Personal Employment Agreement
Exhibit
10.5
This
Personal Employment Agreement ("Agreement")
is
entered into as of January 1, 2006 by and between IXI
Mobile (R&D) Ltd.,
a
company organized under the laws of the State of Israel, having its principal
office at 17 Ha’Tidhar Str. Raanana (the "Company")
and of
Xxxxxx Xxxxx (“You”
or
the
"Employee").
WHEREAS
Employee
previously provided services to the Company, including within the framework
of a
service management agreement, which agreement has been terminated by agreement
between the Company and the Employee as of January 1, 2006; and
WHEREAS the
Company desires to engage Employee for its activities as may be defined from
time to time, and Employee represents that he has the requisite skill and
knowledge; and
WHEREAS the
parties desire to set forth herein the terms and conditions of Employee’s
engagement by the Company, effective as of the date of this Agreement, as set
forth below.
NOW
THEREFORE,
in
consideration of the mutual promises contained herein, and intending to be
legally bound, the parties hereto hereby declare and agree as
follows:
| 1. |
The
position
|
| 1.1. |
You
shall be employed in the position of Chairman of the Company, and
within
the framework of such position shall also serve as the Chairman of
the
Company’s parent corporation, IXI Mobile Inc. (the “Parent
Company”
and the “Position”,
respectively). You shall perform such services and duties as are
normally
incident to the Position and that are commensurate with your background,
education and professional standing or as are otherwise requested
by the
Company’s and/or the Parent Company’s Boards of Directors acting in
coordination (the “Board”).
You shall work at the direction, and subject to the approval of,
and shall
report to, the Board.
|
| 1.2. |
You
shall perform your obligations under the Position in such locations
as
shall be determined by you to be required for the fulfillment of
such
obligations, provided however that you acknowledge and agree that
the
performance of your duties hereunder may require significant international
travel, including to the Parent Company’s facilities in the U.S. The
Company acknowledges and agrees that you are engaged in other business
or
professional activities, including, without limitation, investing
and
forming other companies, managing and holding a board seat with various
companies and various advisory positions. Subject to the other provisions
of this Section 1.2, it is agreed that you are being engaged in a
management position which requires a special degree of skill and
devotion,
and therefore you agree to devote the necessary time for the fulfillment
of your duties under the Position You shall perform your duties diligently
and in furtherance of the Company's best
interest.
|
| 1.3. |
It
is hereby acknowledged and agreed that Employee’s Position in the Company
shall be deemed a senior position and/or one which shall require
a special
degree of trust, and/or is a position which does not enable the Company
to
supervise the work and rest hours of the Employee, and therefore
the
provisions of The Work and Rest Hours Law, 1951 (the “Work
and Rest Hours Law”),
shall not apply to Employee’s employment with
Company.
|
| 2. |
Term
and Termination
|
| 2.1. |
You
will commence your duties on the date set forth in Exhibit
A
(the "Commencement Date").
This Agreement shall commence on the Commencement Date and shall
continue
until it is terminated as hereafter
provided.
|
| 2.2. |
Either
party may terminate this Agreement and the employment relationship
hereunder without any reason or explanation at any time by giving
the
other party 90 days prior notice. Notwithstanding the aforesaid,
in the
event of a Justifiable Cause (as defined hereafter), the Company
shall be
entitled to terminate this Agreement immediately and this Agreement
and
the employment relationship shall be deemed effectively terminated
as of
the time of delivery of such
notice.
|
| The term "justifiable cause" shall mean (a) a serious breach of trust including but not limited to theft, embezzlement, self-dealing, prohibited disclosure to unauthorized persons or entities of confidential or proprietary information of or relating to the Company or your engagement in any prohibited business or business which is competitive to the business of the Company and its subsidiaries or affiliates; (b) any willful failure to perform any of your fundamental functions or duties hereunder which has or is expected to seriously damaged the Company, or (c) any other cause which justifies, according to applicable law, the termination or dismissal of an employee without payment of full severance compensation. |
| 2.3. |
During
the period following notice of termination by either party, you shall
cooperate with the Company and use your best efforts to assist the
integration into the Company of the person or persons who will replace
you
and assume your responsibilities. During the aforesaid period, the
employer-employee relationship shall continue and you shall be entitled
to
full Salary and all benefits as provided for in this
Agreement.
|
| 3. |
Salary
|
| 3.1. |
The
Company shall pay you as compensation for the employment services
hereunder, an aggregate monthly compensation set forth in Exhibit
A
(the “Salary”).
|
| 3.2. |
The
Company shall pay you an additional amount set forth in Exhibit
A
on
account of any and all daily travel expenses to which you may be
entitled
under applicable law (the “Travel
Expenses”).
|
| 3.3. |
The
Salary shall be paid in NIS and linked to the US dollar based on
the
representative rate of exchange of the US dollar known on the last
day of
the month to which the Salary
relates.
|
| 3.4. |
Payment
of the Salary shall be made no later then the 7th
day of each calendar month after the month for which the salary is
being
paid.
|
| 3.5. |
The
Company shall deduct the required taxes and similar payments from
the
Salary and from all other payments made to
you.
|
| 3.6. |
Your
Salary shall annually reviewed by the
Company.
|
| 4. |
Insurance
Scheme and Benefits
|
| 4.1. |
The
Company shall insure you under an accepted "Manager's Insurance Scheme"
to
be selected by the Company, or, if you resquest so, under your existing
"Manager's Insurance Scheme" (the "Insurance Scheme")
(provided that in both cases the agent of the Manager’s Insurance Shceme
shall be selected by the Company), as follows: (i) the Company shall
pay
an amount equal to 5% of the Salary towards the Insurance and shall
deduct
5% from the Salary and pay such amount towards the Insurance for
your
benefit; (ii) the Company shall pay an amount of up to 2.5% of the
Salary
toward disability insurance, and (iii) the Company shall pay an amount
equal to 8 1/3% of the Salary towards a fund for severance compensation.
|
| 4.2. |
The
Company shall pay your full Salary, including Insurance Scheme, social
benefits and fringe benefits, during the period of your military
reserve
service (national Insurance Institute payment in connection with
such
military reserve duty shall be retained by the Company), subject
to your
submitting of the necessary relevant
documentation.
|
| 4.3. |
The
Company and you shall maintain an advanced study fund (“Keren
Hishtalmut”). The Company shall contribute to such Fund an amount equal to
7.5% of the Salary, and you shall contribute to such fund an amount
equal
to 2.5% of the Salary. You hereby instruct the Company to transfer
to such
fund the amount of your contribution from each monthly Salary
payment.
|
| 4.4. |
It
is clarified that the amount deducted from your payroll in connection
with
the lease and use of the automobile (if applicable) as set forth
in
section 5.4, will not be considered a part of the Salary in connection
with Insurance Scheme and all benefits specified in this
section.
|
| 5. |
Additional
Benefits
|
| 5.1. |
You
shall be entitled to be reimbursed for your necessary and actual
business
expenses in accordance with the Company’s policies, as the same shall
change from time to time.
|
| 5.2. |
You
shall be entitled to that number of vacation days per year as set
forth in
Exhibit A. In the event that your activities on behalf of the Company
shall preclude or limit your ability to take all or part of such
vacation
in any year, you shall be entitled to the balance of such vacation
only in
the next succeeding year or, if unable to take the balance in that
next
succeeding year, to receive an amount equal to the rate of salary
then
applicable to the vacation time not taken during such
year.
|
| 5.3. |
You
shall be entitled to sick leave and Recreation Pay (“Dmei Havra'a”)
pursuant to applicable law.
|
| 5.4. |
At
your option, and subject to the Company’s Agreement Regarding the Use of
Rented/Leased Automobiles by Employees (the “Automobile Agreement”), the
Company will grant you the right to use an automobile for the period
of
your employment and cover the expenses associated therewith as specified
in the Automobile Agreement, and in such case, your Salary shall
be
decreased as set forth in Exhibit
A.
If and so long as you are furnished with an automobile as described
above,
you shall not be entitled to any Travel Expenses or to similar costs
under
any applicable law.
|
| 6. |
Confidential
Information, Invention Assignment, Competition and
Solicitation
|
| You hereby acknowledge and represent that you have read and understood, and that you will comply with, the Confidential Information, Invention Assignment, Competition and Solicitation Undertaking attached hereto as Exhibit B, which constitutes an integral part of this Agreement. |
| 7. |
Transition
to Service Agreement
|
| Company and Employee confirm and agree that, upon Employee’s request and at his option, Employee’s employment shall be terminated, without the requirement of prior notice, and Employee shall instead be immediately therafter providing services to the Company in the same position, scope and responsibilities pursuant to a service management agreement (the “Service Management Agreement”) in a mutually agreeable form similar to the terms of this Agreement except that (i) employer/employee relationship shall not exist in such relationship; (ii) sums payable to You shall be made against a duly issued tax invoice of any designated corporation controlled by You and which shall be designated by You from time to time,; (iii) the result of such change in the nature of relationship to a Service Management Agreement shall not result in any additional cost, liability or expense to the Company; (iv) all undertakings in Proprietary Information, Invention Assignment, Competition and Solicitation Undertaking shall remain unchanged. For the removal of doubt, it is hereby clarified that the change in the nature of the relationship between You and the Company to a Service Management Agreement under the circumstances set forth in this Section 7 shall not constitute a termination for purposes of any share option plan in effect at such time and/or any share option agreement entered into between Employee and the Company. |
| 8. |
General
|
| 8.1. |
The
preamble and Exhibits to this Agreement constitute an integral part
thereof. Headings are included for reference purpose only and are
not to
be used in interpreting this
Agreement.
|
| 8.2. |
Each
party represents and warrants to the other party that the execution
of
this Agreement and the fulfillment of its terms (i) will not constitute
a
breach of, or conflict with, any agreement to which such party is
a party,
or other undertaking by which it is bound, and (ii) do not require
the
consent of any person or entity.
|
| 8.3. |
All
notices in connection with this Agreement may be given orally, in
writing
or in any other form, whether at the Company’s offices or facilities, to
the addresses set forth herein, or at any other appropriate location
or
address. Without derogating from the above, all notices in connection
with
this Agreement shall be deemed to have been delivered to the other
party:
(1) after three business days from the date of mailing, if sent by
registered mail, (2) upon actual delivery or proof of delivery at
the
address of the addressee (in case of a refusal to accept it) if delivered
by hand, or (3) upon electronic confirmation of receipt, if delivered
by
fax or other electronic means.
|
| 8.4. |
No
failure or delay of either party in exercising any power or right
hereunder shall in any way restrict or diminish such party's rights
and
powers under this Agreement, or constitute a waiver of any breach
by
either party of any terms of conditions
hereof.
|
| 8.5. |
Any
determination of the invalidity or unenforceability of any provision
of
this Agreement shall not affect the remaining provisions hereof unless
the
business purpose of this Agreement is substantially frustrated thereby.
Should any of the terms contained herein (including in the Exhibits)
be
held to be excessively broad, such provision shall be construed in
a
manner so as to enable its enforcement to the extent permissible
under
applicable law.
|
| 8.6. |
This
Agreement constitutes the entire understanding and agreement between
the
parties and supersedes any and all prior discussions, agreements
and
correspondence with regard to the subject matter hereof, and may
not be
amended, modified or supplemented other than by a subsequent writing
executed by both parties. The provisions of this Agreement are in
lieu of
any collective bargaining agreement, and therefore, subject to applicable
law, no collective bargaining agreement shall apply with respect
to the
relationship between the parties.
|
| 8.7. |
The
laws of the State of Israel shall govern this Agreement and the competent
courts of Tel Aviv shall have sole and exclusive jurisdiction in
any
matter arising out of or relating to this
Agreement.
|
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
|
/s/
Xxxx Xxxxxx
|
/s/
Xxxxxx Xxxxx
|
|
|
IXI
Mobile (R&D) Ltd.
By:
Xxxx Xxxxxx
Title:
CEO
|
Employee
Name:
Xxxxxx Xxxxx
|
Exhibit
A
To
Personal Employment Agreement between
IXI
Mobile (R&D) Ltd.
and
the employee whose name is set forth herein
| Name of Employee: | Xxxxxx Xxxxx | |
| ID No. of Employee: | 000000000 | |
| Address of Employee: | 00 Xxxxxx Xxxxxx, Ra’anana, 43422 | |
| Date of Employment Agreement: | As of January 1, 2006 | |
|
Date
on which Employee commenced employment with the
Company:
|
January 1, 2006 | |
| Salary: | The Gross Amount which brings the total cost to the Company to $17,500, taking into consideration also the following: Managers Insurance; Keren Hishtalmut; Vacation Days; Havraa; the car deduction and its attributed income; and any mandatory deductions under applicable law | |
| Vacation Days Per Year: | 24 | |
| * |
The
Salary and Travel Expenses together shall be deemed to be the Salary
for
any and all purposes under this agreement and applicable law. If
and for
so long as you should choose to use a Company (leased) car, your
Salary
will be: (i) decreased by the amount (“deduction”) specified in the
Company’s Automobile Policy, and (ii) increased by the amount which
otherwise would have been paid to you as Travel
Expenses.
|
|
/s/
Xxxx Xxxxxx
|
/s/
Xxxxxx Xxxxx
|
|
|
IXI
Mobile (R&D) Ltd.
By:
Xxxx Xxxxxx
Title:
CEO
|
Employee
Name:
Xxxxxx Xxxxx
|
Exhibit
B
To
Personal Employment Agreement between
IXI
Mobile (R&D) Ltd.
and
Xxxxxx Xxxxx (“you”
or
the “Employee”)
Proprietary
Information, Invention Assignment, Competition and Solicitation
Undertaking
As
a
condition of my employment with IXI Mobile (R&D) Ltd., its subsidiaries,
parent company(ies), affiliates, successors or assigns (together - the
“Company”), and in consideration for such employment and the compensation paid
to me by the Company, I hereby agree to the following:
| 1. |
Confidential
and Proprietary Information
|
| 1.1. |
I
acknowledge and agree that I may have access to confidential and
proprietary information concerning the business and financial activities
of the Company and information and technology from the Company's
product
research and development, including without limitation, the Company's
banking, investments, investors, properties, employees, marketing
plans,
customers, suppliers, trade secrets, test results, processes, data,
know-how, improvements, inventions, techniques and products (actual
or
planned). Such information, whether written, oral or in any medium
or form
(including any confidential or proprietary information received from
third
parties under the Company’s obligation to maintain the confidentiality of
such information), shall be referred to as "Proprietary
information".
|
| 1.2. |
Proprietary
Information shall NOT include information that I can show by competent
documentary evidence (i) was known to me prior to my association
with the
Company and can be so proven by documentation; (ii) shall have become
a
part of the public knowledge except as a result of my breach of this
Agreement; or (iii) reflects information and data generally known
in the
industries or trades in which the Company
operates.
|
| 1.3. |
I
agree and declare that all Proprietary Information, patents, trademarks,
copyrights and other rights in connection therewith shall be the
sole
property of the Company and its assigns. At all times, both during
my
engagement by the Company and after its termination, I will keep
in
confidence and trust all Proprietary Information, and will not use
or
disclose any Proprietary Information or anything relating to it without
the written consent of the Company except as may be necessary in
the
ordinary course of performing my duties
hereunder.
|
| 1.4. |
Upon
termination of my employment with the Company, I will promptly deliver
to
the Company all documents and materials of any nature pertaining
to my
work with the Company, and will not take with me any documents or
materials or copies thereof containing any Proprietary
Information.
|
|
2.
|
Disclosure
and Assignment of Inventions
|
| 2.1. |
From
and after the date I first became employed with the Company, I undertake
and covenant that I will promptly disclose in confidence to the Company
any and all inventions, improvements, designs, concepts, techniques,
methods, systems, processes, know how, computer software programs,
databases, mask works and trade secretsof any kind whatsoever, whether
or
not patentable, copyrightable or protectible as trade secrets, that
are
made or conceived or first reduced to practice or created by me,
either
alone or jointly with others, during the period of my employment
(whether
or not in the course of my employment) (“Inventions”).
|
| 2.2. |
I
further agree that all Inventions that (a) are developed using equipment,
supplies, facilities or trade secrets of the Company, (b) result
from work
performed by me for the Company, or (c) relate to the Company's business
or current or anticipated research and development, are and will
be the
sole and exclusive property of the Company ("Company
Inventions").
|
| 2.3. |
I
hereby irrevocably transfer and assign to the Company all worldwide
patents, patent applications, copyrights, mask works, trade secrets
and
other intellectual property rights in any Company Invention, and
any and
all moral rights that I may have in or with respect to any Company
Invention.
|
| 2.4. |
I
agree to assist the Company, at the Company's expense, in every proper
way
to obtain for the Company and enforce patents, copyrights, mask work
rights, and other legal protections for the Company's Inventions
in any
and all countries, and will sign any documents that the Company may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections.
In
the event that I do not, for any reason, execute such documents within
a
reasonable time of the Company’s request, I hereby irrevocably appoints
the Company as my attorney-in-fact for the purpose of executing such
documents on my behalf, which appointment is coupled with an
interest.
|
| 3. |
Competition
and Solicitation of Employees and
Customers
|
|
In
order to protect the Company’s goodwill and its proprietary and other
legitimate interests, including, but not limited to, Proprietary
Information, Company Inventions, and the Company’s ability to invest the
necessary time and resources in its business, research and development,
and in its present and future employees, including myself (including
such
employees’ formal and informal training and the development of their
skills, knowledge and experience), I hereby agree and undertake as
follows:
|
| 3.1. |
I
will not, so long as I am employed by the Company and for a period
of six
(6) months following termination of my employment for whatever reason,
directly or indirectly, on behalf of myself or any person, firm,
partnership, joint venture, corporation or other business entity
(“Person”),
either for my own account, or as an advisor, partner, joint venturer,
executive, agent, consultant, licensor, licensee, salesperson, officer,
director or shareholder of a Person, engage in any business or venture
that directly competes with the business of the
Company.
|
| 3.2. |
For
a period of six (6) months immediately following the termination
of my
employment with the Company for any reason, whether with or without
cause,
I shall not either directly or indirectly solicit, induce, recruit
or
encourage any of the Company's senior management employees to leave
their
employment, or take away such employees, nor will I interfere with
or
disrupt or attempt to disrupt the Company’s business relationship with any
of its customers, partners, shareholders or suppliers.
|
Date:
/s/
Xxxxxx Xxxxx
Signature
Name
of
Employee: Xxxxxx Xxxxx
