EMPLOYMENT AGREEMENT
Exhibit
10.2
APPENDIX
6.5.
TO
SPA
AMONG IDO SECURITY LTD, THE MEDICAL EXCHANGE INC XX.XX.
THIS
AGREEMENT
is made
as of __ ______________ , 0000
X
X X X X
X X:
IDO
SECURITY LTD.,
a
corporation incorporated under the laws of Israel.
(jointly
the “Corporation”)
and
-
XXXX
XXXXX,
of
Ashdod, Israel
(the
“Employee”)
CONTEXT
OF THIS AGREEMENT
A. The
Corporation designs, develops, manufactures and sells prototypes, products,
know-how and technologies used in security applications.
B. The
Employee has been employed by the Corporation since 2005 and the Corporation
wishes to employ the Employee upon the terms and conditions as set out
herein.
FOR
VALUE RECEIVED,
the
sufficiency of which is acknowledged, the parties agree as follows:
PART 1
INTERPRETATION
1.1 Definitions.
In this
Agreement, the following terms shall have the following meanings:
“Agreement”
means
this agreement and all schedules attached hereto and all amendments made hereto
and thereto in writing by the parties.
“Business
Day”
means
a
day other than a Saturday or statutory holiday in the State of
Israel.
“Person”
includes individuals, corporations, limited partnerships, general partnerships,
joint stock companies, joint ventures, associations, companies, trusts or other
organizations, whether or not legal entities.
1.2 Entire
Agreement.
This
Agreement together with the agreements and other documents to be delivered
pursuant to this Agreement (or other agreements pertaining to employee benefits,
including, without limitation, stock option and bonus plan agreements),
constitute the entire agreement between the parties pertaining to the subject
matter of this Agreement and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties and there
are no warranties, representations or other agreements between the parties
in
connection with the subject matter of this Agreement except as specifically
set
forth in this Agreement and any document delivered pursuant to this Agreement.
No supplement, modification or waiver or termination of this Agreement shall
be
binding unless executed in writing by the party to be bound
thereby.
1.3 Sections
and Headings.
The
division of this Agreement into parts and sections and the insertion of headings
are for convenience of reference only and shall not affect the construction
or
interpretation of this Agreement. The terms “this
Agreement”,
“hereof”,
“hereunder”
and similar expressions refer to this Agreement and not to any particular
article, section or other portion hereof and include any agreement or instrument
supplemental or ancillary hereto. Unless something in the subject matter or
context is inconsistent therewith, references herein to parts and sections
are
to parts and sections of this Agreement.
1.4 Number
& Gender.
Words
importing the singular number only shall include the plural and vice versa
and
words importing the masculine gender shall include the feminine and neuter
genders and vice versa.
1.5 Applicable
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Israel applicable therein.
1.6 Currency.
Unless
otherwise specified, all references herein to currency shall be references
to
currency of Israel.
1.7 Calculation
of Time.
When
calculating the period of time within which or following which any act is to
be
done or step taken pursuant to this Agreement, the date which is the reference
date in calculating such period shall be excluded. If the last day of such
period is a non Business Day, the period in question shall end on the next
Business Day.
PART 2
APPOINTMENT
AND DUTIES
2.1 Appointment.
The
Corporation agrees to employ the Employee as its Chief Technology Officer upon
the terms and conditions contained herein and the Employee accepts such
appointment.
2.2 Term.
The
employment of the Employee hereunder shall commence on the date hereof and
shall
continue for an initial term of three years (the “Initial Term”) unless
terminated in accordance with the provisions of this Agreement. This Agreement
shall be renewed for successive two year terms (each a “Renewal Term”) unless
the Corporation or Employee indicates in writing, more than 120 days prior
to
the termination of this Initial term or any Renewal term, that it does not
intend to renew this Agreement.
2
2.3 Duties
and Reporting.
The
Employee will report directly to the board of directors of the Corporation
and
shall carry out all duties and responsibilities which are from time to time
assigned to him by the board of directors.
PART
3
BENEFITS
&
EXPENSES
3.1
Gross
Salary.
During
the term hereof, and subject to the performance of the services required to
be
performed hereunder by Employee, the Corporation shall pay to the Employee
for
all services rendered hereunder, as salary, payable not less often than once
per
month and in accordance with the Corporation 's normal and reasonable payroll
practices, a monthly salary equal to NISNIS 60,000 “employer’s cost”, according
to which the employee’s gross salary shall be calculated (the "Gross Salary")
linked to increases in the consumer price index. This salary shall be reviewed
periodically and may be favorably adjusted along with other benefits
accordingly.
3.2
Bituach
Menahalim
The
Employee may subsequently decide that the Corporation and the Employee will
obtain and maintain Manager’s Insurance (Bituach Menahalim) and Professional
Disability Insurance for the exclusive benefit of the Employee in the customary
form. Each of the Corporation and the Employee shall contribute toward the
premiums payable in respect of such insurance those amounts which would be
recognized under applicable law, but in no event shall such contributed amounts
be more than thirteen and one third percent (13 1/3%) of each monthly Gross
Salary payment from the Corporation and five percent (5 %) of such amount from
the Employee. On termination for any reason, Corporation shall assign all such
policies to Employee which shall include all amounts of the funds and benefits
accrued under such policies, subject to clause 3.7 herein. The Corporation
shall
execute required documentation to effect this clause. It shall be clear that
any
amount paid by the Corporation under the provisions of this section 3.2 shall
be
included in Corporation’s total costs under this Part 3 of not more than NIS
60,000.
3.3
Keren
Heshtamlut
The
Employee may subsequently decide that the Corporation and the Employee shall
maintain an advancement fund (keren Heshtamlut) for exclusive benefit of the
Employee. The Corporation shall contribute to such fund an amount equal to
7-1/2% of each monthly Gross Salary payment and the employee shall contribute
to
such fund an amount equal to 2-1/2% of each monthly Gross Salary payment. The
Employee hereby instructs the Corporation to transfer to such advancement fund
the amount of the Employee’s and the Corporation ’s contribution from each
monthly Gross Salary payment. Employee can elect to receive any part of the
Corporation’s contribution in cash should this be more efficient for tax
purposes at the Employee’s election. On termination for any reason, Employee
will be eligible to receive all amounts accrued in the fund subject to clause
3.7 herein. The Corporation shall execute required documentation to effect
this
clause. It shall be clear that any amount paid by the Corporation under the
provisions of this section 3.3 shall be included in Corporation’s total costs
under this Part 3 of not more than NIS 60,000.
3
3.4
Car,
Cell Phone.
The
Employee may subsequently decide to include car and cell phone rights hereunder
provided such amounts paid therefore shall be included in Corporation’s total
costs under this Part 3 of not more than NIS 60,000.
3.5
Expenses
All
expenses reasonably incurred by the Employee shall be reimbursed, together
with
any applicable sales and goods and services taxes, by the Corporation within
10
Business Days after presentation by the Employee of proper invoices and receipts
in keeping with the policies of the Corporation as established from time to
time.
3.6
Vacation.
The
Employee shall be entitled to an aggregate of 28 business days of paid vacation
per contract year, to be taken at times that are mutually agreeable to the
parties. In addition, the Employee shall be entitled to all paid holidays given
by the Company to its employees. Vacation days shall be prorated for any portion
of a year to the date of termination. Any unutilized vacation days shall accrue
from year to year and at Employee’s option any unused portion may be redeemed.
3.7
Differences.
The
Employee hereby acknowledges and declares that the Employee’s rights regarding
Bituach Menahalim and Keren Heshtamlut and Professional Disability Insurance
have not been paid in full to the date of this agreement and that an amount
of
480,000 NIS is missing as the Company has not paid into the said funds and
Insurance all of the necessary and required amounts (“the
Differences”).
The Employee acknowledges that the non payment of the Differences mentioned
above was approved by the Employee as the majority shareholder and Managing
Director of the Corporation. The Employee explicitly agrees and declares that
he
does not have and will have any claim whatsoever against the Corporation or
any
person on behalf of the Corporation including the Corporation shareholders
and/or officers regarding amongst others the non timely payment of the
Differences and waives any rights whatsoever with regard to the Differences.
Notwithstanding the above the Employee and Corporation agree that the
Differences are to be paid by the Corporation only in the event that the
Employee is entitled to severance pay in accordance with the law and the
provisions herein. Subject to such right the Corporation will pay the
Differences within 30 days from the date that Employee is entitled to said
severance pay.
Severence
Pay.
The
Employee acknowledges that in the event that the Employee’s employment is
terminated in a manner that the Employee is entitled to severance pay in
accordance with the law and the provisions herein then severance pay will be
calculated and paid notwithstanding the provisions of The Severance Payment
Law
1963, in the following manner: for the period of employment up to the date
of
this Agreement the amount deposited on account of severance pay in the Bituach
Minhalim policy of the Employee as of the date of this Agreement (plus the
Bituach Minhalim component of the Differences as noted above) and for the period
from the date herein the last monthly Gross Salary multiplied by the year/s
or
part thereof from the date herein. The Employee acknowledges that the severance
pay paid to the Employee is and will be less than the amount proscribed by
law
and notwithstanding the Employee agrees to the provision herein. The Employee
acknowledges that The Medical Exchange Inc., a Nevada company and the Purchaser
defined in the Securities Purchase Agreement entered into with the Corporation,
amongst others, as of the date hereof, entered such agreement and invested
in
the Corporation based upon, inter alia, the declaration of the Employee that
the
Employee waives rights to full severance pay as set forth herein. The Employee
herein undertakes to fully indemnify the Corporation and/or the said Purchaser
in the event that the Employee shall claim any money regarding Severance Pay
that is not in accordance with this provision.
4
Provided
however that in the event that Employee resigns without just cause after ten
months from the date hereof or the Company or the Employee does not agree to
renew this Agreement for any Renewal Term then the Employee is entitled to
Severence Pay as provided and calculated as stated above.
PART
4
EMPLOYEE’S
COVENANTS
4.1
Service.
The
Employee shall devote the whole of his time, attention and ability to the
business of the Corporation and shall well and faithfully serve the Corporation
and shall use his best efforts to promote the interests of the Corporation.
The
Employee appreciates that the Employee’s duties may involve significant travel
from the Employee’s place of employment, and the Employee agrees to travel as
reasonably required in order to fulfill the Employee’s duties. The Employee may
work up to 10% of his time at Shikumit Ltd. as general manager.
4.2
Duties
and Responsibilities.
The
Employee shall duly and diligently perform all the duties assigned to him while
in the employ of the Corporation, and shall truly and faithfully account for
and
deliver to the Corporation all money, securities and things of value belonging
to the Corporation which the Employee may from time to time receive for, from
or
on account of the Corporation.
4.3
Rules
and Regulations.
The
Employee shall be bound by and shall faithfully observe and abide by all the
rules and regulations of the Corporation from time to time in force which are
brought to his notice.
PART
5
CONFIDENTIAL
INFORMATION AND DEVELOPMENTS
5.1
“Confidential
Information”
means
information, whether or not originated by the Employee, that relates to the
business or affairs of the Corporation, its affiliates, clients or suppliers
and
is confidential or proprietary to, about or created by the Corporation, its
affiliates, clients, or suppliers. Confidential Information includes, but is
not
limited to, the following types of confidential information and other
proprietary information of a similar nature (whether or not reduced to writing
or designated or marked as confidential):
| (i) |
work
product resulting from or related to work or projects performed for
or to
be performed for the Corporation or its affiliates, including but
not
limited to, the interim and final lines of inquiry, hypotheses, research
and conclusions related thereto and the methods, processes, procedures,
analysis, techniques and audits used in connection therewith;
|
5
| (ii) |
computer
software of any type or form and in any stage of actual or anticipated
development, including but not limited to, programs and program modules,
routines and subroutines, procedures, algorithms, design concepts,
design
specifications (design notes, annotations, documentation, flowcharts,
coding sheets, and the like), source code, object code and load modules,
programming, program patches and system
designs;
|
| (iii) |
information
relating to developments (as hereinafter defined) prior to any public
disclosure thereof, including but not limited to, the nature of the
developments, production data, technical and engineering data, test
data
and test results, the status and details of research and development
of
products and services, and information regarding acquiring, protecting,
enforcing and licensing proprietary rights (including patents, copyrights
and trade secrets);
|
| (iv) |
internal
Corporation personnel and financial information, vendor names and
other
vendor information, purchasing and internal cost information, internal
services and operational manuals, and the manner and method of conducting
the Corporation’s business;
|
| (v) |
marketing
and development plans, price and cost data, price and fee amounts,
pricing
and billing policies, quoting procedures, marketing techniques and
methods
of obtaining business, forecasts and forecast assumptions and volumes,
and
future plans and potential strategies of the Corporation that have
been or
are being discussed; and
|
| (vi) |
all
information that becomes known to the Employee as a result of employment
that the Employee, acting reasonably, believes is confidential information
or that the Corporation takes measures to
protect.
|
5.2
Confidential
Information does not include:
| (vii) |
the
general skills and experience gained during the Employee’s employment or
engagement with the Corporation that the Employee could reasonably
have
been expected to acquire in similar employment or engagements with
other
companies;
|
| (viii) |
information
publicly known without breach of this Agreement or similar agreements;
or
|
| (ix) |
information,
the disclosure of which is required to be made by any law, regulation,
governmental authority or court (to the extent of the requirement),
provided that before disclosure is made, notice of the requirement
is
provided to the Corporation, and to the extent of the requirement,
(to the
extent reasonably possible in the circumstances) the Corporation
is
afforded an opportunity to dispute the
requirement.
|
6
5.3
“Developments”
means
all discoveries, inventions, designs, works of authorship, improvements and
ideas (whether or not patentable or copyrightable) and legally recognized
proprietary rights (including, but not limited to, patents, copyrights,
trademarks, topographies, know how and trade secrets), and all records and
copies of records relating to the foregoing, that relates solely to the
Corporation’s business and improvements and modifications to it:
| (x) |
result
or derive from the Employee’s employment or from the Employee’s knowledge
or use of Confidential Information;
|
| (xi) |
are
conceived or made by the Employee (individually or in collaboration
with
others) during the term of the Employee’s employment by the Corporation in
line with work of Employee or connected to Corporation’s
business;
|
| (xii) |
result
from or derive from the use or application of the resources of the
Corporation or its affiliates; or
|
| (xiii) |
relate
to the business operations of or actual or demonstrably anticipated
research and development by the Corporation or its
affiliates.
|
For
greater certainty, discoveries, inventions, designs, works of authorship,
improvements and ideas (whether or not patentable or copyrightable) of the
Employee that do not relate to the business of the Corporation are not the
subject matter of this Agreement.
PART
6
NO
CONFLICTING OBLIGATIONS
6.1
The
Employee warrants to the Corporation that:
| (xiv) |
the
performance of the Employee’s duties as an employee of the Corporation
will not breach any agreement or other obligation to keep confidential
the
proprietary information of any other party;
and
|
| (xv) |
the
Employee is not bound by any agreement with or obligation to any
other
party that conflicts with the Employee’s obligations as an employee of the
Corporation or that may affect the Corporation’s interest in the
Developments.
|
6.2
The
Employee will not, in the performance of the Employee’s duties as an employee of
the Corporation:
| (xvi) |
improperly
bring to the Corporation or use any trade secrets, confidential
information or other proprietary information of any other party;
or
|
| (xvii) |
knowingly
infringe the intellectual property rights of any other
party.
|
7
PART
7
COMPETITION
AND SOLICITATION
7.1
Definitions.
“Competitive
Business”
means
any business that supplies products or services competitive with those then
supplied by the Corporation or which the Corporation was contemplating supplying
when the Employee was employed by the Corporation.
“Employment
Period”
means
the period during which the Employee is employed by the Corporation.
“Termination
Date”
means
the date that the Employee’s employment with the Corporation is terminated
or expires in accordance with Section 2.2 or Part 12.
7.2
Non-Competition.
The
Employee acknowledges that employment by the Corporation will give the Employee
access to the Confidential Information, and that the Employee’s knowledge of the
Confidential Information will enable the Employee to put the Corporation at
a
significant competitive disadvantage if the Employee is employed or engaged
by
or becomes involved in a Competitive Business. Accordingly, during the
Employment Period and for one year after the Termination Date, the Employee
will
not, directly or indirectly, individually or in partnership or in conjunction
with any other Person:
(i)
be
engaged, directly or indirectly, in any manner whatsoever, including, without
limitation, either individually or in partnership, jointly or in conjunction
with any other person, or as an employee, consultant, adviser, principal, agent,
member or proprietor in any Competitive Business;
(ii)
be
engaged, directly or indirectly, in any manner whatsoever, including, without
limitation, either individually or in partnership, jointly or in conjunction
with any other person, or as an employee, consultant, adviser, principal, agent,
member or proprietor in any Competitive Business in a capacity in which the
loyal and complete fulfilment of the Employee’s duties to that Competitive
Business would (i) inherently require that the Employee use, copy or transfer
Confidential Information, or (ii) make beneficial any use, copy or transfer
of
Confidential Information; or
(iii)
advise, invest in, lend money to, guarantee the debts or obligations of, or
otherwise have any other financial or other interest (including an interest
by
way of royalty or other compensation arrangements) in or in respect of any
Person which carries on a Competitive Business.
The
restriction in Subsection 7.2 (iii) will not prohibit the Employee from holding
not more than 5% of the issued shares of a public company listed on any
recognized stock exchange or traded on any bona
fide
"over
the counter" market anywhere in the world.
8
For
greater certainty, the Employee’s obligations under this Section are in addition
to the obligations respecting disclosure and use of Confidential Information
in
Part 8.
7.3
No
Solicitation of Clients and Suppliers.
The
Employee acknowledges the importance to the business carried on by the
Corporation of the client and supplier relationships developed by it and the
unique opportunity that the Employee’s employment and the Employee’s access to
the Confidential Information offers to interfere with these relationships.
Accordingly, the Employee will not during the Employment Period and for a period
of 12 months thereafter directly or indirectly, contact or solicit any person
who the Employee knows to be a prospective, current or former client or supplier
of Corporation (who, in the case of a former client or supplier of the
Corporation, has had dealings with the Corporation at any time during the 12
month period immediately prior to the end of the Employment Period) for the
purpose of selling to the client or buying from the supplier any products or
services that are the same as or substantially similar to, or in any way
competitive with, the products or services sold or purchased by Corporation
during the Employee’s employment or at the end thereof, as the case may
be.
7.4
No
Solicitation of Employees.
The
Employee acknowledges the importance to the business carried on by the
Corporation of the human resources engaged and developed by it and the unique
access that the Employee’s employment offers to interfere with these resources.
Accordingly, the Employee will not during the Employment Period and for a period
of 12 months thereafter, induce or solicit, attempt to induce or solicit or
assist any third party in inducing or soliciting any employee or consultant
of
the Corporation, to leave the Corporation or to accept employment or engagement
elsewhere.
7.5
Independent
Covenants.
Each of
Subsections 7.2 and 7.3 will be construed as constituting obligations
independent of any other obligations in this Agreement. The existence of any
claim or cause of action the Employee may have or assert against the
Corporation, whether based on this Agreement or otherwise, will not constitute
a
defence to the enforcement by the Corporation of any of the covenants and
agreements in the foregoing sections.
PART
8
CONFIDENTIAL
INFORMATION
8.1
Protection
of Confidential Information.
All
Confidential Information, whether it is developed by the Employee during the
Employment Period or by others employed or engaged by or associated with the
Corporation or its affiliates or clients, is the exclusive and confidential
property of the Corporation or its affiliates or clients, as the case may be,
and will at all times be regarded, treated and protected as such, as provided
in
this Agreement.
8.2
Covenants
Respecting Confidential Information.
As a
consequence of the acquisition of Confidential Information, the Employee will
occupy a position of trust and confidence with respect to the affairs and
business of the Corporation and its affiliates and clients. In view of the
foregoing, it is reasonable and necessary for the Employee to make the following
covenants regarding the Employee’s conduct during and subsequent to the
Employee’s employment by the Corporation.
9
8.3
Non
Disclosure.
At all
times during and subsequent to the Employee’s employment with the Corporation,
the Employee will not disclose Confidential Information to any Person (other
than as necessary in carrying out the Employee’s duties on behalf of the
Corporation) without first obtaining the Corporation’s consent, and the Employee
will take all reasonable precautions to prevent inadvertent disclosure of any
Confidential Information. This prohibition includes, but is not limited to,
disclosing or confirming the fact that any similarity exists between the
Confidential Information and any other information.
8.4
Using,
Copying, etc.
At all
times during and subsequent to the Employee’s employment with the Corporation,
the Employee will not use, copy, transfer or destroy any Confidential
Information (other than as necessary in carrying out the Employee’s duties on
behalf of the Corporation) without first obtaining the Corporation’s consent,
and the Employee will take all reasonable precautions to prevent inadvertent
use, copying, transfer or destruction of any Confidential Information. This
prohibition includes, but is not limited to, licensing or otherwise exploiting,
directly or indirectly, any products or services that embody or are derived
from
Confidential Information or exercising judgment or performing analysis based
upon knowledge of Confidential Information.
8.5
Return
of Confidential Information.
Within
2 Business Days after the termination of the Employee’s employment on any basis
and of receipt by the Employee of the Corporation’s written request, the
Employee will promptly deliver to the Corporation all property of or belonging
to or administered by Corporation including without limitation all Confidential
Information that is embodied in any physical or ephemeral form, whether in
hard
copy or on magnetic media, and that is within the Employee’s possession or under
the Employee’s control.
8.6
Obligations
Continue.
The
Employee’s obligations under this Part 8 are to remain in effect in
perpetuity.
PART
9
INTELLECTUAL
PROPERTY
9.1
Ownership.
All
Developments will be the exclusive property of the Corporation and the
Corporation will have sole discretion to deal with Developments. For greater
certainty, all work done during the Employment Period by the Employee for the
Corporation or its affiliates is a work for hire of which the Corporation or
its
affiliate, as the case may be, is the first author for copyright purposes and
in
respect of which all copyright will vest in the Corporation or the relevant
affiliate, as the case may be.
9.2
Records.
The
Employee will keep complete, accurate and authentic notes, reference materials,
data and records of all Developments in the manner and form requested by the
Corporation. All these materials will be Confidential Information upon their
creation.
9.3
Moral
Rights.
The
Employee hereby irrevocably waives all moral rights arising under statute in
any
jurisdiction or under common law which the employee may have now or in the
future with respect to the Developments, including, without limitation, any
rights the Employee may have to have the Employee’s name associated with the
Developments or to have the Employee’s name not associated with the
Developments, any rights the Employee may have to prevent the alteration,
translation or destruction of the Developments, and any rights the Employee
may
have to control the use of the Developments in association with any product,
service, cause or institution. The Employee agrees that this waiver may be
invoked by the Corporation, and by any of its authorized agents or assignees,
in
respect of any or all of the Developments and that the Corporation may assign
the benefit of this waiver to any Person.
10
9.4
Further
Assurances.
The
Employee will do all further things that may be reasonably necessary or
desirable in order to give full effect to the foregoing. If the Employee’s
co-operation is required in order for the Corporation to obtain or enforce
legal
protection of the Developments following the termination of the Employee’s
employment, the Employee will provide that co-operation so long as the
Corporation pays to the Employee reasonable compensation for the Employee’s time
at a rate to be agreed, provided that the rate will not be less than the last
base salary or compensation rate paid to the Employee by the Corporation during
the Employee’s employment.
PART
10
CONSENT
TO ENFORCEMENT
The
Employee confirms that all restrictions in Part 8 and 9 are reasonable and
valid
and all defences to the strict enforcement thereof by the Corporation are waived
by the Employee. Without limiting the generality of the forgoing, the Employee
hereby consents to an injunction being granted by a court of competent
jurisdiction in the event that the Employee is in any breach of any of the
provisions stipulated in Part 8 and 9. The Employee hereby expressly
acknowledges and agrees that injunctive relief is an appropriate and fair remedy
in the event of a breach of any of the said provisions.
PART
11
WARRANTIES,
COVENANTS AND REMEDIES
11.1 To
the
best knowledge of the Employee the Employee has met all the obligations of
the
Employee as set forth in Parts 6 through 9 from the date on which the Employee
was first employed by Corporation. Any breach or threatened breach of those
sections by the Employee will constitute Just Cause for immediate termination
of
the Employee’s employment or engagement by the Corporation.
11.2 A
breach
or threatened breach by the Employee of any of Parts 6 through 9 could result
in
unfair competition with the Corporation and could result in the Corporation
and
its shareholders suffering irreparable harm that is not capable of being
calculated and that cannot be fully or adequately compensated by the recovery
of
damages alone. Accordingly, the Employee agrees that the Corporation will be
entitled to interim and permanent injunctive relief, specific performance and
other equitable remedies, in addition to any other relief to which the
Corporation may become entitled.
11.3 The
Employee’s obligations under each of Parts 6 through 9 are to remain in effect
in accordance with each of their terms and will exist and continue in full
force
and effect despite any breach or repudiation, or alleged breach or repudiation,
of this Agreement or the Employee’s employment (including, without limitation,
the Employee’s wrongful dismissal) by the Corporation.
11
PART
12
TERMINATION
12.1 Termination
by the Employee.
The
Employee may terminate this Agreement for any reason upon 90 days prior written
notice given by the Employee to the Corporation. The Corporation, at its sole
discretion, may elect to accept the 90 Business Days written notice or to reduce
or eliminate the notice period. In such event, the Employee’s employment shall
terminate on the earlier day elected by the Corporation and Corporation shall
pay to Employee otherwise required as if such notice period has not been
eliminated or reduced. Upon the termination of employment by the Employee under
this Section 11.1 the Corporation shall pay to the Employee all bonuses and
other benefits earned or accrued up to the date of termination, but otherwise
all obligations of the Corporation under this Agreement shall end.
12.2 Definition
of “Just
Cause”.
“Just
Cause” means:
(i)
Employee’s final conviction of, or plea of nolo contendere, to any felony or to
a crime involving moral depravity or fraud; (ii) Employee’s commission of an act
of dishonesty or fraud or breach of fiduciary duty or act that has a material
adverse effect on the name or public image of the Company,; (iii) Employee’s
commission of an act of willful misconduct or gross negligence,; (iv) the
material breach of any of Employee’s material obligations under this Agreement ;
or (v) excessive absenteeism, chronic alcoholism or any other form of addiction
that prevents Employee from performing the essential functions of his position
with or without a reasonable accommodation; provided,
however,
that
the Company may terminate Employee’s employment forJust Cause, as to (iv) or (v)
above, only after failure by Employee to correct or cure, or to commence or
to
continue to pursue the correction or curing of, such conduct or omission within
ten (10) days after receipt by Employee of written notice by the Company of
each
specific claim of any such misconduct or failure.
12.3 Termination
by the Corporation for Just Cause.
The
Corporation may terminate this Agreement at any time for Just Cause without
notice and (except as provided in the immediately following sentence) without
payment of any compensation by way of anticipated earnings, damages, or other
relief of any kind whatsoever. Upon the termination of employment by the
Corporation for Just Cause, the Corporation shall pay to the Employee all
salaries, bonuses, vacation and other benefits earned or accrued up to the
date
of termination, but otherwise all obligations of the Corporation under this
Agreement end.
12.4 Termination
or Decision not to Renew by the Corporation for Other Than Just
Cause.
The
Corporation may terminate this Agreement at any time for other than Just Cause
or decide not to renew this Agreement upon any renewal date for other than
Just
Cause upon the following terms:
(b) if
the
Corporation so terminates this Agreement at any time during the Initial Term
of
this Agreement, the Corporation shall pay to the Employee an amount equal to
the
Gross Salary and other benefits which Employee received monthly prior to
termination payable for the period from the date of such termination to the
end
of the Initial Term as if the Agreement had not been so terminated ;
and
12
(b)
if
the
Corporation so terminates this Agreement during a Renewal Term the Corporation
shall pay the Employee an amount equal to the Gross Salary and other benefits
which Employee received monthly prior to termination then payable for the period
from the date of such termination to the end of the Renewal Term as if the
Agreement had not been so terminated; and
(c)
upon any such termination or failure to renew, all
bonuses or other benefits earned or accrued up to the date of termination or
expiry shall be paid by the Corporation, but except for such payments and the
payments to be made pursuant to Sections 12.4(a) or (b), as applicable, all
obligations of the Corporation under this Agreement shall end upon such
termination or failure to renew. Payments under Sections 12.4(a) or (b) shall
be
payable monthly subject to deductions required under law.
12.5 Termination
by the Employee for Good Reason.
The
Employee may terminate this Agreement at any time upon the occurrence of any
of
the following events (each a “Good
Reason”),
if
such occurrence takes place without the express written consent of the
Employee:
| (i) |
a
change in the Employee’s title or position or a material diminution in the
Employee’s duties or the assignment to the Employee of duties which
materially impairs the Employee’s ability to function in his current
capacity for the Corporation, or, with respect an assignment of duties
only, is materially inconsistent with his
duties;
|
| (ii) |
any
material change in the Employee’s direct reporting obligations;
|
| (iii) |
or
any other occurrence recognized by The Severence Pay Law 1963 as
entitling
Employee to severence pay.
|
In
the
event that the Employee terminates this Agreement for Good Reason, he shall
be
entitled to the same payments and benefits as provided in Section 12.4 of this
Agreement as if the Corporation had terminated this Agreement at the time that
the Employee terminates this Agreement under this Section 12.5.
12.6 Full
and Final Release.
In
order to be eligible for the payments as set forth in this Section 12 the
Employee must (i) execute and deliver to the Corporation a general release,
in a
form satisfactory to the Corporation, and (ii) be and remain in full compliance
with his obligations under this Agreement.
12.7 Fair
and Reasonable.
The
parties confirm that the provision contained in Sections 12.4 and 12.5 are
fair
and reasonable and that all such payments shall be in full satisfaction of
all
claims which the Employee may otherwise have at law against the Corporation
including, or in equity by virtue of such termination of
employment.
13
12.8 Return
of Property.
Upon
the termination of the Employee’s employment for any reason whatsoever, the
Employee shall at once deliver or cause to be delivered to the Corporation
all
books, documents, effects, money, computer equipment, computer storage media,
securities or other property belonging to the Corporation or for which the
Corporation is liable to others, which are in the possession, charge, control
or
custody of the Employee.
12.9 Provisions
Which Operate Following Termination.
Notwithstanding any termination of this Agreement for any reason whatsoever,
the
following provisions of this Agreement shall continue in full force and effect:
Parts 1, 5, 7-13 and 15.
12.10 Board.
Notwithstanding the foregoing, the termination of Employee’s employment
hereunder for Cause shall automatically be deemed as Employee’s resignation from
the Board of Directors of the Corporation and any affiliates without any further
action, except when the Board shall, in writing, request a continuation of
duty
as a Director in its sole discretion.
12.11
Without
derogating from the terms of this Agreement, and particularly the terms of
Part
12 to this Agreement, in the event that Company terminates Employee without
Cause or Employee terminates this Agreement with Good Reason during the Initial
Term or Employee terminates this Agreement for any reason after the Initial
Term
then the Employee shall not require Consent under Section 2.7 of the Stock
Purchase Agreement dated June 5, 2006 between the Employee and The Medical
Exchange Inc. after 180 days from such termination. Furthermore, ifthe Company
or Employee does not agree to renew this Agreement for any Renewal Term then
the
Employee shall not require Consent under Section 2.7 of the said Stock Purchase
Agreement after 180 days from expiration of the Initial Term.
PART
13
GENERAL
13.1
Benefit
& Binding.
This
Agreement shall enure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties hereto.
13.2
Amendments
& Waivers.
No
amendment to this Agreement shall be valid or binding unless set forth in
writing and duly executed by all of the parties hereto. No waiver of any breach
of any provision of this Agreement shall be effective or binding unless made
in
writing and signed by the party purporting to give the same and, unless
otherwise provided in the written waiver, shall be limited to the specific
breach waived.
13.3
Assignment.
Neither
this Agreement nor the rights and obligations hereunder shall be assignable
by
either party without the consent of the other.
13.4
Severability.
If any
provision of this Agreement is determined to be invalid or unenforceable in
whole or in part, such invalidity or unenforceability shall attach only to
such
provision and all other provisions hereof shall continue in full force and
effect.
14
13.5
Attornment.
For the
purposes of all legal proceedings this Agreement shall be deemed to have been
performed in the State of Israel and the labour courts of Tel Aviv- Jaffa shall
have jurisdiction to entertain any action arising under this
Agreement.
PART
14
ACKNOWLEDGEMENT
The
Employee acknowledges that:
| (iii) |
the
Employee has received a copy of this
Agreement;
|
| (iv) |
the
Employee has had sufficient time to review and consider this Agreement
thoroughly;
|
| (v) |
the
Employee has read and understands the terms of this Agreement and
his
obligations under this Agreement;
|
| (vi) |
the
restriction placed upon the Employee by this Agreement are reasonably
necessary to protect the Corporation’s proprietary interests in the
Confidential Information and the Developments and will not preclude
the
Employee from being gainfully employed in a suitable capacity following
the termination of the Employee’s employment, give the Employee’s
knowledge and experience;
|
| (vii) |
the
Employee has been given an opportunity to obtain independent legal
advice,
or such other advice as the Employee may desire, concerning the
interpretation and effect of this Agreement and by signing this Agreement
the Employee has either obtained advice or voluntarily waived the
Employee’s opportunity to receive the same;
and
|
| (viii) |
this
Agreement is entered into voluntarily by the
Employee.
|
PART
15
NOTICES
Any
demand, notice or other communication (the “Notice”)
to be
given in connection with this Agreement shall be given in writing on a Business
Day and may be given by personal delivery or by transmittal by facsimile
addressed to the recipient as follows:
|
To
the Corporation:
|
IDO
Security 2000 Ltd.
6
Sapir St., Reshon-Lezion
Isarel
|
|
To
the Employee:
|
Xx.
Xxx Xxxxx
41
Xxxxx Lacish St., Asdod
Israel
|
15
or
such
other address or facsimile number as may be designated by notice by any party
to
the other. Any Notice given by personal delivery will be deemed to have been
given on the day of actual delivery and if transmitted by facsimile before
3:00
pm on a Business Day, will be deemed to have been given on that Business Day
and
if transmitted by facsimile after 3:00 pm on a Business Day, will be deemed
to
have been given on the next Business Day after the date of
transmission.
PART
16
FURTHER
ASSURANCES
The
parties shall from time to time execute and deliver all such further documents
and do all acts and things as the other party may reasonably require to
effectively carry out or better evidence or perfect the full intent and meaning
of this Agreement.
PART
17
FAX
SIGNATURES
This
Agreement may be signed either by original signature or by facsimile
signature.
PART
18
COUNTERPARTS
This
Agreement may be executed by the parties in one or more counterparts, each
of
which when so executed and delivered shall be an original and such counterparts
shall together constitute one and the same instrument.
IN
WITNESS WHEREOF
the
parties have duly executed this Agreement.
| IDO SECURITY LTD. | |||
|
Per:
|
|||
|
XXX
XXXXX
|
16
The
undersigned hereby consents to the provisions of Section 12.11
above.
________________________
17
