EXHIBIT 10.22
AGREEMENT WITH AN INDEPENDENT CONTRACTOR
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MADE AND EXECUTED IN TEL AVIV ON THE 1ST OF FEBRUARY 2003
BETWEEN: ITURAN LOCATION AND CONTROL, LTD.
Of: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Azor
(hereinafter: "THE COMPANY")
PARTY OF THE FIRST PART;
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AND MR. IZZY SHERATZKY
ID No. ▇▇▇▇▇▇▇▇▇
Of: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
(hereinafter: "IZZY")
PARTY OF THE SECOND PART;
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AND A. SHERATZKY HOLDINGS LTD.
Private Company No. ▇▇-▇▇▇▇▇▇▇
Of: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
(hereinafter: "THE EMPLOYER")
PARTY OF THE THIRD PART;
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WHEREAS: Until January 30, 2003, Izzy was employed as an independent
worker in the position of its CEO, and beginning on that date,
subsequent to a legal arrangement and the decision of the
auditing committee, the Board of Directors and the Company's
General Meeting, Izzy shall serve as the acting Chairman of the
Board of Directors on a full-time basis, instead of his
position as Company CEO, and he shall have the status of an
independent contractor providing his services to the Company
through the Employer;
AND WHEREAS: Izzy is an employee of the Employer;
AND WHEREAS: The Company and the Employer wish to establish the terms of the
contractual agreement between them, while taking into
consideration the fact that
Izzy was the party who requested that the relationship be
founded on an independent contractor basis through the
Employer, compared with that of an employee;
THEREFORE, THE PARTIES DO HEREBY DECLARE, AGREE AND STIPULATE AS FOLLOWS:
1. PREAMBLE AND HEADINGS
1.1 The preamble to this agreement constitutes an integral part thereof.
1.2 The section headings are intended for the convenience of the reader
only, and should not be used for any interpretive purpose whatsoever.
2. SUPERVISION OF THE SERVICES, THEIR QUALITY AND NATURE
In the context of providing the services to be defined below, which the
Employer will provide through Izzy, the Employer and Izzy will be subject
to review regarding the quality and nature of the services. The review will
be carried out by the Company's Board of Director and/or an internal
auditor and/or the shareholders and/or a party whom the shareholders
indicate. The Employer undertakes to draw conclusions from the review and
to correct whatever may require correction, as stated in the review.
3. DEFINITION OF THE SERVICES
The Employer shall provide the Company, through Izzy, with administrative
services of full-time acting Chairman of the Board of Directors and Advisor
to the Company CEO. The services shall be provided solely by Izzy
personally. In the context of the services it provides to the Company
through Izzy, the Employer will see to, inter alia, the following matters
(above and hereinafter: "THE SERVICES"):
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3.1 Ongoing consulting and supervision for the Company CEO.
3.2 Responsible for activities of subsidiary companies in Israel and
abroad.
3.3 Maintaining ongoing and proper work relations with the Company's Board
of Directors, Izzy's subordinates, and anyone else with whom Izzy may
be required to be in contact in order to perform his job.
3.4 Submitting ongoing activity reports to the Company's Board of
Directors, as well as any other information that may be required of
him, and providing any assistance that may be needed by the CEO with
regard to advice and running Board of Directors meetings.
3.5 Promoting a sense of team spirit and values of high quality service
among the Company's employees and his subordinates.
3.6 Quality management, including proposing efficiency initiatives and
measures to the Company's Board of Directors.
3.7 Carrying out any assignment given to him by the Company's Board of
Directors.
4. Izzy undertakes to immediately notify the Board of Directors concerning any
significant matter within the Company pertaining to his areas of
responsibility, and to report to any such matter to the Board of Directors
without delay.
5. Izzy undertakes to perform his job faithfully and with dedication, and to
use all of his skills, knowledge, experience and time for Company's benefit
and its advancement.
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6. Izzy undertakes to notify the Company's Board of Directors immediately and
without delay, regarding any matter or issue regarding which he has a
personal stake that creates and/or is liable to create a conflict of
interests with the Services and with the good of the Company.
7. As Izzy is an independent contractor employed through the Employer and
since, even if Izzy were to be considered a Company employee for any reason
whatsoever - Izzy's job pursuant to this agreement is considered to be one
of those positions that requires a special degree of personal trust, as
defined in the Hours of Work and Rest Law, 5711 - 1951; therefore, the
provisions of such law shall not apply to Izzy nor will he be entitled to
any additional consideration whatsoever for his work, other than that which
is expressly set out in this agreement.
8.
8.1 The Employer undertakes to provide Izzy's Services anywhere they may
be required, either in Israel or abroad, and without limiting the
hours and within reason.
9. Upon the termination of its Services to the Company through Izzy, for any
reason whatsoever, the Employer and Izzy undertake to transfer their job in
an orderly fashion to the person the Company shall so instruct them, and to
surrender to the Company all documents, information and any other material
he has received or prepared in connection with the Services, until the end
of the agreement.
10. THE CONSIDERATION FOR THE SERVICES
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As final and absolute consideration for providing the Services to the
Company and for fulfilling all of the Employer's and Izzy's obligations
pursuant to this agreement, the Employer and Izzy shall be entitled to the
following:
10.1 The Company shall pay monthly consideration to the Employer in the
amount of 63,250 (sixty-three thousand, two hundred and fifty) New
Israeli Shekels, plus Value Added Tax (hereinafter: "THE
CONSIDERATION"), to be paid against the receipt of a proper tax
invoice and an exemption from tax withholding at the source. In the
absence of verification of such an exemption, the Company may deduct
from the Consideration any tax liability imposed on the Employer, and
which it is required by law to withhold at the source. The
Consideration shall be linked to the Consumer Price Index, beginning
with the CPI published on January 30, 2003. It is hereby clarified
that except as specified below, the Consideration is final and
absolute consideration for the Services, and any tax liability that
applies to Izzy in connection with his receipt of the said
Consideration shall be paid by him.
In addition to the Consideration, the Company shall pay for Izzy the
sum of 11,000 (eleven thousand) New Israeli Shekels for managers'
insurance, to be chosen by Izzy.
The Employer alone (on behalf of Izzy) shall bear the payment of
income tax, National Insurance payments, health insurance payments and
any other payment to any tax authority whatsoever regarding the
Consideration. In the event that, as a result of this agreement,
additional tax costs whatsoever shall apply, they shall all apply to
the Employer and the Company shall not be required to pay them, even
if requests shall be sent thereto in this regard.
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10.2 Izzy shall be entitled to a cellular telephone at the Company's
expense, and its related costs. Izzy will return the telephone to the
Company immediately upon the conclusion of the provision of the
Services by Izzy. Furthermore, Ituran shall pay the Employer at the
time the Consideration is paid, the sum equivalent to two hundred and
fifty New Israeli Shekels linked to the CPI of February 1998, as its
portion of the expense of Izzy's work-related telephone calls from
home. In addition, the Company shall reimburse Izzy for work-related
overseas phone calls made from home.
10.3 Izzy will be entitled to reimbursement for expenses, including per
diem expenses in Israel and abroad, upon presentation of receipts
and/or a report in accordance with the Company's accepted procedures,
and he shall receive two company credit cards to pay for these
expenses.
10.4 The Company shall lease a car for Izzy at a const of NIS 8,500 per
month, and shall bear expenses with regard to gas, insurance and other
ancillary costs.
10.5 Izzy will be entitled to vacation of 25 work days for each full year
of work (based on 6 work days per week), or the financial equivalent;
and payment of the equivalent of 13 recreation days in the amount of
NIS 346 per day for each recreation day (linked to February 1998 CPI).
10.6 In the event of Izzy's illness, the Company shall be entitled to the
Consideration payment, as set forth in the Sick Leave Law.
10.7 Izzy shall be entitled to Company profits at a rate of 5% of the
Company's pre-tax revenue, plus the Company's share of profits (or
loss) from consolidated companies, on the basis of audited, combined
financial statements prepared according to
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standard accounting principles, as of December 31 of each calendar
year in which he shall be employed (or any relative part thereof,
respectively). The said payment shall be made immediately following
the approval of the Company's audited financial statement.
11. CONFIDENTIALITY AND NON-COMPETITION
11.1 Izzy undertakes to keep absolutely confidential any information that
he receives during and upon the provision of the Services to the
Company pursuant to this agreement. "Information" shall, in this
section: include prices, costs, lists of suppliers, customer lists,
plans, quantities, profit and loss calculations, market research,
computer software, information systems and any other Company
information that is not in the public domain. Izzy also undertakes not
to damage the Company's and/or the shareholders' reputation in any
manner whatsoever. Izzy's undertaking pursuant to this section shall
remain in effect even after the conclusion of this agreement.
11.2 For a period of twelve months from the date on which the provision of
the Services to the Company shall be terminated, Izzy will not engage,
neither within the territory of the State of Israel nor within the
territory of any country in which the Company is active, in any
business that does or that could directly compete with the Company -
either by himself and/or through any other agent whatsoever acting on
his behalf, either as a salaried employee or as an independent worker,
either directly or indirectly, unless the Company gives its advance
written consent thereto.
11.3 To remove all doubt, the parties hereby declare that all existing
and/or future developments, improvements in the Company's products and
any intellectual property that may result from Izzy's provision of
Services to the Company,
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including registered/unregistered rights, whether developed by Izzy
during work hours or outside of work hours, whether at the Company's
offices or outside of them - including in Izzy's home - whether in
Israel or abroad, shall be the Company's exclusive property and
possession.
12. VALIDITY OF THE AGREEMENT
12.1 This agreement will enter into effect beginning on January 30, 2003.
When this agreement shall take effect, the validity of Izzy's
employment agreement as Company CEO shall expire. This agreement shall
remain in effect for two years, after which time it shall be renewed
automatically for an additional two-year period, and so on.
12.2 Each of the parties may inform the other parties regarding termination
of the agreement, by way of written notification that shall be given
at least 180 days in advance (hereinafter: "THE ADVANCE NOTIFICATION
PERIOD"). During the Advance Notification Period, the provisions of
this agreement shall continue to bind the parties, but the Company has
the right to notify Izzy that it does not wish to receive his services
and that he should not come to the Company's offices. In such a case,
Izzy shall be entitled to all of his rights pursuant to this
agreement. At the end of the Advance Notification Period, Izzy will
return the Company's cellular phone, the car and any Company equipment
that may be in his possession.
12.3 Notwithstanding the provisions of section 12.2 above, the Company may
terminate Izzy's employment immediately, without prior notice and
without any compensation, upon the occurrence of any one of the
following:
12.3.1 Izzy's conviction for a dishonorable offense.
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12.3.2 Izzy's breach of his fiduciary duty to the Company.
12.3.3 Izzy's breach of his duty of care with regard to the Company.
12.3.4 Izzy's breach of this Agreement through the disclosure of the
Company's secrets or by competing with the Company.
12.4 Without derogating from the generality of the above provisions of this
section, this Agreement will be automatically cancelled upon the
dissolution of the Company - as soon as the dissolution shall take
effect.
13. IZZY - AN INDEPENDENT CONTRACTOR
13.1 Izzy hereby declares and undertakes that his status vis-a-vis the
Company is that of an independent contractor, and that there is no
employee-employer relationship between him and the Company.
13.2 Izzy is aware that the Consideration paid to him as described above is
paid to the Employer by the Company on the basis of his being an
independent contractor and on the basis of there being no
employee-employer relationship with regard to this matter; if such a
relationship existed, it would significantly reduce the amount of the
Consideration the Company would be paying to Izzy.
13.3 Based on the above, the parties agree that if, in the future, a
judicial body determines that notwithstanding the provisions of this
agreement, there is an employee-employer relationship between the
parties (or with one of the companies in the Ituran Group,
hereinafter: "ITURAN"), an alternative arrangement will
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apply between the parties whereby 40% of the Consideration received by
Izzy from the Company in accordance with this agreement will be
considered an indexed loan, at an annual interest rate of 5%, and
given to the Employer and Izzy by the Company (hereinafter: "THE
LOAN"), and the remaining balance of 60% will be considered as wages
for labor, along with the additional conditions usually paid to a
Company employee.
13.4 The Loan and its proceeds will be viewed as being immediately payable
the day on which the Company or Ituran is first requested to recognize
the existence of an employee-employer relationship between Izzy and
the Company and/or Ituran. In such a case, Izzy will be required to
repay to the Company, immediately upon its first written request, the
Loan and its proceeds less the sum of all the payments owed to Izzy as
severance pay and additional social benefits, according to a final
court ruling.
13.5 Without derogating from the above, if for any reason whatsoever, the
tax and/or National Insurance Institute and/or health and/or any other
authorities demand the payment of any tax provisions whatsoever from
the Company resulting from the Company's contractual arrangement
pursuant to this agreement with the Employer and Izzy, the Employer
and Izzy undertake to indemnify the Company for any such payment,
immediately upon the Company's first written request.
14. GENERAL
14.1 This agreement is an individual and special labor agreement between
the Company, and the Employer and Izzy, and it fully regulates all of
the terms of Izzy's employment by the Company. The Employer and Izzy
undertake to keep the contents of this agreement completely
confidential.
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14.2 Any promise, obligation, undertaking, declaration, representation or
the like that were given or made on behalf of the Company and/or its
shareholders prior to the signing of this agreement - if any such were
made - are hereby null and void, unless and to the extent that they
are expressly included in this agreement.
14.3 If any provision whatsoever of this agreement is revoked by any court
whatsoever, or is declared to be invalid for any reason whatsoever,
the other provisions of this agreement shall remain in effect.
14.4 The parties' addresses are as specified in the preamble to this
agreement. Any notice sent by one party to another via registered mail
will be considered to have been received by the addressee at the end
of 72 hours from the time of its receipt by the post office for
delivery, and if it is hand delivered - at the time of actual
delivery. If any party changes its address, he shall notify the other
parties in writing.
14.5 The parties are signing this agreement after reviewing it carefully,
and they declare that they are aware of the substance of the
obligations they are taking upon themselves and according thereto, and
of their meanings.
AND IN WITNESS THEREOF THE PARTIES HAVE AFFIXED THEIR SIGNATURES:
(Signature) Ituran (Stamp and signature)
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IZZY THE COMPANY
(Stamp and signature)
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THE EMPLOYER
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