Employment Agreement Effective as of 1st day of January, 2008
Execution
Copy
Effective
as of 1st day of January, 2008
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By
and Among:
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HOMI
Europe S.a.r.l., a
company incorporated and existing under the laws of Luxembourg, whose
address for the purposes of this Agreement shall be x/x Xxxxxx Xxxxxxxxxx,
0, xxx Xxxxxxx, Xxxxxxxxxx, Fax: x000-000000, (“Employer”);
with a copy to Xxxx & Xxxx Law Offices, 00-0 Xxxxxxxx Xxxxx Xx., Xxx
Xxxxxxx 00000, Xxxxxx, Fax: x000-0-000-0000, e-mail: xxxxxxx@XxxxXxx.xxx;
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And:
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Xxxxx
Xxxxxx, whose address for the purposes of this Agreement shall be
Ave.
Xx Xxxxxxxxxx 00, Xxxxxx 0000
Xxxxxxxxxxx, email: xxxxxxxxxx@xx-xxxx.xxx
(“Manager”);
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Whereas:
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Employer
is engaged in the development, manufacture and supply of computerized
minibars, and in the supply of services relating to minibars and/or other
appliances containing food and/or drink and/or other products;
and
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*
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Whereas:
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Employer
wishes to employ Manager in the position specified in Exhibit
A’ to this Agreement (hereinafter: the “Position”)
in reliance upon the representations and undertakings of Manager as set
forth herein; and
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Whereas:
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Manager
declares that he possesses the know-how, the experience, the abilities and
the skill that are required in order to fulfill Manager’s duties in the
Position to Employer’s satisfaction;
and
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Whereas:
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Manager
declares that there is no bar, legal, contractual or howsoever otherwise,
to Manager’s (i) entering into this Agreement, (ii) being employed by
Employer pursuant hereto and (iii) fulfilling all of Manager’s duties in
the Position; and
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Whereas:
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A
material and advance condition of Employer’s employing Manager under this
Agreement is Manager’s undertaking to maintain the Trade Secrets (as
defined below) in strict confidence, as set forth in this
Agreement;
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Whereas:
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The
Parties wish to define and establish the terms and conditions which will
apply to their relations for the duration of Manager’s employment by
Employer, all as set forth in this Agreement, including any and all
Appendices hereto (hereinafter: the “Agreement”);
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Therefore,
the parties have made condition and agreed as follows:
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1.
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Appointment;
Duration; Terms of
Employment
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1.1
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Subject
to the terms hereof, Employer agrees to employ Manager as a salaried
employee, in the Position and Manager hereby accepts the appointment,
under and subject to the terms and conditions of this Agreement. Manager
hereby agrees to serve in the Position, or in any other position or
capacity to which he may be elected or appointed by Employer from time to
time.
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1.2
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Manager’s
employment with Employer shall be deemed to have commenced as of the date
of this Agreement, and shall continue until duly terminated in accordance
with the provisions hereof.
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*
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2
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1.3
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The terms of salary
and other compensation to which Manager will be entitled during the period
of employment are set forth in Exhibit
A’ attached hereto. The
provisions contained in Exhibit A’ constitute an exhaustive list of
Manager’s rights and entitlements vis a vis
Employer.
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1.4
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Employer
shall be entitled, in its discretion and from time to time, to amend work
procedures relating to the Position and/or Manager’s place of work,
including the possible full-time and/or part-time, temporary and/or
permanent transfer of Manager’s employment to one or more affiliated
companies of Employer (each, an “Affiliate”),
in which case any such affiliate may also be designated by Employer as
being included in the definition of “Employer” herein, all the foregoing
in accordance with Employer’s needs and without prejudice to Manager’s
statutory rights, and each such designated Affiliate shall then be
entitled to require Manager to fulfill Manager’s undertakings and
obligations herein.
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2.
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Manager’s
Representations and
Undertakings
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Manager
represents, confirms and undertakes that:
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2.1
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the
very best of Manager’s time, energy and abilities will be dedicated to
performing all of the duties which will be assigned to Manager by Employer
from time to time during the course of Manager’s employment with Employer,
all subject to the scope of the Position as set forth in Exhibit
A’;
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2.2
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the
Position will be filled by Manager, and all of the duties assigned to
Manager in the course of Manager’s employment with Employer will be
discharged, with dedication and skill, in accordance with the procedures
and directions which will be established by Employer from time to
time;
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2.3
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the
duties assigned to Manager in the course of employment with Employer shall
be discharged by Manager in good faith and with integrity, for the good of
Employer and its Affiliates alone, and Manager will refrain from any
action which could harm Employer and/or any Affiliate, or cause any kind
of damage to Employer and/or any Affiliate, and/or their assets,
interests, reputation and/or goodwill, in any way
whatsoever;
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2.4
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he
will perform and execute all his duties as directed by Employer, it being
acknowledged and agreed that Employer may, from time to time, extend or
curtail precise duties and job expectations of Manager; without
limitation, Manager will carry out such directions as are issued in
writing by Employer;
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2.5
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other
than as set forth in Exhibit A’, Manager will not be permitted to receive
any payment, consideration, reward or other benefit, whether monetary or
otherwise, in respect of Manager’s employment with Employer or howsoever
in connection therewith, from any person or entity whatsoever, including
Employer and/or any of Employer’s customers and/or
suppliers;
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2.6
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Manager
is aware that, during the course of employment with the Employer,
important and valuable equipment which is used by Employer in the conduct
of its business may be placed under Manager’s care and/or control; and
Manager undertakes to take excellent care of all such equipment and to
prevent any damage or loss to the equipment (except for reasonable wear
and tear), for the duration of Manager’s employment with the Employer; and
Manager agrees that if Manager shall be in breach of this provision and as
a direct result damage is caused to the equipment, then Employer shall be
entitled, without derogating from its other statutory remedies, to deduct
the value of such damage from Manager’s salary, without the need to
produce evidence quantifying the actual damage
caused;
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2.7
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he
will promptly disclose to the Chairman of HOMI Inc (as defined below) full
details of any material business transaction concerning Employer, or any
other matter coming to his attention or knowledge that may affect the
interests of Employer; Manager shall regularly and periodically make
available to Employer full information about any and all matters affecting
the business of Employer in which he may be or become involved and any
acts he may perform, whether for or on his own behalf or on behalf of
Employer;
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3
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2.8
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in
respect of all periods up to the date of this Agreement, he received all
sums and all benefits, of any kind whatsoever, which he may at any time
have been entitled, directly and/or indirectly, to receive from Employer
and/or from any Affiliate, and Manager neither has, nor shall have, and
Manager hereby waives, all manner of claims, demands, causes and/or
grounds of action, of any kind whatsoever, against Employer and/or any
Affiliate, howsoever in respect of all periods up to the date of this
Agreement and Manager hereby indemnifies and holds harmless Employer and
all its Affiliates and their respective shareholders, directors and
officers, from and against any and all damages which they may sustain,
including, without limitation, reasonable legal fees and/or any other
expense which they may incur, as a result of breach of Manager’s
representations and/or undertakings and/or waiver under this Sub-Section
2.8.
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3.
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HOMI
Companies
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Employer is indirectly owned by Hotel
Outsource Management International, Inc. (“HOMI Inc”),
which owns and/or will own, directly or indirectly, shares in a number of
companies, around the world, all of which shall be deemed Affiliates for the
purposes of this Agreement (collectively with Employer, “HOMI
Companies”). Notwithstanding the definition of the Position in Exhibit
A’, it is hereby acknowledged and agreed by the Parties that employment
relations will exist solely between Employer and Manager and that no employment
relations will exist, at any time during the duration of this Agreement, between
Manager and any other of the HOMI Companies, unless such relations are
established by a written employment agreement, approved by the Board of
Directors of the relevant HOMI Company and signed by that HOMI Company’s
authorized signatories, who shall not have a personal interest in the matter.
Manager hereby acknowledges that Employer’s willingness to pay the salary and
benefits set forth in Exhibit A’ is inter alia in reliance upon the provisions
of this Section 3 above, and it
is agreed that it is the intention of both Parties that the total amount of
salary and benefits to which Manager will be entitled, from any and all HOMI
Companies, in respect of all duties relating to HOMI Companies, will not exceed
the salary and benefits set forth in Exhibit A’. Manager hereby confirms that
any and all claims which Manager may at any time have, howsoever in connection
with this Agreement and/or with the filling of the Position, can be brought
against Employer alone, but cannot under any circumstances be brought against
any other HOMI Company and/or Affiliate, and Manager hereby waives any and all
such claims against all other HOMI Companies and Affiliates, and Manager hereby
indemnifies and holds harmless Employer and all its Affiliates and their
respective shareholders, directors and officers, from and against any and all
damages which they may sustain, including, without limitation, reasonable legal
fees and/or any other expense which they may incur, as a result of breach of
Manager’s undertakings and/or waiver under this Section 3.
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4.
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Confidentiality;
Ownership of Rights
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4.1
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Manager
represents that he is aware that, in the context of and/or in the course
of and/or as a result of Manager’s employment with Employer and/or
howsoever otherwise, information and/or documents and/or trade secrets
and/or commercial secrets of HOMI Companies, may become known to Manager
(jointly and severally hereinafter: “Trade
Secrets”), and Manager undertakes, as an integral and fundamental
condition of Employer’s willingness to hire Manager, to maintain in
strictest confidence any and all Trade Secrets that may become known to
Manager, and to refrain from making any use thereof, other than in the
context of discharging Manager’s duties in the Position and for the
purpose of fulfilling Manager’s undertakings towards Employer as set forth
herein, and to the best interests of the HOMI Companies
alone.
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4.2
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Without
limitation to the generality of other related provisions herein, Manager
specifically undertakes not to disclose any information howsoever relating
to HOMI Companies’ activity to any third party
whatsoever.
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4.3
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In
addition to the provisions of this Section 4 above, and without
derogating therefrom, Manager confirms and agrees that all documents
and/or other material which may be given to Manager or otherwise be in
Manager’s possession in the context of and/or in the course of and/or as a
result of Manager’s employment with Employer, is the property of HOMI
Companies and, for as long as such shall be in Manager’s possession,
Manager shall look after it in such way as to ensure that no unauthorized
use may be made of it. Any and all such documents and/or material shall be
returned to Employer by Manager forthwith upon their no longer being need
by Manager in furtherance of Manager’s duties herein, or upon Employer’s
first demand, whichever comes sooner, without Manager retaining any copy
thereof.
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4.4
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Manager
represents and confirms that Manager is aware and agrees, that Employer
and/or other HOMI Companies shall be the owner of all of the rights in and
to all of the fruits of Manager’s labor and all of the work product, of
any kind whatsoever, that are related and/or that pertain, directly or
indirectly, to Manager’s work hereunder (hereinafter: “Work
Product”), and Manager undertakes not to make any use whatsoever,
at any time whatsoever, of the Work Product, or any part thereof, other
than solely for HOMI Companies’ benefit and in the context of Manager’s
work for Employer under the terms hereof. For avoidance of doubt, it is
hereby stipulated that any and all Work Product, and any and all
information relating, directly or indirectly, to any and all Work Product,
shall for all intents and purposes be deemed to be Trade Secrets. In the
event of any dispute arising between the Parties as to the inclusion of
any item within the definition of Work Product as defined above, the
burden of proof shall rest with Manager alone, and until such time as
Manager may, if at all, convince Employer that it is not Work Product,
Manager undertakes to treat it as Work Product, and all the provisions
hereof applying to Work Product shall also apply in such
case.
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4.5
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For avoidance of any doubt, it is
hereby stipulated that all Work Product will be the property of Employer
and/or HOMI Companies alone, and Manager shall not be entitled to any
consideration or benefit, of any kind whatsoever, in connection with such
Work Product, over and above Manager’s wages as defined herein, and
Employer and HOMI Companies will be entitled to take, or refrain from
taking, whatever action they see fit in relation to such Work Product, in
their discretion, without the need to provide the reasons behind their
decision, or to update Manager as to their decisions. Manager undertakes
to sign any document that may be presented to Manager by Employer, such as
may reasonably and customarily be required in order to implement and give
effect to the provisions of Sections 4.4 and 4.5 above, including, without limitation,
assignments and/or transfers of patents, copyright and/or any other
similar right.
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4.6
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It is acknowledged that Manager
will likely become acquainted with sensitive and classified Trade Secrets
and Work Product in the course of Manager’s relations with HOMI Companies
under this Agreement as mentioned in this Section 4 above. It is further acknowledged that such Trade
Secrets and Work Product would give HOMI Companies’ competitors an unfair
and unlawful advantage in trade, and that HOMI Companies’ business is
based, and fundamentally dependent, on the continued secrecy of such Trade
Secrets and Work Product. Such Trade Secrets and Work Product are
proprietary to, and owned exclusively by HOMI Companies, and unauthorized
disclosure and/or use of such Trade Secrets and/or Work Product would be
very likely to cause material damage to HOMI Companies. With all of the
foregoing in mind, Manager hereby undertakes, in addition to, and without
derogating from Manager’s non-disclosure undertakings, in order to reduce
the risk of unauthorized disclosure and/or use of Trade Secrets and/or
Work Product, that Manager will not, at any time during the Term of this
Agreement and for a further period of 12 (twelve) months following
termination of this Agreement, for whatever reason, either personally or
by means of any person and/or entity acting on Manager’s behalf and/or
howsoever otherwise, directly or indirectly, do any of the
following:
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a.
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be
employed by, consult to, participate in, or howsoever be connected with
any Competitor of Employer, where “Competitor” means any entity engaged in
competing activity in the field of development, manufacture and/or supply
of computerized minibars, and/or in the supply of services relating to
minibars and/or other refrigerators containing food and/or drink and/or
other products, in any country in which Manager discharges his duties for
Employer;
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but
only where Manager’s said activity is in the same or similar fields in which
Manager was actually engaged by Employer and/or in relation to which Manager was
in possession of and/or had access to Trade Secrets and/or Work
Product.
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4.7
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If Manager shall directly or
indirectly perform any of the activities specified in Section
4.6a above during the period of
restriction specified in Section 4.6 above, then Manager undertakes to pay to
Employer a sum equal to 35% of all income generated by such activities,
for as long as such activities continue, without prejudice to all other
rights and entitlements of Employer in such circumstances, pursuant to
this Agreement and to applicable
law.
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4.8
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Manager
hereby covenants and agrees that, at all times during the term of his
employment with Employer, and for a period of five (5) years following its
termination, Manager will not directly or indirectly solicit any employees
of Employer and/or of any of the HOMI Companies to encourage or otherwise
entice said employees to leave the employ of Employer or HOMI
Companies.
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4.9
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Manager
undertakes to make every reasonable effort to prevent any conflict of
interest arising between his employment with Employer and activities
and/or transactions involving his close
relatives.
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4.10
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Employer and Manager acknowledge
that they are familiar with the present and proposed operation of the
Employer and agree and confirm that the restrictive covenant set forth in
this Section 4 is reasonable
with respect to its subject matter, duration and
application.
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4.11
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The provisions of this Section
4 are intended to supplement,
and not derogate from, Employer’s rights under applicable law, and these
provisions shall remain in full and binding effect for the entire duration
of this Agreement and for an unlimited period following the termination or
cancellation of this Agreement at any time and under any
circumstances.
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5.
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Set-Off
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5.1
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For
the entire duration of Manager’s employment by Employer, and at any time
following its termination, Employer shall, to the fullest extent permitted
by law, have an absolute right, exercisable at its sole discretion, to
withhold payment of any moneys owed to Manager, including salary,
indebtedness or other monetary compensation of whatever kind or nature,
and to offset and deduct therefrom (to the extent available), the full
amount of any moneys which Employer has expended or may be required to
expend in payment of sums which might arise out of or relate to the
intentional or gross negligent acts of Manager, misrepresentations of or
fraud by Manager, including (i) recovering any Employer property in
Manager’s possession or improperly disposed by Manager, (ii) any money
damages (whether compensatory, punitive or otherwise) paid under court
order or by way of compromise and settlement of claims, (iii) court costs
and reasonable attorney's fees, and (iv) fines or penalties imposed by any
government agency or action, statute, or judicial
decree.
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5.2
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Nothing
in the foregoing remedies shall be deemed to limit or prevent the exercise
by Employer of any other available rights and
remedies.
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6
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6.
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Termination
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6.1
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The
Manager’s employment pursuant to this Agreement may be terminated by the
Parties as follows:
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a.
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Without
cause by either Party upon the provision of 120 days prior written notice
to the other Party.
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b.
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In
the event of violation by Manager of any material term of this Agreement,
including any act of gross misconduct adversely affecting the business of
Employer, conviction of a crime of moral turpitude or sentencing to a
prison term, repeated and unexcused absenteeism or tardiness,
or any act of dishonesty or disloyalty constituting a violation of
Manager’s trust or fiduciary responsibility toward Employer - immediately
upon the provision of written notice. In this event, to the full extent
allowable by law, Manager will not be entitled to advance notice
compensation or any other kind of compensation on account of said
termination.
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6.2
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Upon
termination of Manager’s employment, Manager agrees, upon request by
Employer, to hand over the Position to his replacement in an orderly
manner as determined by Employer.
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7.
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Material
Provisions and Injunctive
Relief
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7.1
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It is hereby agreed that
paragraphs2 and 4 herein are Material
Provisions.
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7.2
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In
the event of actual or threatened breach of any Material Provision herein,
the Parties expressly agree that Employer shall be entitled to obtain a
preliminary restraining order and injunction restraining and enjoining
Manager and each and every other person, firm, organization, association,
or corporation associated with the breach from violating these
provisions. Nothing in this Agreement or the provisions hereof
shall be construed so as to prohibit Employer from pursuing any other
available remedy for such breach, including, without limitation, payment
of compensatory damages. The parties agree that should Manager be found in
violation of the above provisions, he shall be liable for payment of
reasonable costs and attorneys fees incurred by Employer in enforcing its
rights.
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8.
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Assignment
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The
duties and obligations of employment are personal to Manager, who shall have no
right to assign his rights or delegate his duties under this Agreement to any
other party. Nothing in this paragraph shall be construed as limiting the right
of Employer to assign this Agreement or any of its rights or delegate its duties
hereunder, and such assignment will not be construed as termination of this
Agreement, provided that such assignment or delegation shall not alter the
financial arrangements or basic rights and duties of Manager as provided in this
Agreement.
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9.
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Divisibility
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In the
event that any portion of any restrictive covenant set forth in this Agreement
is held to be unreasonable, arbitrary or against public policy, then such
unreasonable portion shall be considered divisible both as to time and
geographical area. Should any such covenant be held unreasonable,
arbitrary or against public policy, then a lesser time period and/or
geographical area which are determined to be maximum permissible but still
reasonable, non-arbitrary and not against public policy shall be enforceable
against Manager.
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10.
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Entire
Agreement
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This
Agreement constitutes a special, individual employment agreement and comprises
the full and exhaustive agreement between the Parties in connection with the
employment relations between them. With respect to these employment relations,
no other arrangements and/or agreements, currently in existence or to be in
existence in the future at Employer, or any collective agreements that apply to
and/or that may apply to other employees of Employer, if at all, will apply to
Manager. For avoidance of doubt, this Agreement voids and comes in place of any
prior arrangement or agreement, if at all, verbal or written, concerning
employment relations between the Parties, if at all, and this Agreement alone
shall exclusively apply to and be binding upon the Parties in respect of said
employment relations. Notwithstanding the foregoing, nothing in this Agreement
may be construed as diminishing in any way any undertakings and/or obligations
of Manager, if at all, towards Employer and/or HOMI Companies with respect to
any period prior to this Agreement being signed.
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11.
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Miscellaneous
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The
Preamble, and any Appendices, Exhibits or Schedules to this Agreement,
constitute an integral part hereof. Section headings are for convenience
purposes only, and may not be used in the construction or interpretation of this
Agreement. No failure or delay on the part of any party in exercising any right
and/or remedy to which it may be entitled hereunder and/or by law shall operate
as a waiver by that party of any right whatsoever. No waiver of any right under
this Agreement shall be deemed as a waiver of any further or future right
hereunder, whether or not such right is the same kind of right as was waived in
a previous instance. No Amendment to this Agreement, or any part thereof, shall
be valid or binding upon the Parties unless drawn up in writing and signed by
both Parties. In case any provision of the Agreement shall be declared by a
competent court to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and shall continue in full force and effect. Any use of the
word “including” in this Agreement shall be construed as meaning “including,
without limitation”, unless expressly stipulated to the contrary. All pronouns
contained herein, and any variations thereof, shall be deemed equally to refer
to the masculine, feminine or neutral, singular or plural, as the context may
require. This Agreement shall be governed by and construed in accordance with
the laws of Luxembourg, without regard to its rules of conflict of laws. The
Parties hereby agree and submit to the exclusive jurisdiction of the competent
courts in Luxembourg, with respect to any claim or dispute arising out of and/or
in connection with this Agreement. Notices sent by one party to the other under
this Agreement will be sent by registered mail to the addresses specified in the
Preamble, delivered by hand, transmitted by fax, or sent by e-mail or other
electronic means of communication and will be deemed to have reached their
destination 7 days after being deposited with the Post Office for dispatch as
registered mail, upon actual delivery when delivered by hand, and upon receipt
of the recipient’s written confirmation (including electronic confirmation) of
receipt when sent by fax, e-mail or other electronic means of
communication.
In
witness whereof the parties have executed this
Employment
agreement on the date first above written:
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______________________
Employer
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______________________
Manager
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8
Execution
Copy
Exhibit
A’
Effective
as of 1st day of January, 2008
To the
Individual Employment Agreement (“Agreement”)
Between
HOMI Europe S.A.R.L. and Xxxxx
Xxxxxx
dated as of
1 January 2008
Definition
of Position and Terms of Employment
All terms that are
capitalized herein and that are defined in the Agreement and not otherwise
defined in this Exhibit A’ shall have the meanings given thereto in the
Agreement. In the event of any
inconsistency or contradiction between the provisions of this Exhibit and the
provisions of the Agreement, the provisions of the Agreement shall prevail and
be binding upon the Parties.
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1.
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Definition
of Position
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1.1
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Position
- CEO of Employer. In the context of this position, Manager will fulfill
duties normally associated with this office, in accordance with the
directions that will be given from time to time by Employer, including
General Management; Business Development; Marketing, and such
like.
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1.2
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To
the extent required by one or more other HOMI Companies, Manager will hold
office as CEO and/or President of such other HOMI Companies, and Manager’s
work in holding such office and discharging the duties associated
therewith will be deemed part of his duties hereunder, subject to the
provisions of Section 3 of the Agreement and Manager will not be entitled
to additional payment in this
regard.
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1.3
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The
Position is a full time position, with it being understood that, in view
of the seniority of the Position, Manager shall be required, according to
Employer’s needs, to work more hours than a non-management employee,
including outside of normal working hours (Sunday to Friday, 0900-1800),
and in this respect each Party shall show consideration for the needs and
constraints of the other.
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1.4
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Most
of Manager’s work shall be performed in Western Europe, including
Luxembourg, Italy, France, Germany, Malta,
UK.
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2.
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Cost
of Employment; Salary
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2.1
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For
all services and duties rendered in any and all capacities by Manager to
Employer and/or to HOMI Companies as of the date the Agreement is signed,
including, without limitation, overtime and work outside of normal work
hours, Employer will pay Manager salary and benefits as set forth
herein.
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2.2
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The
all inclusive total monthly cost to HOMI Companies of Manager’s employment
by Employer under this Agreement shall be €8,750 (eight thousand, seven
hundred and fifty Euros) (hereinafter: the “Cost of
Employment”). Cost of Employment includes all wages and benefits
whatsoever to which Manager is entitled under this Agreement and/or by
law, and all Employer withholding taxes and Employer deductions and
contributions of all kinds and all other sums of any kind which form part
of the cost to HOMI Companies of Employer’s employing Manager under the
Agreement, with the exception of sums which are clearly and unequivocally
defined herein as being payable to Manager in addition to the Cost of
Employment.
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2
Exhibit
A’ to Employment Agreement
HOMI
Europe – Xxxxx Xxxxxx
Execution
Copy
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2.3
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Manager’s
wages for the term of Manager’s employment under the Agreement shall be in
the form of a monthly salary, which shall be paid to Manager immediately
following the end of each month of employment pursuant to the Agreement,
in respect of the immediately preceding month. The amount of said monthly
salary, defined in gross terms, shall equal the Cost of Employment, less
all other elements included in the Cost of Employment that are not said
salary (hereinafter: the “Salary”).
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2.4
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Manager
hereby confirms that he elected to be employed by Employer under this
Agreement subject to Luxembourg Law, instead of being employed by HOMI
Inc. or any other of the HOMI Companies, being aware that, in view of the
circumstances of his work, residence and travel, he may not be entitled to
National Insurance coverage in any country, or other social security
and/or benefits normally associated with an employee. Manager hereby
confirms that he will make all his own arrangements in respect of health,
disability and accidents insurance, at his own cost, covering all of his
activity in the Position. Manager hereby waives, all manner of claims,
demands, causes and/or grounds of action, of any kind whatsoever, against
Employer and/or any Affiliate, howsoever in respect of any and all
injuries, accidents, losses, lack of benefits, lack of social security
and/or National Insurance, and Manager hereby indemnifies and holds
harmless Employer and all its Affiliates and their respective
shareholders, directors and officers, from and against any and all damages
which they may sustain, including, without limitation, reasonable legal
fees and/or any other expense which they may incur, as a result of breach
of Manager’s undertakings and/or waiver as set forth herein. Manager is
aware that Employer is relying on the representations and waivers and
undertakings herein in enetering into this Agreement, and that in the
absence of such representations and waivers and undertakings it would not
have entered into this Agreement, and instead Manager would have been
employed by another of the HOMI Companies, in a country in which Manager
could have been entitled to National Insurance coverage and other social
benefits.
|
|
3.
|
Car
Allowance; Cellular Phone;
Internet
|
|
3.1
|
Employer
shall pay to Manager an allowance of €800 per month, towards Manager’s car
expenses, instead of providing Manager with the use of a car. This
allowance shall not be included in the Cost of
Employment.
|
|
3.2
|
Manager
shall have the right to the use of one or more cellular phones belonging
to Employer, as Employer shall make available to Manager from time to time
(hereinafter: the “Phone”),
and Employer shall bear the expenses of operating the Phone. Such expenses
shall not be included in the Cost of Employment. Manager undertakes to
return the Phone to Employer immediately upon termination of the
Agreement, for whatever reason.
|
|
3.3
|
Employer
shall reimburse Manager for the monthly cost of a fixed Internet
connection at any location shown to be necessary by Manager, until such
time as Employer may decide otherwise. This reimbursement shall not be
included in the Cost of Employment.
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4.
|
Office
|
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4.1
|
Employer
shall make available to Manager, in order to perform his duties under the
Agreement, an office/Studio in Geneva or such other location as Employer
shall determine, in coordination with Manager, to be leased by Employer
(hereinafter: the “Office”).
|
|
4.2
|
Employer
shall bear the cost of the Office and its upkeep, including, but not
necessarily limited to: rent, utilities, Internet, telephone, furnishings,
office equipment and supplies, as reasonably deemed necessary by Employer.
The costs outlined in this Section 4.2 shall be incurred by Employer, and
shall
not be included in the Cost of
Employment.
|
3
Exhibit
A’ to Employment Agreement
HOMI
Europe – Xxxxx Xxxxxx
Execution
Copy
|
5.
|
International
Travel
|
It is
acknowledged that a substantial amount of international travel shall be required
in the context of the Position. The expenses incurred in such travel, including
flight (upgradeable economy, subject to upgrade by Manager on his own account),
accommodation, per diem (outside Switzerland and Israel), land travel and the
like, shall be paid by Employer, and shall
not be included in the Cost of Employment.
|
6.
|
Reimbursements
|
It is
Employer’s policy to independently purchase such equipment and incur such
expenses as it deems necessary from time to time in furtherance of its
operations, including all the expenses which Employer has agreed to pay as set
forth herein. However, if, from time to time, Employer requests from Manager, or
it is otherwise absolutely necessary that Manager incur such an expense on
Employer’s behalf and at Employer’s request, then Manager will file an expense
report, in accordance with Employer policy, and produce receipts evidencing the
expenditure. Such expenses will be reimbursed to Manager if approved in
writing by HOMI Inc’s Chairman. Use of a credit card issued in Employer’s name,
if at all, shall be in strict compliance with Employer’s written policies and
directions in such regard and Employer may at any time cancel such credit cards
and/or Manager’s use thereof, in Employer’s discretion.
|
7.
|
Bonus and
Options
|
|
7.1
|
In
the event that the Board of Directors of Employer and/or HOMI Inc may
approve a management bonus program, it is understood that various members
of management of HOMI Companies could receive rights under such program,
including the function of HOMI Companies’ CEO, in which case Manager shall
be entitled to whatever bonus may be designated in such program to HOMI
Companies’ CEO (the “Bonus”),
and such Bonus shall not
be included in the Cost of
Employment.
|
|
7.2
|
In
the event that the Board of Directors of Employer and/or HOMI Inc may
approve an employee stock option plan, it is understood that various
members of management of HOMI Companies could receive rights under such
plan, including the function of HOMI Companies’ CEO, in which case Manager
shall be entitled to whatever specific rights may be designated in such
plan to HOMI Companies’ CEO, for the duration of the Agreement, and such
rights shall
not be included in the Cost of
Employment.
|
|
7.3
|
The
timing and manner of grant and/or implementation of any rights pursuant to
this Section 7 shall be at such times and in such manner as approved by
the Board of Directors as specified
above.
|
|
8.
|
Vacation;
Convalescence; Sick Pay
|
|
8.1
|
|
a.
|
Manager
will be entitled to 30 days of fully-paid annual vacation (said quantity
including 22 work days and the intervening Fridays and Saturdays). Unused
annual vacation days may be accumulated from one year to the next,
provided that Manager’s total aggregate, cumulative entitlement to
vacation days at any time cannot exceed a ceiling of 45 vacation
days.
|
|
b.
|
Employer
will determine the timing of the annual vacation, as much as possible
giving consideration to Manager’s needs and requests, and to the projects
that are underway at that time and the degree of flexibility that can be
shown by Employer.
|
4
Exhibit
A’ to Employment Agreement
HOMI
Europe – Xxxxx Xxxxxx
Execution
Copy
|
8.2
|
Any
entitlement of Manager in relation to Sick Pay and Convalescence Pay shall
be as determined by applicable law and are already included in the Cost of
Employment.
|
|
9.
|
Taxes
|
All
payments and benefits due from Employer to Manager under the terms of this
Agreement will be subject to the deduction of all local, state and federal
taxes, social security payments, if at all, and any other withholding payments
required by law, at Manager’s cost.
|
______________________
Employer
|
______________________
Manager
|
5
Execution
Copy
Exhibit
B’
Effective
as of 1st day of January, 2008
To the
Individual Employment Agreement (“Agreement”)
Between
HOMI Europe S.A.R.L. and Xxxxx
Xxxxxx
dated as of
1 January 2008
Relations
Following Termination of Employment
All terms that are
capitalized herein and that are defined in the Agreement and not otherwise
defined in this Exhibit B’ shall have the meanings given thereto in the
Agreement. In the event of any
inconsistency or contradiction between the provisions of this Exhibit and the
provisions of the Agreement, the provisions of the Agreement shall prevail and
be binding upon the Parties.
|
1.
|
Nature
of Relations Following End of Employment
Relations
|
|
1.1
|
For
a period of twenty-four months following the end of employment relations,
for whatever reason, between Employer and Manager (the “Service
Period”), Manager undertakes to provide Employer and/or any other
of the HOMI Companies, as designated in writing by Employer, with
services, in operations and/or sales and/or marketing, as designated in
writing by Employer (“Services”).
|
|
1.2
|
Services
will be on an independent contractor basis, without employment relations
existing between Manager and any HOMI Company, and the terms included in
Sections 2 and 4 of the Agreement shall be deemed to apply to the Services
relations between the Parties during the Service Period, mutatis
mutandis, provided that the non-compete restriction contained in
Section 4.6 of the Agreement shall continue in force for the entire
Service Period, and not just for the first 12 months following the end of
employment relations.
|
|
1.3
|
During
the first year of Service Period (“Year
One”), Employer may require that 60 hours’ Services will be
provided by Manager each month, and Manager undertakes to meet such
request, and this number shall be reduced to 45 monthly hours during the
second year of the Service Period (“Year
Two”).
|
|
1.4
|
In
return for Services provided by Manager during Service Period, and in
consideration for the non-compete provisions, which will remain in force
for the entire Service Period as stated above, Employer shall pay Manager
the sum of $4,500 per month during the Service Period, against due
presentation of a tax invoice in Manager’s
name.
|
|
1.5
|
For
the duration of Year One, Employer shall pay the sum set forth in
Section1.4 above, whether or not it requests to receive the Services, and
shall be exempt from paying such sum (but the non-compete provisions shall
remain effective) only
if Manager does not supply the Services, even though Employer demanded
such services. At any time in Year Two, Employer may elect to cease making
such payments, in which case Manager shall, from that point forward, no
longer be required to supply Services and no longer be bound by the
non-compete restriction contained in Section 4.6 of the
Agreement.
|
|
______________________
Employer
|
______________________
Manager
|
1
