EXHIBIT 10.13
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EMPLOYMENT AGREEMENT
Agreement, made this 23rd day of November, 1998 by and between Precise Software
Solutions Inc. ("Precise" or the "Company") Precise Software Solutions Ltd.
("Parent") and Xxxxxx Xxxx ("Executive"), regarding Executive's employment by
Precise, Executive's work product, the confidentiality of material of Precise,
and Executive's agreement not to compete with Precise.
1. EMPLOYMENT. Precise will employ Executive and Executive accepts
employment upon the terms set forth below. The term of Executive's
employment began on September 8, 1997 (the "Effective Date") and will
terminate on the earlier to occur of (i) September 8, 2000, (ii) the
death of Executive, or (iii) the occurrence of any of the circumstances
described in Section 5 hereof (the "Expiration Date"). After September
8, 2000, such employment may be extended for successive twenty four
(24) month periods upon approval by the Board of Directors and
Executive. If the Company does mot extend this Agreement beyond
September 8, 2000, it will notify Executive of this decision in
accordance with Section 2(C)(ii) of this Agreement as if the Company
was terminating Executive without cause. The Company's headquarters
shall be located in the general area of Boston, Massachusetts and the
Executive will reside in this area. While employed by Precise,
Executive agrees to devote Executive's full working time to the affairs
of Precise. It is further understood that as part of the employment
relationship by this agreement, Employee may be required to serve as an
officer of affiliated companies, including Parent. Such service shall
be without additional compensation and the terms and conditions of this
agreement will control such service and relationship. Executive shall
not work as an executive, independent consultant or agent for another
entity whether or not during the business hours of Precise, without the
permission of Precise However, Precise understands that Executive will
remain on the Board of Directors of Orbit FR Incorporated, and may in
his discretion serve on the board of directors of other companies,
which do not compete with Precise, if permission is obtained from the
Board of Directors of Precise.
2. TERMINATION. Executive's employment may be terminated as follows: (A)
at the Executive's Option. The Executive may terminate his employment,
with or without cause, at any time upon at least fifteen (15) days'
advance written notice to the Company. In the event of termination at
Executive's option, Executive shall be entitled to no severance or
other termination benefits after the expiration of the fifteen-day
period referred to above. (B) At the election of the Company for Cause.
The Company may, immediately and unilaterally, terminate Executive's
employment hereunder "for cause" at any time. Termination of
Executive's employment by the Company shall constitute a termination
"for cause" under this Section 2(B) if such termination is for one or
more of the following cause: (i) the refusal of Executive to render
services to the Company in accordance with his obligations under this
Agreement; (ii) gross negligence, breach of fiduciary duty or breach of
the terms of this Agreement or the other agreements executed in
connection herewith, (iii) the commission by Executive of an act of
fraud, or embezzlement. In the event of a termination "for cause"
pursuant to the provisions of this
Section 2(B), Executive shall be entitled to no severance or other
termination benefits. (C) At the Election of the Company for reasons
other than for Cause. (i) The Company may terminate Executive without
cause by giving Executive written notice of the termination six (6)
months' in advance if the Executive is terminated before September 8,
1998 or twelve (12) months if Executive is terminated thereafter. If
Executive is given notice of termination in accordance with this
agreement, he shall not be entitled to any severance or other
termination benefits. (ii) In lieu of the notice described above in
section 2(C)(i), the Company may immediately and unilaterally,
terminate Executive's employment at any time without cause by giving
written notice to Executive of the Company's election to terminate. In
the event the Company exercises its right to terminate Executive under
this Section 2(C)(ii) only, the Company agrees to pay Executive a
severance payment of (i) six (6) months' salary at Executive's then
current base rate if the Executive is terminated before September 8,
1998 or twelve (12) months if Executive is terminated thereafter and
(ii) medical and health insurance benefits for the same period. Such
severance payment shall be subject to all applicable federal and state
withholding, payroll and other taxes.
3. COMPENSATION. Precise will pay Executive an initial Annual Base Salary
("Salary") of $250,000 (Two Hundred and Fifty Thousand U.S. Dollars)
per year, payable in equal semi-monthly installments, such salary shall
be subject to annual review, as to increases only, by the Board of
Directors of the Company. In addition, Executive will be eligible to
receive an annual Bonus ("Bonus") of $120,000 (One Hundred and Twenty
Thousand U.S. Dollars) per year or more, pursuant to target revenues
and earnings agreed upon by the Board prior to the commencement of any
fiscal year. Salary and Bonus will be payable in cash or in Warrants of
Parent, each warrant representing the right to purchase one Ordinary
Share of the Parent at an exercise price of $0.20 per share, all as
detailed in the Warrant Certificate, attached hereto as Exhibit A (the
"Warrants"). All Warrants will be vested immediately at the same time
they will be granted. The amount of Warrants that will be granted will
be the difference between the total payable (Salary and Bonus) and the
amount of cash paid (the "Unpaid Cash"). The amount of Warrants to be
granted, for this purpose, will be calculated as follows: the Unpaid
Cash divided by the price per share of any type of equity security
issued by the Parent (including, without limitation, of the Preferred
Shares of the Parent) most recently issued by the Company prior to the
issue of Warrants to the Executive. Upon exercise, the Company would
pay the Executive an amount equal to the exercise price of the shares
multiplied by the number of shares for which you are exercising the
warrants. The cash payment and the Warrants will be paid and granted
according to the following schedule:
a) For the first 12 months: cash payment will be $72,000 (Seventy
Two Thousand U.S. Dollars) and the balance in warrants.
b) For the second year, and until the closing of the sale of the
Parent's Shares in any public offering registered under the
Securities Act of 1933 ("IPO"): the Annual Salary cash payment
will be $180,000 (One Hundred and Eighty Thousand U.S. Dollars)
per year, and the balance in warrants.
c) Annual Bonus cash payment will be $60,000 (Sixty Thousand U.S.
Dollars) in cash per year and the balance in warrants, all
pursuant to target in accordance to Section 3.
d) All payables that will not be paid in cash as provided in
Sections 3 (a), (b), and (c), will be paid immediately in
Warrants as detailed above.
e) The Board of Directors, at any time can elect to pay Executive
his compensation (Salary and Bonus) ad in cash instead of cash
and Warrants.
f) After an IPO, or a Change in Parent's Control, as provided in
Section 15 below, all Salary and Bonus will be paid in cash.
g) In the event of termination, before IPO, by Precise or by the
Executive, with or without cause, Executive have the right to
deliver back to the company or Parent all Warrants that were
received based on Sections 3 (a), (b) and (c) in exchange for all
Unpaid Cash.
4. EXECUTIVE'S TITLE AND DUTIES. Precise hires Executive as President and
CEO of the Company. Executive's duties and responsibilities shall be
consistent with those generally ascribed to & President and CEO, and
Executive shall manage Precise according to the general directions
established by its Board of Directors. The Executive shall be a member
of the Parent's Board of Directors for so long as he serves as the
Company's CEO.
5. REIMBURSEMENT OF EXPENSES. Executive may incur reasonable expenses for
promoting Precise's business, including expenses for entertainment,
travel and similar items. Precise will reimburse Executive for all
business expenses after Executive presents an itemized account of
expenditures, together with other supporting material, subject to
Precise's approval.
6. VACATIONS. Executive is entitled to an annual vacation, in accordance
with the Company policy, of three (3) weeks at full pay.
7. BENEFITS. In addition, the Executive shall be entitled to participate
in all applicable medical, dental, disability, incentive, saving,
retirement and other benefit plans and programs of the Company, to the
same extent that such programs are appropriate and common for an
executive of Executive's rank per the plan for U.S. Corporation's
benefits plan. In addition, Executive shall be entitled to use a car
leased by the Company for so long as he is an employee of the Company.
A Directors and Officers liability policy will be adopted by Precise
and Executive will be included in his capacity as an Officer and
Director under that insurance policy.
8. CONFIDENTIALITY. Executive recognizes and acknowledges that the
software system, including specifications, programs and documentation,
the methods and data which Precise owns, plans or develops, whether for
its own use or for use by its clients, developments, designs,
inventions and improvements, trade secrets and works of authorship are
confidential and are the property of Precise. Executive also recognizes
that Precise's customer lists, supplier lists, proposals and procedures
are confidential and are the property of Precise. Executive further
recognizes and acknowledges that in order to
enable Precise to perform services for its clients, those clients may
furnish to Precise confidential information concerning their business
affairs, property, methods of operation or other data, that the
goodwill afforded to Precise depends upon, among other things, Precise
and its Executives keeping such services and information confidential.
All of these materials and information, including that relating to
Precise's systems and Precise's or clients, will be referred to below
as "Propriety Information."
9. NON-DISCLOSURE. Executive agrees that, except as directed by Precise,
and in the ordinary course of Precise's business, Executive will not at
any time, whether during or after Executive's employment with Precise,
disclose to any person, directly or indirectly, for Executive's own
benefit or the benefit of others, any Proprietary Information, or
permit any person to examine or make copies of any documents which may
contain or is derived from Proprietary Information, whether prepared by
Executive or otherwise coming into Executive's possession or control
Executive agrees that the provisions of this paragraph shall survive
the termination of this Agreement and Executive's employment by
Precise.
10. POSSESSION. Executive agrees that, upon request by Precise, and in any
event upon termination of Executive's employment, Executive shall turn
over to Precise all documents, papers or other material in Executive's
possession or under Executive's control which may contain or be derived
from Proprietary Information, together with all documents, notes or
Executive's work products which are connected with or derived from
Executive's services to Precise and all copies of software obtained
from Precise shall be either returned to Precise or, as appropriate,
permanently deleted.
11. OWNERSHIP. Executive hereby assigns and agrees to assign to Precise or
its, subsidiaries or affiliates, as appropriate, its successors,
assigns or nominees, Executive's entire right, title and interest in
any developments, designs, patents, inventions and improvements, trade
secrets, trademarks, copyrightable subject matter or proprietary
information which Executive has made or conceived or may make or
conceive, either solely or jointly with others, while providing
services to Precise, or with the use of the time, material or
facilities of Precise or relating to any actual or anticipated
business, research, development, product, service or activity of
Precise known to Executive while employed at Precise, or suggested by
or resulting from any task assigned to Executive or work performed by
Executive for or on behalf of Precise, whether or not such work was
Performed prior to the date of this Agreement.
It is further agreed, that without charge to Precise, but at its
expense, Executive will execute and deliver all such further documents
as may be necessary, including original applications and applications
for renewal extension or reissue of such patents, trademark
registrations or copyright registrations, in any and all countries, to
vest title thereto in Precise, its successors, assigns or nominees.
12. NON-COMPETITION. Executive agrees that because of the confidential and
sensitive nature of the Proprietary Information and because the use of
the Proprietary Information in certain circumstances may cause
irreparable damage to Precise and their reputation, or to clients of
Precise, Executive shall not, until the expiration of one (1) year
after the date on
which Executive's employment with Precise terminates as a result of the
Executive providing written notice of termination as set forth in
Section I hereof, engage, directly or through any corporation or
associates in any business, enterprise or employment which directly
solicits business, performs any services or delivers goods that are
competitive to those of Precise to any customer of Precise. Precise and
Executive agree that this covenant is fair and reasonable; however, in
the event that a court should decline to enforce these provisions,
Executive and Precise agree that the provisions should be modified to
restrict Executive's competition with Precise to the maximum extent
enforceable, but in no event will the covenants be interpreted as more
restrictive to Executive.
13. INJUNCTIVE RELIEF. Executive acknowledges that disclosure of any
Proprietary information by Executive or breach by Executive of any of
the covenants not to compete will give rise to irreparable injury to
Precise, or clients of Precise. Executive also agrees that this injury
to Precise, or clients of Precise, would be inadequately compensated in
money damages alone. Accordingly, Precise or, where appropriate the
client of Precise, may seek and obtain injunctive relief against the
breach, or threatened breach of the disclosure of any Proprietary
Information by Executive, or breach by Executive of any of the
covenants not to compete, in addition to any other legal remedies which
may be available. Executive further acknowledges that the enforcement
of a remedy hereunder by way of injunction would not prevent Executive
from earning a reasonable livelihood since Executive's experience and
capabilities would be such that in the event that Executive's
employment with Precise terminates for any reason, Executive will be
able to obtain employment in business activities which are not
restricted by this Agreement.
14. STOCK OPTIONS. After this Agreement is executed, the Board of Directors
of the Parent will grant Executive an option to purchase 1,380,000
shares of Parent (the "Option Shares") of its Series A Ordinary Shares
$.02 NIS par value per share ("Ordinary Shares"), on the following
terms and conditions The exercise price for 50 percent of the Option
Shares (690,000) will be $0.25 per share, and the exercise price for
the remaining 50 percent of the Option Shares (690,000) will be at
$0.69 per share. The Option Shares will be issued under a written
option agreement and will be subject to qualifications and conditions
under all applicable regulations, as well as, for such terms and
conditions not covered herein, under the terms and conditions of
Parent's 1998 Share Option and Incentive Plan. As long as Executive
remains continuously employed by Precise, he will be eligible to
purchase one forth of the Option Shares per year on each anniversary
date, beginning one year after the Effective Date, subject to the terms
and conditions of the written option agreement. Eligibility to purchase
all Option Shares will be accelerated just prior to the consummation of
an Initial Public Offering of any equity securities of Common Stock of
Parent, subject to the underwriters conditions and Executive agrees to
accept such underwriters conditions, or in the event of a Change in
Control as defined below, in the ownership of Parent, with proceeds to
shareholders of not less than $30 million (Twenty Five million U.S.
Dollars), if total proceeds to such shareholders are less than $30
million, only 50 percent of the non-vested Option Shares will be
accelerated and eligible for exercise, all subject to the terms and
conditions of the written option agreement. In case of termination of
the employment of Executive, a pro rata (for the year that the
termination takes place) portion of Option Shares will be eligible to
be exercised.
15. CHANGE IN CONTROL. Subject to the terms and conditions of this
Agreement, the Incentive Stock Option Agreement following a Change in
Control of the Parent, as defined in the Parent's 1998 Share Option and
Incentive Plan, the Company will require any successor to assume
expressly and perform this Agreement, failure of the Parent to obtain
such assumption and agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement. Furthermore, breach of
this Agreement or termination of the employment of Executive by the
successor company within the first 12 months following a Change in
Control shall entitle Executive to a lump sum payment equal to the sum
of (i) the Salary equivalent for (12) months and (ii) the Benefits the
Executive would have received for such (12) months and (iii), the
vesting schedule of the Option Share shall be accelerated so that all
of the non-exercised Option Shares shall be vested.
16. GENERAL. This Agreement contains the entire understanding between
Precise, Parent and Executive relating to the subject matter hereof.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Israel, and may be modified only in writing
and signed by Executive, Parent and Precise. Executive, Parent and
Precise hereby consent to the exclusive jurisdiction of the courts of
the State of Israel for resolution of any disputes which arise out of,
or relate in any way to, this Agreement and the rights and duties set
forth herein. The provisions of this Agreement relating to
confidentiality and non-competition shall survive any termination of
employment.
The parties have executed this Agreement on the date set forth above.
Precise Software Solutions, Ltd.
By: Xxx Xxxxxxxxx Xxxxx Xxxx By: Xxxxxx Xxxx
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Title: Chairman Director
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/s/ Xxx Xxxxxxxxx /s/ Xxxxx Xxxx /s/ Xxxxxx Xxxx
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Signature Signature
EXHIBIT A
Name of Holder: Xxxxxx Xxxx
WARRANT
to Purchase Series A Ordinary Shares of
Precise Software Solutions Ltd.
at $0.20 per share
VOID After 10:00 a.m. (prevailing Tel Aviv time)
On the last day of the Warrant Period (defined below)
This is to certify that the holder specified below ("Holder") is entitled to
purchase, subject to the provisions of this Warrant, from Precise Software
Solutions Ltd. (the "Company"), at any time from the date hereof and until the
earlier of (i) the initial public offering of the shares of the Company ("IPO"),
or (ii) the sale of substantially all of the assets or the shares of the Company
("Sale') (the "Warrant Period"), fully paid and nonassessable Series A Ordinary
Shares, nominal value NIS 0.02 per share (the "Ordinary Shares" or "Warrant
Shares"), of the Company at a price of $0.20 per share or the New Israel Shekel
("NIS") equivalent thereof (the "Exercise Price"), all subject to the terms and
conditions set forth below.
1. EXERCISE OF WARRANT
(a) Exercise for Cash. Subject to the provisions hereof, this
Warrant may be exercised, in whole or in part, at any one or
more times during the Warrant Period. This Warrant shall be
exercised by presentation and surrender hereof to the Company
at the principal office of the Company, accompanied by (i) a
written notice of exercise and (ii) payment to the Company,
for the account of the Company, of the Exercise Price for the
number of Ordinary Shares specified in such notice. The
Exercise Price for the number of Ordinary Shares specified in
the notice shall be payable in immediately available good
funds, in U.S. dollars or the NIS equivalent thereof, based on
the Representative Rate of Exchange published by the Bank of
Israel known as of the time of payment.
(b) Issuance of the Warrant Shares. Upon presentation and
surrender of the notice of exercise accompanied by the payment
of the Exercise Price pursuant to Section l(a), the Company
shall issue promptly to the Holder the Ordinary shares to
which the Holder is entitled thereto. Upon receipt by the
Company of the notice of exercise and the Exercise price, the
Holder shall be deemed to be the Holder of the shares issuable
upon such exercise, notwithstanding that the share transfer
books of the Company shall then be closed and that
certificates representing such shares shall not then be
actually delivered to the Holder. The Company shall pay any
and all expenses and documentary stamp taxes that may be
payable in
connection with the issuance of the shares and the preparation
and delivery of share certificates pursuant to this Section I
in the name of the Holder, but shall not pay any taxes payable
by the Holder by virtue of the holding, issuance, exercise or
sale of this Warrant of the shares by the Holder.
No fractions of shares shall be issued in connection with the exercise
of this Warrant, and the number of shares issued shall be rounded down
to the nearest whole number.
2. RESERVATION OF SHARES: PRESERVATION OF RIGHTS OF HOLDER
The Company hereby agrees that at all times it will maintain and
reserve, free from pre-emptive rights, such number of authorized but
unissued shares so that this Warrant may be exercised without
additional authorization of shares after giving effect to all other
warrants, warrants, convertible securities and other rights to acquire
shares of the Company. The Company Brother agrees that it will not, by
charter amendment or through reorganization, consolidation, merger,
dissolution or sale of assets, or by any other voluntary act avoid or
seek to avoid the observance or performance of any of the covenants,
stipulations or conditions to be observed or performed hereunder by the
Company.
3. EXCHANGE OR LOSS OF WARRANT
This Warrant is exchangeable, upon presentation and surrender hereof at
the principal office of the Company, only in connection with a partial
exercise hereof. The Company shall be under no obligation to issue
replacement warrants for the aggregate number of shares covered hereby
except as described herein. The term "Warrant" as used herein includes
any Warrant or Warrants for which this Warrant may be exchanged. Upon
receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant,
if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date.
4. ADJUSTMENT
The number of Ordinary Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time
to time or upon exercise as provided in this paragraph 4.
(a) Rights Offer. If the Company's shareholders are offered any
securities whatsoever by a rights issue, neither the Exercise
Price nor the quantity of Warrant Shares will be adjusted,
provided that the Company shall offer identical rights on the
same terms and conditions to the Holder, as if the Holder had
exercised this Warrant in full immediately prior to the date
of conferring the right to participate in the rights issue.
(b) Consolidation and Division. If the Company consolidates its
Ordinary Shares into shares of greater nominal value, or
subdivides them into shares of lesser nominal value, the
number of Warrant Shares to be allotted on exercise of this
Warrant after such consolidation or subdivision will be
reduced or increased, as the case may be.
(c) Bonus Shares. In the event of a distribution of bonus shares
prior to the end of the Warrant Period, this Warrant shall
represent the right to acquire, in addition to the number of
Warrant Shares indicated in the caption of this Warrant, and
without payment of any additional consideration therefor, the
amount of such bonus shares to which the Holder hereof would
have been entitled had this Warrant been exercised prior to
the distribution of the bonus shares.
(d) Share Swap. Insofar as the Company is party to a share swap
agreement or arrangement (such as a merger or
reorganization)(the "share swap"), in which an offer is made
to the Company's shareholders to swap their shares for
securities of some other corporation, the Company shall
require the other corporation to undertake to allot to the
Holder, upon the exercise of this Warrant, such securities as
were swapped for the shares of the Company, as though the
Holder had held the Warrant Shares on the record date of the
share swap.
5. NOTICE
Whenever the number of Ordinary Shares for which this Warrant is
exercisable is adjusted as provided in paragraph 4 hereof, the Company
shall promptly compute such adjustment and mail to the Holder at the
last address provided to the Company in writing a certificate, signed
by a principal financial officer of the Company, setting forth the
number of Ordinary Shares for which this Warrant is exercisable and the
Exercise Price as a result of such adjustment, a brief statement of the
facts requiring such adjustment and the computation thereof and when
such adjustment has or will become effective.
6. RIGHTS OF THE HOLDER
(a) Without limiting the foregoing or any remedies available to
the Holder, the Holder will be entitled to specific
performance of the obligations hereunder, and injunctive
relief against actual or threatened violations of the
obligations of any person subject to, this Warrant.
(b) The Holder shall not, by virtue hereof, be entitled to any
rights of a shareholder in the Company.
7. TERMINATION
This Warrant and the rights conferred hereby shall terminate on the
earliest of the expiration of the Warrant Period, the date of exercise
of this Warrant, or on the tenth anniversary hereof.
8. LIMITATION ON TRANSFER
The transfer of this Warrant may be restricted by the provisions of the
Articles of Association of the Company.
9. GOVERNING LAW AND JURISDICTION
This Warrant shall be governed by, and interpreted in accordance with,
the laws of the State of Israel, without giving effect to the rules
respecting conflict of law, and the parties hereto irrevocably submit
to the exclusive jurisdiction of the Courts of Israel in respect of any
dispute or matter arising out of or connected with this Warrant.
Dated: 23 November 1998
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Precise Software Solutions, Ltd.
By: /s/ Xxxxx Xxxx /s/ Xxx Xxxxxxxxx
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Name: Xxxxx Xxxx Xxx Xxxxxxxxx
---------------------------------
Title: Director Chairman
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Name and Address of Holder:
/s/ Xxxxxx Xxxx
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00 Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 U.S.A
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AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------
(hereinafter: this "AMENDMENT")
entered into this day of August 15th, 1999
by and between
PRECISE SOFTWARE SOLUTIONS, LTD.
of 0 Xxxxxxxx Xx.,
Xxxxxx, Xxxxxx (the "PARENT")
of the first part
-----------------
and
PRECISE SOFTWARE SOLUTIONS, INC.
of 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 XXX ("PRECISE")
of the second part
------------------
and
XXXXXX XXXX
of 00 Xxxxxx Xx. Xxxxxxxxx XX, 00000, X.X.X ("EXECUTIVE")
of the third part
-----------------
WHEREAS The parties have entered into a trilateral Employment Agreement dated
November 23rd, 1998 (hereinafter the "Agreement"); and
WHEREAS The parties wish to express their original intentions as upon the
signing of the Agreement and thus wish to separate the Agreement into
two independent agreements; and
WHEREAS The parties wish to amend the terms and conditions of the Agreement as
set forth in this Amendment;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE MUTUAL OBLIGATIONS
AS HEREIN SET FORTH, TIE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1. All capitalized terms not otherwise defined herein, shall have the meaning
ascribed to them in the Agreement.
2. Other than the amendments made herein, the Agreement shall remain in full
force and effect.
3. EMPLOYMENT AGREEMENT BETWEEN EXECUTIVE AND PRECISE:
The following changes should be made to the Agreement:
3.1. The words "Precise Software Solutions Ltd. ("PARENT") shall be
deleted from the preamble of the Agreement.
3.2 Section 1
3.2.1. the word "Parent", on the fifteenth line, shall be replaced
with the words "Precise Software Solutions, Ltd. (the
"PARENT")".
3.2.2. The sentence in the fifteenth line beginning with the words :
"Such service shall be..." and ending with: "relationship"
shall be amended to read:
"Such service shall be without additional compensation and
the terms and conditions of this agreement will control such
service and relationship to the extent not otherwise
determined in the. Employment Agreement between the Executive
and the Parent."
3.3. Section 3
3.3.1. The Following definition should be inserted in the beginning
of the paragraph: "For the purpose of this section 3 the term
"LAST OPTION PRICE" shall have the following meaning: The
exercise price per share of options to Purchase Series A
Ordinary shares most recently granted by the Company to an
employee of the Company under the 1998 Share Option and
Incentive Plan".
3.3.2. The sentence beginning with "The amount of Warrants to be
granted..." and ending with "Warrants to the Executive" shall
be replaced with the sentence: "The amount of Warrants to be
granted, for this purpose, will be calculated as follows: the
Unpaid Cash per each respective month divided by the Last
Option Price for each respective month for which Warrants are
being granted to the Executive In case several grants in
different exercise prices take place on the same day, the
Last Option Price for the purpose of the above calculation
shall be the weighted average of the exercise prices of such
grants."
3.4. The intended space for the signature of the Parent, at the end of
the Agreement, shall be replaced by the signature of the Company.
4. EMPLOYMENT AGREEMENT BETWEEN XXXXXX AND PARENT:
A separate employment agreement shall be entered into signed between
Executive and Parent, in the form attached hereto as EXHIBIT A.
5. This Amendment and its Exhibits attached hereto shall enter into effect as
of November 23, 1998
IN WITNESS WHEREOF, the parties intending to be legally bound hereby, have duly
executed this Amendment, as an the date set forth below:
-------------------------------- --------------------------------
PRECISE SOFTWARE SOLUTIONS, LTD. PRECISE SOFTWARE SOLUTIONS, INC.
BY: /s/ Xxxxx Xxxx BY: /s/ Xxxxx Xxxx
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TITLE: Director TITLE: Director
------------------------ ------------------------
/s/ Xxxxxx Xxxx
--------------------------------
XXXXXX XXXX
5. This Amendment and its Exhibits attached hereto shall enter into effect
as of November 23, 1998
IN WITNESS WHEREOF, the parties intending to be legally bound hereby, have duly
executed this Amendment, as an the date set forth below:
/s/ Xxx Xxxxxxxxx
-------------------------------- --------------------------------
PRECISE SOFTWARE SOLUTIONS, LTD. PRECISE SOFTWARE SOLUTIONS, INC.
BY: Xxx Xxxxxxxxx BY:
---------------------------- ----------------------------
TITLE: Chairman TITLE:
------------------------ ------------------------
/s/ Xxxxxx Xxxx
--------------------------------
XXXXXX XXXX
EXHIBIT A
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EMPLOYMENT AGREEMENT
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Agreement, made this 15th day of August, 1999 by and between Precise Software
Solutions Ltd. (the "COMPANY") of 0 Xxxxxxxx Xx., Xxxxxx, Xxxxxx and Xxxxxx Xxxx
("EXECUTIVE") of 00 Xxxxxx Xx. Xxxxxxxxx XX, 00000 , X.X.X
WHEREAS Executive serves as the CEO of the Company and Precise Software
Solutions, Inc (the "SUBSIDIARY") and;
WHEREAS Executive dedicates the majority of his working hours to his position
as CEO of the Subsidiary in the United States; and
WHEREAS the parties wish that Executive shall, in addition, render services to
the Company as required by it from time to time, in a varying number
of working hours;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE MUTUAL OBLIGATIONS
AS HEREIN SET FORTH, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1. EMPLOYMENT. The Executive shall dedicate certain working hours, for
matters and issues in relation with the Company, as required by the
Company from time to time. The Company acknowledges that such services
shall be rendered in addition to the Executive's performance of duties as
CEO of Subsidiary and his obligations thereof. The term of Executive's
employment shall be as determined under the Original Agreement (as defined
hereinbelow).
2. Consideration. The Executive shall not receive any compensation from the
Company with respect to said services. The Executive acknowledges that the
compensation received by him pursuant to his employment agreement dated
November 23, 1998 with the Subsidiary as amended (the "ORIGINAL
AGREEMENT"), constitutes full and complete compensation regarding his
performance of duties under this Agreement as well as the Original
Agreement and thus waives any demand and or claim he may have towards the
Company in connection with such compensation. The Executive shall furnish
the Company and the Subsidiary, at the end of each month, with a written
report specifying the relative percentage of working hours, dedicated by
the Executive to matters concerning the Company during that month. The
Subsidiary shall invoice the Company at the beginning of each month for
the respective portion of the Executive's Salary equivalent to the
percentage reported by the Executive in his report of regarding the
preceding month.
3. Notwithstanding the aforementioned, the Company acknowledges any
obligations to which the Subsidiary has committed, with regard to the
Company's equity, pursuant to the Original Agreement, including any equity
granted to the executive as compensation.
4. The parties agree that as a limitation on Executive's duties and authority
under this Agreement and as CEO of the Subsidiary, while Executive is
physically present in the United States he shall not have or purport to
exercise the authority to negotiate and conclude contracts on behalf of
the Company.
5. Entire Agreement. This Agreement together with the Original Agreement is
the complete and exclusive agreement of the parties with respect to the
subject matter hereof and supersedes all prior written or oral
understandings relating thereto. This Agreement shall survive the
expiration or termination of any other agreement between the parties and
may not be modified except by a written instrument signed by a duly
authorized representative of each party hereto.
6. Law and Jurisdiction. Agreement shall be interpreted in accordance with,
and governed in all respects by, the laws of the State of Israel.
6.1. The competent courts in Tel Aviv (hereinafter: the "COURTS") shall
have exclusive jurisdiction over all disputes arising between the
parties with respect to this Agreement, its implementation or
interpretation.
6.2. Each of the parties hereto hereby irrevocably
6.2.1. consents to any suit, legal action or proceeding with
respect. to this Agreement being brought exclusively in the
Courts, and waives to the fullest extent permitted by law any
objection which it may have now or hereafter to the venue of
any such suit, action or proceeding in any such Courts and
any claim that any such suit, action or proceeding has been
brought in an inconvenient forum;
6.2.2. acknowledges the competence of such Courts;
6.2.3. explicitly submits to the exclusive jurisdiction of such
Courts in any such suit, action or proceeding; and
6.2.4. agrees that final judgment in any such suit, action or
proceeding brought in such Courts shall be conclusive and
binding upon it and may be enforced in all courts.
7. Headings. The headings contained herein are for convenience of reference
only, and shall not effect the interpretation hereof.
8. Notices. All notices given hereunder shall be in writing, and shall be
hand delivered or sent by registered mail or fax and shall be deemed
govern on receipt at the addresses set forth above, or at such changed
address as is noted pursuant hereto.
IN WITNESS WHEREOF, the parties intending to be legally bound hereby, have duly
executed this Amendment, as an the date set forth below:
/s/ Xxxxxx Xxxx
-------------------------------- --------------------------------
PRECISE SOFTWARE SOLUTIONS, LTD. XXXXXX XXXX
BY: /s/ Xxxxx Xxxx
----------------------------
TITLE: Director DATE: 8-15-99
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DATE: 8-17-99
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