EXHIBIT 10.9
EMPLOYMENT AGREEMENT
Entered into this __ day of _____ , 2004
This Employment Agreement (together with its appendices: the
"AGREEMENT"), dated as of July 1, 2004, between ORMAT Technologies, Inc., a
Delaware corporation ("EMPLOYER"), and Xxxxx Xxxxxxxx ("EMPLOYEE");
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, Employee has been employed by Ormat Industries Ltd.
("OIL"), Employer's parent company, and OPTI Canada Inc., in different
managerial positions; and
WHEREAS, Employer wishes to retain the services of Employee for
the operation of its businesses and to employ Employee upon the terms and
conditions set forth herein; and
WHEREAS, Employee is willing to be employed by Employer upon the
terms and conditions set forth herein;
A G R E E M E N T S
NOW, THEREFORE, for and in consideration of the foregoing
premises and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, Employer and Employee hereby agree as
follows:
1. EMPLOYMENT. Employer will employ Employee, and Employee will accept
employment by Employer, as its Chief Operating Officer ("COO")
responsible for the Employer's operations in the United States. Employer
may direct Employee to perform services through its subsidiary, Ormat
Systems Ltd. ("OSL"), in which event Employee shall also serve as the COO
of OSL or such other managerial position in OSL as may be agreed upon.
Employee will perform the duties assigned to him from time to time by the
Employer for services for the Employer and any corporation controlling,
controlled by, or under common control with the Employer (together:
"AFFILIATES") and for any business ventures in which Employer or its
Affiliates may participate. The term "CONTROL" shall mean the ability to
dictate the policies of another corporation, whether by share ownership,
contract or otherwise.
Employee's regular place of employment is the Employer's corporate
offices in Nevada but it is agreed that Employee is required to perform
frequent business trips in and out of the United States. Should Employee
permanently relocate to a different jurisdiction, including to Israel,
whether he be employed by Employer or by an Affiliate thereof (in which
event this Agreement shall be assigned to such Affiliate), this Agreement
shall automatically be modified, as further appropriate to reflect the
jurisdiction in which Employee is to be employed and as customary in
employment agreements which are subject to the same applicable law of
executive officers employed by Employer or the Affiliate.
Employee commenced employment with an Affiliate of Employer, in Israel,
on [_____________]. Should Employee permanently relocate to Israel,
whether he be employed by Employer or by an Affiliate thereof, Employee's
seniority will be deemed to include his prior period of employment in
Israel with OIL, for all intents and purposes, including for rights
depending on seniority. For the removal of doubt, his seniority shall not
include his periods of permanent employment outside of Israel.
As a managerial employee, Employee is expected to render work in
accordance with the requirements and demands of his executive position
and will not be entitled to any pay for working overtime (including
working beyond eight (8) hours a day, or during weekends, holidays,
etc.). Nor will any law restricting hours of work and requiring payment
for working overtime apply to Employee.
Employee will be required to follow (a) all work and administrative rules
(including procedures for travel expenses reimbursement) of Employer as
in current use and as may be amended from time to time; and (b) all
national or local law, ordinance or regulation of the country in which
Employee's work is performed.
2. ATTENTION AND EFFORT. Employee will devote his full time, ability,
attention and effort to the business of Employer and its Affiliates, and
will skillfully serve their interests during the term of this Agreement.
It is hereby agreed that the Employee may devote part of his time to
other occupations including (i) civic, charitable and other philanthropic
activities (ii) caring for his personal investments (iii) serving on the
board of directors of corporations in which Employer or any of its
Affiliates is invested and (iv) such other occupations as are expressly
approved by the Employer.
3. TERM. The employment of the Employee hereunder shall be for a period
commencing on the date hereof and ending June 30, 2006 (the "INITIAL
TERM"), unless terminated sooner pursuant to the provisions of this
Agreement. Should the employment of the Employee continue with the
Employer until June 30, 2006 without the execution of a new or modified
employment agreement, this Agreement and all its terms and conditions
shall be automatically extended for additional successive two year terms
(each additional two years period being referred to herein as an
"EXTENDED TERM") unless (i) at least 120 days prior to the termination of
the Initial Term or an Extended Term, a party hereof provides the other
party a written notice of that party's refusal to extend this Agreement
beyond the date of termination of the Initial Term or the Extended Term
during which the notice is given, in which case this Agreement will
terminate on such termination date or (ii) Employee is offered and
accepts employment with an Affiliate of Employer, in which event
Employee's employment with Employer shall terminate 90 days after the
offer is accepted or on the date agreed by Employee and the Affiliate as
the date of commencement of his employment with the Affiliate, whichever
is later, and Employer shall have no further obligation hereunder,
provided that the terms of such employment shall be governed by, and the
Affiliate shall assume, this Agreement, which shall be automatically
modified as set forth in section 1 above.
4. COMPENSATION. During the Initial Term and any Extended Term of this
Agreement, the Employer agrees to pay and/or cause OSL to pay to Employee
(and Employer will
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guarantee OSL's obligations hereunder), and Employee agrees to accept, in
exchange for the services rendered hereunder by him, the following
compensation:
4.1. BASE SALARY. Employee's base salary shall be fourteen thousand
Dollars ($14,000) per month before all customary payroll
deductions payable in accordance with the Employer's customary
payroll procedures.
4.2. BONUS. Employer will pay Employee, and Employee shall be entitled
to receive from Employer, an annual bonus equal to 0.75% of the
lower of (i) the net pre-tax yearly profit of the Employer's
operating plants in the United States and (ii) the net cash flow
before taxes and before capital expenditures for enhancement of
the operating plants generated by the Employer's operating plants
in the United States during the year, but no more than the sum
equaling 3 times the annual base salary of Employee. The bonus
will be paid within 45 days of approval of the Employer's annual
financial statements by the Employer's Board of Directors.
Notwithstanding the above, the audit committee and/or the Board of
Directors of OIL shall have the right, considering OIL's financial
conditions and/or its financial results to reduce the bonus with
respect to any particular year or to resolve that no such bonus
shall be paid with respect to a particular year. This provision
shall be deemed an agreement for the benefit of a third party
(OIL), and will expire once OIL audit committee's approval and/or
OIL board of director's approval is no longer required for
employment agreements between Employer and Employee.
4.3. LONG-TERM INCENTIVES. Employee shall be eligible for awards under
the Ormat Group's Long-Term Incentive Plans if and as granted to
Employee, subject to receipt of approvals required by applicable
law.
4.4. NO OTHER PAYMENTS. This Agreement describes all payments,
compensation and benefits to which Employee is entitled from
Employer and its subsidiaries, and no other allowances or bonuses
will be paid except as expressly approved by the Board of
Directors of Employer, and any other approval required by
applicable law.
5. BENEFITS.
5.1. VACATION. Employee shall be entitled to a total paid vacation of
four weeks per year, not cumulative from year to year without
specific written authorization from Employer, which authorization
must be made no later than 90 days before the end of the year in
which the vacation may be taken. Maximum length of a single
vacation period is two weeks, unless specifically authorized by
the Employer.
5.2. MEDICAL AND HOSPITALIZATION INSURANCE. Employee will be entitled
to receive Employer's standard medical insurance benefits.
5.3. HOLIDAYS. Employee will be entitled to all legal holidays in the
United States as well as Rosh Hashanah, Yom Kippur and the first
day of Passover. Any other
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time off for holidays, including other Israeli holidays, will count
against Employee's vacation time.
5.4. SICK LEAVE. Employee will be entitled to time off for illness as
approved by Employer, and supported by a physician's letter if for
a single period of three days or more, up to a maximum of 30 days
per year.
5.5. 401(K). Employee will be enrolled to Employer's Simple 401(k)
program, in accordance with the terms of the program from time to
time.
5.6. Employee shall participate in employee benefit plans that cover
senior executives of Employer, to the extent eligible under the
terms of such plans.
5.7. EMPLOYMENT BY AFFILIATE; EMPLOYMENT IN ISRAEL. In the event that
the Employee becomes employed by an Affiliate of the Employer and
this Agreement becomes the obligation of the Affiliate, the
benefits to which the Employee is entitled under this Section 5
shall be automatically adjusted to reflect appropriate benefits in
the jurisdiction in which the Employee is to be employed by the
Affiliate. Without derogating from the above, upon relocation to
Israel, whether Employee be employed by Employer or by an
Affiliate, Employee shall be entitled to the benefits as specified
in APPENDIX 5.7 attached to this Agreement, instead of the
benefits specified in sub-sections 5.1-5.6 above.
6. TERMINATION.
6.1. BY EMPLOYER WITHOUT CAUSE. Employer may terminate the employment
of Employee without Cause upon providing 120 days' prior written
notice to Employee. In the event of termination by Employer
without Cause, Employee shall continue to be entitled to salary,
bonus and other compensation and benefits set forth in this
Agreement for the unexpired portion of the Initial Term or any
Extended Term, except that if such prior notice is given less than
120 days prior to the termination of the Initial Term or an
Extended Term, such salary, bonus and other compensation and
benefits shall be paid for a period of 120 days after notice is
given.
6.2. BY EMPLOYER FOR CAUSE. Employer may terminate the employment of
Employee at any time for Cause. In the event of termination by
Employer for Cause, Employee shall not be entitled to any salary,
bonus, or other compensation or benefits except for accrued but
unpaid salary through the last day worked. "CAUSE" means the
occurrence of one or more of the following events:
(i) Habitual unjustifiable failure or refusal to perform
the lawful duties of the Employee described in
Sections 1 and 2 hereof;
(ii) Violation by Employee of a state or federal criminal
law involving the commission of a crime against
Employer or a felony, provided that a violation of
criminal law shall not constitute Cause if
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Employee is entitled to be indemnified by Employer
in connection therewith;
(iii) Repeated misuse by Employee of alcohol or controlled
substances; deception, fraud, misrepresentation or
dishonesty by Employee; any intentional act or
omission by Employee which substantially impairs
Employer's business, goodwill or reputation; or
(iv) Any other material violation of this Agreement by
Employee.
6.3. TERMINATION BY EMPLOYEE. Employee may terminate this Agreement
upon providing 120 days' prior written notice to Employer. In the
event of termination by Employee, Employee shall be entitled to
salary, bonus and other compensation and benefits through the last
day worked. Notwithstanding the above, in the event of a Change in
Control, as defined hereunder, Employee shall have the right,
exercisable at any time during a period of 180 days from the
Change in Control becoming effective, to terminate the
employment by a 90 days' prior written notice.
6.4. DEATH. If Employee shall die during the Initial Term or any
Extended Term, this Agreement shall terminate except that the
Employee's estate shall be entitled to receive (i) any unpaid base
salary accrued to the date of the Employee's death, (ii) any
unpaid bonus earned by Employee for a completed year, and (iii) a
portion of the annual bonus set forth in Section 4.2 for the year
of the Employee's death and payable after the end of such year but
multiplied by a fraction, the numerator of which is the number of
days in the year through Employee's death and the denominator of
which is 365.
6.5. DISABILITY. If Employee becomes physically or mentally disabled,
whether totally or partially, so that he is prevented from
performing the essential functions of his position for more than
90 consecutive days, the Employer may terminate the employment of
Employee, and the provisions of section 6.4 shall apply, mutatis
mutandis. Employee shall be entitled to receive benefits under
Employer's existing long term disability plan (if any), if
eligible under the terms of such plan.
6.6. RELOCATION TO ISRAEL. Should Employee relocate to Israel, this
section 6 shall be replaced with the provisions of APPENDIX 6.6
attached hereto.
7. CHANGE IN CONTROL.
7.1. DEFINITION OF "CHANGE IN CONTROL" AND "GOOD REASON". A "CHANGE IN
CONTROL" shall be deemed to have occurred if
(i) any person (except a publicly traded depository
trust company or other similar nominees holding
shares for their public bneneficial owners), as that
term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, as in
effect on July 1, 2004 ("EXCHANGE ACT") is or
becomes the beneficial owner (as that term is
defined in Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder) of 50%
or more of the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors ("VOTING
SECURITIES") of Employer or of OIL, excluding,
however, if such ownership is the result of any of
the following: (a) any acquisition
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directly from the Employer or from OIL, other than
an acquisition by virtue of a public offering or by
virtue of the exercise of a conversion privilege
unless the security being so converted was itself
acquired directly from the Employer, or (b) any
acquisition by the Employer; or if
(ii) more than 50% of the members of the Board of
Directors of the Employer shall not be Continuing
Directors (which term, as used herein, means the
directors of Employer (a) who were members of the
Board of Directors of Employer on July 1, 2004 or
(b) who subsequently became directors of Employer
and who were elected or designated to be candidates
for election as nominees for the Board of Directors,
or whose election or nomination for election by
Employer's stockholders was otherwise approved, by a
vote of 75% of the Continuing Directors then on the
Board of Directors but shall not include, in any
event, any individual whose initial assumption of
office occurs as a result of either an actual or
threatened election contest (as such terms are used
in Rule 14(a)-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf
of a person other than the Board of Directors); or
if
(iii) Employer shall be merged or consolidated with, or,
in any transaction or series of transactions,
substantially all of the business or assets of
Employer shall be sold or otherwise acquired by,
another corporation or entity unless, as a result
thereof, (a) the stockholders of Employer
immediately prior thereto shall beneficially own,
directly or indirectly, at least 60% of the combined
Voting Securities of the surviving, resulting or
transferee corporation or entity (including, without
limitation, a corporation that as a result of such
transaction owns Employer or all or substantially
all of Employer's business or assets either directly
or through one or more subsidiaries) ("NEWCO")
immediately thereafter in substantially the same
proportions as their ownership immediately prior to
such corporate transaction, (b) no person
beneficially owns (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act and the
rules and regulations promulgated thereunder),
directly or indirectly, 50% or more of the Voting
Securities of Newco immediately after such corporate
transaction except to the extent that such ownership
of Employer existed prior to such corporate
transaction and (c) more than 50% of the members of
the Board of Directors of Newco shall be Continuing
Directors; or if
(iv) the stockholders of the Employer or of OIL approve a
complete liquidation or dissolution of Employer or
of OIL.
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"GOOD REASON" shall be deemed to have occurred only if Employee
terminates employment for any of the following reasons:
(v) a reduction by Employer in Employee's base salary as
in effect at the time of a Change in Control plus
all increases therein subsequent thereto, a
reduction in the Employee's bonus as in effect at
the time of Change in Control plus all increases
therein subsequent thereto, a change in the manner
of computation of Employee's annual bonus that is
adverse to Employee, failure to maintain Employee's
eligibility for awards under the Ormat Group's Long
Term Incentive Plans as in effect at the time of the
Change in Control and with all improvements therein
subsequent thereto or failure to maintain Employee's
participation in Employer's employee benefit plans
as in effect at the time of the Change in Control
and with all improvements therein subsequent
thereto;
(vi) the assignment to Employee of any duties
inconsistent with Employee's position, duties,
responsibilities and status with the Employer at the
time of the Change in Control, or any material
reduction in Employee's authority or
responsibilities from those assigned at the time of
the Change in Control, or a change in the Employee's
title or offices as in effect at the time of the
Change in Control, or any removal of the Employee
from, or any failure to re-elect the Employee to,
any of such positions, except in connection with the
termination of the Employee's employment as a result
of death, or by the Employer for disability or for
Cause, or by the Employee for other than Good
Reason; or
(vii) the relocation of the Employee's office to a
location more than 60 miles from its location at the
time of a Change in Control or the Employer
requiring the Employee to be based anywhere other
than at such office, except for required travel for
Employer's business to an extent substantially
consistent with Employee's business travel
obligations at the time of a Change in Control.
The Employee must provide a notice in writing to the Employer
which shall set forth the specific "Good Reason" relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
7.2. COMPENSATION UPON CHANGE IN CONTROL.
(i) If, within three years following a Change in
Control, the employment of the Employee is
terminated by the Employer other than for disability
or Cause or if, within 180 days following a Change
in Control, Employee terminates the employment
pursuant to Section 6.3 above or Appendix 6.6 below
or if the Employee terminates his employment for
Good Reason (all subject to section 6 above), then
Employer shall pay to the Employee as a lump sum on
the fifth
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business day following his last day worked the
amounts in clauses (a) through (e) below:
(a) the Employee's full unpaid base salary accrued
through the date of termination of this Agreement;
(b) in lieu of any further salary payments for
periods subsequent to the date of termination of
this Agreement, payment of the Employee's monthly
base salary at the time of the Change in Control
plus any increases therein multiplied by 24;
(c) in lieu of any future annual bonus payments
(except as provided in clause (e) below) the average
of the annual bonus paid to the Employee for the two
years immediately preceding the Change in Control
multiplied by two;
(d) the amount of the annual matching contribution
that would be made by the Employer to the Employee's
Simple 401 (k) Plan assuming that the Employee
elected the maximum contribution thereunder that
could be made by the Employee, multiplied by two;
and
(e) a portion of the annual bonus for the year in
which the termination of employment occurs, paid
within 45 days after approval of the consolidated
audited financial statements for that year by the
Employer's Board of Directors and by OIL's Board of
Directors, with the amount thereof multiplied by a
fraction, the numerator of which is the number of
days in the years through the date of termination of
employment and the denominator of which is 365, and
any unpaid annual bonus for any completed year.
(ii) If, within three years following a Change in
Control, the Employer shall terminate the Employee's
employment (other than for disability or for Cause),
or if, within 180 days following a Change in
Control, Employee terminates the employment pursuant
to Section 6.3 above or Appendix 6.6 below or if the
Employee terminates his employment for Good Reason,
the Employer shall maintain in full force and
effect, for the Employee's continued benefit for a
two year period after his last day worked, or until
Employee obtains new employment, whichever is
earlier, all employee health, accident, life
insurance, disability and other employee welfare
benefit plans, programs or arrangements (including
pension accruals and loss of work capacity insurance
payments to Employee's Managers' Insurance Policy,
if active) in which Employee was participating
immediately prior to the date of the Change in
Control plus all improvements therein subsequent
thereto, provided that the continued participation
of the Employee is not prohibited under the terms
and provisions of such plans, programs and
arrangements. In the event that the Employee's
participation in any such plan, program or
arrangement is
8
prohibited, the Employer shall arrange to provide
the Employee with benefits substantially similar to
those that the Employee would have been entitled to
receive under such plan, program or arrangement if
he had remained a participant for such additional
period.
(iii) In the event the employment of the Employee is
terminated by Employer pursuant to Section 6.1 and a
Change in Control occurs within six months
thereafter, the Employee shall then be entitled to
compensation under this Section 7.2 reduced by any
compensation previously received under Section 6.1.
8. NON-COMPETITION AND NON-SOLICITATION.
8.1. APPLICABILITY. This paragraph 8 shall survive the termination of
Employee's employment with Employer except that Sections 8.2 and
8.3 shall terminate and be of no effect if Employment is
terminated by Employer without Cause or Employee terminates his
employment subsequent to a Change in Control for Good Reason.
8.2. SCOPE OF NON-COMPETITION. Employee agrees that he will not,
directly or indirectly, during his employment and for a period of
one year from the date on which his employment with Employer
terminates, be employed by, consult with or otherwise perform
services for, own, manage, operate, join, control or participate
in the ownership, management, operation or control of or be
connected with, in any manner, any Competitor (as hereinafter
defined) unless released from such obligation in writing by
Employer. A "COMPETITOR" shall include any entity which competes
with Employer in the geothermal and waste heat field (and
industries set forth in an addendum to this Agreement, from time
to time) worldwide, or any entity which is developing energy
products or services that will be in competition with the energy
products or services of Employer. Employee shall be deemed to be
connected with a Competitor if such Competitor is (a) a
partnership in which he is a general or limited partner or
employee, (b) a corporation or association in which he is a
shareholder, officer, employee or director, or (c) if Employee is
a member, consultant or agent of such Competitor; provided,
however, that nothing herein shall prevent the purchase or
ownership by Employee of shares which constitute less than five
percent of the outstanding equity securities of a publicly or
privately held entity, if Employee has no other relationship with
such entity and provided further, that nothing herein shall
prevent the Employee to be employed or provide services (including
consultation services) to a Competitor, if the functions as an
employee, or services rendered, do not compete with Employer, in
the meaning set forth above.
8.3. SCOPE OF NON-SOLICITATION. Employee shall not intentionally
directly or indirectly solicit, influence or entice, or attempt to
solicit, influence or entice, any employee or consultant of
Employer to cease his relationship with Employer or solicit,
influence, entice or in any way divert any customer, distributor,
partner, joint venturer or supplier for Employer to do business or
in any way become associated
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with any Competitor to the detriment of Employer. This Section 8.3
shall apply during the time period described in Section 8.2
hereof.
8.4. NON-DISCLOSURE: RETURN OF MATERIALS. During the term of his
employment by Employer and following termination of such
employment, Employee will not disclose (except as required by his
duties to Employer), any Confidential Information (as defined
below) to any third party. All documents, procedural manuals,
guides, specifications, plans, drawings, designs, computer
programs and similar materials, lists of present, past or future
customers, customer proposals, invitations to submit proposals,
price lists and data relating to pricing of Employer's products
and services, records, notebooks and similar repositories of or
containing any Confidential Information (including all copies
thereof) coming into Employee's possession or control by reason of
Employee's employment by Employer, whether prepared by Employee or
others; (i) are the property of the Employer, (ii) will not be
used by Employee intentionally in any way adverse to Employer,
(iii) will not be removed from Employer's premises or photocopied
(except as Employee's employment by Employer shall require) and
(iv) at the termination of Employee's employment, will be left
with, or forthwith returned to, Employer.
As used in this Agreement, "CONFIDENTIAL INFORMATION" shall mean
secret or proprietary information of whatever kind or nature
disclosed to Employee or becoming known to Employee (whether or
not invented, discovered or developed by Employee), at any time
during Employee's employment by Employer or his previous
employment by Employer's Affiliates as a consequence or through
such employment. Such secret or proprietary information shall
include information relating to design, manufacture, application,
know-how, research and development relating to Employer's present,
past or prospective products, sources of supplies and materials,
operating and other cost data, lists of present customers,
customer proposals, price lists and data relating to pricing of
Employer's products or services. Such secret or proprietary
information shall specifically include, without limitation all
information contained in Employer's manuals, memoranda, formulae,
plans, drawings and designs, specifications, data supply sources,
computer programs and records, legends or otherwise identified by
Employer as confidential information.
Confidential Information shall not, however, include information
which is now or hereafter becomes generally known or available in
the industry or to the public through no act on the part of
Employee, is received by Employee from another person that is (to
Employee's knowledge) free to disclose the same without
restriction, or is independently developed by a third party who
(to Employee's knowledge) has had no access to that or similar
Confidential Information as disclosed pursuant to this Agreement.
Employee's obligations under this Section 8.4 shall terminate
three (3) years after the termination of Employee's employment.
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8.5. RIGHTS TO INVENTIONS.
(i) The know-how, Inventions (as defined below) and such
other data that will be developed during Employee's
employment, and all modifications thereof even if
made after termination of Employee's employment,
shall belong to Employer, and Employer will be the
sole and exclusive owner of any and all rights
pertaining thereto.
(ii) Employee shall keep signed, witnessed and dated
records of any and all ideas, inventions,
improvements and discoveries (whether or not
patentable), made, conceived or first reduced to
practice by Employee in the course of his employment
under this Agreement, together with all supporting
evidence such as notes, sketches, drawings, models
and data pertaining thereto. Employee shall promptly
make full disclosure to Employer of any Inventions
or modifications thereof. At the time of this
Agreement, Employee has not been issued any patents
for any device, process, design or invention of any
kind which may be used by or needed by Employer in
connection with Employer's activities, services, and
product and which he has not assigned to Employer
and duly recorded in the United States Patent
Office. Employee agrees that all inventions
developed by Employee while he was employed by
Employer and prior to the date of this Agreement
while he was employed by Employer's affiliates are
the property of Employer and subject to the terms of
this paragraph 8.
(iii) Employer will have the right to submit patent
applications based on such inventions. Such patents
will identify the original inventors, as required by
patent law in the United States, and also in other
countries, even if not required by law.
Employee shall, at Employer's expense, promptly
execute formal applications for patents and also do
all other acts and things (including, among other,
executing and delivering instruments of further
assignments, registration, assurance or
confirmation) deemed by Employer necessary or
desirable at any time or times in order to effect
the full assignment to Employer of Employee's
rights, title, and interest to such Inventions
and/or modifications, without payment therefor and
without further compensation beyond Employee's
agreed compensation for employment. The absence of a
request by Employer for information, or for the
making of an oath, or for the execution of any
document, shall in no way be construed to constitute
a waiver of the rights of Employer.
Should Employer determine that it has no intent to
make a patent application for an Invention, and that
it has no reason to keep such inventions
confidential, Employee will have the right, after
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receiving Employer's approval in writing, to pursue
patent application at its own risk and expense. It
is expressly understood that Employer may withhold
such approval as it deems necessary at its sole
discretion.
(iv) As used in this Agreement, "INVENTIONS" shall mean
those discoveries, developments, inventions and
works of authorship, whether or not patentable,
relating to Employer's present, past or prospective
activities, services and products, which activities,
services and products are known by Employee at any
time during Employee's employment by Employer as a
consequence of such employment, including any
patents, models, trade secrets, trademarks, service
marks, copyrightable subject matter and any
copyrights therein, proprietary information, design
of a useful article (whether the design is
ornamental or otherwise), computer programs and
related documentation, and other writings, code,
algorithms and information and related documentation
and materials which the Employee has made, written
or conceived or may make, write or conceive, during
Employee's employment by Employer, either solely or
jointly with others, and either on or off Employer's
premises (a) while providing services to Employer,
or (b) with the use of time, materials or facilities
of Employer, or (c) relating to any Employer's
product, service or activity of which Employee has
knowledge, or (d) suggested by or resulting from any
work performed by or for Employer. Such term shall
not be limited to the meaning of "invention" under
the United States patent laws.
8.6. EQUITABLE RELIEF. Employee acknowledges that the provisions of
this paragraph 8 are essential to Employer, that Employer would
not enter into this Agreement if it did not include this paragraph
8 and that losses sustained by Employer as a result of a breach of
this paragraph 8 cannot be adequately remedied by damages, and
Employee agrees that Employer, notwithstanding any other provision
of this Agreement, and in addition to any other remedy it may have
under this Agreement or at law, shall be entitled to injunctive
and other equitable relief, without the necessity for posting a
bond, to prevent or curtail any breach of any provision of this
Agreement, including, without limitation, this paragraph 8.
8.7. DEFINITION OF EMPLOYER. For purposes of Section 8.2 and Section
8.3 hereof, "EMPLOYER" shall include all Affiliates of Employer,
and any business ventures in which Employer or its Affiliates may
participate.
9. SEVERABILITY. To the extent any provision of this Agreement shall be
invalid, illegal or unenforceable in any respect, it shall be considered
deleted herefrom, and the remainder of such provision and of this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision (or portion thereof) had never been contained herein. In
furtherance and not in limitation of the foregoing, should the duration
or geographical
12
extent of, or business activities covered by any provision of this
Agreement be in excess of that which is valid and enforceable under
applicable law, then such provision shall be construed to cover only that
duration, extent or activities which may validly and enforceably be
covered.
10. FORM OF NOTICE. All notices given hereunder shall be given in writing,
shall specifically refer to this Agreement and shall be personally
delivered or sent by telecopy or other electronic facsimile transmission
or by registered or certified mail, return receipt requested, at the
addresses set forth below;
If to Employee: Xxxxx Xxxxxxxx
-----------------------
-----------------------
If to Employer: Ormat Technologies Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attn: Chief Executive Officer
If notice is mailed, such notice shall be effective after 10 days of
mailing; if notice is personally delivered, it shall be effective upon
receipt; and if sent by electronic facsimile transmission, it shall be
effective on the following business day.
11. WAIVERS. No delay or failure by any party hereto in exercising,
protecting or enforcing any of its rights, titles, interests or remedies
hereunder, and no course of dealing or performance with respect thereto,
shall constitute a waiver thereof. The express waiver by a party hereto
of any right, title, interest or remedy in a particular instance or
circumstance shall not constitute a waiver thereof in any other instance
or circumstance. All rights and remedies shall be cumulative and not
exclusive of any other rights or remedies.
12. AMENDMENTS IN WRITING. No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent to any
departure therefrom by either party hereto, shall in any event be
effective unless the same shall be in writing, specifically identifying
this Agreement and the provision intended to be amended, modified,
waived, terminated or discharged and signed by Employer and Employee.
13. APPLICABLE LAW. Subject to Section 1 hereof, this Agreement shall be in
all respects, including all matters of construction, validity and
performance, be governed by, construed and enforced in accordance with,
the laws of the State of Nevada, without regard to any rules governing
conflicts of laws.
14. MITIGATION. The Employee shall not be required to mitigate the amount of
any payment made after termination of employment by seeking other
employment or otherwise, nor shall the amount of any such payment by the
Employer be reduced by any compensation earned by the Employee as the
result of employment by another employer after termination of employment
or by any other compensation except as provided in Section 7.2(ii).
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15. SUCCESSORS. The Employer shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or a
majority of the business or assets of the Employer, by agreement in form
and substance reasonably satisfactory to the Employee, expressly to
assume and agree to perform this Agreement in the same manner and to the
same extent as the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the Employee to compensation
under Section 7.2 in the same amount and on the same terms as the
Employee would have been entitled to hereunder if the Employee had given
a notice of termination for Good Reason as of the day immediately before
such succession became effective and had specified that day in his
notice. As used in this Agreement, "EMPLOYER" shall mean the Employer as
defined in the first sentence of this Agreement and any successor to all
or substantially all its business or assets or which otherwise becomes
bound by all the terms and provisions of this Agreement, whether by the
terms hereof, by operation of law or otherwise. This Agreement shall
inure to the benefit of and be enforceable by the Employee and his
personal or legal representatives and successors in interest under this
Agreement.
16. HEADINGS. All headings used herein are for convenience only and shall not
in any way affect the construction of, or be taken into consideration in
interpreting, this Agreement.
17. ENTIRE AGREEMENT. This Agreement on and as of the date hereof constitutes
the entire Agreement between Employer (and/or Affiliates) and Employee
with respect to the subject matter hereof and all prior or
contemporaneous oral or written communications, understandings or
agreements between Employer (and/or Affiliates) and Employee with respect
to such subject matter are hereby superseded and nullified in their
entireties, except for such rights and benefits of Employee under his
employment agreement with OIL (which was assigned to and assumed by OSL)
to which Employee may be entitled should his employment with Employer
terminate without Employee being subsequently employed by Affiliate
thereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed and entered into
this Agreement on the date set forth above.
EMPLOYEE:
-----------------------------
EMPLOYER:
BY:__________________________
TITLE:_______________________
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APPENDIX 5.7
------------
BENEFITS IF EMPLOYEE RELOCATES TO ISRAEL
1. VACATIONS:
1.1. 30 days fully paid annual vacation. The annual vacation days may
be accrued unlimitedly.
1.2. 10 Recovery days ("Dmei Havra'ah") each year, to be paid in
accordance with the customary rate in OSL.
1.3. 90 days of fully paid sickness leave each year. Provided however,
the Employee shall not be entitled to his base salary during such
sickness leave, if and to the extent he is entitled to payments
under a Loss of Working Capacity Insurance Policy. The days of
sickness leave may be accrued with no limitation (subject to
Employer's rights hereunder) but they may not, in any event, be
redeemed or cashed by Employee.
2. VEHICLE:
2.1. Employer shall provide Employee with an executive automobile of
licensing group 3, which shall be new or not more than 3 years
old, and of a make and model acceptable to Employee and Employer.
2.2. Employer shall bear all costs involved in the use and maintenance
of the automobile, except traffic or parking fines and except
taxes imposed on such benefit.
3. EXECUTIVE MANAGERS' INSURANCE POLICY AND SEVERANCE PAY: Employer shall
insure Employee under Pension Insurance Plans ("the plans") chosen by the
Employee, as follows:
3.1. Employer shall pay to the plans an amount equal to 13.33% of the
Employee's base salary (8.33% towards severance pay and 5% towards
pension pay) as well as an amount equal to up to 2.5% of the
Employee's base salary to insure loss of working capacity. Upon
Employee's relocating to Israel and upon any increase in
Employee's base salary, Employer shall pay the plans such amounts
as required for the sums accumulated under the Policy, on account
of the Employee's severance pay, to equal at all times the amount
of severance pay Employee is entitled to based on his last salary
and his seniority with the Ormat Group (as determined in section 1
to the Agreement).
3.2. In addition, Employer shall deduct 5% from Employee's base salary
and transfer such amount to the plans (towards pension pay).
4. EDUCATIONAL FUND ("KEREN HISHTALMUT"): Employer shall pay to an
Educational Fund chosen by Employee up to an amount equal to 7.5% of
Employee's base salary (but no more than the salary limit exempt from tax
under current tax law), as well as deduct up to
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an amount of 2.5% from Employee's base salary (but no more than the
salary limit exempt from tax under current tax law) and transfer such
amount to the Fund.
5. REIMBURSEMENT OF EXPENSES: Employee shall be entitled to reimbursement
for reasonable out-of-pocket expenses incurred by Employee in connection
with his employment with Employer, including for travel, professional
literature, hosting, newspapers, phone conversationsetc.. The
reimbursement shall be effected against the presentation of proper
invoices.
6. OTHER: other benefits customary to all employees of the Ormat Group, such
as dental insurance, annual medical check ups etc..
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APPENDIX 6.6
------------
TERMINATION OF EMPLOYMENT IF EMPLOYEE RELOCATES TO ISRAEL
6. TERMINATION
6.1. Without derogating from the provisions of section 3 above, each
party may terminate this Agreement and the employment of Employee
hereunder by providing the other party with a 120 days' written
notice prior to the end of the respective term (the "Prior Notice
Period"). Employer may relieve the Employee from the obligation to
work during the Prior Notice Period, all or any part thereof, or
terminate this Agreement prior to the termination of the Prior
Notice Period, provided however that in the event of termination
by Employer, Employee shall continue to be entitled to salary,
bonus (including on a pro-rata basis, if termination occurs in
mid-year) and other compensation and benefits set forth in this
Agreement for the unexpired portion of the Initial Term or any
Extended Term as if his employment continued through out this
Term, except that if such prior notice is given less than 120 days
prior to the termination of the Initial Term or an Extended Term,
such salary, bonus and other compensation and benefits shall be
paid for a period of 120 days after notice is given.
Notwithstanding the above, in the event of a Change in Control, as
defined hereunder, Employee shall have the right, exercisable at
any time during a period of 180 days from the Change of Control
becoming effective, to terminate the employment by a 90 days prior
written notice.
6.2. In the event of termination of this Agreement whether by Employer,
whether by Employee (except under the circumstances described in
section 6.4 hereunder), Employee (or the Employee's estate, as
applicable) shall be entitled to assignment to Employee of
ownership of his Executive Managers' Insurance Policy ("MANAGERS'
INSURANCE POLICY") and monies accumulated therein, and payment of
the difference, if any, between the sums accumulated in such
Managers' Insurance Policy on account of the Employee's severance
pay, and the amount of severance pay Employee is entitled to based
on his last base salary multiplied by the number of years of his
seniority with Employer.
6.3. In any event, Employee shall be entitled to:
(i) Payment of accrued vacation which remained unused on
the date of termination of this Agreement.
(ii) The Employee's share in the Managers' Insurance
Policy (i.e., those funds which originate from
deductions made from Employee's base salary).
(iii) All monies accumulated in the Employee's Educational
Fund.
6.4. Notwithstanding the above, in circumstances under which Employee
is convicted of a criminal offence constituting an act of moral
turpitude, Employer may terminate this Agreement immediately,
without giving any prior written notice and with no other
obligation, and Employee shall not be entitled to the benefits
listed in section 6.2 above, but will be entitled to the benefits
listed in section 6.3 above.
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