PERSONAL EMPLOYMENT AGREEMENT
THIS PERSONAL EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into as of the
__ day of ____ 2002, by and between ClickSoftware Technologies Ltd., a company
formed and existing under the laws of the State of Israel, of 34 Habarzel St.
Tel-Aviv_ (the "COMPANY"), and Xx. Xxxxxx Xxxxxx residing at 00 Xxxxxx Xx.
Xxxxxxx Xxxxxx_ (the "EMPLOYEE").
WHEREAS the Company wishes to employ the Employee and Employee wishes to be
employed by the Company in accordance with the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is agreed as follows:
EMPLOYMENT
1.1. The Company shall employ the Employee and the Employee accepts employment
beginning on October 20, 2002 (the "EFFECTIVE DATE") on the terms and
conditions set forth herein. From the Effective Date and thereafter, the
Employee shall serve as the Executive Vice President and Chief Financial
Officer of the Company reporting to the Company's Chief Executive Officer
and its Audit Committee, and shall perform such duties, undertake such
responsibilities and exercise such authority as are normally commensurate
with such positions.
1.2. The Employee undertakes to devote his full business time, attention,
skill, and effort exclusively to the performance of his duties in the
Company and undertakes not to engage, whether as an employee or otherwise,
in any business or commercial activities, whether or not for compensation,
during his employment, without the prior written consent of the Company,
provided however, that Employee may be involved in passive private
investments activities and in after work hours activities in charitable,
cultural or professional organizations.
1.3. This Agreement is a personal agreement, and the position the Employee is
to hold within the Company is a management position which requires a
special measure of personal trust, as such terms are defined in the
Working Hours and Rest Law 5711 - 1951, as amended (the "LAW"). In light
of this relationship of trust, the provisions of the Law, or any other
similar law which may apply, will not apply to the performance by the
Employee of his duties hereunder. Thus, the Employee
may be required, from time to time and according to the work load demanded
of him, to work beyond the regular working hours and the Employee shall
not be entitled to any further compensation other than as specified in
this Agreement.
SALARY, BONUSES AND OPTIONS
1.4. In consideration for the Employee's services hereunder, the Company will
pay to the Employee during the term of this Agreement, a monthly salary in
the amount of NIS 40,000 (hereinafter referred to as the "SALARY") payable
no later than the ninth day of the month following the month for which the
salary is paid.
1.5. The Employee mayl be eligible to receive a bonus (the "Bonus") for each
full fiscal year of employment, subject to the approval of the Board of
Directors or such committee of the Board nominated by the Board.
1.6. Employee shall be granted options to purchase 260,000 ordinary shares, par
value NIS 0.01 per share of the Company (the "Options"), at an exercise
price per share which is equal to the fair market value of the shares on
the date of grant. 1/4 of the Options shall vest and become exercisable on
the first anniversary of the Effective Date, and 1/48 of the Options shall
vest and become exercisable at the expiration of each subsequent month
thereafter so that all Options shall be vested and exercisable at the end
of four years. The Options shall otherwise be subject to all the terms and
conditions of the Company's stock option plan. Notwithstanding anything in
this Agreement or in any other agreement between the parties hereto to the
contrary, in case of Change in Control (as defined in Section 2.7) 50% of
all of the options to purchase shares of the Company then held by the
Employee, that have not already vested under their original vesting
schedule, shall become vested and exercisable upon such Change in Control
and all remaining options to purchase shares of the Company then held by
the Employee that have not already vested under their original vesting
schedule, shall continue to vest in accordance with their original vesting
schedule and, without limitation, shall become vested and exercisable upon
the earlier of (a) six months after the Change of Control, or (b)
termination of this Agreement by the Company without Cause, or (c)
termination of this Agreement by the Employee due to an adverse change in
Employee's scope of responsibility or compensation terms.
1.7. "CHANGE IN CONTROL" means: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) is or becomes the
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"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 50% or more of the
total voting power represented by the Company's then outstanding voting
securities; or (ii) a change in the composition of the Board occurring
within a two-year period, as a result of which fewer than a majority of
the directors are Incumbent Directors. "Incumbent Directors" will mean
directors who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but will not include an
individual whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to the
Company); or (iii) the date of the consummation of a merger or
consolidation of the Company with any other corporation that has been
approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company; or (iv) the date of the consummation of the sale or disposition
by the Company of all or substantially all the Company's assets.
EMPLOYEE BENEFITS AND BUSINESS EXPENSES
1.8. Employee shall be entitled to receive annual vacation time of 22 working
days per year. Such vacation time may, at the Employee's option, be
carried forward subject to the provisions of applicable law or redeemed in
whole or in part based on the Employee's then current Salary.
1.9. Employee shall be entitled to sick pay in accordance with applicable law.
1.10. The Company shall insure the Employee under a pension plan commonly known
as `Manager's Insurance Scheme' (the "MANAGERS INSURANCE") chosen by the
Employee with the Company's consent which may not be unreasonably
withheld, as follows: (i) the Company shall pay an amount equal to 5% of
the Employee's Salary towards the Managers Insurance for the Employee's
benefit and shall deduct 5% from the
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Employee's Salary and pay such amount towards the Managers Insurance for
the Employee's benefit; (ii) the Company shall pay an amount equal to
81/3% of the Employee's Salary towards a fund for severance compensation;
and (iii) the Company shall pay an amount of up to 21/2% of the Employee's
Salary towards disability insurance.
1.11. The Company and the Employee shall open and maintain a continuing
education fund (`Keren Hishtalmut') (the "FUND") as is common in Israel's
labor market. The Company shall contribute to such Fund an amount equal to
71/2% of each monthly Salary payment, and the Employee shall contribute to
such Fund an amount equal to 21/2% of each monthly Salary payment.
1.12. The Managers Insurance and the Fund (together with all amounts contributed
by the Company) shall be transferred to the Employee in full, upon any
termination of the Employee's employment under any circumstances, except
that upon termination for "Cause", Employee shall not be entitled to
receive any amounts contributed by the Company to the Managers Insurance
with respect to severance.
1.13. The Company shall provide the Employee with the full-time use of a car (7
seat Minivan of a type mutually agreed between the parties). The Company
shall bear all of the fixed and variable maintenance and other costs,
including but not limited to licenses, insurance, gas and repairs, except
for fines in respect of traffic offenses. The Company will gross up the
tax benefit related to the use of the Company car.
1.14. The Company will reimburse Employee for all reasonable business expenses
actually incurred by Employee in performing his duties hereunder or
otherwise promoting the business of the Company, upon presentation by
Employee, from time to time, of an itemized account of such expenses
substantiated by appropriate receipts.
1.15. The Company shall withhold or charge the Employee with all taxes and other
compulsory payments as required under law in respect of, or resulting
from, the compensation paid to or received by him and in respect of all
the benefits that the Employee is or may be entitled to.
1.16. The Company shall provide Employee with a cellular phone and shall bear
all the expenses with respect thereto.
1.17. The Company shall enter into an indemnification agreement with Employee in
a customary form and shall
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procure D&O insurance for the Employee to the extent provided for the
Company's directors and its CEO.
TERMINATION
1.18. This Agreement shall commence on the Effective Date and continue until
terminated by the Company or the Employee pursuant to the provisions of
this Section 4.
1.19. The Company may terminate this Agreement without advance notice for
"Cause". Termination for "Cause" shall mean termination by the Company
because of: (i) the Employee's conviction of a felony involving moral
turpitude, or (ii) the Employee's material breach of Section 5 hereof or
(iv) the embezzlement of funds of the Company by the Employee or (v) the
Employee's engaging in willful misconduct which is intended to cause
monetary or other material injury to the Company.
1.20. Either party may terminate this Agreement for any reason by providing
three (3) months prior written notice thereof. In the event of termination
of this Agreement by either party for any reason other than for "Cause" as
defined in Section 4.2, then without limitation of the right to receive
severance under the law and the right to receive all of the compensation
provided in Sections 2 and 3 of this Agreement until the end of the notice
period, the Employee shall continue to receive, subject to his compliance
with his covenants under Section 5, all of the compensation provided in
Sections 2 and 3 of this Agreement for an additional period of three (3)
months after the end of the notice period and termination of the
Agreement, and during such period Employee shall not be required to work
for the Company.
1.21. Upon termination of this Agreement, for whatever reason, other than
termination for Cause, the Employee shall be entitled to receive severance
pay from the Company which will be the higher of (A) the severance amount
due to Employee in accordance with applicable law or (B) a severance
amount in an amount equivalent to 100% (one hundred percent) of the
Employee's monthly Salary during the last month of employment; multiplied
by the number of years, including parts of years, of his employment with
the Company (including the notice period referred to in Section 4.3
above), in each of (A) and (B), less the amounts accumulated to the
benefit of the Employee with the Managers Insurance pursuant to payments
by the Company on account of severance pay.
COMPETITIVE ACTIVITY
1.22. During the term of this Agreement and for a period of twelve (12) months
after termination of employment hereunder for any reason, the Employee
shall not,
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without the Company's consent, (i) be employed by, (ii) act as a director,
agent, distributor of or consultant to, or (iii) own an interest in any
person or entity or business division/unit the principal business of which
is identical or similar to the Company's business; provided, however, that
the foregoing shall not be deemed to prohibit the Employee from acquiring
for investment purposes up to five percent (5%) of the securities of a
company whose securities are traded on a recognized securities exchange or
from owning or acquiring any such interest through investment or other
funds or vehicles in which the Employee does not participate in any way in
management or investment decisions.
1.23. The Employee undertakes during the term of this Agreement and for twelve
(12) months after the termination of his employment, not to induce
directly any employee of the Company to leave his employment therewith,
and not to solicit directly from the clients of the Company any business
directly in competition with the Company that involves activities in which
the Company was engaged or had already planned to be engaged while the
Employee was in the Company's employment.
1.24. The Employee acknowledges that given his access to information regarding
the Company, the provisions of this Section 5 are reasonable and necessary
to protect the Company's business. The provisions of this Section 5 shall
survive the termination of this Agreement for the time periods set forth
herein.
1.25. The Employee shall execute the Company's standard confidentiality
agreement in the form of Exhibit B.
ASSIGNMENT
Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by either party hereto, their beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Employee's legal personal representative.
NOTICE
For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to
have been duly given when personally delivered, one business day after
being sent by fax or five (5) business days after being sent by registered
mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement or last
given by each party to the other.
MISCELLANEOUS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and
signed by the Employee and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance
with, any condition or
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provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. The paragraph headings used in
this Agreement are included solely for convenience and shall not affect or
be used in connection with the interpretation of this Agreement. The
provisions of this Agreement shall be deemed several and the invalidity or
unenforceability of any provisions shall not affect the validity or
enforceability of the other provisions hereof.
GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Israel and the sole and exclusive
place of jurisdiction in any matter arising out of or in connection with
this Agreement shall be the applicable courts in Tel-Aviv. In the event of
any controversy or dispute between the parties with respect to the
content, effect or interpretation of this Agreement the parties shall
attempt in good faith to amicably resolve any differences between them,
provided that in any such attempt the party representing the Company shall
be no less senior than the CEO of the Company. In the event that the
parties are not able to resolve such controversy or dispute, then any such
dispute or controversy shall be resolved by arbitration, initiated by
either party and held in Tel Aviv, Israel, in the English language. If the
parties are not able to agree on the identity of the arbitrator within 10
days after either party initiates the arbitration, then the arbitrator
shall be determined by the Chairman of the Beaurue of Accountants in
Israel. The arbitrator shall be bound by, and render its decision only on
the basis of, substantive Israeli law, however he shall not be bound by
the rules of procedure of Israeli law. Without limitation of the
foregoing, each party shall be entitled to submit its arguments to the
arbitrator. The arbitrator's decision shall be in writing and shall
include the reasons for its conclusions.
ENTIRE AGREEMENT
This Agreement constitutes the entire Employment Agreement between the
parties hereto and supersedes all prior agreement, understandings and
arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and the Employee has executed this Agreement as of the
day and year first above written.
CLICKSOFTWARE TECHNOLOGIES LTD. EMPLOYEE:
By:
--------------------------------- ----------------------------------
Xxxxx Xxx Xxxxxx, CEO
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