EXHIBIT 4.8
EMPLOYMENT CONTRACT
EMPLOYMENT CONTRACT, dated as of NOVEMBER 29, 2004, between ACS-Tech80 Ltd.
("ACS" or the "COMPANY"), a State of Israel corporation with offices at Xxxxxx
Xxx., Xxxxxx Xx'xxxx, Xxxxxx 00000, and Ze'ev Kirshenboim, residing at 00 Xxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxx 00000 ("EMPLOYEE").
WHEREAS, Employee is the Company's controlling shareholder and has been acting
as its CEO and President for many years, whether directly or as an employee of a
management company owned by him; and
WHEREAS , the Company desires to engage Employee to be directly engaged by it as
its CEO, President and CFO, as well as for any present or future subsidiary, or
affiliate of the Company, and any successor or assign thereof; and
WHEREAS, Employee has agreed to be directly engaged by Company and to perform
such services in accordance with the terms of this Agreement as specified
hereunder.
NOW THEREFORE, the parties hereto stipulate and agree on the terms and
conditions hereinafter set forth:
1. TERM
The Company agrees to employ Employee, and Employee agrees to be employed
by the Company and perform services in accordance with the terms and
conditions of this Agreement, for a period commencing on January 1, 2005
(the "EFFECTIVE DATE")and ending on December 31, 2009, or such shorter
period as may be provided for herein (hereinafter, the "EMPLOYMENT
PERIOD"). The Employee is entitled to terminate the employment agreement
during the Employment Period by providing six months advance notice to the
Company. Company may not terminate this Agreement other than under the
circumstances expressly set forth herein.
Following the end of the Employment Period, this agreement shall continue
in effect, so long as neither party has given six months advance notice to
the other party of its wish to terminate the agreement.
2. DUTIES AND SERVICES
During the Employment Period, Employee shall be the President, Chief
Executive Officer and Chief Financial Officer of the Company, the President
and Chairman of the Board of its wholly owned subsidiary in the USA,
ACS-Tech 80 Inc.. In performing his duties, Employee shall be subject to
the direction of the Board of Directors of the Company, subject to
provisions of the law and subject to the provisions of the Company's or the
applicable Subsidiary's governing documents, as applicable. Employee agrees
to his employment as described in this Section 2 and agrees to devote the
necessary time and efforts, faithfully and loyally to the performance of
his duties under this Agreement. It is clarified, that Employee shall not
be precluded from engaging in other business or activities, so long as he
continues to fulfill his duties hereunder.
Employee undertakes to immediately inform the Company of any issue or
matter related to the Company or any Subsidiary, in which he may have a
personal interest and/or which might cause a conflict of interest between
Employee and the Company or any Subsidiary.
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3. OTHER AGREEMENTS
Upon the effective date of this Agreement, it shall be deemed to terminate and
replace all other arrangements regarding Employee's services, whether directly
or by company's owned by Employee, to the Company and any Subsidiary which are
similar to the services detailed herein, and except as set forth herein or as
otherwise agreed prior to the Effective Date between the Company and Employee or
company's owned by Employee, Employee shall not be entitled, as of the Effective
Date, to any further compensation for the services covered by this Agreement.
4. COMPENSATION
4.1 As compensation for his services as the President and Chief Executive
Officer of the Company hereunder, the Company shall pay Employee,
during the Employment Period, a gross annual salary of $248,750 ("LTD
SALARY"), payable on a monthly basis in equal installments. In
addition to the Ltd Salary, Employee shall be entitled to payments and
benefits as set forth herein below on account of the Ltd Salary.
4.2 As compensation for his services as the President and Chairman of the
Board of ACS-Tech80, Inc., ACS-Tech 80 Ltd. shall pay Employee, during
the Employment Period, a gross annual salary of $127,000 ("INC
SALARY"), in addition to Ltd Salary. The Inc Salary shall be payable
on a monthly basis in equal installments.
It is hereby clarified that the INC SALARY includes all benefits and
compensation and that Employee shall not be entitled to any additional
benefits as a result of the INC SALARY.
4.3 Thus, the total gross annual salary will be $375,750 ("TOTAL SALARY").
Nothing contained herein shall preclude Employee from participating in
the present or future employee benefit plans of the Company and its
subsidiaries if he meets the eligibility requirements therefore.
4.4 Once every year, beginning on January 1, 2006, the Total Salary and
all related benefits shall be increased by 5% after adjustment to the
CPI.
4.5 Once every year, beginning on the year 2006, the Employee shall be
given a bonus not to exceed 7.5% of the previous year's consolidated
income before tax, in cash, options and/or shares, at a rate and in
such manner as shall be determined by the Board of Directors (the
"BONUS"). The Bonus shall be calculated within 30 days of the approval
of the Company's audited financial statements for the preceding year.
The value of such Bonus will be based upon the success of the Company,
the attainment of the Company's goals, and the Employee's
contributions to the Company.
4.6 The Company shall allocate to a well-known advanced education fund,
the sum of 7.5% of the Ltd salary, on a monthly basis, together with a
deduction of 2.5% of Employee's net pay in connection with the Ltd
Salary for such period. Employee may draw such 7.5% as an additional
salary, rather than allocate it to such advanced education fund, so
long as the cost to the Company does not exceed the amounts that would
have been allocated to the advanced education fund.
4.7 The Total Salary shall be paid before the 10th day of each calendar
month for the current month.
4.8 Employee is entitled to an annual recreation pay of $25,000. Employee
shall be entitled, instead of such recreation pay, to draw such amount
as additional salary.
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5. EXPENSES AND LEAVE
5.1 Employee shall be entitled to reimbursement during each year of the
Employment Period (including any extended period of this Agreement)
for reasonable travel and other out-of-pocket expenses incurred in the
performance of his duties hereunder, including expenses relating to
use of a cellular phone, telephone, computer, Internet and electronic
mail at his home and during travels abroad. The Company shall
additionally make available to Employee an appropriate automobile, of
class 6 vehicle category, for the purpose of fulfilling his duties
hereunder or any other duties as designated by the Board of Directors,
and for his personal use, and the Company shall pay all costs and
taxes associated therewith. Employee may instead, at its sole
discretion, draw the amount equal to the total cost to the Company of
such automobile and related expenses as an additional salary, so long
as the cost to the Company does not exceed its projected cost had it
provided Employee with the automobile.
5.2 Employee shall be entitled to annual leave of 30 working days for
every year of employment with the Company. Leave days may be
accumulated or redeemed without limitation.
6. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants to the Company that:
6.1 Employee is under no contractual or other restriction or obligation
which is inconsistent with the execution of this Agreement, the
performance of his duties hereunder, or the other rights of the
Company hereunder; and
6.2 Employee is under no physical or mental disability that would hinder
his performance of duties under this Agreement.
7. NON-COMPETITION.
Employee undertakes not to compete with the Company during the entire
Agreement Period, and the two years after the termination of his employment
by the Company.
8. PATENTS, ETC.
Any interest in patents, patent applications, inventions, copyrights,
developments, and processes ("SUCH INVENTIONS") which Employee now or
hereafter during the period he is employed by the Company under this
Agreement or otherwise may own or develop relating to the fields in which
the Company may then be engaged shall belong to the Company; and forthwith
upon request of the Company, Employee shall execute all such assignments
and other documents and take all such other action as the Company may
reasonably request in order to vest in the Company all his right, title,
and interest in and to Such Inventions free and clear of all liens,
charges, and encumbrances.
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9. CONFIDENTIAL INFORMATION
All confidential information which Employee may now possess, may obtain
during or after the Employment Period, or may create prior to the end of
the period he is employed by the Company under this Agreement or otherwise,
relating to the business of the Company or a Subsidiary or of any customer
or supplier of any of them, shall not be published, disclosed, or made
accessible by him to any other person, firm, or corporation either during
or after the termination of his employment or used by him, any other
person, firm, or corporation either during or after the termination of his
employment, in each case without the prior written permission of the
Company, except during the Employment Period in connection with the
business of the Company or any Subsidiary or for the purpose of furthering
their interests. Employee shall return all tangible evidence of such
confidential information to the Company prior to or upon the termination of
his employment.
10. LIFE INSURANCE
If requested by the Company, Employee shall submit to such physical
examinations and otherwise take such actions and execute and deliver such
documents as may be reasonably necessary to enable the Company, at its
expense and for its own benefit, to obtain life insurance on the life of
Employee. Employee has no reason to believe that his life is not insurable
with a reputable insurance company at rates now prevailing for healthy men
of his age.
11. INSURANCE AND PENSION
During the period of this Agreement, the Company shall allocate an
equivalent of 6% of the Employee's LTD SALARY to providence fund, plus 2.5%
of Ltd Salary as insurance against loss of working ability. The 2.5%
insurance pay will be updated from time to time according to the actual
cost of such insurance. Employee shall additionally contribute up to 6% of
his LTD SALARY to the providence fund. Employee may draw Company's
participation in his providence fund as an additional salary, rather than
allocate it to the providence fund, as long as the cost to the Company does
not exceed the amounts that would have been allocated to the providence
fund.
In addition, during the period of this Agreement, the Company shall
allocate to an insurance company acceptable to Employee 8.33% of Employee's
LTD SALARY for the purpose of insuring the payment of severance pay.
The actual severance pay to which Employee shall be entitled shall be equal
to the then monthly LTD SALARY multiplied by the number of years of
employment as of the Effective Date.
Upon termination of the Employee's employment under this agreement, for any
reason whatsoever, and subject to this Agreement, the employee and his
heirs or estate shall be entitled to all sums allocated by the Employee and
the Company pursuant to this Section 11.
12. TERMINATION
12.1. Termination of this Agreement by the Company requires the approval of
the Board of Directors.
12.2. Notwithstanding anything herein contained, if, prior to the end of
the Employment Period,
Either
12.2.1. Employee is unable fully to discharge his duties hereunder for
a continued period of twelve months, other than as described in
Section 12.2.2,
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12.2.2. Employee shall be convicted (by a final judgement) of a crime
of a moral turpitude, then, and in each such case, the Company
shall have the right to give notice of termination of Employee's
services hereunder as of a date (not earlier than 30 days from
such notice) to be specified in such notice, and this Agreement
shall terminate on the date so specified,
or
Employee shall die or become physically or mentally incapacitated, by
reason of which he is unable to continue to fulfill all of his
obligations hereunder, then this Agreement shall immediately terminate
on the date of such death or incapacity, except as otherwise provided
herein.
12.3 Since the Company is highly dependent on the experience and
know-how of Employee and in order to minimize the damages that
the Parties acknowledge will likely be caused to the Company in
Employee's absence, Employee hereby undertakes to provide
technical support and management consulting services to the
Company and its Subsidiaries upon their request, for a period of
two years after the date of termination of this Agreement, for
any reason whatsoever. Employee undertakes to reasonably make
himself available to the Company during such two-year period for
the purpose of such support and consulting services. During such
two-year period, Employee shall receive a monthly salary, in US
dollars equal to his last monthly Total Salary in US dollars
prior to the termination of the Agreement, and all other benefits
and payments to which Employee was entitled hereunder. Such
amounts shall be payable to Employee for its undertaking to
provide such services following the termination hereof and shall
be due to him whether or not the Company requests such services
of him and regardless of the extent such services are actually
provided by him. During such two-year period Employee shall
continue to be bound by the Non-Competition and Confidentiality
clause contained herein.
Such payment during the two-year period following the termination
hereof shall not in any way diminish Employee's entitlements
hereunder during the term hereof or upon termination hereof (such
as severance pay or redemption of unutilized vacation), and shall
not be deemed as payment in lieu of any other amounts due to him
under this Agreement.
13. SURVIVAL
The covenants, agreements, representations, and warranties contained in or
made pursuant to this Agreement shall survive Employee's termination of
employment, irrespective of any investigation made by or on behalf of any
party.
14. MODIFICATION
This Agreement may be modified only by a written instrument duly executed
by each party.
15. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or by the most nearly comparable method of mailing, or
delivered against receipt to the party to whom it is to be given at the
address of such party set forth in the preamble to this Agreement (or to
such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 15). Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 15. Any notice or other communication given by certified mail (or
such comparable method) shall be deemed given at the time of certification
thereof (or comparable act), except for a notice changing a party's address
which shall be deemed given at the time of receipt thereof.
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16. WAIVER
Any waiver by either party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement.
The failure of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be in
writing.
17. BINDING EFFECT
Employee's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, such rights shall not be subject
to commutation, encumbrance, or the claims of Employee's creditors, and any
attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and
his heirs and personal representatives, and shall be binding upon and inure
to the benefit of the Company and its successors and those who are its
assigns under Section 11.
18. NO THIRD PARTY BENEFICIARIES
This Agreement does not create, and shall not be construed as creating, any
rights enforceable by any person not a party to this Agreement (except as
provided in Section 17 above).
19. HEADINGS
The headings in this Agreement are solely for the convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
20. COUNTERPARTS; GOVERNING LAW
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument. It shall be governed by and construed in
accordance with the laws of the State of Israel, except for section 4.2
without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
ACS-Tech80 Ltd.
BY: /S/ Xxx Xxxxx
-----------------
Name: Xxx Xxxxx
Title: Director
BY: /S/ Ze'ev Kirshenboim
-------------------------
Ze'ev Kirshenboim
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