period; (iv) for Cause (as defined
hereunder). For purposes of this Agreement, “Cause” shall consist of: |
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(a) |
Dishonesty
of the Executive affecting the Company; |
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(b) |
The
Executive’s conviction of a felony or of any crime ; |
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(c) |
Any
gross negligence or willful misconduct of the Executive resulting in material
loss to the Company or any of its affiliates or material damage to the
reputation of the Company or any of its affiliates; |
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(d) |
Any
material breach of any of the provisions of this Agreement. |
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c. |
In
the event of a termination of this Agreement and the Executive’s
employment by the Company without Cause or by the Executive for good cause,
including, without limitation, where the Executive’s duties are diminished
or any of the terms of this Agreement are not performed by the Company
or, the Executive is required to relocate or, compensation and benefits due to
him are reduced, or in the event of a Change of Control (as such term is
defined in the Lumenis Ltd. Share Option Plan) ,or in the event of a change of
management of the Company, the Company shall only be obligated to pay (i)
Executive’s base salary and benefits through the Prior Notice period
specified above, provided that the Executive continues her employment
obligations through such period, and (ii) the lump sum severance payment
pursuant to the Severance Payment Law, 5723-1963 (the “Severance
Payment”) (iii) base salary and benefits for a 9 month period, in
addition to the Prior Notice, that will be paid to Executive in equal monthly
installments in conformance with regular payroll dates and practices for
salaried senior personnel or in a lump sum, at the employee’s sole
discretion; and (iv) a participation bonus (as described in section 6 hereof)
pro rata for the period for which the Executive was employed in the Company
during the calendar year in which termination occurs and for which bonus is
granted. The Company shall have no further obligation to make any salary
payments or provide any benefits to the Executive. Notwithstanding the
foregoing, the Company may, in its sole discretion, elect not to require the
services of the Executive during the Prior Notice period, but in such case
shall continue to pay the Executive’s base salary and benefits through
such period. If the Executive issues a Prior Notice, the Company shall be
obliged to pay the Executive’s base salary and benefits through the Prior
Notice period specified above, provided that the Executive continues her
employment obligations through such period. In such circumstances,the Company
shall have no further obligation to make any salary payments or provide any
benefits to the Executive after the expiration of such Prior Notice period,
except as required by applicable law and as described hereunder. |
Page 2 of 9
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d. |
In
the event of a termination of this Agreement and the Executive’s
employment by the Company without Cause or by the Executive for good cause as
described in Section 3c. above, all of the Executive’s unvested options
will vest upon the date of the Prior Notice. |
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4. |
BASE
SALARY: The Company shall pay the Executive an annual base salary of U.S$
200,000 payable in twelve equal monthly installments in conformance with the
regular payroll dates and practices for salaried personnel of the Company
during the term of the Agreement. The Executive’s salary level shall be
reviewed by the Company’s Board of Directors pursuant to the
recommendation of the CEO. |
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5. |
BENEFITS:
In addition to the compensation set forth in paragraph 4 above, the Executive
shall receive the following benefits from the Company, it being understood that
any wage-based benefits shall be calculated exclusively on the basis of the
base salary (without consideration to any other benefit): |
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a. |
VACATION:
The Executive shall be entitled to 22 (Twenty Two) business days of vacation
per year in accordance with Company’s policy. The specific dates of such
vacations shall be coordinated in advance with the CEO. Notwithstanding the
aforesaid, the Executive will not be entitled to accumulate or be paid in lieu
of unused vacation hours. |
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b. |
CERTAIN
BENEFITS: The Company shall grant the Executive all social benefits, such
as pension, life insurance, health insurance, disability insurance, certain
saving programs, including, inter alia, an “Advanced Study Fund” (to
which the Company shall pay, on a monthly basis, an amount equal to 7.5% of the
base salary against deduction of 2.5% of the base salary and transfer thereof
to the Advanced Study Fund), and “Management Fund” (to which the
Company shall pay, on a monthly basis, contributions in an amount equal to 13
1/3% (severance 8 1/3% and 5% savings) of the base salary, against deduction
from the base salary of an amount equal to 5% of the base salary as Executive’s
contribution towards savings to the Management Fund and others as are granted
to the Company’s senior executives in the Executive’s rank and under
their usual terms pursuant to the Company’s policy in effect from time to
time. The Executive will be entitled to continue payments and contributions to
the Management Fund and Advanced Study Fund in favor of the Executive prior to
the date hereof. Without derogating from the proviso stated in the immediately
preceding sentence, the Management Fund and Advanced Study Fund shall be
released to the Executive without restriction upon termination of the
employment relationship contemplated by this Agreement and the Company will
issue a letter in that regard, except for release of the portion of the
Management Fund accrued in respect of severance payments in the event that
Severance Payment is not due to the Executive under applicable law. |
Page 3 of 9
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6. |
PERFORMANCE
BONUS: The Executive will be eligible to participate in the Company’s
Bonus Plan for Executive Officers at a participation rate of 100% of the annual
salary based on targets as will be set by the CEO and as shall be approved each
calendar year by the Board of Directors of the Company. |
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7. |
STOCK
OPTIONS: The Executive will be eligible to receive a grant of 100,000 stock
options pursuant to the 0000 Xxxxxxx Stock Option Plan provided however that
the options will vest over a 3 year period, 33.33% each year. The first
installment will vest in November 2005. Moreover, the Executive will be
eligible to receive periodic grants of options as part of the total
compensation as recommended by the CEO in writing and approved by the Board of
Directors of the Company, consistent with the Company’s practice of
compensating executive officers and as per stock option plans in effect from
time to time. Nothing in this section 7 shall require the Company to grant to
the Executive a specific or minimum number of options at or during any period
of time. |
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8. |
CERTAIN
REIMBURSEMENTS: The Executive shall be entitled to full reimbursement (“gross
up”) from the Company for the use of at least a 2000 liter company car to
be available for the use of the Executive and her family, (per company’s
practice for executives), cellular phone, two home telephone/internet lines, an
annual health check up at the Tel Hashomer Seker facility and a health
insurance plan for the Executive and her family. Expenses incurred by the
Executive during the performance of her duties will be reimbursed upon
submission of substantiating documents, according to the Company’s
standard policy. All travel by the Executive, international and domestic, will
be in business class |
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9. |
CONFIDENTIALITY:
In consideration of the Company’s agreements hereunder, and in further
consideration of the benefits accruing to the Executive hereunder, the
Executive hereby agrees that he shall not, directly or indirectly, disclose or
use at any time, either during or subsequent to her employment with the
Company, any trade secrets or other confidential information, whether
patentable or not, of the Company, its subsidiaries or its affiliates now or
hereafter existing, including but not limited to, any (i) processes, formulas,
trade secrets, innovations, inventions, discoveries, improvements, research or
development and test results, 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 Executive is or becomes informed or aware
during the employment, whether or not developed by the Executive. This covenant
shall survive the termination of the Executive’s employment hereunder, and
shall remain in effect and be enforceable against the Executive for so long as
any such Confidential Information retains economic value, whether actual or
potential, from not being generally known to other persons who can obtain
economic value from its disclosure or use. The Executive agrees to execute such
further agreements and/or confirmations of the Executive’s obligations to
the Company concerning non-disclosure of Confidential Information as the
Company may reasonably require from time to time. Upon termination of this
Agreement, or at any other time upon request of the Company, the Executive
shall promptly deliver to the Company all physical and electronic copies and
other embodiments of Confidential Information and all memoranda, notes,
notebooks, records, reports, manuals, drawings, blueprints and any other
documents or things belonging to the Company, and all copies thereof, in all
cases, which are in the possession or under the control of the Executive. |
Page 4 of 9
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10. |
NON-COMPETITION
AND NON SOLICITATION. |
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a. |
Upon
termination of this Agreement the Executive agrees that for a period of two (2)
years she will not directly or indirectly solicit any business from individuals
or entities that are customers at the time of the termination of this Agreement
of the Company, any of its subsidiaries or affiliates, without the prior
written consent of the CEO. |
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b. |
For
a period of two (2) years from the date of termination of this Agreement
without the prior written consent of the CEO, the Executive shall not employ,
offer to employ, or in any way directly or indirectly solicit or seek to obtain
or achieve the employment by a business or entity which directly or indirectly
competes with the Company or any of its affiliates of any person employed by
either the Company, its subsidiaries, affiliates, or any successors or assigns
thereof (except with respect to the Executive’s personal assistant) now or
during a two (2) year period from the date of the Executive’s termination
of employment, except for those employees who have left the Company, its
subsidiaries, affiliates, or any successors or assigns thereof more than one
(1) year prior to the date of the Executive’s termination of employment
with the Company, provided, however, that (i) an employee recruited by the
Company at the specific request of the Executive and (ii) used to work with the
Executive in the past, will not be subject to such limitation. |
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c. |
For
a period of two (2) years from the date of termination of this Agreement,
without the prior written consent of the CEO, the Executive shall not
participate, directly or indirectly whether for her own account or as advisor,
principal, agent, partner, officer, director, joint venture, employee,
stockholder, associate or consultant of, in any Business Entity (except for an
interest of less than 5% in any entity whose securities are traded in any stock
exchange market). For purposes of this paragraph 10 (c), the term “Business
Entity” shall mean any person, partnership, corporation or other business
entity that at the time of the Executive’s involvement with the Company is
involved in any competition with any business carried on by the Company or its
affiliates or subsidiaries prior to the date of this Agreement or hereafter
conducted by the Company or its affiliates or subsidiaries during the term of
this Agreement anywhere in the world. |
Page 5 of 9
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d. |
The
parties hereto agree that the duration and area for which the covenant not to
compete set forth in paragraph 7(c) above is to be effective and reasonable, in
terms of their geographical and temporal scope. In the event that any court
determines that the time period and/or area are unreasonable and that such
covenant is to that extent unenforceable, the parties hereto agree that such
covenant shall remain in full force and effect for the greatest period of time
and in the greatest geographical area that would not render it unenforceable.
In addition, the Executive acknowledges and agrees that a breach of paragraph
9, sections (a), (b) or (c) of this paragraph 10 or paragraph 11 hereunder,
shall cause irreparable harm to the Company, its subsidiaries, and/or its
affiliates. |
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11. |
CREATIONS
AND INVENTIONS. |
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a. |
The
Executive hereby assigns to the Company or its designated affiliates all of the
Executive’s rights, title and interest in and to all inventions,
copyrightable works, Confidential Information, discoveries, processes, designs,
works of authorship and other intellectual property and all improvements on
existing inventions, discoveries, processes, designs, works and other
intellectual property made or discovered by the Executive during her employment
with the Company (collectively, “Inventions”). |
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b. |
Promptly
upon the development, making, creation, or discovery of any invention,
discovery, process, design, work, intellectual property or improvement, the
Executive shall disclose the name to the Company and shall execute and deliver
to the Company such reasonable documents as the Company may request to confirm
the assignment of the Executive’s rights therein, and if requested by the
Company, shall assist the Company, and shall execute any necessary documents,
at the Company’s expense, in applying for and prosecuting any patents and
any trademark or copyright registration which may be available in respect
thereof. |
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c. |
The
Executive further agrees that the wages provided for the Executive’s
services should be her sole compensation for the assignment to the Company of
all rights to Inventions and other rights granted to the Company under this
Agreement. The Executive hereby waives any residual moral or statutory right
respecting the Invention (to the extent it may exist and be waivable) and to
the extent such right may be non-waivable under any law, the Executive hereby
grants the Company an option to acquire the same for the consideration of one
(1) U.S. Dollar, the receipt and sufficiency of which is hereby acknowledged.
In case any Invention is described in a patent application or is disclosed to
third parties by the Executive within two (2) years after termination of the
Executive’s employment hereunder, it shall be presumed that the Invention
was conceived or made during the period of the Executive’s employment for
the Company, and the Invention shall be assigned to the Company as provided by
this Agreement. |
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d. |
The
Executive shall, at any time during or subsequent to her employment hereunder,
render the Company all assistance it may request or require to secure, file,
record, assign, license, defend or enforce the Invention (including the
execution of affidavits or applications deeds of assignment, and the provision
of testimony or evidence), and the Executive shall do so without any additional
compensation. |
Page 6 of 9
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12. |
DEDUCTIONS
AND WITHHOLDINGS: The Company shall be entitled to deduct and withhold from
any amount payable to the Executive, whether pursuant to this Agreement or
otherwise, any and all taxes, withholdings or other payments as required under
any applicable law. |
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13. |
NO
ASSIGNMENT BY EXECUTIVE: The Executive shall have no right to assign any of
the rights or to delegate any of the duties created by this Agreement and any
assignment or attempted assignment of the Executive’s rights, and any
delegation or attempted delegation of the Executive’s duties, shall be
null and void. |
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14. |
CONDITIONS:
The Executive represents that he has full authority to enter into this
Agreement and that the performance of her duties under this Agreement will not
interfere with or violate the terms of any other agreement, arrangement or
understanding. |
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15. |
BENEFIT:
Except as otherwise expressly provided herein, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, beneficiaries, personal representatives, successors and assigns. |
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16. |
NOTICES: All
notices hereunder shall be in writing and delivered by hand or faxed or mailed
to the address stated below of the party to which such notice is given, or to
such changed address as such party shall have given to the other party by
written notice provided, however, that any notice of change of address
shall be effective only upon receipt by the other party. |
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Attention:
Chief Executive Officer |
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17. |
SEVERABILITY
OF PROVISIONS: If any of the provisions of this Agreement is held invalid,
such provisions shall be severed and the remainder of the Agreement shall
remain in force and shall not be affected thereby. |
Page 7 of 9
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18. |
NO
ORAL CHANGES: This instrument constitutes and contains the entire Agreement
between the parties except as otherwise expressly stated herein. This Agreement
may be changed only in writing, and must be signed by the party against whom
enforcement of any waiver, modification, discharge or other change is sought. |
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19. |
WAIVER:
Neither party’s failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times. |
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20. |
ENTIRE
AGREEMENT: The Agreement contained in this instrument supersedes and
cancels any and all prior agreements between the parties hereto, express or
implied, written or oral, relating to the subject matter hereof. This Agreement
sets forth the entire agreement between the parties hereto with respect to the
subject matter hereof. |
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21. |
GOVERNING
LAW; SUBMISSION TO JURISDICTION: This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel. Any litigation
concerning any claims under or breach of this Agreement shall be brought
exclusively in the competent courts of the Tel-Aviv and Jaffa District. |
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22. |
DESCRIPTIVE
HEADINGS: The paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. |
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23. |
COUNTERPARTS:
This Agreement may be executed in counterparts, each of which shall be deemed
an original, and all such counterparts shall constitute one and the same
instrument. |
Page 8 of 9
IN
WITNESS WHEREOF, Each of the Company and the Executive has executed this Agreement, as of
the day and year first above written.
Lumenis Ltd.
By: ______________
Name: Xxxxx Xxx
Position: President & Chief Executive Officer
Executive
____________________
Xxxxxx Xxxxx
Page 9 of 9
