[OBJECT OMITTED] ClickSoftware
PERSONAL EMPLOYMENT AGREEMENT
THIS PERSONAL EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
15 day of March 2005, by and between ClickSoftware Technologies Ltd., a
company formed and existing under the laws of the State of Israel, of 00
Xxxxxxxx Xx. Tel-Aviv (the "Company"), and Xxxxx Xxxxxxxx residing at 00
Xxxxxx Xx., Xxxxxxx, Xxxxxx (the "Employee").
WHEREAS the Employee has been working for the Company since September 1, 1996
and the Company and Employee wish to modify the terms of Employee's
employment with the Company and replace Employee's prior employment
agreement with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is agreed as follows:
1. EMPLOYMENT
1.1. The Company shall employ the Employee and the Employee on
the terms and conditions set forth herein. The Employee
shall serve as Executive Vice President, Market & Products
of the Company reporting to the Company's CEO, and shall
perform such duties, undertake such responsibilities and
exercise such authority as are normally commensurate with
such position.
1.2. The Employee undertakes to devote his full business time,
attention, skill, and effort exclusively to the performance
of his duties in the Company and undertakes not to engage,
whether as an employee or otherwise, in any business or
commercial activities, whether or not for compensation,
during his employment, without the prior written consent of
the Company, provided however, that Employee may be involved
in passive private investments activities and in after work
hours, and activities in charitable, cultural or
professional organizations.
1.3. This Agreement is a personal agreement, and the position the
Employee is to hold within the Company is a management
position which requires a special measure of personal trust,
as such terms are defined in the Working Hours and Rest Law
5711 - 1951, as amended (the "Law"). In light of this
relationship of trust, the provisions of the Law, or any
other similar law which may apply, will not apply to the
performance by the Employee of his duties hereunder. Thus,
the Employee may be required, from time to time and
according to the work load demanded of him, to work beyond
the regular working hours and the Employee shall not be
entitled to any further compensation other than as specified
in this Agreement.
2. SALARY, BONUSES AND OPTIONS
2.1. In consideration for the Employee's services hereunder, the
Company will pay to the Employee during the term of this
Agreement, a monthly salary in the amount of NIS 45,000
(hereinafter referred to as the "Salary") payable no later
than the ninth day of the month following the month for
which the salary is paid.
2.2. The Employee may be eligible to receive a bonus (the
"Bonus") for each full fiscal year of employment, subject to
the approval of the Board of Directors or such committee of
the Board nominated by the Board.
2.3. Employee's stock options that were granted prior to or that
are granted subsequent to the date of this Agreement shall
be subject to all of the terms and conditions of the
Company's stock option plan. Notwithstanding anything in
this Agreement or in any other agreement between the parties
hereto to the contrary, in case of Change in Control (as
defined in Section 2.4) 50% of all of the options to
purchase shares of the Company then held by the Employee,
that have not already vested under their original vesting
schedule, shall become vested and exercisable upon such
Change in Control and all remaining options to purchase
shares of the Company then held by the Employee that have
not already vested under their original vesting schedule,
shall continue to vest in accordance with their original
vesting schedule and, without limitation, shall become
vested and exercisable upon the earlier of (a) six months
after the Change of Control, or (b) termination of this
Agreement by the Company without Cause, or (c) termination
of this Agreement by the Employee due to an adverse change
in Employee's scope of responsibility or compensation terms.
2.4. "Change in Control" means: (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of the Company representing 50%
or more of the total voting power represented by the
Company's then outstanding voting securities; or (ii) a
change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority
of the directors are Incumbent Directors. "Incumbent
Directors" will mean directors who either (A) are directors
of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative
votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but will not
include an individual whose election or nomination is in
connection with an actual or threatened proxy contest
relating to the election of directors to the Company); or
(iii) the date of the consummation of a merger or
consolidation of the Company with any other corporation that
has been approved by the stockholders of the Company, other
than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the
total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of
the Company approve a plan of complete liquidation of the
Company; or (iv) the date of the consummation of the sale or
disposition by the Company of all or substantially all the
Company's assets.
3. EMPLOYEE BENEFITS AND BUSINESS EXPENSES
3.1. Employee shall be entitled to receive annual vacation time
of 20 working days per year. Such vacation time may, at the
Employee's option, be carried forward subject to the
provisions of applicable law or redeemed in whole or in part
upon mutual agreement by Company and the Employee based on
the Employee's then current Salary.
3.2. Employee shall be entitled to sick pay in accordance with
applicable law.
3.3. The Company shall insure the Employee under a pension plan
commonly known as `Manager's Insurance Scheme' (the
"Managers Insurance") chosen by the Employee with the
Company's consent which may not be unreasonably withheld, as
follows: (i) the Company shall pay an amount equal to 5% of
the Employee's Salary towards the Managers Insurance for the
Employee's benefit and shall deduct 5% from the Employee's
Salary and pay such amount towards the Managers Insurance
for the Employee's benefit; (ii) the Company shall pay an
amount equal to 8 1/3% of the Employee's Salary towards a
fund for severance compensation; and (iii) the Company shall
pay an amount of up to 2 1/2% of the Employee's Salary
towards disability insurance.
3.4. The Company and the Employee shall open and maintain a
continuing education fund (`Keren Hishtalmut') (the "Fund")
as is common in Israel's labor market. The Company shall
contribute to such Fund an amount equal to 7 1/2% of each
monthly Salary payment, and the Employee shall contribute to
such Fund an amount equal to 2 1/2% of each monthly Salary
payment.
3.5. The Managers Insurance and the Fund (together with all
amounts contributed by the Company) shall be transferred to
the Employee in full, upon any termination of the Employee's
employment under any circumstances, except that upon
termination for "Cause", Employee shall not be entitled to
receive any amounts contributed by the Company to the
Managers Insurance with respect to severance.
3.6. The Company shall provide the Employee with the full-time
use of a car in accordance with the Company's policies. The
Company shall bear all of the fixed and variable maintenance
and other costs, including but not limited to licenses,
insurance, gas and repairs, except for fines in respect of
traffic offenses.
3.7. The Company will reimburse Employee for all reasonable
business expenses actually incurred by Employee in
performing his duties hereunder or otherwise promoting the
business of the Company, upon presentation by Employee, from
time to time, of an itemized account of such expenses
substantiated by appropriate receipts.
3.8. The Company shall withhold or charge the Employee with all
taxes and other compulsory payments as required under law in
respect of, or resulting from, the compensation paid to or
received by him and in respect of all the benefits that the
Employee is or may be entitled to.
3.9. The Company shall provide Employee with a cellular phone and
shall bear all the expenses with respect thereto.
3.10. The Company shall enter into an indemnification agreement
with Employee in a customary form and shall procure D&O
insurance for the Employee to the extent provided for the
Company's directors and its CEO.
4. TERMINATION
4.1. This Agreement shall replace Employee's prior employment
agreement and continue until terminated by the Company or
the Employee pursuant to the provisions of this Section 4.
4.2. The Company may terminate this Agreement without advance
notice for "Cause". Termination for "Cause" shall mean
termination by the Company because of: (i) the Employee's
conviction of a felony involving moral turpitude, or (ii)
the Employee's material breach of Section 5 hereof or (iv)
the embezzlement of funds of the Company by the Employee or
(v) the Employee's engaging in willful misconduct which is
intended to cause monetary or other material injury to the
Company.
4.3. Either party may terminate this Agreement for any reason by
providing three (3) months prior written notice thereof. In
the event of termination of this Agreement by either party
for any reason other than for "Cause" as defined in Section
4.2, then without limitation of the right to receive
severance under the law and the right to receive all of the
compensation provided in Sections 2 and 3 of this Agreement
until the end of the notice period, the Employee shall
continue to receive, subject to his compliance with his
covenants under Section 5, all of the compensation provided
in Sections 2 and 3 of this Agreement for an additional
period of three (3) months after the end of the notice
period and termination of the Agreement, and during such
period Employee shall not be required to work for the
Company.
4.4. Upon termination of this Agreement, for whatever reason,
other than termination for Cause, the Employee shall be
entitled to receive severance pay from the Company which
will be the higher of (A) the severance amount due to
Employee in accordance with applicable law or (B) a
severance amount in an amount equivalent to 100% (one
hundred percent) of the Employee's monthly Salary during the
last month of employment; multiplied by the number of years,
including parts of years, of his employment with the Company
(including the notice period referred to in Section 4.3
above), in each of (A) and (B), less the amounts accumulated
to the benefit of the Employee with the Managers Insurance
pursuant to payments by the Company on account of severance
pay.
5. UNFAIR COMPETITION AND SOLICITATION
5.1. The Employee acknowledges that the provisions of this
Undertaking are reasonable and necessary to legitimately
protect the Company's Proprietary Information, its property
(including intellectual property) and its goodwill (the
"Company's Major Assets"). The Employee further acknowledges
that he/she has carefully reviewed the provisions of this
Undertaking, he/she fully understands the consequences
thereof and he/she has assessed the respective advantages
and disadvantages to him/her of entering into this
Undertaking. In light of the above provisions, the Employee
undertakes:
5.1.1. That during the term of his/her employment in the
Company and for a period of twelve (12) months
thereafter, he/she shall not engage,
5.1.2. establish, open or in any manner whatsoever become
involved, directly or indirectly, either as an
employee, owner, partner, agent, shareholder,
director, consultant or otherwise, in any business,
occupation, work
5.1.3. or any other activity which is reasonably likely to
involve or require the use of any of the Company's
Major Assets.
5.2 That during the term of his/her employment in the Company
and for twelve (12) months thereafter, not to induce any
employee of the Company or of any of its, parent subsidiary
or affiliated companies to terminate such employee's
employment therewith.
5.3 The Employee acknowledges that given his access to
information regarding the Company, the provisions of this
Section 5 are reasonable and necessary to protect the
Company's business. The provisions of this Section 5 shall
survive the termination of this Agreement for the time
periods set forth herein.
5.4 The Employee shall execute the Company's standard
confidentiality agreement in the form of Exhibit B.
6. ASSIGNMENT
Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by either party hereto, their
beneficiaries or legal representatives, except by will or by the laws
of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Employee's legal personal
representative.
7. NOTICE
For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered,
one business day after being sent by fax or five (5) business days
after being sent by registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth on
the first page of this Agreement or last given by each party to the
other.
8. MISCELLANEOUS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
and signed by the Employee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in
connection with the interpretation of this Agreement. The provisions
of this Agreement shall be deemed several and the invalidity or
unenforceability of any provisions shall not affect the validity or
enforceability of the other provisions hereof.
9. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Israel and the sole and
exclusive place of jurisdiction in any matter arising out of or in
connection with this Agreement shall be the applicable courts in
Tel-Aviv. In the event of any controversy or dispute between the
parties with respect to the content, effect or interpretation of this
Agreement the parties shall attempt in good faith to amicably resolve
any differences between them, provided that in any such attempt the
party representing the Company shall be no less senior than the CEO
of the Company. In the event that the parties are not able to resolve
such controversy or dispute, then any such dispute or controversy
shall be resolved by arbitration, initiated by either party and held
in Tel Aviv, Israel, in the English language. If the parties are not
able to agree on the identity of the arbitrator within 10 days after
either party initiates the arbitration, then the arbitrator shall be
determined by the Chairman of the Beaurue of Accountants in Israel.
The arbitrator shall be bound by, and render its decision only on the
basis of, substantive Israeli law, however he shall not be bound by
the rules of procedure of Israeli law. Without limitation of the
foregoing, each party shall be entitled to submit its arguments to
the arbitrator. The arbitrator's decision shall be in writing and
shall include the reasons for its conclusions.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire Employment Agreement between
the parties hereto and supersedes all prior agreement, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Employee has executed this Agreement as of
the day and year first above written.
ClickSoftware Technologies Ltd. Employee:
By:
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Xxxxx Xxx Xxxxxx, CEO
