Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is being
entered into as May 6, 2002 between Xxxx X. Xxxxxxx (the "Executive"), and TTR
Technologies, Ltd., with its principal executive offices at 0 Xxxxxx Xxxxxx,
Xxxx Xxxx, Xxxxxx (hereinafter, "TTR Ltd" or the "Company") and TTR
Technologies, Inc., a Delaware corporation and the parent company of TTR Ltd,
with its principal executive offices at 0 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxx
(hereinafter, "TTR Inc."; together with TTR Ltd, may hereinafter be referred to
as the "Companies");
WHEREAS, TTR Ltd., a wholly-owned subsidiary of TTR Inc., and the
Executive entered into an Employment Agreement dated as of August __1994, as
subsequently amended (the "Original Agreement"), pursuant to which Executive has
been continuously employed as TTR Ltd.'s General Manager , as well as TTR Inc.'s
President, Chief Executive Officer and Treasurer ; and
WHEREAS, in connection with the re-structuring of the management of TTR
Inc., each of the Company and TTR Inc., on the one hand, and the Executive, on
the other, desire to amend and restate the Original Agreement in its entirety
Executive shall continue to serve as the General Manager of TTR Ltd. and the
President of TTR Inc., all on the terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, the Executive and the Company hereby agree as follows:
ARTICLE I.
Employment
Section 1.01 Position; Responsibilities.
(i) Executive shall continue to serve as TTR Ltd.'s General Manager
and TTR Inc.'s President, all in accordance with the terms and conditions
herein. The employment hereunder shall be for a term of five (5) years
(the "Term"), commencing on the date first written above (the "Effective
Date") and terminating on the fifth anniversary thereof, and shall be
terminable by either party on the terms and subject to the conditions set
forth in this Agreement. After expiration of the initial Term, this
Agreement shall be automatically renewed for additional one year terms,
unless either party shall send notice of termination to the other party at
least sixty (60) days before the end of the initial Term or any renewal
term.
(ii) The Executive's responsibilities in his capacity as General
Manager of TTR Ltd., shall be as the chief executive officer of TTR Ltd.
and shall include all matters customarily associated with the position of
General Manager of an Israeli company,
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including, without limitation, subject to direction by the board of
directors of TTR Ltd. (the "Ltd Board"), those related to articulating and
effecting overall company policy and strategic objectives, overseeing and
managing the research & development activities, engaging and terminating
employees, consultants and other service providers, establishing
appropriate personnel and employment policies and benefits, negotiating
and entering into contracts, finance, and financial reporting. In his
position as General Manager, the Executive shall report directly to the
Ltd. Board.
(iii) The Executive's responsibilities as President of TTR Inc.
shall include those matters and responsibilities customarily associated
with the position of President as may be set forth by the board of
directors of TTR Inc. (the "Inc. Board") from time to time including,
without limitation, subject to direction by the Inc. Board, those related
to articulating and effecting overall Company policy and strategic
objectives. In connection with the performance of his duties as President
of TTR Inc., Executive will consult on a continuing basis with the Chief
Executive Officer of TTR Inc. The Executive shall report to the Chief
Executive Officer of TTR Inc.
(iv) The Executive will perform all of the duties and
responsibilities specified in this Agreement primarily from the principal
executive offices of TTR Ltd. in Kfar Saba, Israel. It is the parties
understanding that Executive's duties and responsibilities will continue
to primarily be performed out of the Israeli office notwithstanding the
fact that TTR Inc.'s principal executive offices may hereinafter be
designated in New York. The parties acknowledge and agree that the nature
of the Executive's duties under this Agreement will also require
substantial domestic and international travel.
Section 1.02 Performance of Duties. The Executive shall duly and
faithfully perform all of the duties assigned to him to the best of his
abilities, and Executive's services shall be full-time and exclusive.
Section 1.03 Representation and Warranty of Company. Each of TTR Ltd. and
TTR Inc., hereby represents and warrants to Executive that it has received all
authorizations necessary for the execution and performance of the Agreement on
the terms and conditions set forth herein and, upon execution and delivery to
the Executive, this Agreement shall be a valid, legally binding obligation
enforceable against each of TTR Ltd. and TTR Inc., in accordance with the terms
and conditions set forth herein.
Section 1.04 Representation and Warranty of Executive. The Executive
represents and warrants to each of TTR Ltd. and TTR Inc., that the execution and
delivery of this Agreement and the fulfillment of the terms hereof (i) will not
constitute a breach of any agreement or other instrument to which Executive is
party, and (ii) does not require the consent of any person. Additionally, the
Executive represents and warrants to each of TTR Ltd. and TTR Inc., that he
shall not utilize during the term of his employment any proprietary information
of any third party, including prior employers of the Executive.
ARTICLE II.
Compensation
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Section 2.01 General. The parties agree that TTR Ltd. (and to the extent
herein provided, TTR Inc.) shall compensate the Executive for all of his
services on behalf of TTR Ltd under this Agreement, as set forth below.
Section 2.02 Salary. The Executive's minimum annual salary ("Base Salary")
commencing on the Effective Date, shall continue to be at the rate of $250,000
and shall be payable in New Israel Shekel (according to the representative rate
of exchange at the Company's bank on the date of payment), in biweekly or other
installments payable in accordance with the Company's normal payment schedule
for senior management. The Base Salary shall be subject to annual review
commencing at the end of 2002 and at the end of each year thereafter, if the
Executive is employed by TTR Ltd. or TTR Inc., as the case may be, at that time,
and may be increased (but not decreased) for subsequent years.
(i) Base Salary. The Base Salary shall be payable by TTR Ltd., net of
any deductions required under Israeli or other applicable law. TTR
Ltd. shall make all national insurance payments required under
Israeli law in respect of Executive's employment hereunder.
(ii) TTR Ltd. and the Executive will obtain and maintain Manager's
Insurance (Bituach Menahalim) under Israeli law for the benefit of
the Executive in the customary form in Israel. Each of TTR Ltd. and
the Executive 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 Base Salary payment from TTR Ltd. and up to five percent (5
%) of such amount from the Executive. In Addition, TTR Ltd. shall
pay up to 2.5% of each monthly Base Salary payment for Disability
Insurance in Israel.
(iii) TTR Ltd. and the Executive shall maintain an advancement fund under
Israeli law (Keren Heshtamlut) for exclusive benefit of the
Executive. TTR Ltd. shall contribute to such fund an amount equal to
7-1/2% of each monthly Base Salary payment and the employee shall
contribute to such fund an amount equal to 2-1/2% of each monthly
Base Salary payment. The Executive hereby instructs TTR Ltd. to
transfer to such advancement fund the amount of the Executive's and
TTR Ltd.'s contribution from each monthly Base Salary payment.
(iv) The Base Salary and other payment required hereunder shall be made
by way of wire transfer to Executive's designated bank account.
(v) Executive shall not receive any compensation for services performed
on behalf of TTR Inc. hereunder.
Section 2.03 Fringe Benefits. The Executive shall be entitled to
participate in all TTR Ltd. or TTR Inc., employee benefit plans, including
retirement programs, if any, group health care plans and Incentive Programs
established for senior management. Executive shall be entitled to such
participation on a basis no less favorable to the Executive than is made
available to other senior management of TTR Ltd., TTR Inc. and their respective
affiliates. In addition to the foregoing, the Executive shall be entitled to
receive the following:
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(i) Automobile. TTR Ltd. shall provide Employee with use of an
automobile and TTR Ltd. shall pay for registration, gas, maintenance
and insurance.
(ii) Vacation, Sick Leave and Personal Days. The Executive shall be
entitled to an aggregate of 25 business days of paid vacation per
contract year. In addition, the Executive shall be entitled to paid
sick leave until such date as the Executive becomes entitled to
receive long term disability benefits under any applicable
disability insurance policy provided by the Companies' or the date
that Executive is terminated under this Agreement by reason of
disability. Vacation days shall be prorated for any portion of a
year to the date of termination. Vacation days not used in one year
may be carried forward or accumulated for use by Executive in
subsequent years.
(iii) Expense Reimbursements. TTR Ltd. shall reimburse the Executive
promptly for all reasonable and proper expenses incurred by him, in
promoting the business of the Companies and the performance of his
duties hereunder, upon presentation by Executive of receipts or
other appropriate evidence of expenses incurred. The Companies and
Executive acknowledge and agree that TTR Ltd or TTR Inc. as the case
may be, will reimburse the Executive's reasonable expenses and
conference fees for attendance at seminars, conferences and
education courses that are relevant to the Companies' business and
Executive's duties and responsibilities under this Agreement.
(iv) Travel. Executive shall be entitled to fly business class in any
flight, or combination of flights to get to one destination, of a
duration of over four (4) hours.
(v) Mobile Communication. TTR Ltd. will provide Executive with, or
reimburse any reasonable expense incurred by Executive with respect
to, suitable tele-communications and computer equipment used by
Executive in the performance of his duties and responsibilities
under this Agreement.
Section 2.04 Stock Option. The Executive shall continue to be entitled to
participate in TTR Inc.'s existing 2000 Equity Incentive Plan (hereinafter, the
"2000 Plan"). In the event that either one of TTR Inc. or TTR Ltd. shall approve
or adopt any other stock option plan, bonus plan or other compensation program
("Incentive Programs") that either TTR Ltd. or TTR Inc. as the case may be, may
hereafter establish for senior management, Executive shall be entitled to
participate in such Incentive Programs.
Section 2.05 Assumption of Obligation by TTR Inc. Notwithstanding anything
to the contrary contained in this Agreement, in the event that for whatever
reason TTR Ltd. is unable or unwilling to perform its obligations hereunder,
including without limitation, to effect payment of the Base Salary and other
amounts payable under this Article II as herein provided or otherwise in a
reasonably timely fashion (each such instance being an "Unperformed
Obligation"), then, without any further action on the part of any of the
parties, TTR Inc. hereby agrees to automatically assume the obligation to
perform such Unperformed Obligation and further agrees that such performance
shall thereafter become a legally binding primary obligation of TTR Inc. and
that it shall perform in a reasonable timely fashion any Unperformed Obligation,
including without limitation, payment to Executive amounts as required by
Article II as herein provided.
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Section 2.06 Employment Contract Expense Reimbursement. Within five (5)
business days after signing of this Agreement, TTR Ltd. shall reimburse
Executive for attorney's fees and expenses incurred by Executive in the
negotiation and execution of this Agreement upon presentation of proper
invoices, provided, that, such reimbursement shall not exceed in the aggregate
$5,000.
ARTICLE III.
Termination of Employment
Section 3.01 Termination by Executive. Executive may terminate his
employment hereunder at any time for any reason by delivering to each of TTR
Ltd. and TTR Inc., 90 days advance written notice of termination.
Section 3.02 Termination for Good Reason. Subject to the terms and
conditions of this Agreement, Executive may resign and terminate his employment
hereunder for "Good Reason" (which shall also be deemed a termination by the
Company other than for Cause). For purposes of this Agreement, "Good Reason"
means (i) the failure to continue Executive as President of TTR Inc., General
Manager of TTR Ltd. (other than for Cause) or a member of r the Inc. Board or a
member of the Ltd. Board, (ii) the failure to assign Executive duties,
authorities, responsibilities and reporting requirements that are in the
aggregate substantially consistent with his position as General Manager of TTR
Ltd. or President of TTR Inc., as the case may be, or if the scope of
Executive's duties and responsibilities as General Manger of TTR Ltd. or
President of TTR Inc., as the case may be, are in the aggregate materially
reduced, except for any reduction in duties and responsibilities due to
Executive's illness or disability, (iii) a material reduction in or a material
delay in the payment of Executive's total cash compensation and benefits from
those required to be provided in accordance with the provisions of this
Agreement, or a breach by TTR Ltd. or TTR Inc., as the case may be, of any other
material provision of this Agreement where TTR Ltd. or TTR Inc., as the case may
be, has failed to cure such breach within 10 business days following receipt of
written notice from Executive detailing the basis of the alleged breach, (iv)
the failure of TTR Ltd. or TTR Inc., as the case may be, to obtain the
assumption in writing of its obligations to perform this Agreement by any
successor to all or substantially all of the assets of TTR Ltd. or TTR Inc., as
the case may be, at or before consummation of a merger, consolidation, sale or
similar transaction or (v) the stockholders of either TTR Inc. or TTR Ltd.
approve dissolution or liquidation of their respective company.
Executive shall remit to the Ltd. Board or Inc. Board, as appropriate, in
writing notice of the existence of Good Reason, specifying in reasonable detail
the basis therefor, not later than three months from the occurrence of the event
which Executive is deeming as Good Reason. Within 10 business days following the
Company's receipt of Executive's notice relating to Good Reason, the Executive
and the Inc. Board or the Ltd. Board, as the case may be, shall confer in a
good-faith attempt to reach an amicable resolution of any outstanding issue. In
the event that the parties shall fail to reach such amicable resolution, the
parties jointly shall promptly refer this matter to an Arbitrator in the manner
prescribed below. Pending determination of the Arbitrator as herein provided, at
the option of Executive and upon notice to TTR Ltd. or TTR Inc., as appropriate,
Executive may continue in the employ of TTR Ltd. or TTR Inc., as the case may
be. If the Arbitrator finds that the Executive does not have Good Reason for
terminating his employment with TTR Ltd. or TTR Inc., as the case may be, then
TTR Ltd. or TTR Inc., as the case may be, may consider the notice of Good Reason
received from Executive as termination by
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Executive without Good Reason as of the date of original receipt thereof (unless
the Executive has elected to continue in the employ of TTR Ltd. or TTR Inc., as
the case may be, during such arbitration proceeding, in which case the date of
termination shall be deemed to be the date of receipt of the Arbitrator's
determination).
Section 3.03 Termination for Cause. TTR Ltd. or TTR Inc., as the case may
be, shall have the right to terminate for "Cause" upon notice to the Executive
only in the event of (a) a failure by the Executive to substantially comply with
the direct lawful and proper instructions of the Inc. Board resulting in
material harm or loss to either TTR Ltd. or TTR Inc. or (b) Executive's illegal
or unethical acts or conduct which causes material harm or loss to either TTR
Ltd. or TTR Inc or has a material adverse effect on the name or public image of
either TTR Ltd. or TTR Inc. , provided, however that the foregoing shall not
constitute "Cause" if Executive, after being notified in writing by the Company
of the particular acts or circumstances of such material breach, cures such
failure within 30 days after receipt of such notice.
Termination by TTR Ltd. or TTR Inc., as the case may be, for Cause shall
not be effective until and unless (i) notice of intention to terminate for Cause
has been given by TTR Ltd. or TTR Inc., as the case may be, within 30 days after
the Inc. Board or the Ltd. Board, as the case may be, learns of the act, failure
or event constituting "Cause" and (ii) the Inc. Board or the Ltd Board as the
case may be, has resolved to terminate Executive for Cause after Executive has
been given notice of the particular acts or circumstances which are the basis
for the termination for Cause and has been afforded at least 10 business days
notice of the meeting at which such resolution is to be voted upon and an
opportunity to present his position in writing and the Company has given notice
of termination to Executive within three days thereafter (and the Executive's
termination of employment shall be effective immediately upon receipt of such
notice but shall not be deemed a termination of employment for Cause unless and
until all of the conditions set forth in clauses (i) through (iii) hereof have
occurred), and (iii) if Executive has commenced an arbitration in the manner
prescribed below within 15 days after such notice of termination disputing the
right of TTR Ltd. or TTR Inc. as the case may be, under this Agreement to
terminate for Cause, the Arbitrator shall thereafter have determined that the
Executive was terminated for Cause.
If the Arbitrator does not rule that the Executive was terminated for
Cause, the Executive shall be treated as having been terminated without Cause
and Executive shall have the rights provided under Section 3.04 below with
respect to a termination without Cause.
Section 3.04 Rights Upon Termination. In the event the Executive's
employment under this Agreement is terminated by the Company other than for
"Cause" (a termination due to the Executive's death or disability, or notice by
TTR Ltd. or TTR Inc., as the case may be, of non-renewal of this Agreement,
shall be treated for purposes of this Agreement as a termination by TTR Ltd. or
TTR Inc., as the case may be, other than for Cause) or by the Executive for
"Good Reason", then, in addition to all amounts of Base Salary, earned but
unpaid incentive or bonus compensation under any Incentive Programs (prorated
for any partial year), and other benefits due or payable to him through the date
of termination, the Executive shall be entitled to the following ("Severance
Package"):
(i) an amount, which shall be payable in one lump sum within 30 days of
the date of determination that the Executive's termination is (x)
other than for Cause, or (y)
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for Good Reason, as applicable, equal to four (4) year's Base Salary
based on the Base Salary then in effect, provided, that in the event
that TTR Inc. or TTR Ltd., as the case may be, elects not to renew
this Agreement, then such amount payable to the Executive shall be
equal to two (2) years' Base Salary based on the Base Salary then in
effect; plus an amount equal to the value of all benefits (other
than Base Salary, expense reimbursement and medical insurance
benefits) that would be provided to Executive for the Base Salary
continuation period including but not limited to amounts due to
Executive under any Incentive Programs at the rate paid or otherwise
provided to Executive for the preceding contract year;
(ii) all ESOPs, stock options, warrants and stock appreciation rights of
TTR Inc. ("Rights") granted to Executive under any plan or otherwise
prior to the effective date of termination, shall become vested,
accelerate and become immediately exercisable (the, "Event Date")
and continue to be exercisable for the original exercise period of
such option, if applicable, adjusted for any stock splits and
capital reorganizations having a similar effect, subsequent to the
effective date hereof; In the event Executive owns or is entitled to
receive any unregistered securities of TTR Inc., then TTR Inc. shall
use its best efforts to effect the registration of all such
securities as soon as practicable.
Section 3.05. Excise Tax. In the event that any payment or benefit
received or to be received by Executive in connection with a termination of his
employment would be subject to any excise tax imposed under applicable law, then
TTR Ltd. (or, as herein provided, TTR Inc.) shall assume all liability for the
payment of any such tax and TTR Ltd. (or, as herein provided, TTR Inc.) shall
immediately reimburse Executive on a "grossed-up" basis for any income taxes
attributable to Executive by reason of such payment and reimbursements.
Section 3.06 Rights on Termination for Cause or Without Good Reason. No
Severance Package shall be due or owing to the Executive in the event that the
Company shall terminate the Executive's employment for "Cause" or in the event
that the Executive shall terminate his employment with the Company for reasons
other than "Good Reason"; provided, however that Executive shall in all events
be paid all accrued but unpaid Base Salary earned, but unpaid incentive or bonus
compensation under any Incentive Programs (prorated for any partial year), and
other benefits due or payable to him through the date of termination. In
addition, in the event that the Companies shall terminate the Executive's
employment for "Cause" or in the event that the Executive shall terminate his
employment with the Companies for reasons other than "Good Reason", then except
as provided in the following two sentences, all unvested options then held by
Executive shall automatically be forfeited (subject, however, to any contrary
determination of the Inc Board or the Ltd Board, as the case may be, in its
respective sole discretion). No forfeiture of unvested Options shall occur until
15 days after the later of (i) the conclusion of any arbitration proceeding or
further proceeding contemplated by Section 3.02 hereof or, (ii) if no
arbitration proceeding is commenced, until the time for commencing such a
proceeding has lapsed (the later of such two dates being referred to herein as
the "Forfeiture Date"), but no additional service-based or time-based vesting
shall occur with respect to any such Options following the date Executive's
employment is deemed terminated under Section 3.02. Executive may exercise
vested options at any time as permitted under the relevant option agreements. In
all other respects, the terms of the grant of any such options shall govern.
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Section 3.07 Disability. For purposes of this Agreement "disability" shall
mean any physical or mental illness or injury as a result of which Executive
remains absent from work for a period of three (3) successive months, or an
aggregate of 90 days in any twelve (12) month period. Disability shall occur at
the end of any such period.
Section 3.08 Cooperation of Executive. During the period following notice
of termination until the effective date of termination by either party for
whatever reason, the Executive shall cooperate with the Company and use
reasonable efforts to assist the integration into the Company the person or
persons who will assume the Executive's responsibilities.
ARTICLE IV.
Non-competition; Confidential Information; Development Rights
Section 4.01 Other Business Ventures. During the term of the Executive's
employment hereunder, and for a period of twelve (12) months following the date
on which Executive's termination of employment with TTR Inc and TTR Ltd. becomes
effective, the Executive shall not, without the prior written approval of the
Inc Board or the Ltd Board as the case may be, directly or indirectly engage in,
represent, be connected with or have a financial interest in any business which
is or, to the best of his knowledge, is about to become engaged in the design,
development, production, sale or distribution of any product or component that
directly competes with a product or component (i) then being designed, produced,
sold or distributed by TTR Ltd or TTR Inc, or any of its affiliates, or (ii) to
which the TTR Ltd or TTR Inc or any of its affiliates shall then have
proprietary rights to sell or distribute (hereinafter the "Company's Business");
provided, however, that nothing herein contained shall be deemed to prohibit the
Executive from (i) being a passive investor owning up to 5% of any class of
outstanding securities of any company whose stock is publicly traded, or (ii)
being an owner, officer, director or trustee of family businesses or
partnerships not engaged in the Company's Business.
Executive acknowledges that the restricted period of time and the
geographical location specified under this section 4.01 are reasonable, in view
of the nature of the business in which each of TTR Inc and TTR Ltd is engaged in
and Executive's knowledge of both TTR Inc's and TTR Ltd's business and products.
If such a period of time or geographical location should be determined to be
unreasonable in any judicial proceeding, then the period of time and area of
restriction shall be reduced so that this Agreement may be enforced in such an
area and during such a period of time as shall be determined to be reasonable by
such judicial proceeding.
Section 4.02 Confidential Information. Except (i) in the course of his
employment with TTR Ltd and TTR Inc., or (ii) as he may be required pursuant to
any law or court order or similar process, the Executive shall not at any time
during or after the term of the Executive's employment hereunder, directly or
indirectly disclose or use any Confidential Information (as defined below) or
proprietary data with respect to either TTR Inc. or TTR Ltd as the case may be.
The term "Confidential Information" as used in this section means any and all
confidential and proprietary information including but not limited to any and
all specifications, formulae, prototypes, software design plans, computer
programs, and any and all records, data, methods, techniques, processes and
projections, plans, marketing information, materials, financial statements,
memoranda, analyses, notes, and other data and information (in whatever form),
as well as improvements and know-how related thereto, relating to either TTR Ltd
or TTR Inc. or
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their products. Confidential Information shall not include information that (a)
was already known to or independently developed by the Executive prior to its
disclosure as demonstrated by reasonable and tangible evidence satisfactory to
either TTR Ltd or TTR Inc as the case may be, (b) shall have appeared in any
printed publication or patent or shall have become part of the public knowledge
or known generally in the Companies' industry except as a result of breach of
this Agreement by the Executive, (c) shall have been received by the Executive
from another person or entity having no obligation to either TTR Ltd. or TTR Inc
, or (d) is approved in writing by either TTR Ltd or TTR Inc as the case may be,
for release by the Executive.
The Executive agrees to disclose the Information only to persons necessary
in connection with Executive's work with TTR Ltd and TTR Inc, as determined by
the Executive in good faith. The Executive agrees to prevent the unauthorized
disclosure by him of the Confidential Information, and shall take appropriate
measures to ensure that persons acting on his behalf are bound by a like
covenant or other duty of secrecy.
The Executive acknowledges and agrees that the Confidential Information
furnished to him hereunder is and shall remain proprietary to TTR Ltd or TTR Inc
as the case may be. Unless otherwise required by statute or government rule or
regulation, and excluding Executive's personal financial and business records,
all copies of the Confidential Information shall be returned to TTR Ltd or TTR
Inc immediately upon request without retaining copies thereof.
Section 4.03 Hiring of the Companies' Employees. During the term of the
Executive's employment hereunder, and for a period of twelve (12) months
following the date on which Executive's termination of employment with the
Companies becomes effective, the Executive shall not, except in the course of
the performance of his duties hereunder or with the prior approval of the Inc
Board or the Ltd Board as the case may be, in any way directly or indirectly,
with respect to any person who to the Executive's knowledge was employed by TTR
Ltd or TTR Inc as the case may be, or their respective affiliates ("Company
Employee") at any time during the period commencing six months prior to the date
of the hiring of such Company Employee, hire or cause to be hired any Company
Employee, or contract the services of any closely held private corporation or
other entity in which such Company Employee is an officer or director or holds a
25% or greater equity ownership interest.
Section 4.04 Development Rights. The Executive agrees and declares that
all proprietary information including but not limited to trade secrets,
know-how, patents and other rights in connection therewith developed by or with
the contribution of Executive's efforts during his employment with the Companies
shall be the sole property of TTR Ltd or TTR Inc. as the case may be and
Executive shall at the request of either TTR Ltd or TTR Inc as the case may be,
do all things and execute all documents as either TTR Ltd or TTR Inc may
reasonably require to vest in TTR Ltd or TTR Inc the rights and protection
herein referred to.
ARTICLE V.
Miscellaneous
Section 5.01 Notices. All notices, requests or other communications
provided for in this Agreement shall be made, if to the Company, to the Chairman
of the Board of both TTR Ltd and TTR Inc, and if to the Executive, to his
address on the books of TTR Ltd (or to such other address as the Companies or
Executive may give to the other for purposes of notice hereunder).
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Notices given to Executive shall be sent to:
Xxxx X. Xxxxxxx
[address]
With a copy to:
Notices given to the Companies shall be sent to:
TTR Technologies, Inc. & TTR Ltd
0 Xxxxxx Xxxxxx
Xxxx Xxxx Israel
With a copy to:
Aboudi & Xxxxxxxxxx
0 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxx
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to the party
entitled thereto, (b) by facsimile or electronic mail with confirmation of
receipt, (c) by mailing in Israeli mail to the last known address of the party
entitled thereto or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile or electronic mail transmission or upon
receipt by the party entitled thereto if by Israel mail or express courier
service; provided, however, that if a notice, request or other communication is
not received during regular business hours, it shall be deemed to be received on
the next succeeding business day of the Company.
Section 5.02 Assignment and Succession. The rights and obligations of each
of TTR Ltd and TTR Inc under this Agreement shall inure to the benefit of and be
binding upon its successors and assigns. The Executive's rights and obligations
hereunder are personal and may not be assigned; provided, however that in the
event of the termination of the Executive's employment due to the Executive's
death or disability, the Executive's legal representative shall have the right
to receive the Severance Package as set forth in Section 3.02 above.
Section 5.03 Headings. The Article, Section, paragraph and subparagraph
headings are for convenience of reference only and shall not define or limit the
provisions hereof.
Section 5.04 Arbitration.
Any controversies or actions at law or equity between Executive and TTR
Inc. or TTR Ltd., as the case may be, involving the construction or application
of any of the terms, provisions or conditions of this Agreement, shall on the
written request of either party served on the other, be submitted to
arbitration. Such arbitration shall comply with and be governed by the American
Arbitration Association's National Rules for the Resolution of Employment
Disputes (the
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"Rules"). An arbitration demand must be made within 60 days of the date on which
the party demanding arbitration first had actual notice of the existence of the
claim to be arbitrated. One arbitrator shall be selected according to the
procedures set forth in the Rules (the "Arbitrator"). The cost of arbitration
shall be born by the losing party or in such proportions as the Arbitrator shall
decide. Each party shall bear the costs of its own legal fees and expenses. The
Arbitrator shall have no authority to add to, subtract from or otherwise modify
the provisions of this Agreement, or to award punitive damages to either party.
The arbitration shall take place at mutually convenient location in New York
City.
The Arbitrator shall render a decision in writing, providing the reasons and
support therefor. Any decision reached by the Arbitrator shall be final and
binding upon the parties as to the matter in dispute. To the extent that the
relief or remedy granted by the Arbitrator is relief or remedy on which a court
could enter judgment, a judgment upon the award rendered by the Arbitrator shall
be entered in any court having jurisdiction thereof (unless in the case of an
award of damages, the full amount of the award is paid within 15 days of its
determination by the Arbitrator). Otherwise, the award shall be binding on the
parties in connection with their continuing performance of this Agreement and in
any subsequent arbitration or judicial proceedings between the parties.
Notwithstanding the dispute resolution procedures contained in this
Section 5.04, either party may apply to any court having jurisdiction (i) to
enforce this Agreement to arbitrate, (ii) to seek provisional injunctive relief
so as to maintain the status quo until the arbitration award is rendered or the
Dispute is otherwise resolved, or (iii) to challenge or vacate any final
judgment, award or decision of the Arbitrator that does not comport with the
express provisions of this Section 5.04.
Section 5.05 Invalidity. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality or enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
Section 5.06 Waivers. No omission or delay by either party hereto in
exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof, or the exercise of
any other right, power or privilege.
Section 5.07 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 5.08 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. No representation, promise
or inducement has been made by either party hereto that is not embodied in this
Agreement and neither party shall be bound by or liable for any alleged
representation, promise or inducement not set forth herein. This Agreement may
not be amended, except by a written instrument hereafter signed by each of the
parties hereto.
Section 5.09 Interpretation. The parties hereto acknowledge and agree that
each party
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and its or his counsel reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its drafting. Accordingly, (i) the rules of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement,
and (ii) the terms and provisions of this Agreement shall be construed fairly as
to all parties hereto and not in favor of or against any party regardless of
which party was generally responsible for the preparation of this Agreement.
Section 5.10 Governing Law. This Agreement and the performance hereof
shall be construed and governed in accordance with the internal laws of the
State of New York without reference to principles of conflict of laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and the Executive has signed this Agreement as of
the day and year first above written.
TTR TECHNOLOGIES, LTD
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
------------------------
Its: Chief Technology Officer
-------------------------
TTR TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxx
--------------------------
Name: Xxx Xxxxx
------------------------
Its: Chief Operating Officer
-------------------------
/s/ Xxxx X. Xxxxxxx
---------------------------
XXXX X. XXXXXXX
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