Amended and Restated Personal Employment Agreement
Amended
and Restated Personal Employment Agreement
This
Amended and restated Personal Employment Agreement ("Agreement")
is
entered into on June ___, 2007 by and between IXI
Mobile (R&D) Ltd.,
a
company organized under the laws of the State of Israel, having its principal
office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇'▇▇▇▇▇, ▇▇▇▇▇▇ (the "Company")
and
▇▇▇▇
▇▇▇▇▇
of 3
Dolev St. Ramat - Hasharon (“You”
or
the
"Employee").
| WHEREAS |
the
Company and the Employee desire to amend and restate the terms of
that
certain Employment Agreement dated July 24, 2001 between the parties;
and
|
| WHEREAS |
the
parties desire to set forth herein the current terms and conditions
of
your engagement by the Company, effective as of the date of this
Amended
and Restated Agreement, as set forth
below.
|
NOW
THEREFORE,
in
consideration of the mutual promises contained herein, and intending to be
legally bound, the parties hereto hereby declare and agree as
follows:
| 1. |
The
position
|
| 1.1. |
The
Company shall employ you in the position described in Exhibit
A.
You shall report regularly to the Company with respect to your
activities
and shall be subject to the direction and control of the management
of the
Company.
|
| 1.2. |
You
shall be employed on a full time basis, at such times and places
as shall
be decided by the Company or required by your position from time
to time.
You shall devote your time and attention to the business of the
Company,
and perform your duties diligently and in furtherance of the Company's
best interest.
|
| 2. |
Term
and Termination
|
| 2.1. |
You
will commence your duties on the date set forth in Exhibit
A
(the "Commencement Date").
This Agreement shall commence on the Commencement Date and shall
continue
until it is terminated as hereafter
provided.
|
| 2.2. |
Either
party may terminate this Agreement and the employment relationship
hereunder without any reason or explanation at any time by giving
the
other party 90 days prior notice. Notwithstanding the aforesaid,
in the
event of a Justifiable Cause (as defined hereafter), the Company
shall be
entitled to terminate this Agreement immediately and this Agreement
and
the employment relationship shall be deemed effectively terminated
as of
the time of delivery of such
notice.
|
The
term
"justifiable
cause"
shall
mean (a) a serious breach of trust including but not limited to theft,
embezzlement, self-dealing, prohibited disclosure to unauthorized persons
or
entities of confidential or proprietary information of or relating to the
Company or your engagement in any prohibited business or business which is
competitive to the business of the Company and its subsidiaries or affiliates;
(b) any willful failure to perform any of your fundamental functions or duties
hereunder which has or is expected to seriously damaged the Company, or (c)
any
other cause which justifies, according to applicable law, the termination
or
dismissal of an employee without payment of full severance
compensation.
| 2.3. |
During
the period following notice of termination by either party, you
shall
cooperate with the Company and use your best efforts to assist
the
integration into the Company of the person or persons who will
replace you
and assume your responsibilities. The Company may, at its sole
discretion,
terminate this Agreement and your employment hereunder immediately,
but in
such case shall pay you, together with your last Salary, any amount
due
with respect to such notice period.
|
| 3. |
Salary
|
| 3.1. |
The
Company shall pay you as compensation for the employment services
hereunder, an aggregate monthly compensation set forth in Exhibit
A
(the “Base
Salary”).
|
| 3.2. |
Since
your position, duties and responsibilities are of such nature that
the
Company cannot keep specific track of all of your overtime hours,
the
Company shall pay you an additional monthly gross amount set forth
in
Exhibit
A
for all such overtime hours (the “Additional
Compensation”).
|
| 3.3. |
The
Company shall pay you an additional amount set forth in Exhibit
A
on
account of regular daily travel expenses to which you may be entitled
under applicable law (the “Travel
Expenses”).
|
| 3.4. |
The
Base Salary, Additional Compensation and Travel Expenses shall
hereby be
referred together as the “Salary”.
The Salary shall be adjusted according to periodical employee compensation
for the cost of living increases (“Tosefet
Yoker”).
|
| 3.5. |
Payment
of the Salary shall be made no later then the 7th
day of each calendar month after the month for which the salary
is being
paid.
|
| 3.6. |
The
Company shall deduct the required taxes and similar payments from
the
Salary and from all other payments made to
you.
|
| 3.7. |
Your
Salary shall be annually reviewed by the
Company.
|
| 4. |
Insurance
Scheme and Benefits
|
| 4.1. |
The
Company shall insure you under an accepted "Manager's Insurance
Scheme" to
be selected by the Company, or, if you resquest so, under your
existing
"Manager's Insurance Scheme" (the "Insurance Scheme")
(provided that in both cases the agent of the Manager’s Insurance Shceme
shall be selected by the Company), as follows: (i) the Company
shall pay
an amount equal to 5% of the Salary towards the Insurance and shall
deduct
5% from the Salary and pay such amount towards the Insurance for
your
benefit; (ii) the Company shall pay an amount of up to 2.5% of
the Salary
toward disability insurance, and (iii) the Company shall pay an
amount
equal to 8 1/3% of the Salary towards a fund for severance compensation.
|
| 4.2. |
The
Company shall pay your full Salary, including Insurance Scheme,
social
benefits and fringe benefits, during the period of your military
reserve
service (national Insurance Institute payment in connection with
such
military reserve duty shall be retained by the Company), subject
to your
submitting of the necessary relevant
documentation.
|
| 4.3. |
The
Company and you shall maintain an advanced study fund (“Keren
Hishtalmut”). The Company shall contribute to such Fund an amount equal to
7.5% of the Salary, and you shall contribute to such fund an amount
equal
to 2.5% the Salary. You hereby instruct the Company to transfer
to such
fund the amount of your contribution from each monthly Salary
payment.
|
| 4.4. |
It
is clarified that the amount deducted from your payroll in connection
with
the lease and use of the automobile (if applicable) as set forth
in
section 5.4, will not be considered a part of the Salary in connection
with Insurance Scheme and all benefits specified in this
section.
|
| 5. |
Additional
Benefits
|
| 5.1. |
You
shall be entitled to be reimbursed for your necessary and actual
business
expenses in accordance with the Company’s policies, as the same shall
change from time to time.
|
| 5.2. |
You
shall be entitled to that number of vacation days per year as set
forth in
Exhibit A. In the event that the your activities on behalf of the
Company
shall preclude or limit the your ability to take all or part of
such
vacation in any year, you shall be entitled to the balance of such
vacation only in the next succeeding year or, if unable to take
the
balance in that next succeeding year, to receive an amount equal
to the
rate of salary then applicable to the vacation time not taken during
such
year.
|
| 5.3. |
You
shall be entitled to sick leave and Recreation Pay (“Dmei Havra'a”)
pursuant to applicable law.
|
| 5.4. |
At
your option, and subject to the Company’s Policy Regarding the Use of
Rented/Leased Automobiles by Employees (the “Automobile Policy”), the
Company will grant you the right to use an automobile for the period
of
your employment and cover the expenses associated therewith as
specified
in the Automobile Policy, and in such case, your Salary shall be
decreased
as set forth in Exhibit
A.
If and so long as you are furnished with an automobile as described
above,
you shall not be entitled to any Travel Expenses or to similar
costs under
any applicable law.
|
| 6. |
Stock
Options
|
| 6.1. |
As
an employee of the Company, you will be entitled to participate
in the
Stock Option Plan of IXI Mobile, Inc. (the Company’s US parent company)
(the “Plan”).
In
connection with the original execution of this Agreement, you were
granted
an option to acquire 231,001 Shares of Common Stock of IXI
Mobile, Inc. as specified in Exhibit
A
(the “Shares”), for an exercise price as specified in Exhibit
A.
The Shares shall vest from the respective vesting date as further
detailed
in Exhbit A,
provided that you are still be employed by the Company at such
times.
|
| 6.2. |
The
option and the shares to be granted thereunder will be governed
by a
detailed Stock Option Agreement which either has been executed
or will be
executed between you and IXI Mobile, Inc. All tax consequences
resulting
from the grant or exercise of the option, or the vesting or transfer
of
the Shares, shall be your sole and exclusive responsibility.
|
| 7. |
Confidential
Information, Invention Assignment, Competition and
Solicitation
|
You
hereby acknowledge and represent that you have read and understood, and that
you
will comply with, the Confidential Information, Invention Assignment,
Competition and Solicitation Undertaking attached hereto as Exhibit
B,
which
constitutes an integral part of this Agreement.
| 8. |
General
|
| 8.1. |
The
preamble and Exhibits to this Agreement constitute an integral
part
thereof. Headings are included for reference purpose only and are
not to
be used in interpreting this
Agreement.
|
| 8.2. |
Each
party represents and warrants to the other party that the execution
of
this Agreement and the fulfillment of its terms (i) will not constitute
a
breach of, or conflict with, any agreement to which such party
is a party,
or other undertaking by which it is bound, and (ii) do not require
the
consent of any person or entity.
|
| 8.3. |
All
notices in connection with this Agreement may be given orally,
in writing
or in any other form, whether at the Company’s offices or facilities, to
the addresses set forth herein, or at any other appropriate location
or
address. Without derogating from the above, all notices in connection
with
this Agreement shall be deemed to have been delivered to the other
party:
(1) after three business days from the date of mailing, if sent
by
registered mail, (2) upon actual delivery or proof of delivery
at the
address of the addressee (in case of a refusal to accept it) if
delivered
by hand, or (3) upon electronic confirmation of receipt, if delivered
by
fax or other electronic means.
|
| 8.4. |
No
failure or delay of either party in exercising any power or right
hereunder shall in any way restrict or diminish such party's rights
and
powers under this Agreement, or constitute a waiver of any breach
by
either party of any terms of conditions
hereof.
|
| 8.5. |
Any
determination of the invalidity or unenforceability of any provision
of
this Agreement shall not affect the remaining provisions hereof
unless the
business purpose of this Agreement is substantially frustrated
thereby.
Should any of the terms contained herein (including in the Exhibits)
be
held to be excessively broad, such provision shall be construed
in a
manner so as to enable its enforcement to the extent permissible
under
applicable law.
|
| 8.6. |
This
Agreement constitutes the entire understanding and agreement between
the
parties and supersedes any and all prior discussions, agreements
and
correspondence with regard to the subject matter hereof, and may
not be
amended, modified or supplemented other than by a subsequent writing
executed by both parties. The provisions of this Agreement are
in lieu of
any collective bargaining agreement, and therefore, subject to
applicable
law, no collective bargaining agreement shall apply with respect
to the
relationship between the parties.
|
| 8.7. |
The
laws of the State of Israel shall govern this Agreement and the
competent
courts of Tel Aviv shall have sole and exclusive jurisdiction in
any
matter arising out of or relating to this
Agreement.
|
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
|
IXI
Mobile (R&D) Ltd.
By:
▇▇▇▇ ▇▇▇▇▇
Title:
CFO
|
Employee
Name:
▇▇▇▇ ▇▇▇▇▇
|
IXI
Mobile, Inc. hereby undertakes to fulfill its obligations under Section 6
of
this Employment Agreement.
By:
▇▇▇▇
▇▇▇▇▇
Title:
CFO
Exhibit
A
To
Personal Employment Agreement between
IXI
Mobile (R&D) Ltd.
and
the employee whose name is set forth herein
| Name of Employee: | ▇▇▇▇ ▇▇▇▇▇ | |
| ID No. of Employee: | ▇▇▇▇▇▇▇▇▇ | |
| Address of Employee: | ▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ | |
| Date of Employment Agreement: | July 24, 2001 | |
| Date on which Employee commenced employment with the Company: | July 24, 2001 | |
| Position | VP Corporate Development and General Counsel | |
| Base Salary: | NIS 30,000 | |
| Additional Compensation: | NIS 7,000 | |
| Travel Expenses | NIS 1000 | |
| Vacation Days Per Year: | 24 |
Stock
Option:
Number
of
Shares:
|
Quantity
|
Exercise
Price
|
Vesting
Commencement
|
Vesting
Method
|
|||
|
|
|
|
|
|||
|
250
|
$2.40
|
1-Apr-02
|
25%+1/48
|
|||
|
417
|
$2.40
|
24-Jul-01
|
25%+1/48
|
|||
|
1,667
|
$2.40
|
1-Mar-03
|
Monthly
over 24 months
|
|||
|
1,667
|
$2.40
|
1-Mar-04
|
25%+1/48
|
|||
|
157,000
|
$0.05
|
1-Aug-05
|
39,250
fully vested +1/36
|
|||
|
70,000
|
$6.06
|
1-Aug-06
|
25%+1/48
|
(as
adjusted for any stock splits, reclassifications etc. in the share capital
of
IXI Mobile, Inc.)
|
IXI
Mobile (R&D) Ltd.
By:
▇▇▇▇ ▇▇▇▇▇
Title:
CFO
|
Employee
Name:
▇▇▇▇ ▇▇▇▇▇
|
Exhibit
B
To
Personal Employment Agreement between
IXI
Mobile (R&D) Ltd.
and
▇▇▇▇
▇▇▇▇▇
(“you”
or the “Employee”)
Proprietary
Information, Invention Assignment, Competition and Solicitation
Undertaking
As
a
condition of my employment with IXI Mobile (R&D) Ltd., its subsidiaries,
parent company(ies), affiliates, successors or assigns (together - the
“Company”), and in consideration for such employment and the compensation paid
to me by the Company, I hereby agree to the following:
| 1. |
Confidential
and Proprietary Information
|
| 1.1. |
I
acknowledge and agree that I may have access to confidential and
proprietary information concerning the business and financial activities
of the Company and information and technology from the Company's
product
research and development, including without limitation, the Company's
banking, investments, investors, properties, employees, marketing
plans,
customers, suppliers, trade secrets, test results, processes, data,
know-how, improvements, inventions, techniques and products (actual
or
planned). Such information, whether written, oral or in any medium
or form
(including any confidential or proprietary information received
from third
parties under the Company’s obligation to maintain the confidentiality of
such information), shall be referred to as "Proprietary
information".
|
| 1.2. |
Proprietary
Information shall NOT include information that (i) was known to
me prior
to my association with the Company and can be so proven by documentation;
(ii) shall have become a part of the public knowledge except as
a result
of my breach of this Agreement; or (iii) reflects information and
data
generally known in the industries or trades in which the Company
operates.
|
| 1.3. |
I
agree and declare that all Proprietary Information, patents, trademarks,
copyrights and other rights in connection therewith shall be the
sole
property of the Company and its assigns. At all times, both during
my
engagement by the Company and after its termination, I will keep
in
confidence and trust all Proprietary Information, and will not
use or
disclose any Proprietary Information or anything relating to it
without
the written consent of the Company except as may be necessary in
the
ordinary course of performing my duties
hereunder.
|
| 1.4. |
Upon
termination of my employment with the Company, I will promptly
deliver to
the Company all documents and materials of any nature pertaining
to my
work with the Company, and will not take with me any documents
or
materials or copies thereof containing any Proprietary
Information.
|
| 2. |
Disclosure
and Assignment of Inventions
|
| 2.1. |
From
and after the date I first became employed with the Company, I
undertake
and covenant that I will promptly disclose in confidence to the
Company
any and all inventions, improvements, designs, concepts, techniques,
methods, systems, processes, know how, computer software programs,
databases, mask works and trade secretsof any kind whatsoever,
whether or
not patentable, copyrightable or protectible as trade secrets,
that are
made or conceived or first reduced to practice or created by me,
either
alone or jointly with others, during the period of my employment
(whether
or not in the course of my employment) (“Inventions”).
|
| 2.2. |
I
further agree that all Inventions that (a) are developed using
equipment,
supplies, facilities or trade secrets of the Company, (b) result
from work
performed by me for the Company, or (c) relate to the Company's
business
or current or anticipated research and development, are and will
be the
sole and exclusive property of the Company ("Company
Inventions").
|
| 2.3. |
I
hereby irrevocably transfer and assign to the Company all worldwide
patents, patent applications, copyrights, mask works, trade secrets
and
other intellectual property rights in any Company Invention, and
any and
all moral rights that I may have in or with respect to any Company
Invention.
|
| 2.4. |
I
agree to assist the Company, at the Company's expense, in every
proper way
to obtain for the Company and enforce patents, copyrights, mask
work
rights, and other legal protections for the Company's Inventions
in any
and all countries, and will sign any documents that the Company
may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections.
|
| 3. |
Competition
and Solicitation of Employees and Customers
|
In
order
to protect the Company’s goodwill and its proprietary and other legitimate
interests, including, but not limited to, Proprietary Information, Company
Inventions, and the Company’s ability to invest the necessary time and resources
in its business, research and development, and in its present and future
employees, including myself (including such employees’ formal and informal
training and the development of their skills, knowledge and experience),
I
hereby agree and undertake as follows:
| 3.1. |
I
will not, so long as I am employed by the Company and for a period
of
eighteen (18) months following termination of my employment for
whatever
reason, directly or indirectly, engage in, become financially interested
in, be employed by, or have any connection with, any business or
venture
that competes with the Company or is engaged in activities that
involve
products or services that compete with products or services then
developed, produced, sold or marketed by the
Company.
|
| 3.2. |
For
a period of eighteen (18) months immediately following the termination
of
my employment with the Company for any reason, whether with or
without
cause, I shall not either directly or indirectly solicit, induce,
recruit
or encourage any of the Company's employees to leave their employment,
or
take away such employees, nor will I solicit the business of any
customer
or client of the Company with a similar or competing product or
service
and/or for a competing company during such period, nor will I attempt
to
do any of the above, either for myself or for any other person
or entity.
|
Date:
June ___, 2007
Signature
▇▇▇▇
▇▇▇▇▇
Name
of
Employee (type or printed)