TRANSLATION FROM HEBREW] EMPLOYMENT CONTRACT Which was made and signed in Petach-Tikva on August 26, 2007
Exhibit
10.108
[TRANSLATION
FROM HEBREW]
Which
was made and signed in Petach-Tikva on August 26, 2007
BETWEEN: |
XFONE
018 LTD.
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A
Private Company No.513533430
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of
0 Xx'Xxxx Xxxxxx, Xxxxxx-Xxxxx
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(Hereinafter:
"the Company")
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OF
THE FIRST
PART;
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AND:
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XX.
XXXX XXXXXX
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Identity
Card No.59664060
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00/0
Xxxxxx Xxxxxx Xxxxxx, Xx'xxxx
Adumim
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(Hereinafter:
"the Employee")
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OF
THE SECOND PART;
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WHEREAS:
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The
Company wishes to employ the Employee in the position of General
Manager
of the Company;
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AND
WHEREAS:
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The
Employee wishes to be employed by the Company in the position of
General
Manager of the Company;
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AND
WHEREAS:
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The
parties wish the terms of employment of the Employee by the Company
to be
governed by and based on written provisions, and all as specified
hereunder in this agreement;
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IT
HAS THEREFORE BEEN DECLARED, STIPULATED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1.
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PREAMBLE
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1.1
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The
preamble to this agreement constitutes an integral part of
it.
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1.2
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The
section title headings in this agreement are for convenience and
reference
only and nothing in them shall be used in the interpretation of the
agreement.
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2.
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THE
EMPLOYEES' POSITION
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2.1
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The
Employee will be employed by the Company in the position of General
Manager of the Company ("the
Position").
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2.2
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In
fulfilling his Position, the Employee will be subject to the Board
of
Directors of the Company (hereinafter: "the Board of
Directors") and shall act in accordance with its
instructions, and in accordance with the instructions of the Chief
Executive Officer of Xfone,
Inc.
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2.3
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In
the performance of his duties in the Position the Employee will work
full
time, and will devote all his working time and effort to his employment
with the Company. The Employee will devote to his employment with
the
Company, all his knowledge and experience, and will act diligently
and to
the best of his ability for the advancement of the Company and for
its
success.
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2.4
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As
the Position requires a special degree of personal confidence and
as the
Company is unable to control the working hours and hours of rest
of the
Employee in the Position, the provisions of the Hours of Work and
Rest
Law, 5711-1951 shall not apply to the employment of the Employee
by the
Company.
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3.
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DECLARATIONS
AND OBLIGATIONS OF THE
EMPLOYEE:
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3.1
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The
Employee declares that to the best of his understanding he has the
skills,
know-how, experience and ability to fulfill his Position under this
Agreement, and that there is no legal or any other impediment to
his
employment by the Company.
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Without
derogating from the generality of the foregoing, the Employee declares and
confirms that he has not been convicted of a criminal offense. For the purposes
of this section, "Criminal Offense” - excludes a traffic offense as such is
defined in the Traffic Ordinance (New Version) (hereinafter: "the Ordinance"),
but includes an offense under Section 64 (Causing Death by Negligent Driving)
of
the Ordinance or under Section 64A (Leaving the Scene of an Accident after
Injury) of the Ordinance, in respect of which the prescription period has not
expired, as such is defined in Section 16 of the Criminal Records and
Rehabilitation of Offenders Law, 5741-1981.
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3.2
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The
Employee undertakes to perform his duties diligently and faithfully
and to
comply with the instructions of the Board of Directors with regard
to
performance of the Position.
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3.3
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The
Employee undertakes to deliver to the Board of Directors any information
in his possession that is likely to promote the interests of the
Company
or be beneficial to it, including in connection with marketing,
distribution and sales, immediately upon such information coming
into his
possession.
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3.4
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The
Employee shall notify the Board of Directors immediately of any matter
or
subject in which he has a personal interest and which might give
rise to a
conflict of interests with his Position in the
Company.
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3.5
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The
Employee will make a report to the Board of Directors of any mishap,
problem or difficulty in connection with his activity and/or the
Company's
activity which he encounters during the fulfillment of his duties
or in
any other circumstances.
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3.6
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The
Employee undertakes not to accept any payment or benefit from any
party
including customers and suppliers of the Company directly or indirectly
connected with his employment in the Company. The Employee undertakes
to
immediately notify the Board of Directors of any transaction or interest
of the Company from which he or any person related to or associated
with
him, is likely to derive a benefit.
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3.7
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The
Employee will be faithful to the Company and avoid any act and/or
omission
that might prejudice the Company or its reputation or harm it in
any
way.
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3.8
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The
Employee hereby undertakes not to engage in any other business and/or
occupation and/or other work either directly or indirectly, as a
salaried
Employee or as self employed, as an open or secret partner as an
advisor
or in any other way whether during working hours or at any other
time or
date, whether or not for payment or reward, unless the written and
advance
approval of the Board of Directors has been obtained
thereto.
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4.
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THE
CONSIDERATION:
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4.1
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In
consideration for fulfillment of the obligations, declarations and
functions of the Employee under this Agreement in their entirety
and in
due time, the Employee's salary commencing from the date of commencement
of his employment in the Company, will be NIS 36,000 gross per month
on a
full time employment basis (hereinafter: "the Basic
Salary").
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4.2
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The
salary will be linked to the rate of increase of the Consumer Prices
Index
which is published by the Central Bureau of Statistics or any official
index that replaces it (hereinafter: "the
Index") commencing with the Index known on the
date of signature of this Agreement. It is clarified that the salary
will
not be reduced as a result of a fall in the Index. An updating of
the
salary will occur once per quarter. Such updating shall replace cost
of
living increases and shall in any event be effective instead of
them.
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4.3
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The
Employee's salary will be paid once monthly no later than the seventh
day
of each month in respect of the preceding
month.
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4.4
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Except
for the salary as stated above in this Section 4 and for the conditions
and benefits specified hereunder in this Agreement the Employee will
not
be entitled to any additional salary and/or payment for carrying
out all
his obligations under this
Agreement.
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4.5
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The
Company shall deduct, from the consideration that is paid to the
Employee
as specified in Section 4.1, Income Tax, National Insurance, Health
Tax ,
contributions made for directors and executives insurance, contributions
made for an continuing education fund , value of use of a vehicle,
and any
other deduction that it is bound to make under any
law.
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4.6
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Once
annually, after publication of the Company's annual financial statements,
a discussion concerning salary shall take place between the Employee
and
the Company. It is hereby clarified that nothing in the foregoing
shall be
construed as obligating the Company to raise the Employee's salary
as part
of such a discussion.
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5.
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ANNUAL
BONUS:
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5.1
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Once
annually, and no later than November 30, the Employee shall submit
a
proposal for an annual budget to the Board of Directors and in it,
his
recommendation for the Company's targets for that year. The Board
of
Directors of the Company, after a discussion with the participation
of the
Employee, shall fix the Company's budget and its targets for the
ensuing
budget year (hereinafter: "the
Targets").
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"Budget
Year" - means a period of 12 months commencing
on January 1, of each year.
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5.2
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The
Employee's entitlement to an annual bonus and the amount thereof
is
contingent on the Company meeting the Targets fixed for the relevant
budget year (hereinafter: "the
Bonus").
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5.3
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The
parties agree that the amount of the Bonus shall be as
follows:
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5.3.1
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If
the Company does not meet 70% of the Targets - the Employee will
not be
entitled to any annual Bonus.
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5.3.2
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If
the Company meets at least 70% of the Targets and up to 100% of the
Targets - the Employee will be entitled to a Bonus as follows: meeting
100% of the Targets will give the Employee a Bonus amounting to 5
salaries. Meeting Targets that amount to between 70% and 100% will
give
the Employee a proportionate linear Bonus. Thus for example: Meeting
an
amount of 70% of the Targets will give the Employee a Bonus amounting
to
3.5 salaries (70% of 5 salaries), meeting an amount of 80% of the
Targets
will give the Employee a Bonus amounting to 4 salaries (80% of 5
salaries).
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5.3.3
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If
the Company meets at least 105% of the Targets - the Employee will
be
entitled to a Bonus amounting to 7
salaries.
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5.3.4
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If
the Company meets at least 120% of the Targets - the Employee will
be
entitled to a Bonus amounting to 9
salaries.
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5.3.5
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If
the Company meets at least 137.5% of the Targets - the Employee will
be
entitled to a Bonus amounting to
11salaries.
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5.3.6
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If
the Company meets at least 150% of the Targets - the Employee will
be
entitled to a Bonus amounting to 13
salaries.
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5.3.7
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Salaries
for the purposes of this Section 5.3 means: the Basic Salary as such
is
defined above in Section 4.1
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5.4
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The
Bonus (in so far as the Employee is entitled to one) will be paid
to the
Employee once annually together with payment of the salary in the
month
following the month in which the Company's annual audited financial
statements for the relevant financial year were
approved.
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5.5
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In
respect of the Bonus that is due to the Employee in accordance with
the
provisions of this Agreement, an advance payment shall be made to
the
Employee once every three months, in the first salary at the end
of each
quarter, and this in accordance with the Company's reviewed financial
statements and subject to him, meeting the Targets assigned to him.
Settlement of accounts shall take place at the end of the financial
year
and the necessary adjustments shall be made to the annual results
in
accordance with the audited financial statements of the
Company.
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5.5.1
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If
it should transpire that the quarterly advance payment made to the
Employee during the budget year, including the provisions set aside
in
respect of the basic Bonus for the pension plan and the continuing
education fund, is lower than the amount of the Bonus and the provisions
made for it, that is due to the Employee - the deficiency shall be
paid on
a date commencing 30 days after publication of the Company's annual
audited financial statements in respect of such tax
year.
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5.5.2
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If
it should transpire that the quarterly advance payment made to the
Employee, including the provisions set aside in respect of it for
the
pension plan and the advance study fund, exceed the annual Bonus
and the
provisions made for it, the overpayment to the Employee will be set
off
against the quarterly advance payments that may be become due to
the
Employee in the future, if and in so far as any become due to the
Employee, and/or against such provisions that have to be set aside
in
respect of the Employee for the following quarters and/or for any
amount
that becomes due to the Employee from the Company during the term
of his
employment in the Company and/or upon the termination thereof, including
salary.
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5.6
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It
is hereby clarified that upon termination of the Employee's employment
a
final settlement of accounts shall take place and all such adjustments
as
are necessary shall be made as at the date of termination of the
Employee's employment with the
Company.
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5.7
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As
the Employee commenced employment with the Company in the course
of a
calendar year, the parties agree that for the months of September,
October
and November 2007, and only in respect of these months, the Employee
will
be paid a "budget preparation bonus" of NIS 6,000 gross per
month. During this period the Employee must submit his annual
budget proposal for the Company to the Board of Directors, for the
ensuing
year, and including in it his recommendation for the Company's Targets
including for December 2007 and for 2008. In respect of December
2007 the
Employee will be paid a partial annual Bonus depending on the fractional
proportion of his employment with the Company in 2007 and in accordance
with the foregoing provisions of Section
5.3.
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5.8
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In
the event of the labor relationship between the Employee and the
Company
terminating, and this for any reason except in the circumstances
detailed
below in Section 19.5, the Employee will be entitled to a proportionate
payment of the Bonus in respect of the period up to the giving/receipt
of
prior notice, and this subject to his signature of a no claims letter
and
to him meeting his obligation as to no competition with the Company.
The
Employee will also be entitled to proportionate payment of the Bonus
in
respect of the prior notice period, and this irrespective of whether
or
not payment is made in lieu.
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5.9
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It
is hereby expressly clarified and agreed that the calculation as
to
entitlement to Bonus will be made by the Company's
Accountant.
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5.10
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It
is hereby clarified, that the Bonus up to an amount equivalent to
9.66
salaries per annum, in so far as it is due to the Employee, will
be deemed
to be part of the Employee's salary for the purpose of calculating
severance pay and for the purpose of making provisions for contributions
to directors and executives insurance and the continuing education
fund
(hereinafter: "the Basic
Bonus").
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It
is hereby clarified that nothing in the contents of this section
shall
derogate from the provisions of Section 5.2 of this
Agreement.
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5.11
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It
is expressly agreed between the parties that the Bonus that is to
be paid
to the Employee over and above the Basic Bonus constitutes an increment
and is not part of salary of the Employee's employment in any respect,
including for the purpose of calculating the amount of social benefits
and
including severance pay that is due to the Employee, in so far as
any
becomes due to him in the future.
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This
Section shall be submitted to the Minister of Industry and Trade
for
approval in accordance with Section 28 of the Severance Pay
Law.
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5.12
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The
parties agree that if the parties do not apply for approval of the
Minister of Industry and Trade or approval of Minister of Industry
and
Trade is not received, or if it is determined that such approval
is not
valid for any reason, then in the event that it is determined by
a
competent party that the Bonus must be taken into account over and
above
the Basic Bonus which has been paid to the Employee, as a component
for
the purposes of severance pay and only if the Company has paid severance
pay in respect of such amount of the Bonus as exceeds the Basic Bonus,
the
following provisions shall apply:
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5.12.1
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The
amount of the Bonuses paid to the Employee under this Agreement in
excess
of the Basic Bonus shall be reduced by the rate of
8.33%.
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5.12.2
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The
Employee will be obliged to make a refund to the Company immediately
upon
its demand, of such severance pay as was included in the Bonuses
that were
paid to him in excess of the Basic Bonus, amounting to 8.33% of the
total
of all the payments made to him, with the addition of linkage
differentials and interest commencing from the date of each of the
individual payments paid to him, and until the date of actual refund
to
the Company.
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6.
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PENSION
PLAN:
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6.1
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Commencing
from the date of commencement of his employment with the Company,
the
Company undertakes to allocate and set aside, for directors and executives
insurance, of the Employee's choice, or to a recognized pension fund
of
his choice (hereinafter: "the Pension Plan"), 5% of the
qualifying salary for the allocations in respect of retirement on
pension,
8.333% on account of severance pay and up to 2.5% in respect of loss
of
working capacity.
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The
Company shall deduct a further 5% of the qualifying salary for
allocations, for pension, and shall remit such amount to the Pension
Plan.
It is explicitly agreed that the allocations and the deductions for
the
Pension Plan from the Basic Salary will be made on a month to month
basis
whereas the allocations and deductions in respect of the Basic Bonus
(the
whole or part of it - depending on the Employee's entitlement under
this
Agreement), as such is defined in Section 5.11, will be made on the
date
of payment of the advance payments on account of the
Bonus.
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6.2
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"The
Qualifying Salary for Allocations" - means the
Basic Salary with the addition of the Basic
Bonus.
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6.3
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It
is expressly agreed between the parties that in so far as the Employee
wishes to continue the pension plan that is in existence for him
prior to
the date of signature of this Agreement (hereinafter: "the
Existing Pension Plan"), the company's allocations and the
deductions from the Employee's salary shall be made in accordance
with the
amount of allocations and deductions under the Existing Pension Plan.
It
is hereby clarified that the Existing Pension Plan is a mixture of
capital
and benefit related directors and executives insurance plans (with
Xxxxxx)
the allocations in respect of which are as specified in Section 6.1,
and
the old Makefet Pension Fund in respect of which the allocations
are: 7.5%
employer's payments for compensation, 8.333% employer's payments
on
account of severance pay and up to 2.5%, the employer's payments
in
respect of loss of working capacity. The Company will also deduct
an
additional 7% from that part of the Employer's salary that is allocated
to
the pension fund for a pension and shall remit such amount to the
Makefet
Pension Fund.
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6.4
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The
Company's payments to the Pension Plan for severance pay will be
on
account of severance pay that is likely to be due to the Employee
or his
survivors, as the case may be. In a case in which the Employee has
resigned from his employment with the Company or the Employee has
been
dismissed from his employment with the Company and his right to payment
of
severance pay arises under the Severance Pay Law, the Company shall
make
up the difference, if and in so far as there is a difference, between
the
amount of the severance pay that is due to the Employee by law, and
the
amounts that have accumulated to his credit in the Pension Plan,
on
account of severance pay.
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6.5
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Upon
termination of the employment of the Employee with the Company for
any
reason, except if he was dismissed from the Company in the circumstances
prescribed in Section 19.5 of this agreement, all such moneys as
have
accumulated to his credit in the Pension Plan, including on account
of
severance pay, shall be released to the
Employee.
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6.6
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In
the event of the labor relationship between the Employee and the
Company
terminating in the circumstances specified in Section 19.5 of this
agreement the Employee will not be entitled, as aforementioned, to
prior
notice, or payment in lieu thereof or to payment of severance
pay.
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7.
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CONTINUING
EDUCATION FUND:
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7.1
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With
effect from commencement of the Employee's employment with the Company
the
Company will, each month, set aside and contribute to a continuing
education fund, a sum amounting to 7.5% of the qualifying salary
for
allocations. The Company shall deduct from the qualifying salary
for
allocations a monthly sum equivalent to 2.5% of the salary and shall
remit
such sum to the continuing education
fund.
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7.2
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It
is explicitly agreed that the allocations and deductions for the
continuing education fund from the basic salary, will be made on
a month
to month basis and the allocations and deductions in respect of the
Basic
Bonus (all or part of it - depending on the Employee's entitlement
under
this Agreement), as such is defined in Section 5.11, shall be made
on the
date on which the advance payments are made on account of the
bonus.
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7.3
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At
the request of the Employee the Company will make contribution payments
to
the continuing education fund up to the ceiling that is recognized
by the
Income Tax Authorities as updated from time to time, and subject
to the
provisions of this section, the balance of the allocations shall
be added
to the Employee's salary (hereinafter: "above the ceiling
allocations").
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7.4
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Upon
termination of the Employee's employment with the Company for any
reason
the Company shall release to the Employee's credit all such amounts
as
have accrued to his credit in the continuing education
fund.
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7.5
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It
is hereby explicitly clarified that the above the ceiling allocations
are
being paid to the Employee, at his request, as a salary increment,
instead
of a surplus allocation to the continuing education fund. It is expressly
agreed that the above ceiling allocations shall not be deemed to
be part
of the salary of the Employee in any respect, including, and without
derogating from the generality of the foregoing, for the purpose
of
calculating the amount of social benefits, determination of the qualifying
salary for the purpose of calculating severance pay, determination
of the
qualifying salary for the purpose of calculating holiday pay
etc.
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This
section shall be submitted for the approval of the Minister of Industry
and Trade in accordance with Section 28 of the Severance Pay
Law.
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7.6
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The
parties agree that if the parties do not apply for approval of the
Minister of Industry and Trade or approval of Minister of Industry
and
Trade is not received, or if it is determined that such approval
is not
valid for any reason, then in the event that it is determined that
the
above ceiling allocations constitute part of the Employee's salary
for the
purpose of calculating severance pay, and this notwithstanding what
is
stated above in Section 7.5, the following provisions shall
apply:
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7.6.1
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The
amount of the above the ceiling allocations paid to the Employee
under
this Agreement shall be reduced by the rate of
8.33%.
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7.6.2
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The
Employee will be obliged to refund to the Company immediately upon
its
demand, such severance pay as was included in the above ceiling
allocations, by 8.33% of the total of all the payments made to him,
with
the addition of linkage differentials and interest commencing from
the
date of each of the individual payments paid to him, and until the
date of
actual refund to the Company.
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7.7
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In
the event of the termination of the Employee-employer relationship
between
the Employee and the Company in such circumstances as are prescribed
in
Section 19.5 of this Agreement, such sums shall be remitted to the
Employee as have accrued to his credit in the continuing education
fund on
account of the Employee's contributions only, and the moneys that
have
accrued in respect of the Company's contributions to the fund shall
be
refunded to the Company.
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8.
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ANNUAL
LEAVE:
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8.1
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The
Employee will be entitled to annual leave of 24 working days for
each
complete year of employment.
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8.2
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The
date on which the Employee goes on leave shall be fixed by the Company,
in
coordination, to the extent that this is possible, with the
Employee.
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8.3
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The
Employee will be entitled to accumulate 48 leave days in accordance
with
the provisions of the Annual Leave Law,
5711-1951.
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8.4
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The
annual leave days that have been accumulated in accordance with the
provisions of this Agreement, to the Employee's credit, may be redeemed
at
the end of the term of employment of the Employee in the Company,
and in
accordance with the provisions of an Annual Leave Law,
5711-1951.
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9.
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SICK
DAYS:
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9.1
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The
Employee will be entitled to be absent from work because of sickness
on
full payment of salary commencing from the first day of his absence
and
for a period of 30 days in any year of employment, provided that
he has
not received payment in respect of such sick leave days from the
National
Insurance Institute and/or the directors and executives
insurance.
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9.2
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The
Employee will be entitled to accumulate sick days up to a maximum
of 90
days.
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9.3
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Sick
days not utilized by the Employee are not redeemable. Accordingly
upon
termination of the Employee-employer relationship between the parties
no
compensation or payment shall be made to the Employee for un-utilized
sick
days.
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10.
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CONVALESCENT
PAY:
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The
Employee will be entitled to payment of convalescent pay in respect
of 12
days convalescence in accordance with the provisions of the general
extension order operative in the national economy which extends provisions
of the collective agreement signed between the Liaison Office of
the
Economic Organizations and the General Labor
Federation.
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11.
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VEHICLE:
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11.1
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The
Company will place at the Employee's disposal a suitable vehicle
for the
purposes of his employment (Licensing Class 5) and shall bear all
such
expenses as are involved in use of the vehicle (Licensing, Insurance,
Fuel, Repairs etc.).
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11.2
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The
Employee shall ensure that the vehicle is properly maintained and
shall
use the vehicle carefully, reasonably and all in accordance with
the
Company's instructions and
procedures.
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The
Employee undertakes to carry out day to day examinations of oil and
water
in the vehicle and to ensure that it is kept
clean.
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11.3
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Income
Tax in respect of the use value of the vehicle shall apply equally
to the
Employee and the Company to the effect that the Income Tax in respect
of
use value of the vehicle shall be paid by the Employee, and shall
be
deducted from his salary and the Company shall gross up one half of such
amount.
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11.4
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The
Employee declares that it has been explained to him that he is personally
liable for the payment of all traffic or parking fines or other penalties
that are imposed on the vehicle.
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If
the Employee does not pay the aforementioned fines, the Company may
pay
the amounts thereof and the Employee hereby gives the Company an
irrevocable instruction to deduct the amount of the fine/fines from
any
sum that is due in the future to the Employee from the
Company.
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12.
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OPTIONS:
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The
Employee will be entitled to an allotment of options of Xfone Inc.
and
this subject to and in accordance with Appendix A to this
Agreement.
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13.
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SALE
BONUS:
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13.1
|
Upon
the occurrence of an entitling event, as such is defined below in
Section
13.2, the Employee will be entitled to payment of a special sale
bonus
(hereinafter: "the Special Sale
Bonus").
|
|
13.2
|
One
of the following shall be deemed an entitling
event:
|
|
13.2.1
|
Sale
of all shares of the Company and sale of all activity of the Company,
provided that the consideration for sale of such shares/activity
as
aforesaid has been calculated on the basis on the value of the Company
which is not lower than 8 million US Dollars valued as at the date
of
signature of the aforesaid shares/activity sale
agreement.
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|
13.2.2
|
Sale
of some of the Company's shares and/or sale of part of the Company's
activity by the Company and/or its shareholders (except Xxxxx Sport
Ltd.
which holds 5% of the Company's shares) provided that the proceeds
of sale
of such shares/activity have been calculated on the basis of a value
of
the Company which is not lower than 10 million US Dollars valued
as at the
date of signature of such sale of
shares/activity.
|
|
13.3
|
The
Special Sale Bonus shall be paid at the following
rates:
|
|
13.3.1
|
If
the agreement governing the entitling event was signed during the
first
year of employment of the Employee with the Company - the Special
Sale
Bonus will amount to a gross sum that is equivalent to 0.75% of the
consideration actually paid in respect of the entitling
event.
|
|
13.3.2
|
If
the agreement governing the entitling event was signed during the
second
year of employment of the Employee with the Company - the Special
Sale
Bonus will amount to a gross sum that is equivalent to 1.75% of the
consideration actually paid in respect of the entitling
event.
|
|
13.3.2
|
If
the agreement governing the entitling event was signed during the
third
and subsequent years of employment of the Employee with the Company
- the
Special Sale Bonus will amount to a gross sum that is equivalent
to 3.5%
of the consideration actually paid in respect of the entitling
event.
|
|
13.4
|
The
sale bonus will be paid at the end of 30 days after the making of
all such
payments as are due to the Company and/or to its shareholders in
respect
of the entitling event.
|
|
13.5
|
For
the removal of doubt it is hereby clarified that the Employee will
be
entitled to the Special Sale Bonus as stated in Section 13 herein,
but
only if the agreement governing the entitling event was signed during
the
term of the Employee's employment with the Company (including during
the
prior notice period).
|
14.
|
MISCELANEOUS
AND ANCILLARY BENEFITS:
|
|
14.1
|
The
Company will insure the Employee under officeholders insurance under
the
Company's existing policy at the date of signature of this agreement
the
terms and conditions of which will be the same as those that apply
to the
Directors of the Company.
|
|
14.2
|
The
Company will put a cellular telephone at the Employee's disposal
and shall
bear all the costs of its use. The use value of the telephone shall
be the
Employee's liability and shall be deducted from his
salary.
|
|
14.3
|
The
Employee will be entitled to a subscription to a daily newspaper
of his
choice.
|
|
14.4
|
The
Employee will be entitled to a monthly subscription for travel on
a toll
road (Highway 6).
|
15.
|
PAYMENT
DURING RESERVE DUTY:
|
|
The
Employee undertakes to notify the Board of Directors forthwith, of
any
summons that he has received for active service in the reserves.
The
handling of an attempt to obtain a deferment of reserve duty shall
be done
in coordination with the Board of Directors. At the end of the period
of
reserve duty the Employee will furnish the Company with all such
certificates as are necessary for the purpose of recovery of a reserve
duty compensation payment from the National Insurance Institute.
Subject
to the foregoing, the Company shall pay the Employee a full salary
for the
days on which he was absent from work due to reserve service as
aforesaid.
|
16.
|
NON-DISCLOSURE:
|
|
16.1
|
The
Employee shall maintain confidentiality and shall not disclose to
any
other person any information or professional, financial, commercial
or
other information which either directly or indirectly pertains to
the
Company, the Company's shareholders, to a corporate body which is
controlled by any of the Company's shareholders, to a corporate body
which
the Company controls, including but without derogating from the generality
of the foregoing, the Company's practices and/or working methods
and/or
activity, and/or in a corporate body as
described.
|
|
16.2
|
Notwithstanding
the foregoing it is agreed that the aforementioned obligation shall
not
apply with regard to delivery of information to third parties, if
this is
necessary for the performance of the Employee's function in the Company
and his work therein and to such extent as is
necessary.
|
|
16.3
|
The
obligations of the Employee as stated in this Section 16 shall remain
in
force and also shall be binding on the Employee without time limit
after
the employer-Employee relationship between him and the Company has
terminated.
|
17.
|
NON-COMPETITION:
|
|
17.1
|
For
a period of 12 months from the date of termination of employer-Employee
relationships for any reason, the Employee will not engage in any
occupation which might, either directly or indirectly, place him
in a
competitive relationship with the company in its sector of activity
or in
a conflict of interests with it and this whether salaried or as
self-employed or as a partner or a shareholder or as an adviser or
in any
other way, unless he has obtained the Company’s consent thereto, in
writing and in advance.
|
|
17.2
|
For
the removal any doubt it is hereby declared that without derogating
from
the Employee's obligation as stated in Section 16 and in Section
17.1
above, the Employee will be under no restriction in the use of know-how
and experience that he possessed prior to the commencement of his
employment in the Company.
|
18.
|
Without
derogating from the generality of what is stated above in Section
17 it is
expressly agreed between the parties that for a period of 12 months
from
the date of termination of the employer-Employee relationship for
any
reason the Employee will not be entitled to exploit, in the sectors
in
which the Company is engaged, his connections with customers or suppliers
of the Company or commercial or business contacts of the Company
which
were created or utilized in the context of his employment in the
Company
and he will not be entitled to employ, either directly or indirectly,
any
Employee of the Company.
|
19.
|
DURATION
OF THE EMPLOYMENT AND TERMINATION OF THE
AGREEMENT:
|
|
19.1
|
The
contract under this agreement commences with effect from August 26,
2007.
|
|
19.2
|
The
parties may terminate the contract of employment at any time on prior
notice as follows:
|
|
19.2.1.
|
In
the first year of employment: 120
days.
|
|
19.2.2
|
Commencing
from the second year of employment and thereafter: 180
days.
|
|
19.3
|
Where
the Company has given prior notice of termination of the employment,
the
Company may waive all or part of the actual employment of the Employee
during the prior notice period, and may also terminate the employment
forthwith provided that it pays the Employee in lieu of the prior
notice
at the salary level and all such social benefits and ancillary benefits
to
which the Employee is entitled in accordance with the provisions
of this
agreement, and which would have been due to the Employee in practice
during the prior notice period. It is hereby clarified that the Employee
will be entitled to payment of bonus for the prior notice period
whether
or not it is actually worked, and that the prior notice period,
irrespective of whether or not worked, will be taken into account
as a
period of employment in all respect for the purposes of the Employee's
entitlement to the options of specified in Appendix A to this
Agreement.
|
|
19.4
|
If
the Employee commits a breach of his obligation to give the Company
prior
notice of resignation the Employee will be bound to pay the Company
agreed
compensation amounting to the total salary that he would have been
entitled to receive had he worked and this without derogating from
such
relief as the Company is entitled to in the circumstances of the
case.
|
|
19.5
|
The
parties expressly agree that notwithstanding what is stated above
in
Section 19.2, in circumstances in which by law full or partial payment
of
severance pay may be denied to the Employee, the Company may terminate
this agreement forthwith without being under an obligation to pay
the
Employee in lieu of prior notice and severance
pay.
|
|
19.6
|
The
Employee undertakes that upon either of the parties giving notice
as to
termination of the employment for any reason, he will transfer his
position in an orderly manner to his replacement or to any other
person
that the Company shall direct him to do so, including preparation
of a
detailed report of the matters that he was handling and their up
to date
position, and will deliver to the Company all such documents, information,
equipment and material that has reached him and/or he has prepared
in
connection with his employment and no duplicate or photocopy of such
documents shall remain in his possession in any form
whatsoever.
|
|
19.7
|
The
Employee undertakes to be at the Company's disposal, reasonably,
during a
period of 6 months after termination of his employment in the Company
in
order to provide explanations and clarifications regarding his employment
and regarding all that has been done and/or said between him and
customers
and/or suppliers of the Company and if required to do so by the Company's
Board, he will come to meetings with customers and/or bodies and/or
persons with whom he dealt and in respect of whom questions, doubts
or
problems have arisen. Such meetings will take place after prior
coordination with the Employee.
|
|
19.8
|
Notwithstanding
what is stated above in this Agreement, it is hereby expressly agreed
and
declared that if for any reason, approval is not received from the
defense
establishment of the State of Israel for employment of the Employee
of the
Company in the position (hereinafter: "Defense Establishment
Security Clearance") or if for any reason and at any time the
Defense Establishment Security Clearance is revoked, this Agreement
and
the employer-employee relationship between the Employee and the Company
(in so far as it has commenced) shall terminate automatically and
this
immediately upon the pronouncement of a decision as to non-granting
of or
revocation of Defense Establishment Security
Clearance.
|
20.
|
MISCELLANEOUS:
|
|
20.1
|
The
Employee hereby gives the Company an irrevocable instruction to deduct,
any debt which the Employee owes to the Company on the date of such
deduction, from his salary or from any other amount which becomes
due to
the Employee in the future from the Company, including in respect
of
amounts that he will be entitled to receive as a result of and because
of
termination of his employment with the Company, including and
without derogating from the generality of the foregoing, moneys that
have
accumulated to his credit in the directors and executives insurance
policy
(including compensation) and in the continuing education fund
.
|
|
20.2
|
The
contractual terms as stated in this Agreement, are personal. The
Employee
hereby gives his consent to the submission of a copy of this Agreement
to
the US Securities and Exchange Commission (SEC) and to the Israeli
Securities Authority, by Xfone Inc. and he hereby confirms that he
is
aware that as a result of such reports this Agreement (including
Appendix
A to it) will be available for public
scrutiny.
|
|
20.3
|
The
Employee hereby declares and agrees explicitly that this Agreement
prevails over any agreement, arrangement or other commitment between
him
and the Company and/or parent company and/or associated company.
Any
agreement or other commitment made prior to signature of this Agreement,
which has not been expressed explicitly in this Agreement neither
adds to
the rights and obligations prescribed in this Agreement or arising
from
them, nor detracts from or varies
them.
|
|
20.4
|
A
variation and/or cancellation of any one of the provisions of this
Agreement shall only be made in a written document which shall be
signed
by the two parties.
|
|
20.5
|
This
employment contract shall also be deemed to be notice, as such is
defined
in the Notice to employee (Terms of Employment) Law,
5762-2002.
|
|
20.6
|
Any
notification that is sent by either of the parties to the other by
registered mail shall be deemed to have been received by the other
party
after 72 hours from the time of its dispatch as
aforesaid.
|
|
20.7
|
The
addresses of the parties for the purpose of this Agreement are as
specified in the preamble to this
Agreement.
|
|
AND
IN WITNESS WHEREOF THE PARTIES HAVE
SIGNED:
|
/s/Xxxxxxx
Xxxxxx
|
/s/
Xxxx Xxxxxx
|
|||
|
|
|||
Xfone
018 Ltd.
|
Xxxx
Xxxxxx
|
|
APPENDIX
A TO EMPLOYMENT CONTRACT
|
|
DATED
AUGUST 26, 2007
|
1.
|
In
this appendix the following terns shall have the meanings stated
alongside
them:
|
|
1.1
|
"The
Company" - Xfone, Inc.
|
|
1.2
|
"The
Employee" - Xxxx Xxxxxx
|
|
1.3
|
"The
Employer" - Xfone 018
Ltd.
|
|
1.4
|
"The
Employment Contract" - an employment contract
dated August 26, 2007 made between the Employer and the Employee,
and of
which this Appendix constitutes an integral
part.
|
|
1.5
|
"The
Determining Date"- the date of ratification of the plan by the
Company's shareholders.
|
|
1.6
|
"The
Plan"- a stock option/bonus plan that will be adopted and
approved by the Company in 2007
|
2.
|
|
|
2.1
|
Within
30 days of the Determining Date the Company will grant, for nil
consideration, 300,000 options as part of and subject to the Plan
to
purchase 300,000 of the Company's common stock (hereinafter respectively:
"the Options", "the Option
Shares").
|
2.2 | For as long as an employer-employee relationship exists between the Employee and the Employer and subject to the provisions of the Plan (including as to nullification or termination of options), the Employee will be entitled to exercise the Options for the Option Shares, as follows: |
|
2.2.1
|
The
Employee will be entitled to exercise up to 75,000 Options after
twelve
(12) months have elapsed from the date of commencement of his employment
with the Employer, but not before the qualifying date (hereinafter:
"the First Exercise
Date").
|
|
2.2.2
|
The
Employee will be entitled to exercise up to 18,750 additional options
at
the end of every three (3) months, and this commencing after three
(3)
months have elapsed from the first exercise
date.
|
3.
|
|
|
3.1
|
At
the end of each calendar year commencing from 2008 and ending in
2011,
subject to what is stated below in Section 7, and to the Employee
meeting
100% of the targets set in Section 5 of the employment contract in
respect
of such year, the Company will grant the Employee for nil consideration,
25,000 options as part of and subject to the Plan (hereinafter:
"the Additional Options") to purchase 25,000 of the
Company's common stocks (hereinafter: "the Additional Option
Shares") and this up to a maximum aggregate
number of 100,000 Additional Options for the whole of the said
period.
|
|
3.2
|
The
Employee will be entitled to exercise the Additional Options for
the
Additional Option Shares commencing from thirty (30) days after the
date
of publication of the Company’s annual financial statements, in any year
during the said period.
|
4.
|
Each
additional individual option shall be exercisable for one ordinary
share
of the Company in consideration of an exercise price that is equivalent
to
$US 3.5
|
5.
|
Subject
to the provisions of the Plan as regards termination or nullification
of
options, and subject to what is stated above in Sections 2-3, the
Options
and the Additional Options which have vested, shall be available
for
exercise up to one hundred and twenty (120) days after termination
of
employer-employee relationships between the Employer and the Employee.
Notwithstanding the foregoing, where the Employee has been dismissed
by
the Employer in the circumstances prescribed in Section 19.5 of the
Employment Contract, the Employee's right to exercise the Options
and the
Additional Options that have not yet been exercised, shall terminate
forthwith, and this even if the time for their vesting has fallen
due.
|
6.
|
It
is hereby clarified that in the absence of registration in accordance
with
the Securities Act of 1933 (hereinafter: "the American Securities
Law") the Option Shares and the Additional
Option Shares shall be issued as "Restricted Shares". The Company
hereby
confirms that it intends to register under the American Securities
Law,
all such commpn stocks of the Company as arise from exercise of options
that are to be granted as part of the Plan (including the Option
Shares
and the Additional Option Shares).
|
7.
|
The
right of the Employee to the grant of the Options and the Additional
Options is conditional on actual employment with the Employer on
the date
of the granting of them. Nothing in the contents of the Employment
Contract and/or in this Appendix shall be construed as constituting
a
commitment of the Employer and/or the Employee to any minimum period
of
employment. Nothing in the contents of the Employment Contract and/or
in
this Appendix shall be construed as creating an employer-employee
relationship between the Company and the
Employee.
|
8.
|
The
Options/the Additional Options are being granted to the Employee
personally and they are not transferable to any third
party.
|
9.
|
Any
tax that applies, if any, to the Employee in respect of allotment
of the
Options/ the Additional Options or their exercise, shall be paid
by the
Employee.
|
10.
|
This
Appendix is subject to the provisions of the Plan and in any case
of
conflict between its provisions and the provisions of the Plan, the
provisions of the Plan shall prevail. Notwithstanding what is stated
in
the Employment Contract, the laws that apply to this Appendix (including
in relation to its performance and interpretation) shall be the laws
that
apply to the Plan.
|
11.
|
By
his signature of this Appendix the Employee undertakes to take any
action
that is required of him in accordance with the Plan, and including
the
signature of any agreement and/or document, the signature of which
is
necessary in accordance with the Plan.
|
/s/Xxxxxxx
Xxxxxx
|
/s/
Xxxx
Xxxxxx
|
|||
|
|
|||
Xfone
018 Ltd.
|
Xxxx
Xxxxxx
|
/s/Xxxxxxx
Xxxxxx
|
|
|||
|
|
|||
Xfone,
Inc.
|
|