Exhibit 99.1(e)
APPENDIX E
THIS
SEPARATION AGREEMENT (this “Agreement”) is entered into on this
3rd day of September, 2009, by and between Retalix Ltd. (the
“Company”) and B.G.A.G.S. Shaked Ltd. (together with ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
the individual serving on behalf thereof, the “CEO”).
WITNESSETH:
WHEREAS,
CEO has served as the Chief Executive Officer of the Company since April 1, 1982, and
effective as of July 1, 2002 has provided such services under the terms of that certain
Management Services Agreement dated September 4, 2002 (as amended on October 7, 2008, the
“Services Agreement”); and
WHEREAS,
concurrently with the execution of this Agreement, (i) the Company and investors set forth
therein (collectively, “Alpha”) are entering into that certain Share
Purchase Agreement, providing for the purchase by Alpha of Ordinary Shares of the Company
as well as the grant of certain warrants to purchase Ordinary Shares from the Company (the
“PIPE Agreement”), (ii) each of Mr. ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
(“Shaked”) is entering into a Share Purchase and Sale Agreement providing
for the sale of all outstanding Ordinary Shares of the Company held by each of them
(respectively, the “▇▇▇▇▇▇ SPA” and the “Shaked SPA”);
and (iii) Alpha and Ronex Holdings L.P. are entering into that certain Shareholders
Agreement (this Agreement, and all agreements indicated above, the “Series
Agreements”); and
WHEREAS,
in connection with the Series Agreements, the Company and CEO wish to agree on the terms
and conditions upon which the parties shall separate, all as set forth in this Agreement.
NOW,
THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
| |
1.1. |
The
term of the provision of the Services (as defined in the Services Agreement)
under the Services Agreement shall terminate on the later to occur of: (i)
December 31, 2009, or (ii) the Closing of the PIPE Agreement (as defined
therein) (the “Termination Date”), which date will be
deemed the end of the three-month notice period under the Services
Agreement. Without derogating from Section 1.2 below, the Company may
request, at its sole discretion, that CEO shall continue to provide the
Services to the Company following the Closing of the PIPE Agreement under
the terms of the Services Agreement, and to the extent CEO agrees to such
request, the Termination Date shall be postponed accordingly. |
| |
1.2. |
In
accordance with the Services Agreement, and at the Company’s request,
following the Termination Date and during the respective periods set forth
in the Services Agreement, CEO shall cooperate with the Company in
connection with integrating into the Company the new chief executive
officer and shall be available to render reasonable advice to the Company
in connection with the transfer of matters connected with the services
provided to the Company. To enable the CEO to fulfill such duties, the
Company shall inform the CEO in writing of his replacement or the identity
of the individual(s) assuming the responsibilities of the Company’s
chief executive officer. |
| |
1.3. |
Effective
as of the Termination Date, the CEO and Shaked hereby resign as a
director, officer or agent of the Company and any subsidiary of the
Company. |
| 2. |
Entitlements
upon Termination. |
| |
Subject
to the terms and conditions of this Agreement, CEO shall be entitled to receive the
following payments and benefits: |
| |
2.1. |
Services
Fees. Until the Termination Date, CEO shall be entitled to receive
from the Company the Consideration and all other benefits as set forth in
the Services Agreement. |
| |
2.2. |
Other
Benefits. In accordance with the Services Agreement, CEO shall be
entitled to receive (i) a special bonus in the gross amount of US$132,930,
to be paid by the Company on the Termination Date, (ii) the Consideration
and all other benefits during a six-month transition period, subject to
the terms of Section 3.2 of the Services Agreement, (iii) an annual bonus
for the year 2009, which bonus shall be calculated in accordance with the
formula set forth in the Services Agreement and paid by the Company, to
the extent not previously paid, promptly following the approval by the
Company’s Board of Directors of the Company’s consolidated
financial statements for the year 2009, and (iv) an annual bonus for the
pro rata portion for the year 2010 in accordance with the terms of the
Services Agreement, which bonus shall be calculated in accordance with the
formula set forth in the Services Agreement and paid by the Company
promptly following the approval by the Company’s Board of Directors
of the Company’s consolidated financial statements for the fiscal
quarter in which the Termination Date occurs. Notwithstanding the
foregoing, for the purpose of calculating the annual bonus pursuant to the
Services Agreement, “net income” of the Company shall exclude
any special one-time charges. In the event of any dispute relating to the
interpretation of such exclusion that cannot be resolved between the
parties, Mr. Ischak ▇▇▇▇▇ shall serve as the sole arbitrator, whose
determination shall be final and binding on the parties. |
| |
2.3. |
Termination
Bonus; Release of Funds. |
| |
2.3.1. |
In
recognition of the long term of his service, CEO shall be entitled to receive
on the Termination Date a special departure bonus in the gross amount
$200,000. |
| |
2.3.2. |
On
the Termination Date, the Company shall release the moneys accumulated in the
severance fund maintained by the Company on Shaked’s behalf. As of
August 31, 2009, the amount in such funds was NIS 476,557. |
| |
2.3.3. |
On
the Termination Date, the Company shall provide Shaked with an irrevocable
notice of release to funds for all the amounts accrued in Shaked’s
Education Fund and Manager’s Insurance Policy (including amounts
accumulated in the severance fund). |
E - 2
| |
2.4.1. |
Subject
to Section 2.4.2, the currently outstanding options to purchase 794,137
Ordinary Shares of the Company granted to CEO, and any additional options
that may be granted to the CEO prior to the Termination Date (the
“Options”), shall fully vest and become exercisable upon
and subject to the Closing of the PIPE Agreement. Notwithstanding the
termination of the Services Agreement and anything to the contrary in the
applicable option plan of the Company or any option agreement(s) executed
by the Company and CEO, such Options shall continue to be exercisable by
CEO for the original term thereof until their respective expiration dates,
in accordance with the following schedule: |
Original
Grant Date
|
Total Number of
Options
|
Exercise Price
|
Expiration Date
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 1/1/06 |
|
|
| 194,090 |
|
$ | 24.46 |
|
| 31/12/2009 |
|
| 1/1/07 | | |
| 196,135 |
|
$ | 16.29 |
|
| 31/12/2010 |
|
| 1/1/08 | | |
| 200,014 |
|
$ | 15.58 |
|
| 31/12/2011 |
|
| 1/1/09 | | |
| 203,898 |
|
$ | 6.00 |
|
| 31/12/2012 |
|
| TOTAL | | |
| 794,137 |
|
| |
|
| |
|
| |
2.4.2. |
CEO
hereby irrevocably appoints the Chairman of the Company’s Board of
Directors, or any other designee of the Company, as its/his sole and
exclusive attorney and proxy, with full power of substitution and
resubstitution, to vote and exercise all voting rights with respect to the
number of outstanding Ordinary Shares held by CEO, together with any
affiliate controlled by CEO and any group of persons to which CEO or any
such affiliate is a party, exceeding 2.0% of the outstanding Ordinary
Shares of the Company from time to time (the “Excess Shares”),
in the proxy’s sole and absolute discretion, on every annual,
general, special, class or adjourned meeting of the shareholders of the
Company (and any adjournment or postponement thereof) and in every written
consent in lieu of such meeting. The proxy hereunder with respect to the
Excess Shares shall automatically expire on the fourth (4th) anniversary
of the Closing. For the purpose of enforcing this provision, following the
delivery by the Company of notice of any general meeting of the
shareholders in which CEO, any affiliate controlled by CEO or any group of
persons to which CEO or any such affiliate is a party wishes to
participate and vote, CEO shall promptly notify the Company in writing the
number of Ordinary Shares then held by CEO, together with any affiliate
controlled by CEO and any group of persons to which CEO or any such
affiliate is a party, and the proxy granted in this Section shall apply
only to any Excess Shares (if any). CEO shall not vote, and shall cause
any affiliate controlled by him and any group of persons to which CEO or
any such affiliate is a party not to vote, any Ordinary Shares held by
them unless CEO has complied with the preceding sentence. During such
four-year period, all Ordinary Shares of the Company issued pursuant to
exercise of the Options shall be maintained in certificated form until
such time as they are sold to one or more unaffiliated third parties. For
the avoidance of doubt, the provisions of this Section 2.4 shall not cover
additional shares than are covered by the provisions of 7.4.3 of the
Shaked SPA. |
E - 3
| |
2.5. |
Full
Payment. CEO acknowledges, accepts and confirms that all payments set
forth in this Agreement constitute the full, complete and unconditional
payment, settlement, accord and satisfaction of any and all obligations of
the Company arising out of CEO’s engagement with the Company and the
termination thereof, including with respect of any obligations arising out
of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇’▇ employment with the Company and the termination
thereof, or that otherwise might be owed to CEO by the Company, including,
any and all claims for wages, salary, accrued but unused vacation pay,
commissions, incentives, bonus pay, severance pay, notice period and
notice period substitution, termination payments, deferred compensation
payments, expenses, attorney’s fees, compensatory damages, exemplary
damages, contractual obligations and all other payments, compensation,
benefits, and reimbursement of any kind, whether by contract or under any
law of any jurisdiction. The foregoing shall not include rights under or
related to directors and officers insurance policy of the Company or
indemnification obligations under the CEO’s Indemnification Agreement
with the Company or the Company’s Articles of Association. |
| |
2.6. |
Taxes.
Except for the severance payment payable to Shaked pursuant to Sections
2.3.2 and, to the extent applicable, any payments pursuant to Section
2.3.3 and the payment pursuant to Section 4.3, VAT shall be added to all
payments and benefits owing to the CEO as set forth herein and such
payments shall be provided subject to receipt by the Company of an invoice
from the CEO. All payments and benefits referred to in this Agreement are
gross amounts and the Company will be entitled to deduct from such
payments and benefits all applicable taxes, social security and health
insurance which are mandatory under any applicable law, except to the
extent that CEO or Shaked provides the Company with a valid certificate
from the Israeli Tax Authorities providing full exemption from withholding
tax (or a lower rate of withholding) or a tax determination from the
Israeli Tax Authorities indicating otherwise. Notwithstanding the
foregoing, the Company may withhold tax from any payments made directly to
Shaked at the maximal marginal tax rate (currently, 46%), except to the
extent that Shaked provides the Company with a valid certificate from the
Israeli Tax Authorities providing full exemption from withholding tax (or
a lower rate of withholding) or a tax determination from the Israeli Tax
Authorities indicating otherwise. In the event that such a tax
determination has been requested by or on behalf of Shaked or the CEO, but
not yet received, prior to the Termination Date, the Company shall hold
the withholding tax in trust until the latest date permitted under
applicable law. |
| 3. |
General
Waiver and Release. |
| |
3.1. |
In
consideration for the promises set forth herein and upon, the CEO, on behalf
of himself, his affiliates, heirs, executors, administrators and assigns
(“CEO Group”), hereby irrevocably and unconditionally
releases and forever discharges the Company, its affiliates, and their
respective officers, directors, shareholders, employees, agents,
successors and assigns (collectively, the “Company Group”),
from any and all suits, claims, rights, obligations, damages, liabilities,
attorneys’ fees, expenses, actions, causes of action, and any and all
claims of law or in equity, of any nature whatsoever (collectively and
subject to Section 3.3, “Claims”), which CEO Group may
ever had, now have or may claim to have against the Company Group or any
part thereof (whether directly or indirectly) related to or arising out of
CEO’s engagement with the Company or the termination thereof, other
than for executory provisions of this Agreement, provided, however, that
if the Company shall be in breach of this Agreement in any material
respect, the CEO shall be entitled to rescind the foregoing release. |
E - 4
| |
3.2. |
In
consideration for the promises set forth herein, the Company, on behalf of
itself and each member of the Company Group, hereby irrevocably and
unconditionally releases and forever discharges the CEO Group from any and
all Claims, which Company Group may ever had, now have or may claim to
have against the CEO Group or any part thereof (whether directly or
indirectly) related to or arising out of CEO’s engagement with the
Company or the termination thereof, other than for executory provisions of
this Agreement, provided, however, that if the CEO or Shaked shall be in
breach of this Agreement in any material respect, the Company shall be
entitled to rescind the foregoing release. |
| |
3.3. |
“Claims” shall
not include suits, claims, rights, obligations, damages, liabilities,
attorneys’ fees, expenses, actions, causes of action, and any and all
claims of law or in equity, of any nature whatsoever under this Agreement
or any other Series Agreement to which CEO or Shaked is party related to
directors and officers insurance policy of the Company or rights under the
CEO’s Indemnification Agreement or the Company’s Articles of
Association. |
| 4. |
Restrictive
Provisions. |
| |
4.1. |
Confidentiality;
Assignment of Intellectual Property. CEO hereby acknowledges that the
confidentiality, assignment of intellectual property undertakings
contained in his Services Agreement shall survive the termination of the
Services Agreement for the period specified therein and that he will
fulfill at all times his obligations thereunder. For the avoidance of
doubt, nothing herein shall derogate from any obligations of the CEO under
this Agreement or any of the Series Agreements. |
| |
4.2. |
Non-Defamation.
Each party hereto hereby undertakes not to cause any harm to the other
party’s reputation in the market and not to make, whether directly or
indirectly (including through any of its affiliates, officers, employees
or directors), any negative or disparaging remarks about such party or any
of its affiliates, officers, employees, directors (in each case, in their
capacities as such), products, services or business practices. |
| |
4.3. |
Non-Competition;
Non-Solicitation. In order to induce the Company to enter into this
Agreement, until the earlier of: (i) termination of this Agreement or (ii)
expiration of four (4) years from the Closing (the “Non Compete
Period”), Shaked shall not, and shall cause affiliates controlled
by him not to, directly or indirectly: |
E - 5
| |
4.3.1 |
engage,
promote, establish, market, become or be financially interested in, consult with or for,
or associate in a business relationship with, or in any manner become involved, in any
other person, business (or any component thereof), occupation, work, operation or any
other activity, anywhere in the world, which engages or intends to engage in the
developing, producing, offering, distributing, licensing, selling or supporting of
products or services similar to, or that competes with the business (or any component
thereof), products and services of the Company and any of its affiliates, as currently
conducted and as currently proposed by the Company to be conducted by the Company (a
“Competing Business”); |
| |
4.3.2 |
solicit
the services, hire or retain any person employed or engaged by the Company and/or any of
its affiliates as employees or contractors during the Non-Compete Period, or otherwise
encourage or induce any such employee or contractor to terminate their engagement with
the Company and/or any of its affiliates by their resignation, retirement or otherwise or
to become an employee, contractor, consultant or service provider of any person other
than the Company and/or its affiliates. The foregoing shall not apply to approaches
initiated by persons employed or engaged by the Company and/or any of its affiliates,
including as a response to general solicitation of employment, at any time after the
lapse of 18 months from the Closing or if CEO was not aware that such persons were
employed or engaged by the Company and had no active involvement in their hiring; |
| |
4.3.3 |
solicit
or otherwise encourage or call on any actual or potential customer, supplier,
distributor, vendor, service provider or agent of the Company and/or any of its
affiliates prior to the Closing for any Competing Business or influence, induce or
attempt to influence or induce any customer, supplier, distributor, vendor, service
provider or agent to terminate, reduce or adversely modify any written or oral agreement,
relationship, or course of dealing with the Company and/or any of its affiliates; and |
| |
4.3.4 |
without
limiting the generality of the foregoing, register or challenge any intellectual property
rights owned, used or otherwise licensed by the Company and/or any of its subsidiaries. |
| |
Inconsideration
for the obligations and undertakings under this Section 4.3, the Company shall pay Shaked
on the Termination Date $400,000. Shaked acknowledges that in light of the length of time
that the CEO and ▇▇. ▇▇▇▇▇▇ served as the chief executive officer of the Company, the
foregoing payment and the critical significance of the covenants under this Section 4.3
to the Company’s business, the covenants under this Section 4.3 are reasonable and
fair under the circumstances. |
| 5. |
Company
Property. On or after the Termination Date, to extent
requested by the Company from time to time, CEO shall return to the
Company all property equipment, records, correspondence, documents, files,
keys, computer disks, computer programs, data, and any other information,
including trade secrets and confidential proprietary information (whether
originals, copies or extracts), belonging to the Company, whether
maintained by CEO in the facilities of the Company, at CEO’s home, or
at any other location, and CEO will not retain any copies or reproductions
of any property of the Company that the Company has requested to return.
CEO acknowledges that to the extent that the Company allows CEO to retain
any confidential or proprietary information belonging to the Company in CEO’s
possession, it is solely for the purpose of enabling CEO to assist the
Company in its business and that CEO shall protect the confidentiality of
such information and not use any such information for any other purpose or
publish or transfer any such information to any unauthorized person. For
the avoidance of doubt, CEO shall be entitled to keep Company property
pursuant to the Company’s policy applicable to senior employees who
resign after five or more years of employment with the Company and to keep
and, if applicable, remove from the premises of the Company personal
property of CEO or Shaked, including without limitation such Company
equipment listed in Appendix A attached hereto. |
E - 6
| 6. |
Term.
This Agreement shall become effective as of the date hereof, subject to
its approval by the Company’s shareholders and the Closing under the
PIPE Agreement and the Shaked SPA (except if, pursuant to the terms of the
Shaked SPA, Closing under the PIPE Agreement may be effected without
effecting the Closing under the Shaked SPA). If thePIPE Agreement
or the Shaked SPA shall be terminated prior to the Closing thereof, this
Agreement shall be immediately terminated as well (except if, pursuant to
the terms of the Shaked SPA, the Shaked SPA may be terminated without
terminating the PIPE Agreement). |
| 7. |
Public
Disclosure. No party shall issue any statement or
communication to any third party (other than their respective agents,
partners, affiliates and representatives that are bound by confidentiality
restrictions) regarding this Agreement, its existence and content, or the
transactions contemplated hereby, including, if applicable, the
termination of this Agreement and the reasons therefor, without the
consent of the other parties hereto, except as required to comply with
applicable legal requirements and the rules of any stock exchange and
except as required in connection with the Series Agreements and the
transactions contemplated thereby and the enforcement of the provisions of
this Agreement or any of the Series Agreements. The Company will cooperate
and coordinate with the CEO the manner and method of disclosure of this
Agreement and CEO’s separation from the Company. |
| 8. |
Information.
The Company has provided the CEO with copies of the execution versions of
each of the Series Agreements and any agreement, document and instrument
provided for or contemplated therein and of the notice of shareholders
meeting of the Company with respect to the approval of the Series
Agreements in the form expected to be sent to the shareholders of the
Company. Prior to the Termination Date, the Company shall provide the CEO
with a copy of any amendment, waiver, modification or supplements to the
Series Agreements promptly following their execution and a draft of the
proxy statement to be sent to the shareholders of the Company in respect
of this Agreement and the Series Agreements and any proposed revisions to
the proxy statement or additional solicitation materials intended to be
published or distributed to the shareholders of the Company and shall
procure that the CEO and its counsel are given a reasonable opportunity to
review and comment on any such draft and proposed revisions, additional
solicitation materials and any material related to the shareholders
meeting of the Company called to approve this Agreement and the Series
Agreement (and any adjustment or postponement thereof), in each case
before either such document (or any amendment thereto) is filed with the
SEC or published, and reasonable and good faith consideration shall be
given to any comments made by the CEO and its counsel. |
| 9. |
Indemnification;
Directors’ and Officers’ Insurance. The Company
acknowledges that ▇▇. ▇▇▇▇▇▇ shall be a third-party beneficiary of the
provisions of Section 5.16 of the PIPE Agreement. |
E - 7
| |
10.1. |
Independent
Advice. In executing this Agreement, CEO hereby acknowledges and
represents to the Company that he has consulted with and received the advice
and counsel of attorneys, and that he has executed this Agreement of his
own free will and after being independently made fully aware of all his
rights. |
| |
10.2. |
Expenses.
Each party hereto shall bear its own fees and expenses incurred in
connection with the negotiation, execution, delivery and performance of this
Agreement. |
| |
10.3. |
Entire
Agreement. This Agreement and the exhibits and schedules attached
hereto, constitute the full and entire understanding and agreement between
the parties with respect to the subject matters hereof and thereof, and
supersedes any prior understandings, agreements, or representations by or
among the parties, written or oral, to the extent they relate in any way
to the subject matter hereof, except for such provisions in theServices
Agreement which survive the termination thereof. |
| |
10.4. |
Amendment;
Waiver. Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with
the written consent of the Company and the CEO. Any amendment or waiver
effected in accordance with this Section shall be binding upon all parties
of this Agreement and their respective successors and assignees. |
| |
10.5. |
Assignment.
Neither this Agreement, nor any rights, interests or obligations under
this Agreement may be assigned or transferred, in whole or in part, by
operation of law or otherwise by any party hereto, without the prior
consent in writing of each the other parties hereto, and any such
assignment without such prior written consent shall be null and void.
Subject to the foregoing, this Agreement shall inure to the benefit of,
and be binding upon, and be enforceable by, the parties hereto and their
respective successors, assigns, heirs, executors, and administrators. |
| |
10.6. |
Notices.
All notices and other communications hereunder shall be in writing and
shall be shall be emailed, faxed or mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ |
|
| |
▇▇▇▇▇▇▇▇▇ ▇▇, |
|
| |
▇▇▇▇▇▇▇ |
|
| |
▇▇▇▇▇▇ |
|
| |
Facsimile No.: |
(972)-(9)-9585682 |
| |
with
a mandatory copy to (which shall not constitute notice): |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
▇▇▇▇▇▇, Fox & ▇▇▇▇▇▇ |
| |
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ |
| |
Attention: |
Alon Sahar, Advocate |
| |
Telephone No.: |
(972)-(3)-692-2861 |
| |
Facsimile No.: |
(972)-(3)-696-6464 |
| |
Email: |
▇▇▇▇▇@▇▇▇.▇▇.▇▇ |
E - 8
| |
10.6.2. |
if
to Company, to: |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
Retalix Ltd. |
| |
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇'▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
| |
Attention: |
Chief Financial Officer |
| |
Telephone No.: |
(972)-(9)-7766677 |
| |
Facsimile No.: |
(972)-(9)- 744-4756 |
| |
Email: |
▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
| |
with
a mandatory copy to (which shall not constitute notice): |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
Goldfarb, Levy, Eran, Meiri, Tzafrir & Co., Law Offices |
| |
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
| |
Attention: |
▇▇▇▇ ▇. ▇▇▇▇▇, Advocate |
| |
Telephone No.: |
(972)-(3)- 608-9839 |
| |
Facsimile No.: |
(972)-(3)- 608-9855 |
| |
Email: |
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ |
| |
Any
notice sent in accordance with this Section 10.6 shall be effective (i) if mailed within
Israel, three (3) business days after mailing, (ii) if by airmail two (2) business days
after delivery to the courier service, (iii) if sent by messenger, upon delivery, and
(iii) if sent via email or facsimile, upon transmission and electronic confirmation of
receipt (or recipient’s electronic “read receipt” in case of email) or (if
transmitted and received on a non-business day) on the first business day following
transmission and electronic confirmation of receipt (or recipient’s electronic “read
receipt” in case of email (provided, however, that any notice of change of address
shall only be valid upon receipt). |
| |
10.7. |
Governing
Law; Jurisdiction. This Agreement shall be governed by and construed
in accordance with the laws of the State of Israel, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any competent court located in
Tel-Aviv-Jaffa, Israel in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that
process may be served upon them in any manner authorized by the laws of
the State of Israel for such persons and waives and covenants not to
assert or plead any objection which they might otherwise have to such
jurisdiction and such processes. |
| |
10.8. |
Interpretation.
The words “include,” “includes” and “including” when
used herein shall be deemed in each case to be followed by the words “without
limitation”. The words “herein,” “hereof,” “hereto” and
“hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The word “affiliate(s)” (and
words of similar import) shall mean as set forth in Rule 405 promulgated
under the Securities Act of 1933, as amended, and with respect to any
natural person, also, (i) grandparents, parents, siblings, lineal
descendant of such person or their spouse (including step and adopted
children), and any spouse of such person or any of the foregoing, (ii) any
trust established for the benefit of such natural person or any affiliate
of such natural person, or (iii) any executor or administrator of the
estate of such natural person. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. |
E - 9
| |
10.9. |
Severability.
CEO hereby agrees that the restrictions set forth in this Agreement,
including the surviving provisions of the Services Agreement, including
the time period of restriction and the geographical areas of restriction
are fair and reasonably required for the protection of the interests of
the Company. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of
such provision will be enforced to the maximum extent possible given the
intent of the parties hereto. If such provision cannot be so enforced,
such provision shall be stricken from this Agreement only with respect to
such jurisdiction in which such clause or provision cannot be enforced,
and the remainder of this Agreement shall be enforced as if such invalid,
illegal or unenforceable provision had (to the extent not enforceable)
never been contained in this Agreement. In addition, if any particular
provision contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject,
it shall be construed by limiting and reducing the scope of such provision
so that the provision is enforceable to the fullest extent compatible with
applicable law. |
| |
10.10. |
Remedies.
Each party acknowledges that any breach of the provisions contained in
this Agreement, including the surviving provisions of the Services
Agreement, are likely to result in irreparable injury to the other party,
which cannot be made whole by monetary damages or a remedy at law alone.
Accordingly, each party, in addition to any other remedy to which it may
be entitled by law or in equity, shall be entitled to seek both a
temporary and permanent injunction (to the extent permitted by law or
equity) restraining the other party from threatening to, committing or
continuing any such violation of this Agreement or to prevent breaches of
this Agreement, and to an order compelling specific performance of this
Agreement without the necessity of proving actual damages. Each party
agrees to reimburse the other for all costs and expenses, including
without limitation, reasonable attorneys’ fees or legal costs on a
full indemnity basis, incurred by such party in enforcing this Agreement. Any
and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or
by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. For the
avoidance of doubt, any remedy available to Shaked under the Shaked SPA
shall not preclude or derogate from the remedies available to the CEO for
breaches of this Agreement. |
| |
10.11. |
Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and enforceable against the parties actually
executing such counterpart, and all of which together shall be considered
one and the same agreement, it being understood that all parties need not
sign the same counterpart. The exchange of an executed Agreement (in
counterparts or otherwise) by facsimile transmission or by electronic
delivery in .pdf format or the like shall be sufficient to bind the
parties to the terms and conditions of this Agreement, as an original. |
– Signature Page Follows –
E - 10
IN
WITNESS WHEREOF, the parties hereto have duly executed this Separation Agreement on
the first date written above.
.
|
|
RETALIX LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
——————————————
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director |
.
|
|
B.G.A.G.S. SHAKED LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
——————————————
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO |
I hereby confirm that I have read
this Agreement, understood its terms and agree to be personally bound by all its terms and
provisions.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
——————————————
▇▇▇▇▇ ▇▇▇▇▇▇ |
|
|
E - 11