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EXHIBIT 28
EMPLOYMENT AGREEMENT
OF XXXXX XXXX
WITH
D.S.P.C. TECHNOLOGIES LTD.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of this 12th day of August, 1999, by and between D.S.P.C.
TECHNOLOGIES LTD., an Israeli company (hereinafter the "Corporation"), and XXXXX
XXXX (hereinafter "Aber").
RECITALS
A. Aber is employed by the Corporation as its Chief Financial Officer.
B. In connection with Aber's employment with the Corporation, the
Corporation and Aber desire to enter into this Employment Agreement according to
the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. EMPLOYMENT DUTIES.
a. GENERAL. The Corporation hereby agrees to employ Aber, and
Aber hereby agrees to accept employment with the Corporation, on the terms and
conditions hereinafter set forth.
b. CORPORATION'S DUTIES. The Corporation shall allow Aber to,
and Aber shall, perform responsibilities normally incident to his position as
Chief Financial Officer of both the Corporation and the Corporation's parent
corporation, DSP Communications, Inc., a Delaware corporation ("DSPC"), and as
Senior Vice President of DSPC, commensurate with his background, education,
experience and professional standing. The Corporation shall provide Aber with a
private office, stenographic help, office equipment, supplies, customary
services and cooperation suitable for the performance of his duties. These
duties shall be performed primarily in Israel.
x. XXXX'X DUTIES. Unless otherwise agreed to by the parties,
Aber shall serve as the Chief Financial Officer of both the Corporation and DSPC
and also as the Senior Vice President of DSPC. Aber shall devote his full
productive time, attention, energy, and skill to the business of the Corporation
and DSPC during the employment term set forth below, and shall not become
engaged to render similar services on behalf of any other entity while employed
hereunder, without the prior written consent of the Corporation's Board of
Directors or its Chairman. Aber shall report directly to DSPC's Board of
Directors and the Chairman of the Board. Aber shall inform the Board of
Directors of any positions that he takes in any corporation other than the
Corporation or DSPC. Aber, however, shall be allowed to perform services for the
Corporation's affiliates, including, without limitation, DSPC Israel, Ltd., DSP
Telecommunications, Ltd, CTP Systems, Ltd, DSP Telecom, Inc., DSPC Japan, Inc.,
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Systems, Inc., DSPC Europe BVBA, and Isotel Corp., and shall be allowed to serve
on the Board of Directors of up to two (2) corporate entities. Notwithstanding
Aber's offices or titles in DSPC or any of DSPC's subsidiaries or other
affiliates, Aber shall have the authority to conclude contracts in the name of
such company only to the extent that such authority does not cause (i) any
Israeli company to have a permanent establishment in the United States for
purposes of any tax treaty between the United States and Israel or (ii) any
United States company to have a permanent establishment in Israel for purposes
of any tax treaty between the United States and Israel.
x. Xxxx acknowledges that his employment with the Corporation
will require frequent travel spanning extended periods outside Israel.
Furthermore, Aber agrees to extensive world-wide travel under his employment
with the Corporation.
x. Xxxx understands and acknowledges that as his position is a
senior managerial position in substance, as defined in the Work and Rest Hours
Law, 1951, and requires a high level of trust, the provisions of said law shall
not apply to Aber and Aber agrees that he may be required to work beyond the
regular working hours of the Corporation, for no additional compensation other
than as specified in this Agreement.
2. TERM. This Agreement shall terminate on August 12, 2001, unless (a)
extended as set forth herein, or (b) terminated sooner under the terms of this
Agreement. Thereafter, this Agreement may be renewed by Aber and the Board of
Directors of this Corporation on such terms as the parties may agree to in
writing. Absent written notice to the contrary, thirty (30) days prior to the
end of the employment term, this Agreement will be renewed for consecutive one
(1) year extensions. As used herein, the term "employment term" refers to the
entire period of employment of Aber hereunder, including any agreed-to
extension.
3. COMPENSATION. Aber shall be compensated as follows:
a. FIXED SALARY. Aber shall receive a fixed annual gross salary
of Six Hundred Sixty Thousand (660,000) New Israeli Shekels (the "Gross
Salary"), which amount includes an annual vehicle allowance, payable on a
monthly basis. The Corporation agrees to review the fixed salary following the
end of each twelve (12) month period during the employment term based upon
Aber's services and the Corporation's and DSPC's financial results during the
calendar year, and to make such increases as may be determined appropriate in
the discretion of the Corporation's Board of Directors.
b. BONUS COMPENSATION. During the employment term, Aber shall
participate in each bonus plan adopted by DSPC's Board of Directors, and shall
receive such other bonus pay as may be determined reasonable in the discretion
of DSPC's Board of Directors.
c. VACATION. Aber shall accrue paid vacation at the rate of
twenty-two (22) days for each twelve (12) months of employment. Aber shall be
compensated at his usual rate of compensation during any such vacation. Aber
shall not accumulate unused vacation days for more than twenty four (24) months
of employment. Aber shall be entitled to paid national and Jewish holidays as is
the law or custom in Israel.
d. BENEFITS.
i. During the term of Aber's employment, Aber shall be
entitled to Manager's Insurance (Bituach Menehalim) in an amount equal to 15.83%
of the Gross Salary, which shall be paid monthly to said Manager's Insurance
Plan directly by the Corporation. The
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insurance shall be allocated as follows: (i) 8.33% in respect of severance
compensation, (ii) 5% in respect of pension and (iii) 2.5% of the Gross Salary
in respect of disability. An additional 5% of the Gross Salary shall be deducted
by the Corporation from the monthly payment of Aber's salary as Aber's
contribution to said Manager's Insurance.
ii. The Manager's Insurance policy provided for Aber's
benefit shall be registered in the Corporation's name. The contributions to the
Manager's Insurance Policy shall be paid by the Corporation in lieu of any other
legal obligation to make payments on account of severance or pension in respect
of Aber's employment during the Employment Term, except as otherwise set forth
in Section 7 (below). Should the provisions made for severance pay not cover the
amount owed by the Corporation to Aber by law, then the Corporation shall pay
Aber the difference, all in accordance with Israeli law. Aber's agreement to the
last two sentences shall exempt the Corporation from the requirement to apply to
the Minister of Labor and Welfare for an approval under Section 14 of the
Severance Pay Law; however, should such application be deemed necessary, Aber's
signature hereupon shall be deemed his consent to the Corporation's application
in Aber's name in such matter.
iii. The sums accumulated in the Manager's Insurance
policy shall be transferred to Aber upon termination of his employment
hereunder, unless Aber has committed an act in breach of Aber's fiduciary duty
towards the Corporation, DSPC or any of its affiliates.
iv. The Corporation shall provide and pay Aber
Recreation Funds (Dme'y Havra'ah) at the rate required by law and regulations.
v. The Corporation shall contribute to a Continuing
Education Fund chosen by it for the benefit of Aber in an amount equal to 7.5%
of his Gross Salary per month, subject to Aber's contribution of an additional
2.5% of his Gross Salary per month.
vi. The Corporation and DSPC shall provide Aber with
Director and Officer Insurance, if reasonably available to the Corporation and
DSPC, and all of its officers and directors. Aber shall in no event receive less
Director and Officer insurance coverage than that available to any other
employee. The Corporation shall, at a minimum, keep in full force and effect its
indemnification agreement previously entered into with Aber.
4. EXPENSES. The Corporation shall reimburse Aber for his normal and
reasonable expenses incurred for travel, entertainment and similar items in
promoting and carrying out the business of the Corporation in accordance with
the Corporation's general policy as adopted by the Corporation's management from
time to time. As a condition of reimbursement, Aber agrees to provide the
Corporation with copies of all available invoices and receipts, and otherwise
account to the Corporation in sufficient detail to allow the Corporation to
claim an income tax deduction for such paid item, if such item is deductible.
Reimbursements shall be made on a monthly, or more frequent, basis. The
Corporation shall also reimburse Aber for all professional membership dues
incurred, if any; all technical books purchased by Aber; and all other expenses,
incurred by Aber at the Corporation's or DSPC's request.
5. CONFIDENTIALITY AND COMPETITIVE ACTIVITIES. Aber agrees that during
the employment term he is in a position of special trust and confidence and has
access to confidential and proprietary information about the Corporation's
business and plans. Aber agrees that he will not directly or indirectly, either
as an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any similar individual or representative
capacity, engage or participate in any business that is in competition, in any
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manner whatsoever, with the Corporation. Notwithstanding anything in the
foregoing to the contrary, Aber shall be allowed to invest as a shareholder in
publicly traded companies, or through a venture capital firm or an investment
pool.
For purposes of this Section 5, the term "Corporation" shall also mean
DSPC or any of its subsidiaries.
6. TRADE SECRETS.
a. SPECIAL TECHNIQUES. It is hereby agreed that the Corporation
has developed or acquired certain products, technology, unique or special
methods, manufacturing and assembly processes and techniques, trade secrets,
special written marketing plans and special customer arrangements, and other
proprietary rights and confidential information and shall during the employment
term continue to develop, compile and acquire said items (all hereinafter
collectively referred to as the "Corporation's Property"). It is expected that
Aber will gain knowledge of and utilize the Corporation's Property during the
course and scope of his employment with the Corporation, and will be in a
position of trust with respect to the Corporation's Property.
b. CORPORATION'S PROPERTY. It is hereby stipulated and agreed
that the Corporation's Property shall remain the Corporation's sole property. In
the event that Aber's employment is terminated, for whatever reason, Aber agrees
not to copy, make known, disclose or use, any of the Corporation's Property
without the Corporation's prior written consent. In such event, Aber further
agrees not to endeavor or attempt in any way to interfere with or induce a
breach of any prior proprietary contractual relationship that the Corporation
may have with any employee, customer, contractor, supplier, representative, or
distributor for nine (9) months after any termination of this Agreement. Aber
agrees upon termination of employment to deliver to the Corporation all
confidential papers, documents, records, lists and notes (whether prepared by
Aber or others) comprising or containing the Corporation's Property. Aber
recognizes that violation of covenants and agreements contained in this Section
6 may result in irreparable injury to the Corporation which would not be fully
compensable by way of money damages.
c. COVENANT NOT TO COMPETE. For a period of one (1) year from
the date of any termination of Aber's employment with the Corporation Aber shall
not, directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, Director, or in any other
individual or representative capacity, engage or participate in any activities,
which are the same as, or competitive with, the activities in which the
Corporation is presently engaged.
d. CORPORATION DEFINED. For purposes of this Section 6, the term
"Corporation" shall also mean DSPC and any of its subsidiaries.
7. TERMINATION.
a. GENERAL. The Corporation may terminate this Agreement without
cause, by written notice. Aber may voluntarily terminate his employment
hereunder upon ninety (90) days' advance written notice to the Corporation.
b. TERMINATION FOR CAUSE. The Corporation may immediately
terminate Aber's employment at any time for cause. Termination for cause shall
be effective from the
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receipt of written notice thereof to Aber specifying the grounds for termination
and all relevant facts. Cause shall be deemed to include: (i) material neglect
of his duties or a significant violation of any of the provisions of this
Agreement, which continues after written notice and a reasonable opportunity
(not to exceed thirty (30) days) in which to cure; (ii) fraud, embezzlement,
defalcation or conviction of any felonious offense; or (iii) intentionally
imparting confidential information relating to the Corporation, DSPC or any of
DSPC's subsidiaries, or their business to competitors or to other third parties
other than in the course of carrying out his duties hereunder. The Corporation's
exercise of its rights to terminate with cause shall be without prejudice to any
other remedy it may be entitled at law, in equity, or under this Agreement.
c. TERMINATION UPON DEATH OR DISABILITY. This Agreement shall
automatically terminate upon Aber's death. In addition, if any disability or
incapacity of Aber to perform his duties as the result of any injury, sickness,
or physical, mental or emotional condition continues for a period of thirty (30)
business days (excluding any accrued vacation) out of any one hundred twenty
(120) calendar day period, the Corporation may terminate Aber's employment upon
written notice. Payment of salary to Aber during any sick leave shall only be to
the extent that Aber has accrued sick leave or vacation days. Aber shall accrue
sick leave at the same rate generally available to the Corporation's employees.
x. XXXXXXXXX PAY. If this Agreement is terminated by the
Corporation without cause pursuant to Sections 7.a or 7.c (above), the
Corporation shall pay Aber a severance fee equal to his monthly salary at his
then-current rate of fixed salary compensation, multiplied by the greater of (i)
the number of full months left until the end of the then-current employment
term, or (ii) six (6), during which time Aber may elect to remain as an employee
of the Corporation in a non-policy making role, devoting substantive productive
time, and his options in DSPC shall continue to vest for the period of
continuous employment, or shall be entitled to the severance without remaining
as an employee. The above severance fee shall be payable in accordance with the
Corporation's normal payroll practices. The Corporation shall pay Aber a
severance fee equal to his monthly salary at his then-current rate of fixed
salary compensation, multiplied by the number six (6) if this Agreement is
terminated pursuant to Section 7.b (i) (above) or if Aber or the Corporation
elects not to renew this Agreement. The Corporation shall pay Aber a severance
fee equal to his monthly salary at his then-current rate of fixed salary
compensation, multiplied by the number three (3), if Aber voluntarily elects to
terminate his employment, unless the Corporation successfully claims that a
termination in accordance with Sections 7.b (ii) or (iii) is in order. There
shall be no severance in the event that this Agreement is terminated in
accordance with Section 7.b (ii) or (iii).
e. MANAGER'S INSURANCE. All sums received by Aber pursuant to
the Manager's Insurance shall be in addition to any sums owing as severance pay
pursuant to this Section 7.
8. CORPORATE OPPORTUNITIES.
a. DUTY TO NOTIFY. In the event that Aber, during the employment
term, shall become aware of any material and significant business opportunity
related to the business of the Corporation, DSPC or any of DSPC's subsidiaries,
Aber shall promptly notify the Corporation's Directors of such opportunity. Aber
shall not appropriate for himself or for any other person other than the
Corporation, or any affiliate of the Corporation, any such opportunity unless,
as to any particular opportunity, the Board of Directors of the Corporation
fails to take appropriate action within thirty (30) days. Aber's duty to notify
the Corporation
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and to refrain from appropriating all such opportunities for thirty (30) days
shall neither be limited by, nor shall such duty limit, the application of the
general law of Israel relating to the fiduciary duties of an agent or employee.
b. FAILURE TO NOTIFY. In the event that Aber fails to notify the
Corporation of, or so appropriates, any such opportunity without the express
written consent of the Corporation's Board of Directors, Aber shall be deemed to
have violated the provisions of this Section notwithstanding the following:
i. The capacity in which Aber shall have acquired such
opportunity; or
ii. The probable success in the Corporation's hands of
such opportunity.
9. MISCELLANEOUS.
a. ENTIRE AGREEMENT; NO DEROGATION OF RIGHTS. This Agreement
constitutes the entire agreement and understanding between the parties with
respect to the subject matters herein, and supersedes and replaces any prior
agreements and understandings, whether oral or written between them with respect
to such matters (but excluding any stock option agreements between Aber and
DSPC). Aber agrees that the terms in this Agreement represent an improvement of
the terms of his employment with the Corporation and waives any claim against
the Corporation and its affiliates of a derogation of his rights by virtue of
his signing this Agreement. The provisions of this Agreement may be waived,
altered, amended or repealed in whole or in part only upon the written consent
of both parties to this Agreement.
b. NO IMPLIED WAIVERS. The failure of either party at any time
to require performance by the other party of any provision hereof shall not
affect in any way the right to require such performance at any time thereafter,
nor shall the waiver by either party of a breach of any provision hereof be
taken or held to be a waiver of any subsequent breach of the same provision or
any other provision.
c. PERSONAL SERVICES. It is understood that the services to be
performed by Aber hereunder are personal in nature and the obligations to
perform such services and the conditions and covenants of this Agreement cannot
be assigned by Aber. Subject to the foregoing, and except as otherwise provided
herein, this Agreement shall inure to the benefit of and bind the successors and
assigns of the Corporation.
d. SEVERABILITY. If for any reason any provision of this
Agreement shall be determined to be invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby, provided
that no such severability shall be effective if it causes a material detriment
to any party.
e. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel applicable to
contracts between Israeli residents entered into and to be performed entirely
within the State of Israel.
f. NOTICES. All notices, requests, demands, instructions or
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given upon delivery,
if delivered personally, or if given by
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prepaid telegram, or mailed first-class, postage prepaid, registered or
certified mail, return receipt requested, shall be deemed to have been given
seventy-two (72) hours after such delivery, if addressed to the other party at
the addresses as set forth on the signature page below. Either party hereto may
change the address to which such communications are to be directed by giving
written notice to the other party hereto of such change in the manner above
provided.
g. MERGER, TRANSFER OF ASSETS, OR DISSOLUTION OF THE
CORPORATION. This Agreement shall not be terminated by any dissolution of the
Corporation resulting from either merger or consolidation in which the
Corporation is not the consolidated or surviving corporation or a transfer of
all or substantially all of the assets of the Corporation. In such event, the
rights, benefits and obligations herein shall automatically be assigned to the
surviving or resulting corporation or to the transferee of the assets.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date first written above.
D.S.P.C. TECHNOLOGIES LTD., XXXXX XXXX
an Israeli company
00 Xxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx 00000, XXXXXX
By: /s/ Xxxxxx Xxxx /s/ Xxxxx Xxxx
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XXXXXX XXXX XXXXX XXXX
Chief Executive Officer
Address:
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