TRACEGUARD TECHNOLOGIES LTD.
EMPLOYMENT AGREEMENT
--------------------
This agreement is entered into on the 6th day of July, 2006 in effect as of the
1 day of June, 2006 between David Ben Yair ("EMPLOYEE"), and TraceGuard
Technologies Ltd., an Israeli company with offices located at 0 Xxxxxxxx Xx.,
Xxxxxx Xxxxx, Xxxxxx (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company is a technology based company developing and marketing
products geared currently to of the homeland security market (the "BUSINESS");
and
WHEREAS the Employee represents that he has the requisite skills, experience and
training to serve as the Chief Financial Officer of the Company ("CFO" or the
"POSITION");
WHEREAS, the Company desires to employ Employee and the Employee desires to be
employed in the Company in the Position;
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. CONTENTS OF AGREEMENT/DEFINITIONS
1.1 The preamble and the exhibits to this Agreement constitute an integral part
thereof and are hereby incorporated by reference.
1.2 The headings in this Agreement are for the purpose of convenience only and
shall not be used for the purposes of interpretation.
2. EMPLOYMENT AND POSITION
2.1 Employee's employment with the Company shall commence in effect as of the 1
day of June, 2006 ("DATE OF COMMENCEMENT") and shall continue until terminated
in accordance with the provisions of Section 7 hereof.
2.2 Employee shall be engaged as the CFO of the Company and shall report
regularly to the Chief Executive Officer and/or the Board of Directors of the
Company as instructed by the Company from time to time. Notwithstanding the
foregoing, the Company shall be entitled to change the Employee's Position in
accordance with Company's requirements.
3. EMPLOYEE'S DUTIES
Employee affirms and undertakes throughout the term of this Agreement:
3.1 To devote his entire working time, know-how, expertise, talent, experience
and best efforts to the business and affairs of the Company and for the
performance of his duties towards the Company, to perform and discharge well and
faithfully, with devotion, honesty and fidelity, his obligations pursuant to his
Position, and to comply with all Company's disciplinary regulations, work rules,
policies, procedures and objectives, as may be determined by Company from time
to time. In addition, it is agreed that employee will not use any of Company's
facilities and/or equipment to any other purpose except for the performance of
his duties under this Agreement.
3.2 To travel abroad from time to time if and as may be required pursuant to his
Position.
3.3 Not to receive, at all times, whether during the term of this Agreement
and/or at any time thereafter, directly or indirectly, any payment, benefit
and/or other consideration, from any third party in connection with his
employment with Company, without the Company's prior written authorization.
3.4 To immediately and without delay inform the Company of any affairs and/or
matters that might constitute a conflict of interest with Employee's position
and/or employment with Company.
3.5 Not to undertake or accept any other paid or unpaid employment or occupation
or engage in or be associated with, directly or indirectly, any other
businesses, duties or pursuits except for minor non-commercial or non-business
activities, without the prior written consent of the Company.
4. TIME AND ATTENTION
Employee shall work one hundred percent (100%) position and such over time as
required for the adequately performance his duties and responsibilities.
5. CONSIDERATION, BENEFITS AND PAYMENTS
5.1 GROSS SALARY
During the term of this Agreement, and subject to the performance of the
services required to be performed hereunder by Employee, the Company shall pay
to Employee for all services rendered by Employee under this Agreement, a
salary, payable not less often than monthly and in accordance with the Company's
normal and reasonable payroll practices, a monthly gross amount equal to NIS
thirty thousand (NIS 30,000) (the "GROSS SALARY"). The Gross Salary shall be
reviewed by the Company on an annual basis or on each anniversary of this
Agreement, at the Company's sole discretion.
The Gross Salary was agreed between the parties, inter alia, in view of the fact
that the Employee's Position, duties and responsibilities are of such nature
that require a special degree of trust and that the Company cannot keep track of
all overtime hours of the Employee.
5.2 SPECIAL BONUS
Employee shall be entitled to special bonuses each equal to one (1) Gross Salary
upon the successful completions of each of the following events with respect to
each period of twelve (12) months commencing on June 1, 2006 and until
termination of this Agreement:
5.2.1 Timely submission of annually and quarterly financial statements of the
Company and the Parent Company for the year 2006, in accordance with the
requirements of applicable law;
5.2.2 Complying with the Company's annual budget approved by the Board of
Directors of the Company (as amended by the Board of Directors, if
amended)
5.2.3 Consummation of an equity investment in the Company in an amount of no
less than US$ 5,000,000.
It is agreed that each year during the term of this Agreement the Board of
Directors of the Company shall determine Employee's annual targets for the
purpose of this Section 5.2.
-2-
5.3 ANNUAL VACATION
Employee shall be entitled to twenty one (21) vacation days during each year of
Employee's employment, provided, however, that following each anniversary of
this Agreement, Employee shall be entitled to an additional vacation day up to a
total of no more than twenty four (24) days, unless Employee shall be entitled
to additional vacation days under applicable law. Statutory vacation time may be
accumulated to the extent required under applicable law.
5.4 MANAGERS INSURANCE OR OTHER PENSION PLAN
The Company and the Employee will obtain and maintain Managers Insurance with an
insurance company at the Employee's choice in effect as of the Date of
Commencement (the "PLAN"). After receiving the Employee's request with respect
to the type of Plan to be obtained by the Company, the Company will inform the
Employee in writing the type of such Plan obtained by the Company, for the
exclusive benefit of the Employee in the customary form with respect to which
the Company shall be the beneficiary.
The Company shall contribute an amount equal to thirteen and one third percent
(13.33%) of each monthly Gross Salary payment (out of which 8.33% are designated
for severance payments and 5% are designated for premium payments - "COMPANY
CONTRIBUTION") and the Employee shall contribute five percent (5%) of the
monthly Gross Salary payment ("EMPLOYEE'S CONTRIBUTION") toward the premiums
payable in respect of such insurance (the "INSURANCE POLICY"). The Employee
hereby instructs the Company to transfer to the insurance Company the amount of
the Employee's and the Company's Contribution from each monthly Gross Salary
payment, on account of the Insurance Policy.
It is hereby agreed that upon termination of employment under this Agreement,
the Company shall release to the Employee all amounts accrued in accordance with
the Plan on account of both the Company's and Employee's Contributions. It is
hereby agreed that if the Employee is dismissed under the circumstances in which
Employee is not entitled to any severance pay according to Section 16 and/or
Section 17 of the Severance Pay Law (as defined below) - the Employee shall not
be entitled to any severance pay.
It is hereby agreed and understood that the amounts accrued in the Plan on
account of the Company's Contribution shall be in lieu and in full and final
substitution of any severance pay the Employee shall be or become entitled to
under any applicable Israeli law. This section is in accordance with Section 14
of the Severance Pay Law, and the General Approval of the Labor Minister, dated
June 30, 1998, issued in accordance to the said Section 14, a copy of which is
attached hereby as EXHIBIT A.
5.5 DISABILITY INSURANCE
The Company shall obtain Disability Insurance ("OVDAN KOSHER AVODA"), which may
be included within the Insurance Policy, for the exclusive benefit of the
Employee and shall contribute therefore an amount not exceeding two and a half
percent (2.5%) of each monthly Gross Salary Payment, or such amount required to
enable the payment of at least 75% of the Gross Salary.
5.6 EDUCATIONAL FUND
The Company and the Employee shall open and maintain an Educational Fund ("Keren
Hishtalmut") (the "FUND"). The Company shall contribute to such Fund an amount
equal to seven and a half percent (7.5%) and the Employee shall contribute to
such Fund an amount equal to two and a half percent (2.5%) of each monthly Gross
Salary payment. The Employee hereby instructs the Company to transfer to the
Fund the amount of the Employee's and the Company's contribution from each
monthly Gross Salary payment.
-3-
In the event of termination of Employee's employment under this Agreement for
any reason other than a termination for 'cause' (as defined hereinafter)
Employee shall be entitled to all sums accumulated in the Fund. In the event of
termination for 'cause' Employee shall not be entitled to any of Company's
contributions to the Fund made during this Agreement.
5.7 COMPANY CAR
The Company shall make available to the Employee a company car of the type 3
(the "COMPANY CAR"). The Company will cover all the operating expenses of the
Company Car (including reasonable toll roads and parking expenses related to
Employee's engagement, but excluding other parking expenses, fines, and cases of
negligence by the Employee), and will deduct tax from the Gross Salary the
"SHOVI RECHEV" as required by applicable law. The payments related to the
Company Car under this paragraph are in lieu of traveling expenses to and from
work as required by applicable law.
Employee shall take good care of such Company Car and ensure that the provisions
of the insurance policy and Company's rules relating to Company Car are
strictly, lawfully and carefully observed. Employee is aware that in order to
provide Employee with the Company Car the Company shall lease the Company Car
from a leasing company, and Employee undertakes to strictly comply with the
provisions of the leasing agreement.
Employee shall return Company Car (together with its keys and any other
equipment supplied and/or installed therein by Company) to Company's principal
office upon termination of Employee's employment with Company. Employee shall
have no rights of lien with respect to Company Car and/or any other equipment
relating thereto as above mentioned.
5.8 MOBILE PHONE AND ADDITIONAL TERMS
The Company shall provide Employee with,
and pay for the use of, a mobile phone for Employee's use in the course of
performing Employee's obligations under Employee's Position (the "MOBILE
PHONE"). Employee shall bear any and all taxes applicable to Employee in
connection with the Mobile Phone and/or the use thereof. Employee shall return
the Mobile Phone to Company's principal office upon termination of Employee's
employment with Company. Employee shall have no rights of lien with respect to
the Mobile Phone. In any event of a delay in the return of the Mobile Phone
after termination of Employee's employment, all costs and expenses related to
the Mobile Phone and its use shall be solely borne by the Employee and the
Company shall be entitled to set off such amounts from any amount due to the
Employee.
In addition, in view of Employee's Position, during the Term of this Agreement,
Employee shall be entitled to receive a daily economical magazine at his choice
and reimbursement of fees related to membership in the Israeli Institute of
Certified Public Accountants and the Public Accountants' Council.
5.9 STOCK COMPENSATION
Company shall issue to Employee 170,000 Restricted Stock Units of TraceGuard
Technologies Inc., the parent company of the Company ("RSUS"). The RSUs shall be
subject to the terms of the Company's 2006 Stock Incentive Compensation Plan,
and the Restricted Stock Units Agreement to be entered into between the Company
and the Employee, following the adoption of a Stock Incentive Compensation Plan
by the Company.
5.10 Employee shall be entitled to such number of working days of paid illness
vacation during each year of employment, as provided by Israeli Labor Law.
5.11 The Employee shall be entitled to "DMEY HAVRA'AH" in accordance with any
applicable law.
5.12 The Employee shall receive the Gross Salary payable in respect of periods
of the Employee's military reserve duty. The Company shall be entitled to
receive and to retain any amounts payable by the National Insurance
Institute or any other agency or entity in respect of such periods.
-4-
6. CONFIDENTIALITY, NON-COMPETE AND PROPRIETARY RIGHTS
The Employee shall, simultaneously herewith, execute the Confidential,
Non-Compete and Proprietary Rights Agreement, attached hereto as EXHIBIT B. For
the removal of any doubt, execution of such Confidential, Non-Compete and
Proprietary Rights Agreement by the Employee - is a condition precedent to this
Agreement becoming effective.
7. TERM AND TERMINATION OF EMPLOYMENT
7.1 Employee's employment under this Agreement shall commence on the Date of
Commencement and shall end on the earlier of: (i) termination by either party as
specified hereunder; (ii) the death or disability (as defined below) of Employee
For the purposes of this Agreement, "DISABILITY" shall mean any physical or
mental illness or injury as a result of which Employee remains absent from work
for a period of 2 (two) successive months, or an aggregate of 2 (two) months in
any twelve-month period. Disability shall be deemed to have occurred on the last
day of such two-month period.
7.2 Company may terminate this agreement without cause, as hereinafter defined,
by providing a prior written notice of one hundred and eighty (180) days, and
Employee may terminate this agreement without cause, as hereinafter defined, by
providing a prior written notice of ninety (90) days (the "NOTICE PERIOD").
7.3 During the Notice Period, whether notice has been given by Employee or by
the Company, Employee shall continue to render Employee's services to the
Company unless instructed otherwise in accordance with Section 7.4 below, and
shall cooperate with the Company and use Employee's best efforts to assist the
integration into the Company organization of the person or persons who will
assume Employee's responsibilities.
7.4 The Company shall be entitled, at any time prior to the expiration of the
Notice Period, to relieve the Employee from the obligation to perform his duties
under this Agreement during the Notice Period, in which event the Company shall
continue to pay to Employee during the remainder of the Notice Period, all the
payments payable to Employee under Section 5 above. In such case, Employee
shall, at all times during the remainder of the Notice Period, fully cooperate
with the Company and perform any of Employee's duties hereunder as shall be
requested by the Company. Alternatively, the Company shall be entitled to
terminate Employee's employment, at any time prior to the expiration of the
Notice Period, in which event, according to applicable law, the Company shall
pay Employee upon termination of Employee's employment, the value of the Gross
Salary Employee would have been entitled to during the remainder of the Notice
Period.
7.5 Notwithstanding the forgoing, the Company shall be entitled to terminate
Employee's employment with Company with immediate effect, at any time, by
providing notice thereof to Employee, where said termination is a termination
for 'cause'. In such event, without derogating from the rights of Company under
this Agreement and/or any applicable law, Employee shall not be entitled to any
of the consideration specified in Section 7.4 above.
For the purpose of this Agreement, "CAUSE" shall exist if Employee (i) breaches
any of the terms of Section 6 above or Exhibits B and C of this Agreement, or;
(ii) engages in willful misconduct or acts in bad faith with respect to the
Company in connection with and related to the employment hereunder; (iii) is
convicted of a felony or is held liable by a court of competent jurisdiction for
fraud against the Company; (iv) fails to comply with the instructions of the
Company or its Board of Directors given in good faith; or (v) is dismissed under
the circumstances defined in Section 16 and/or Section 17 of the Severance Pay
Law, 1963 (hereinafter: "THE SEVERANCE PAY LAW").
7.6 At the termination of the employer-employee relationship the Employee shall
return to the Company all the property of the Company that was provided to the
Employee by the Company. Should the Employee refuses and/or fail to do so, the
Company shall offset the market value of such property (as shall be determined
solely by the Company) from the amounts (if any) that the Employee might be
entitled to. The above dose not derogate from the remedies available to the
Company in accordance with any applicable law.
-5-
8. EMPLOYEE REPRESENTATIONS AND ACKNOWLEDGMENTS
The Employee represents and warrants to the Company that the execution and
delivery of this Agreement and the fulfillment of the terms hereof (i) will not
constitute a default under or breach of any agreement or other instrument to
which he is a party or by which he is bound, including without limitation, any
confidentiality or non-competition agreement, (ii) do not require the consent of
any person or entity, and (iii) shall not utilize during the term of Employee's
employment any proprietary information of any third party, including prior
employers of the Employee.
9. GENERAL PROVISIONS
9.1 Employee shall not be entitled to any additional bonus, payment or other
compensation in connection with Employee's employment with Company, other than
as provided in this Agreement.
9.2 Company shall withhold, or charge Employee with, all taxes and other
compulsory payments as required under applicable law with respect to all
payments, benefits and/or other compensation paid to Employee in connection with
Employee's employment with Company.
9.3 Company shall be entitled to deduct from any and/or all payments to which
Employee shall be entitled thereof, any and/or all amounts to which Company
shall be entitled from Employee at such time.
9.4 Company's failure or delay in enforcing any of the provisions of this
Agreement shall not, in any way, be construed as a waiver of any such
provisions, or prevent Company thereafter from enforcing each and every other
provision of this Agreement which were previously not enforced.
9.5 Except as otherwise herein expressly provided, this Agreement shall inure to
the benefit of and be binding upon the Company, its successors and assigns,
including, without limitation, any subsidiary or affiliated entity and shall
inure to the benefit of, and be binding upon, Employee, Employee's heirs,
executors, administrators and legal representatives. Notwithstanding the
foregoing, the obligations of Employee hereunder shall not be assignable or
delegable.
9.6 This Agreement constitutes the entire understanding and agreement between
the parties hereto, supersedes any and all prior discussions, agreements and
correspondence with regard to the subject matter hereof, and may not be amended,
modified or supplemented in any respect, except by a subsequent writing executed
by both parties hereto.
9.7 All notices, requests and other communications to any party hereunder shall
be given or made in writing and facsimile, mailed (by registered or certified
mail) or delivered by hand to the respective party at the address set forth in
the caption of this Agreement or to such other address (or facsimile number) as
such party may hereafter specify for the purpose of notice to the other party
hereto. Each such notice, request or other communication shall be effective (i)
if given by facsimile, when such facsimile is transmitted to the facsimile
number specified herein and the appropriate answerback is received or (ii) if
given by any other means, when delivered at the address specified herein.
9.8 For the purpose of Section 6 and Exhibits B and C of this Agreement, the
term "COMPANY" shall include also the Company's parent company, Company's
subsidiary or any company controlled or owned by the Company's parent company.
-6-
9.9 This Agreement shall be governed by, and construed and enforced in
accordance with the laws of Israel without giving effect to principles of
conflicts of law and the courts of Israel shall have exclusive jurisdiction over
the parties hereto and subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first appearing above.
--------------------------- ---------------------------
TRACEGUARD TECHNOLOGIES LTD. DAVID BEN YAIR
-7-
EXHIBIT B
---------
CONFIDENTIALITY, NON-COMPETE AND PROPRIETARY RIGHTS
---------------------------------------------------
This agreement is entered into effect as of _____ ___, 2006 between David Ben
Yair, residing at _____________________________, Israel ("EMPLOYEE"), and
TraceGuard Technologies Ltd., an Israeli company with offices located at 0
Xxxxxxxx Xx., Xxxxxx Xxxxx, Xxxxxx (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Employee is entering into an Employment Agreement with the Company
simultaneously to entering into of this Agreement (the "EMPLOYMENT AGREEMENT");
and
WHEREAS, pursuant to Section 6 of the Employment Agreement the Employee
undertook to execute an Confidentiality, Non-Compete and Proprietary Rights
Agreement as a condition precedent to the Employment Agreement becoming
effective;
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. SECRECY AND NONDISCLOSURE
1.1 The Employee shall treat as secret and confidential all of the processes,
methods, formulas, procedures, techniques, software, designs, data, drawings and
other information which are not of public knowledge or record pertaining to the
Company's Business (existing, potential and future), including without
limitation, all business information relating to customers and suppliers and
products of which the Employee becomes aware during and as a result of
Employee's employment or association with the Company, and Employee shall not
disclose, use, publish, or in any other manner reveal, directly or indirectly,
at any time during or after the term of this Agreement, any such processes,
methods, formulas, procedures, techniques, software, designs, data, drawings and
other information pertaining to the Company's existing or future Business or
products. The Employee may disclose or use such information, if at all, only
with the prior express written consent of the Company.
1.2 The Employee hereby undertakes to return, upon request, to the Company, all
written and/or electronic materials, records, documents, computer software
and/or hardware or any other material which belongs to the Company and that
might be in Employee's possession, and if requested by the Company to do so,
will execute a written statement confirming compliance with the above said.
1.3 The Employee acknowledges that all of the secrets, information, or documents
aforementioned in Sub-Sections 1.1 and 1.2 above, are essential commercial and
proprietary information of the Company, or third parties to whom the Company
owes a duty of confidentiality which is not public information and cannot easily
be discovered by others, whose confidentiality provides the Company a commercial
advantage over its competitors, and the Company is taking reasonable measures to
safeguard its confidentiality.
1.4 The Employee's undertakings pursuant to this clause shall remain in force
after the termination of Employee's employment under this Agreement.
-8-
2. NON-COMPETITION
2.1 Employee agrees that during the term of this Agreement and for a period of
one (1) year after he ceases to be employed by the Company he will not, directly
or indirectly, for Employee's own account or as an employee, officer, director,
partner, joint venturer, shareholder, investor, consultant or otherwise (except
as an investor in a corporation whose stock is publicly traded and in which
Employee holds less than 5% of the outstanding shares) and without the prior
written consent of the Company - interest Employee in or engage in any business
or enterprise, anywhere, that competes, directly or indirectly, with the
Business of the Company, that exists now or in the future or is based on similar
technology to the technology that was developed by the Company.
2.2 Employee agrees that during a period of twenty four (24) months commencing
as of the termination of this Agreement, Employee shall not employ directly or
indirectly any individual employed by the Company and/or solicit any employee of
the Company to leave the Company during the twenty four (24) month period,
following such date of termination.
2.3 Employee acknowledges that the restricted period of time specified under
Sections 2.1 and 2.2 above are reasonable, in view of the nature of the business
in which the Company is engaged and Employee's knowledge of the Business.
2.4 Notwithstanding anything contained in Section 2.3 to the contrary, if the
period of time under this Section 2 above should be determined to be
unreasonable in any judicial proceeding, then the period of time and area of the
restriction shall be reduced so that this Agreement may be enforced in such area
and during such period of time as shall be determined to be reasonable by such
judicial proceeding.
2.5 The Employee declares and acknowledges that:
2.5.1 Employee's obligations of protecting the confidentiality and
non-competition provisions included in this agreement are fair,
reasonable, proportional, and designed to protect the Company's secrets
and its confidential information, which constitutes the essence of its
protected business and commercial advantage in which significant capital
investments were made.
2.5.2 Breach of an obligation under this Section - shall contradict the
nature of the special trust and relationship of loyalty between the
parties, the fair and proper business practices, the duty of good faith
and fairness between the parties, shall harm the Company, and shall
constitute a material breach of this Agreement and the trade secrets,
confidential connections, confidential information, and other privileged
interests of the Company.
2.5.3 The Employee declares that Employee's obligations under this
section, which are reasonable and proportional - do not prevent the
employee from developing Employee's general knowledge and professional
expertise in the area of Employee's business, with regard to those who are
not customers and employees of the Company and without using its trade
secrets.
2.5.4 Employee's Gross Salary includes a special consideration paid to
Employee in view of his obligation under this Section 2.
-9-
3. DEVELOPMENT RIGHTS
The Employee agrees and declares that all proprietary information including but
not limited to copyrights, trade secrets and know-how, patents and other rights
in connection therewith developed by or with the contribution of Employee's
efforts during Employee's employment by the Company shall be the sole property
of the Company, and the Employee shall execute all documents necessary to assign
any patents to the Company and otherwise transfer such proprietary rights to the
Company.
In Addition, Employee agrees to be bound by the terms and conditions of the
Intellectual Property assignment of rights attached as EXHIBIT C to the
Employment Agreement as an integral part thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first appearing above.
--------------------------- ---------------------------
TRACEGUARD TECHNOLOGIES LTD. DAVID BEN YAIR
-10-
EXHIBIT C
---------
INTELLECTUAL PROPERTY AND ASSIGNMENT OF RIGHTS
----------------------------------------------
1. For purposes of this Exhibit, the following definitions shall apply:
"INVENTIONS" shall mean:
A. All inventions, improvements, modifications, and enhancements
whether or not patentable, made by the Employee during or in the course of
employment, or which relate, directly or indirectly to the business of the
Company, or which were made using the Company' equipment, and
B. All inventions, improvements, modifications and enhancements made
by the Employee, during a period of twelve (12) months (or such lesser maximum
period permitted by applicable law) after any termination of the Employee's
employment, which relate, directly or indirectly, to the business of the Company
at the time they were so made.
"WORK PRODUCT" shall mean all documentation, software, hardware, firmware,
creative works, artworks, know-how and information created, in whole or in part,
by the Employee during the Employee's employment by the Company, whether or not
copyrightable or otherwise protectable, excluding Inventions.
"TRADE SECRETS" shall mean "Trade Secrets" as defined in the Israeli Law
of Commercial Torts, 5759 - 1999, and all documentation, software, hardware,
firmware, customer lists, know-how and other information of any kind or nature
relating to the past, present or future business of the Company or any plans
therefor, or relating to the past, present or future business of a third party
or plans therefor (including but not limited to any items and information in any
form determined by law as trade secrets) that are disclosed to the Employee,
which the Company does not disclose to third parties without restrictions on use
or further disclosure.
2. Without derogating from any other provision of the law:
A. The Employee shall promptly disclose to the Company all
Inventions and keep accurate records relating to the conception and reduction to
practice of all Inventions. Such records shall be the sole and exclusive
property of the Company, and the Employee shall surrender possession of such
records to the Company upon any termination of the Employee's relationship with
the Company.
B. The Employee hereby assigns to the Company, without additional
consideration to the Employee, the entire right, title and interest in and to
the Inventions and Work Product and in and to all proprietary and any and all
intellectual property rights therein or based thereon. The Employee shall
execute all such assignments, oaths, declarations and other documents as may be
prepared by the Company to effect the foregoing.
C. During the term of this Agreement, and thereafter, the Employee
shall provide the Company with all information, documentation, and assistance
the Company may reasonably request to perfect, enforce, or defend its
proprietary rights in or based on the Inventions, Work Product and/or Trade
Secrets. The Company, in its sole discretion, shall determine the extent of the
proprietary rights, if any, to be protected in or based on the Inventions and/or
Work Product. All such information, documentation, and assistance shall be
provided to the Company by the Employee at no additional expense to the Company,
except for out-of-pocket expenses which the Employee incurred at the Company'
request.
D. During the term of this Agreement, and thereafter, the Employee
shall treat Inventions and Work Product as Confidential Information under this
Agreement and shall not disclose them to others without the prior written
permission of the Company, or use such Inventions and/or Work Product for any
purpose, other than for the performance of services for the Company.
-11-
3. Remedies. The Employee acknowledges that a breach of the covenants
contained in this Employment Agreement and Exhibit C would result in substantial
injury and damage to the Company for which there is no adequate remedy at law.
Therefore, in the event of an actual or threatened breach of such covenants by
the Employee, the Company shall be entitled, in addition to all other rights,
remedies and damages that may be available to the Company at law or in equity,
to a preliminary restraining order and an injunction, or any other available
equitable remedy, to restrain the violation or attempted violation of this
Employment Agreement (including its exhibits) by the Employee or by any other
person or entity acting for Employee's benefit or on Employee's behalf. In the
event there is any action to enforce the terms of such restrictive covenants,
the prevailing party, in addition to any other remedy, shall be entitled to
recover reasonable attorney's fees and all other reasonable costs associated
with any such action both on the trial and appellate level and in any creditor's
proceedings. In the event that a court of competent jurisdiction determines by
final non-appealable judgment that the scope, time period, or geographical
limitations of any of the restrictive covenants specifically set forth herein
are too broad to be capable of enforcement, said court is authorized, and the
parties hereto stipulate that such court shall, modify said restrictive
covenants and enforce such provisions as to scope, time, and geographical areas
as the court deems equitable, just and appropriate considering the intent of the
parties hereto.
-----------------------
DAVID BEN YAIR
-12-
