Personal Employment Agreement Made and entered into in LOD on this 23rd day of November 2000
Made
and
entered into in LOD on this 23rd day
of
November 2000
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By
and between:
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Marconi
Communications Israel Ltd'
(hereinafter:
the " Company")
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of
the first part
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and
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Uzi
Shalev
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of
-19 Rotem St, Reut
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(hereinafter:
" Employee ")
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of
the
second part
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Whereas
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the
company engages in the field of designing, developing, marketing
and
supplying communications devices; and
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Whereas
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the
company wishes to engage Employee in the position of Vice President,
Research & Development, on the terms and conditions set forth herein;
and
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Whereas
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Employee
declares that he has the requisite qualifications, expertise and
experience in order to fulfill the position and he hereby accepts
employment by the Company to serve in the above position, on the
terms and
conditions set forth herein'
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NOW,
THEREFORE, the parties hereby declare, covenant and agree as
follows:
| 1. |
Interpretation
and Preamble
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| 1.1 |
The
preamble, and any schedule attached hereto, is incorporated into
the
body
of this Agreement and shall be an integral part of this Agreement.
In
the
event of a conflict between the Schedule and this agreement the
Schedule
shall govern.
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| 1.2 |
Captions
and headings are for convenience of reference only and shall not
be
deemed relevant to any interpretation of this
Agreement.
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| 2. |
Employee’s
Warranties and
Undertakings
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| 2.1 |
Employee
warrants that there is no legal or other impediment to his entering
into
this Agreement and that he is not a party to any agreement or undertaking
that is or shall in the future be contrary to this Agreement and
the
Employee's obligations to the
Company.
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| 2.2 |
the
parties agree that the Company shall not be liable and responsible
for
any
claims, demands, actions, cause of action, damages, losses, costs,
liability
or expenses (including legal fees) which are made or brought in
respect
of, as a result of, or arising out of any third party claim regarding
Employee’s
former employment.
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| 3. |
Employment
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| 3.1. |
Employee's
position shall be Vice President, Research & Development and
this
shall include al1the responsibilities involved in this position,
as
defined by
the Company's Chief Executive Officer ("CEO") and the Board of
Directors.
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| 4. |
Scope
of the Position
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| 4.1. |
The
Employee undertakes to fulfill his position with devotion and fidelity
and
to invest all his business time, talents, knowledge, ability, experience
and
energy to fulfilling the position and advancing the Company's
interests.
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| 4.2 |
During
the Term of the Agreement, Employee shall be available for work at
all
reasonable times, according to the Company's needs and requirements
and
shall not engage in any other employment, directly and/or indirectly
and/or
through companies with or without payment, of any nature, or in any
work
or other employment, unless he has obtained prior written consent
from
the company's CEO or the Board of
Directors.
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| 4.3 |
The
duties and responsibilities of the Employee hereunder are of an
administrative
nature and/or require a special degree of personal confidence,
within
the meaning of the Hours of Work and Rest Law, 5711-1951.
(hereinafterter:
the "Work Hours Law"). As such, the provisions of the Work Hours
Law shall not apply to this Agreement and the Employee shall not
be
entitled
to any additional remuneration on account of his work for the company,
including overtime, apart from the remuneration detailed in this
Agreement.
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| 4.4 |
Employee
shall at all times during the term of this Agreement be subject to
the
supervision and direction of the CEO and the Board of Directors,
and
shall
obey and carry out all lawful instructions, directions, rules and
policies
adopted
by the CEO and the Board of Directors, pertaining, inter alia, to
the
manner
of executing the work, work procedures, discipline, conduct,
etc.
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| 4.5 |
Employee's
usual place of work shall be at the company's offices, but it is
clear
to Employee and agreed by him that:
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| 4.5.1 |
The
Company's requirements and specific projects may require him
to leave his usual place of work from time to time and also to
work outside the borders of Israel for limited periods of
time;
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| 4.5.2. |
Employee
shall not be entitled to additional consideration or any Other
right from the Company inconsequence of his leaving his usual
place of work within the context of his
employment.
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| 4.5.3. |
Employee
shall be entitled to a reimbursement of expenses Incurred
for purpose of performing his position including expenses
incurred when on business on behalf of the Company in
lsrael and abroad, in accordance with the Company’s
instructions.
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| 5. |
The
Salary and Incentive
Arrangements
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| 5.1 |
In
consideration for Employee's work at the company, the company shall
pay
the Employee a gross ("brutto") monthly salary in the amount of 50,000
New
Israeli Shekels ("NIS") which amount includes any remuneration for
overtime
work, and from which the company shall deduct any income tax, national
insurance and medical insurance, and any other deductions customarily
payable by employees or as required by law (hereinafter the "Salary").
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| 5.2 |
The
salary shall be subject to adjustment by the company in accordance
with
the Consumer Price Index ("CPl')' The parties agree that such adjustment
constitutes sufficient compensation for an erosion of theEmployee's
salary and accordingly the Employee shall not be entitled to any
other
increment or compensation in respect of an erosion of his salary.
The
basic
CPI is the CPI which is published and known at the date of the
commencement
of this Agreement'
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| 5.3 |
The
Salary shall be paid each month, by no later than 7 days after the
end of
the
calendar month, into such account as the Employee shall inform the
Company.
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| 5.4 |
Employee
shall only be entitled to 12 salaries each
year.
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| 5.5 |
Once
a year, on 1st July, or such other date as the Company shall consider
appropriate,
the Company will review Employee's performance and salary. Any
Salary increase shall be in the sole discretion of the company, with
reference
to both the Company's performance and Employee's personal achievements.
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| 5.6 |
In
addition the Employee shall be entitled to participate in the Marconi
Annual
Executive Incentive Plan.
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| 6. |
Executive
Insurance Program
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| 6.1 |
The
Company and the Employee intend that the current executive Insurance
shall
be continued. For such purposes, the company shall make provisions
each
month of 13.33% of the Salary amount according to the following
apportionment:
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| 6.1.1. |
5%
the saving component.
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| 6.1.2. |
8.33%
for the severance pay component.
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| 6.1.3 |
In
addition the company shall make provision of the amount of up
to 2.5% of the Salary for the loss of earnings capacity component
(all together: the "Employer's
Payments")
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| 6.2. |
In
addition, the company shall deduct 5% savings component from the
Employee’s salary,
which it shall remit to the Executive Insurance Policy together
with the Employer's Payments.
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| 6.3 |
Upon
the termination of the Agreement for whatever reason, save for
termination
as provided in Section 10.4 below, the Company shall arrange that
the funds deposited by the Company pursuant to the Executive Insurance
policy shall be transferred to Employee together with any interest
or
linkage difference earned hereto. Such transfer shall be deemed payment
of
the full severance pay in respect of the period of the Employee's
employment
with the Company, pursuant to section 14of the Severance Pay Law.5723-1963.
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| 7. |
Continuing
Study Fund
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The
Company shall make provisions of the following amounts to a Continuing Study
Fund
that
is recognized for tax purposes:
7.5%
of
the Salary, up to the ceiling recognized for tax purposes shall be paid by
the
Company.
2.5%
of
the Salary, up to the ceiling recognized for tax purposes shall be deducted
by
the Company from the Salary and remitted by the Company.
| 8. |
Annual
Leave. Sickness and Military Reserve
Service
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| 8.1 |
Employee
shall be entitled to paid annual leave of 21days net (not including
Fridays,
Sabbaths and holidays) for each year of the Employee’s Employment
((“Normal Leave Days”). The Employee's leave dates shall be coordinated
with Employee’s supervisor.
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| 8.2 |
Employee
shall be entitled to redeem his leave, or part thereof, with money
from
time to time, subject to Company
approval.
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| 8.3 |
Employee
shall only be entitled to accrue Normal Leave Days over a 2 year
period.
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| 8.4 |
Employee
shall be entitled to receive consideration in respect of an actual
period
of sickness up to 14 calendar sickness days a year, and they shall
not
be
deemed as leave days as defined in Section 8'1
above.
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| 8.5 |
The
Employee shall be entitled to receive the full consideration for
the
period
during which he is on military reserve service, subject to him giving
the
company all the necessary documents to obtain the maximum possible
amount
from the National Insurance Institute in respect of the military
reserve
service period.
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| 9. |
Motor
Vehicle
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The
company shall provide Employee with a motor vehicle for his use throughout
the
year,
of
such model and year of manufacture as the company shall decide' All the
motor
vehicles maintenance shall be paid by the Company, including the grossing up
of
the
tax applicable in respect of the value of providing the motor vehicle as
aforesaid.
| 10. |
Term
and Termination of the
Agreement
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| 10.1 |
The
Company undertakes to engage the Employee for an indefinite term
commencing
from the Effective Date and until a Termination event as set out
in this Paragraph (hereinafter: the "Term of the
Agreement").
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| 10.2 |
The
parties agree that each party may bring this Agreement to an end,
with
or
without cause, on the terms and conditions contained
herein.
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| 10.3 |
In
the event that the Company elects to terminate this Agreement without
cause,
it shall give Employee advance notice in writing of a period of 6
(six)
months.
The company may, in lieu thereof, pay Employee a sum equal to the
salary for the notice period, less the amount of salary actually
paid to
Employee
for the period between the date of the notice of termination and
the
date the termination takes effect (hereinafter: the "Termination
Date").
Any
amount paid to the Employee hereunder in lieu of advance notice shall
be
in addition to moneys received, if any, under the Executive Insurance
Program
or other severance pay that maybe payable. In the event that the
Company
terminates Employee's employment, it may order him not to report
for work, with immediate effect or effective from any other date
as
shall
be decided upon during the period of the prior notice, without
derogating
from the company's obligation to pay his salary during the period
of the prior notice.
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| 10.4 |
In
the event that the Company elects to terminate this Agreement for
cause,
it
may do so immediately without advance notice. The Company may . terminate
Employee's employment for ''cause” 'upon the occurrence of one
or
more of the following:
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| 10.4.1. |
Employee
has committed any act of moral turpitude or dishonesty,
including but not limited to theft, fraud, embezzlement,
breach of trust or fiduciary duty, in connection with
the Company or any of its Affiliates, customers, suppliers and/or
service Providers;
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| 10.4.2. |
Employee
is found by the company to have been in willful neglect
of his duty hereunder or Employee commits any material breach
of this Agreement other than a breach which is capable of
remedy and is remedied forthwith by the Employee at the Company's
request;
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| 10.4.3. |
Employee
is arrested or convicted for the commission of any crime
involving an act of moral turpitude or dishonesty;
or
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| 10.4.4. |
Employee
has violated the restrictions set out in this Agreement herein
regarding confidentiality, inventions, work product, and/or
non-competition
(Sections12,13,14).
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| 10.5 |
In
the event that Employee elects to terminate this Agreement, he shall
give
advance
written notice to the Company of a period of 6 (six)
months.
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| 10.6 |
Upon
termination of this Agreement for any reason, on or before the
Termination
Date the Employee shall immediately return to the company Any
equipment, documentation materials, Confidential Information or any
other
items furnished to him by the Company, any Affiliate, customer or
supplier,
as well as all other items, documents and materials as required in
Section
12.3.2 hereunder. The Employee shall also confirm in writing that
he
does not possess or hold any equipment, documentation, materials,
confidential
Information or any other items advanced to him by the Company
or its Affiliates, customers or suppliers. In the event the Employee
fails
to do so, the company shall be entitled to withhold any monies owed
including
but not limited to Salary, distribution of the Executive Insurance
Program,
or other Severance benefit, until such time as Employee shall have
complied
with the provisions of this Subparagraph
10.6.
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| 10.7 |
In
the event that Employee owes the Company or its Affiliates money
at the
Termination
Date, due to loans or other payments which have been advanced
to him, the Company shall be entitled to offset the amount owed
from
Employee’s last salary payment prior to termination or from any
legitimate
business expense owing to Employee by the Company to which employee
is entitled.
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| 11. |
Handing
Over of Position
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Employee
undertakes that upon termination and/or cessation of his employment by the
Company, he shall hand over his position to the Company and/or to his
replacement in an orderly fashion and shall furnish the Company with all the
documents, information and any other materials which came into his possession
which were prepared by him in connection with his work.
| 12. |
Confidentiality
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| 12.1 |
Employee
acknowledges that it is the policy of the Company to maintain as
secret
and confidential all Confidential Information, as hereinafter defined.
“Confidential
Information” shall mean any information, heretofore or hereafter
(i) acquired, discovered, developed, conceived, originated, used
or
prepared
by the Company or the Company's Affiliates, or by an employee of
the
Company or its Affiliates and (ii) revealed or brought to the
Employee’s knowledge
in connection with his employment with the Company and which
falls within any of the following general
categories:
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| 12.1.1. |
Information
relating to secrets of the company, its Affiliates, or of
any customer of the Company' or its
Affiliates;
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| 12.1.2 |
Information
relating to existing or contemplated products, services technology
designs, processes, methods, manuals, formulas, computer systems
and/or software, machines, manufacture, compositions, ideas,
improvements, inventions or any research or development of the
Company,
its Affiliates, any customer of the Company or its
Affiliates.
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| 12.1.3 |
Information
relating to, or documents embodying, the Company’s or its Affiliates
current and future activity, including any business, professional,
financial
or other information, business plans ,sales, marketing or distribution
methods or results, methods of doing business, customer lists,
mailing lists, statistical data and compilations, contracts,
manuals, customer
usage and/or requirements, and supplier information of the Company,
or its Affiliates
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| 12.1.4. |
Information
relating to lnventions or Work Products, both defined hereinafter
in general or as described in Section 13 of this
Agreement;
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| 12.1.5 |
Information
relating to the terms of his employment by the Company, including
and without derogating from the generality Of
the above, information regarding salaries, payments, benefits and
the other terms of his employment by the Company' except for
such information which the Employee revealed to his personal professional
consultants and provided that those people to
whom the information was disclosed undertake to keep such information
confidential.
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| 12.1.6 |
Any
other confidential information that either the Company, any of its
Affiliates,
or any customer of the Company or its Affiliates may wish to protect
by patent, copyright or by keeping same secret or
confidential.
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| 12.2 |
Notwithstanding
the above, the term Confidential Information shall not include
information
which was or becomes generally available to the public (“Public
Domain") other than as a result of disclosure by Employee or by an
associate,
by are a relative or by anyone on behalf of Employee in breach of
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| 12.3 |
Employee
recognizes that the services to be performed by him hereunder are
special
and unique, and that by reason of his duties, he shall acquire
confidential Information.
As far as the relations between the Employee and the Company are
concerned,
Employee recognizes that all such Confidential lnformation
is the property of the Company. In consideration for the Company's
entering into this Agreement' Employee agrees
that:
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| 12.3.1 |
Employee
shall never, during the Term of the Agreement or at Any
time thereafter, directly or indirectly, use, publish, disseminate,
divulge or otherwise disclose any Confidential Information
obtained in connection with his employment by the Company
without the prior written consent of the Company, it being
understood that this Section shall survive the termination of
this Agreement;
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| 12.3.2 |
During
the Term of the Agreement, Employee shall exercise all due
and diligent precautions to protect the integrity and security
of
Confidential Information, and upon termination of the Agreement,
he shall return to the Company all documents and any
copies thereof embodying Confidential Information in his possession
custody or under his control.
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| 12.3.3 |
For
the purpose of this Agreement an Affiliate of the Company shall
mean - subsidiaries or affiliates of Marconi p.l.c. or any legal
entity which is controlled by Marconi
p.l.c.
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| 13. |
Inventions
and Work Product
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| 13.1 |
Employee
will promptly and fully disclose and deliver to the Company for
the
exclusive use and benefit of the Company any Inventions, Work Product
or
other proprietary information, which relates to or is capable of
being
used in
any business of the Company or its Affiliates, promptly upon the
making
or
discovering of the same. Employee undertakes he will give all information
and data in his possession as to the exact mode of working, producing
and using the same along with all such explanations and instructions
to the Company as may, in the view of the Company, be necessary
to enable the full and effectual working, production or use of the
same.
Employee further undertakes that, at the expense of the Company,
he
shall
furnish the Company with all necessary plans, drawings, formulae,
and
models
of any inventions, Work Product or proprietary
information.
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| 13.2 |
Employee
will, without charge to, but at the expense of the Company, execute
and do all acts, matters, documents and things necessary to enable
the
Company or its nominee, successor or assign to apply for and obtain
protection
for the Inventions in any or all countries and to vest title thereto
in
the Company or its nominee, successor or assign
absolutely.
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| 13.3 |
During
the Term of the Agreement and at all times thereafter Employee will
(whether
by omission or commission) do nothing to affect, imperil or challenge
the validity of the protection for the lnventions, Work product
and/or
proprietary information, obtained or applied for by Company or its
nominee,
Successor or assign pursuant to this Agreement. Furthermore, Employee
covenants to perform his work with all necessary security precaution
to protect the Inventions, Work Product and proprietary information.
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| 13.4 |
Employee
will, at the direction and expense of the Company, render any and
all
assistance within his power to obtain and maintain such protection
or
application
or any extension thereof, including in any patent office proceedings
or litigation involving Inventions, Work product and/or proprietary
information in Israel or anywhere in the
world.
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| 13.5 |
Nothing
in this Agreement shall oblige the Company to seek patent, copyright,
trademark or other protection for any Inventions, Work product
and/or
proprietary information nor to exploit any Inventions, Work product
and/or
proprietary information.
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| 13.6 |
For
purposes of this Agreement, the term "Inventions" shall mean all
inventions,
improvements, modifications, processes, formulae, know-how, ideas,
designs, models, prototypes, computer programs, sketches, drawings,
plans,
packaging designs, new product ideas, logos, advertising and marketing
concepts or other original matters (whether or not capable of protection
by patent, registered design, copyright, registered trade ▇▇▇▇ or
other
rights in the nature of intellectual property) which Employee alone
or
with
any person or persons, may make, conceive, or discover, during the
term
of his employment hereunder.
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| 13.7 |
Any
work product (herein '”Work Product") of the Employee resulting
from
any research or other development or other activities performed in
connection
with his duties hereunder, together with any and all developments
and know-how made by the Employee or under the Employee's
direction shall be the sole, exclusive and complete property of
the
Company, whether or not subject to registration under any patent,
copyright
or other intellectual property law or regime, and if so registrable,
then
the Company shall have the sole and exclusive right to own and
register
any such patent, copyright, trademark or other intellectual property
right
throughout the world.
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| 13.8 |
Employee
covenants that there are no Inventions and/or Work Products that
he
desires to exclude from the operation or effectiveness of this
Agreement.
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| 13.9 |
Employee
covenants that all Work Product, documentation, and other materials
which relates to his work in the Company or to the Invention shall
always
remain in the place of employment, and shall never be taken out of
the
place of employment, without the prior consent of the
Company.
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| 14. |
Non-Competition
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| 14.1 |
For
the purposes of this Agreement, the Non-Competition Period shall
mean
the
period commencing on the Effective Date and ending one year after
the
Termination
Date.
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| 14.2 |
During
the Non-Competition Period, Employee shall not in any way, except
with
the express written consent of the Company, be engaged, directly
or
indirectly,
as an employee, partner, sole proprietor, officer, director, representative,
consultant, agent or stockholder (other than as the holder of not
more than five percent of the stock of a corporation the shares of
which
are
publicly traded) of any corporation, partnership, proprietorship
or other
form
of business entity, except an Affiliate of the Company, engaged in
any
business
that is competitive with any business in which the company is engaged
and/or compete with any activity and/or in any field of any Affiliate
with respect to which employee has been exposed to Confidential
Information
and/or in any business in which the Company has a plan to become
engaged at the Termination date as well as in any other position
involving
the use of the Company’s professional commercial trade-secrets,
during
the term of Employee's employment hereunder. Without limiting the
foregoing,
during the Non-Competition Period the Employee shall
not:
|
| 14.2.1. |
seek
to persuade, directly or indirectly, any director, officer or employee
of the Company or its Affiliates to discontinue thatindividual's
status or employment with the Company or its
Affiliates.
|
| 14.2.2 |
seek
to persuade, directly or indirectly any director, officer or Employee
of the Company or its Affiliates to become employed in
any activity similar to or competitive with the activities of the
Company
or its Affiliates.
|
| 14.2.3 |
directly
or indirectly, hire or retain any director, officer or Employee
of the Company or its Affiliates.
|
| 14.2.4 |
directly
or indirectly contact the company's or its Affiliates, customers,
including not becoming an employee or consultant of any
customer of the Company or its Affiliates. This restriction shall
apply in areas which relate to any business that is competitive
with any business in which the company is or was during
the Term of the Agreement engaged and/or in any business
in which the company has a plan to become engaged at the
Termination date.
|
| 14.3. |
The
Employee acknowledges that the length of the Non Competition period
was
agreed due to (a) the company's engagement in the field of research
&
development
where its primary assets are intellectual property, and (b) the
special
benefits which Employee is going to and will receive from the Company
in consideration for his non competition undertaking
herein.
|
| 15. |
Disclosure
of Personal Interest and Conflict of
Interest
|
Employee
undertakes to inform the Company immediately and without delay concerning
any matter or issue in respect of which he has a personal interest or any
matter
or
issue which may create a conflict of interests with his position in the
Company.
| 16. |
Remedies
for The Employee’s Breach of Sections 12, 13, 14, 15 of this
Agreement
|
Employee
acknowledges that any breach or threatened breach or alleged breach or
alleged
threatened breach by him of any of the provisions of Sections 12 through
15
of
this Agreement, (hereinafter individually or together known as a "Breach")
shall
be
deemed a serious breach of discipline causing irreparable harm to the
Company
for which the Company would have no adequate remedy under this Agreement.
In the event of a Breach by Employee of any of such provisions, the Company,
in addition to any and all other rights and remedies it may have under
this
Agreement or otherwise, may immediately seek any judicial action that the
Company
may deem necessary including, without limitation, the obtaining of temporary
and permanent injunctive relief. Without limiting the generality of the
foregoing,
a Breach of any of the provisions of Sections 12 through 15 by Employee
shall entitle the Company to immediately dismiss Employee and terminate
this Agreement, while negating Employee's right to prior notice of dismissal
and Severance pay under the law.
| 17. |
Change
or Cancellation
|
Any
change and/or cancellation of any of the clauses of this Agreement shall only
be
made
by
means of a written document signed by both parties.
| 18. |
Notices
|
The
addresses of the parties to this Agreement are as stated in the preamble
thereto. Any
notice sent by one party by registered mail to the other party to his address,
shall be deemed
to
have been received by the addressee three days after it was deposited at the
post
office and if delivered by hand delivery, upon delivery.
IN
WITNESS WHEREOF, the parties have set their hands on the date and at the place
above-mentioned.
|
The
Company
|
The
Employee
|