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EXHIBIT 10.3
CLICKSERVICE SOFTWARE LTD.
EMPLOYMENT AGREEMENT
This Agreement is entered into as of February 10, 2000, (the "Effective
Date") by and between ClickService Software Ltd. (the "Company"), and Xxxxx
Xxxxxxxxx (the "Executive").
WHEREAS, Executive currently serves as the Chief Executive Officer of
the Company;
WHEREAS, the parties desire and agree to enter into an employment
relationship by means of this Agreement; and
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by and among the parties as follows:
1. Duties and Scope of Employment.
(a) Positions and Duties. As of the Effective Date, Executive
will continue to serve as Chief Executive Officer of the Company. Executive will
render such business and professional services in the performance of his duties,
consistent with Executive's position within the Company, as shall reasonably be
assigned to him by the Company's Board of Directors (the "Board"). The period of
Executive's employment under this Agreement is referred to herein as the
"Employment Term."
(b) Board Membership. During the Employment Term, Executive will
serve as a member and Chairman of the Board, subject to the Company's Articles
of Association.
(c) Obligations. During the Employment Term, Executive will
perform his duties faithfully and to the best of his ability and will devote his
full business efforts and time to the Company. For the duration of the
Employment Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board. Notwithstanding the
foregoing, Executive may serve on the board of directors of any other companies
or work in academic pursuits as long as such service does not materially
interfere with the performance of his duties to the Company.
2. At-Will Employment. The parties agree that the Executive's employment
with the Company will be "at-will" employment and may be terminated at any time
with or without cause or notice. Executive understands and agrees that neither
his job performance nor promotions, commendations, bonuses or the like from the
Company give rise to or in any way serve as the basis for modification,
amendment, or extension, by implication or otherwise, of his employment with the
Company.
3. Compensation.
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(a) Base Salary. During the Employment Term, the Company will
pay Executive as compensation for his services a base salary at the annualized
rate of $225,000 (the "Base Salary"). The Base Salary will be paid periodically
in accordance with the Company's normal payroll practices and be subject to the
usual, required withholding.
(b) Bonus. In addition to the Base Salary, Executive shall be
entitled to earn an annual performance bonus of up to 100% of Base Salary (the
"Bonus"). Such Bonus, if any, shall be based on the achievement of target
milestones to be determined by the Compensation Committee of the Board after
consultation with Executive and shall be paid on a quarterly basis. The Bonus
may be reviewed annually by the Compensation Committee of the Board for possible
increases in light of Executive's performance.
(c) Relocation and Temporary Living Reimbursement. During the
Employment Term, the Company will reimburse the Executive for: (i) reasonable
moving expenses incurred by Executive and his family during their relocation
from Executive's primary residence to the Company's headquarters, and (ii)
reasonable housing and living expenses to be mutually agreed to by the Company
and Executive. The total of all such amounts shall not exceed $75,000 per year.
4. Employee Benefits. During the Employment Term, Executive will be
entitled to participate in the employee benefit plans currently and hereafter
maintained by the Company of general applicability to other senior executives of
the Company, including, without limitation, the Company's group medical, dental,
vision, disability, life insurance, and flexible-spending account plans. The
Company reserves the right to cancel or change the benefit plans and programs it
offers to its employees at any time.
5. Vacation. Executive will be entitled to paid vacation of twenty-six
(26) days per year in accordance with the Company's vacation policy, with the
timing and duration of specific vacations mutually and reasonably agreed to by
the parties hereto.
6. Expenses. The Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in the furtherance of or
in connection with the performance of Executive's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
7. Severance.
(a) Involuntary Termination. If Executive's employment with the
Company terminates other than for "Cause" (as defined herein), and Executive
signs and does not revoke a standard release of claims with the Company, then,
subject to Section 11, Executive shall be entitled to receive continuing
payments of severance pay (less applicable withholding taxes) at a rate equal to
his Base Salary rate, as then in effect, for a period of twelve (12) months from
the date of such termination, to be paid, in Executive's discretion, (i)
periodically in accordance with the Company's normal payroll policies or (ii) in
a lump-sum within thirty (30) days of such termination.
(b) Termination for Cause. If Executive's employment with the
Company terminates for Cause by the Company, then Executive will only be
eligible for severance benefits in accordance with the Company's established
policies as then in effect.
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8. Change of Control Benefits. In the event of a "Change of Control" (as
defined below) that occurs prior to the Executive's termination of service to
the Company, the Option will have its vesting accelerated so as to become 100%
vested. Thereafter, the Option will continue to be subject to the terms,
definitions and provisions of the Option Plan and Option Agreement.
9. Definitions.
(a) Cause. For purposes of this Agreement, "Cause" is defined as
(i) an act of dishonesty made by Executive in connection with Executive's
responsibilities as an employee, (ii) Executive's conviction of, or plea of nolo
contendere to, a felony, or (iii) Executive's gross misconduct.
(b) Change of Control. For purposes of this Agreement, "Change
of Control" of the Company is defined as: (i) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or (ii) a change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" will mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but will not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or (iii) the date of the consummation of a merger
or consolidation of the Company with any other corporation that has been
approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company; or (iv)
the date of the consummation of the sale or disposition by the Company of all or
substantially all the Company's assets.
10. Confidential Information. Executive agrees to enter into the
Company's standard Confidential Information and Invention Assignment Agreement
(the "Confidential Information Agreement") upon commencing employment hereunder.
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11. Conditional Nature of Severance Payments.
(a) Noncompete. Executive acknowledges that the nature of the
Company's business is such that if Executive were to become employed by, or
substantially involved in, the business of a competitor of the Company during
the twelve (12) months following the termination of Executive's employment with
the Company, it would be very difficult for the Executive not to rely on or use
the Company's trade secrets and confidential information. Thus, to avoid the
inevitable disclosure of the Company's trade secrets and confidential
information, Executive agrees and acknowledges that Executive's right to receive
the severance payments set forth in Section 7 (to the extent Executive is
otherwise entitled to such payments) shall be conditioned upon the Executive not
directly or indirectly engaging in (whether as an employee, consultant, agent,
proprietor, principal, partner, stockholder, corporate officer, director or
otherwise), nor having any ownership interested in or participating in the
financing, operation, management or control of, any person, firm, corporation or
business that competes with Company or is a customer of the Company. Upon any
breach of this section, all severance payments pursuant to this Agreement shall
immediately cease.
12. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive's right to compensation or other benefits will be null
and void.
13. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
ClickService Software Ltd.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
If to Executive:
at the last residential address known by the Company.
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14. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
15. Arbitration.
(a) Executive agrees that any dispute or controversy arising out
of, relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof, shall be
settled by binding arbitration to be held in Santa Xxxxx County, California in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association (the "Rules"). The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitrator will be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's decision
in any court having jurisdiction.
(b) The arbitrator(s) will apply California law to the merits of
any dispute or claim, without reference to rules of conflicts of law. The
arbitration proceedings will be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The Executive hereby consents
to the personal jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are participants.
(c) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, DISCRIMINATION
CLAIMS.
16. Integration. This Agreement, together with the Option Plan, Option
Agreement and the Confidential Information Agreement represents the entire
agreement and understanding between the parties as to the subject matter herein
and supersedes all prior or contemporaneous agreements whether written or oral.
No waiver, alteration, or modification of any of the provisions of this
Agreement will be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
17. Tax Withholding. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
18. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions).
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19. Acknowledgment. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
CLICKSERVICE SOFTWARE LTD.
By: Date:
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Title:
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EXECUTIVE
/s/ Xxxxx Xxx-Xxxxxx
--------------------------- Date:
Xxxxx Xxx-Xxxxxx -------------------------------
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