EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement, effective as of the 9th day of January, 2001
(the "Effective Date"), is made by and between Radview Software, Inc., a
Delaware corporation ("Radview") and Xxxxx X. XxXxxxx ("Employee").
WHEREAS Radview is a wholly owned subsidiary of Radview Software Ltd., an
Israeli corporation ("Parent");
WHEREAS Employee and Radview have entered into an agreement which
includes among other things, a covenant not to compete with Radview by the
Employee, a non-solicitation agreement and an assignment of inventions
agreement; and
WHEREAS Employee and Radview desire to set forth other terms of
Employee's employment;
NOW, THEREFORE, the parties hereto agree as follows:
1. CHANGE OF CONTROL.
Upon a Change of Control (as defined below), all unvested stock options
and/or restricted shares shall immediately vest with respect to 50% of such
options and/or shares.
2. TERMINATION OF EMPLOYMENT SUBSEQUENT TO A CHANGE OF CONTROL.
a. If, within 12 months of a Change of Control (as defined below) (i)
Employee terminates his employment with Good Reason (as defined below) or
(ii) Employee's employment is terminated without Cause (as defined
below), then, in either case, Employee will receive on his termination
date the Accrued Obligations (as defined below) and severance pay equal
to six (6) months of his or her annual base salary then in effect shall
be paid in equal installments (minus applicable withholdings) over a six
(6) month period following such termination,
b. Employee shall continue to receive the same health benefits as he or she
was receiving prior to such termination during the six (6) month period
following such termination; and
c. All remaining unvested stock options and/or restricted shares shall
immediately vest; provided, however, that if the Board of Directors of
Parent determines that the provisions of this Section 2(c) might have the
effect of adversely affecting the accounting treatment of a "pooling
transaction" resulting in a Change of Control, the Board of Directors of
Parent may, in connection with the approval of such "pooling
transaction", elect to invalidate this provision.
d. For purposes of this Agreement:
(i) "Accrued Obligations" shall mean all amounts of Annual Compensation
due and owing, reimbursements properly submitted for expenses
incurred prior to the termination date and any accrued but unused
vacation owed to the Employee as of the termination date.
(ii)"Cause" shall mean any act of or omission by Employee in the conduct
of Employee's duties and responsibilities which constitutes gross
negligence or willful misconduct, or any act of or omission by
Employee which involves dishonesty or criminal conduct. In the event
the Board of Directors of Radview (the "Board") determines it has
reason to terminate Employee's employment for Cause, it shall give
written notice to Employee stating the specific grounds constituting
Cause. In the event that the Cause alleged constitutes any act or
omission in the conduct of Employee's duties and responsibilities
which constitutes gross negligence or willful misconduct, Employee
shall have an opportunity within five (5) days after receiving such
notice to meet with the Board to discuss such allegations of Cause.
(iii)"Change of Control" shall mean: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions) of
all or substantially all of the assets of Radview or Parent; (ii)
individuals who, as of the date hereof, constitute the entire Board
of Directors of Radview or of Parent (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Board
of Directors of such company, provided that any individual becoming a
director subsequent to the date hereof whose election was approved by
a vote of at least a majority of the then Incumbent Directors shall
be, for the purposes of this provision, considered as though such
individual were an Incumbent Director; (iii) any consolidation or
merger of Radview or Parent with any other entity where the
stockholders of Radview or Parent immediately prior to the
consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own, directly or indirectly,
shares representing fifty percent (50%) of the combined voting power
of all of the outstanding securities of the entity issuing cash or
securities in the consolidation or merger (or its ultimate parent
corporation, if any); (iv) a third person, including a "person" as
defined in Section 13(d)(3) of the Exchange Act, becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
directly or indirectly, of securities of Radview or of Parent
representing twenty -five percent (25%) or more of the total number
of votes that may be cast for the election of the directors of
Radview; or (vi) the Board of Directors of Radview or Parent, by vote
of a majority of all the Directors, adopts a resolution to the effect
that a "Change-in-Control" has occurred for purposes of this
Agreement.
(iv)"Good Reason" means that (i) Employee's compensation has been
materially reduced (and such reduction is not part of an overall
reduction in compensation affecting other Employees of Radview), (ii)
Employee's position, duties or responsibilities have been materially
reduced, (iii) the Employee's primary place of employment is moved to
a location greater than sixty (60) miles away from its then current
location, or (iv) Radview has not paid to Employee when due any
undisputed compensation, including salary or bonus, and in all such
cases (i-iv) the condition continues beyond 15 business days from the
date Radview's Board is notified in writing of its existence.
Notwithstanding anything contained herein to the contrary, a material
reduction in Employee's position, duties or responsibilities shall be
deemed to have occurred if, for example and without in anyway
limiting the foregoing, a Change of Control resulting in Radview or
Parent becoming a subsidiary of another entity occurs and Employee's
position, duties or responsibilities are not otherwise reduced
(unless Employee is also awarded identical or superior position,
duties and responsibilities with any such parent entity).
3. GOVERNING LAW; ARBITRATION; INJUNCTIVE AND OTHER RELIEF
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely in Massachusetts (without regard to
its conflict of laws statutes). Each party hereby irrevocably consents to the
exclusive jurisdiction of the federal and state courts located in Massachusetts
with respect to any actions which may arise in connection with this Agreement
and are not required by this Section 3 to be arbitrated. Except as provided in
this Section 3, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration administered
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
Each of the parties to this Agreement acknowledges that a breach of this
Agreement may cause the other party irreparable harm that may not be adequately
compensated by money damages. Therefore, in the event of a breach or threatened
breach by a party, injunctive or other equitable relief will be available to the
other party, and any arbitrator acting pursuant to this Agreement shall have the
authority to provide such injunctive or other equitable relief. Remedies
provided herein are not exclusive.
The arbitrator shall have the authority to award such remedies or relief
that a court of the Commonwealth of Massachusetts could order or grant in an
action governed by Massachusetts law, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of the
arbitration process. The arbitration proceedings shall be conducted in Boston,
Massachusetts.
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Notwithstanding the foregoing, any party may bring and pursue an action in
any federal or state court located in Massachusetts seeking provisional relief,
including a temporary restraining order or preliminary injunction, pending an
arbitration proceeding. Any provisional relief obtained shall be discontinued
once the arbitrator has assumed jurisdiction and ordered such discontinuance.
4. MISCELLANEOUS
a. SURVIVAL. Notwithstanding anything in this Agreement to the contrary,
Section 3 shall survive any termination of this Agreement.
b. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
c. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereto and thereof. None of this Agreement or any term hereof may be
amended, waived, discharged or terminated, except by a written instrument
signed by both of the parties hereto.
d. NOTICES, ETC. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid, delivered either by hand or by messenger,
or transmitted by electronic telecopy (fax) addressed:
If to Radview:
Xxxxx X. XxXxxxx
Radview Software, Inc.
7 New England Executive Park
Xxxxxxxxxx, XX 00000
If to Employee, at:
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
or at such other address as any party shall have furnished to the others in
writing. All such notices and other written communications shall be
effective (i) if mailed, seven (7) days after mailing (if mailed from
outside the United States, such mailing must be by airmail and said seven
(7) days shall be fourteen (14) days), (ii) if delivered, upon delivery, or
(iii) if faxed, one (1) business day after transmission and acknowledgement
of receipt by telephone or fax.
e. DELAYS OR OMISSIONS. No delay or omission to exercise any right, power or
remedy accruing to either party hereto upon any breach or default of the
other party under this Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or any similar breach or
default thereafter occurring. No waiver of any single breach or default
shall be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of any party hereto of any breach or default under
this Agreement or any waiver on the part of any party hereto of any
provisions or conditions of this Agreement must be made in writing and
shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
f. SEPARABILITY. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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g. PRIOR AGREEMENTS. This Employment Agreement supersedes all prior written or
oral agreements related to Employee's employment with Radview.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the Effective Date.
Employee: RADVIEW SOFTWARE, INC.
/s/ Xxxxx X. XxXxxxx /s/ Xxxx Xxxxxxxx
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Name: Xxxxx X. XxXxxxx By: Xxxx Xxxxxxxx
Name: C.E.O
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