Exhibit 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
January 21, 2003 by and among (i) Lumenis Ltd. Lumenis Inc., with its principal
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, XX, X.X.X. ("Lumenis Inc.") (ii) Lumenis
Ltd., a public company incorporated under the laws of the State of Israel, with
its principal offices at the New Industrial Park, Yokneam, Israel ("Lumenis
Ltd.", together with Lumenis Inc., shall be referred to hereunder as the
"Companies"), and (iii) Xx. Xxxx Xxxxxx (the "Executive").
WHEREAS, the parties hereto have entered into an Employment Agreement
dated as of July 1, 2001 ("2001 Agreement"), pursuant to which the Executive is
employed as Executive Vice President and Chief Operating Officer of Lumenis Ltd.
and Chief Operating Officer of Lumenis Inc.; and
WHEREAS, the 2001 Agreement between the parties is terminated as of the
date hereof; and
WHEREAS, the parties have agreed on certain changes to the employment
terms of the Executive and wish to incorporate said changes, all pursuant to the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt of which is hereby specifically acknowledged, the
parties hereto agree as follows:
EMPLOYMENT. Lumenis Ltd. hereby employs the Executive in the capacity of
Executive Vice President and Chief Operating Officer and Lumenis Inc. hereby
employees the Executive as Chief Operating Officer, all upon the terms and
subject to the conditions set forth below. The Executive hereby accepts
employment with each company in such capacity upon the terms and subject to the
conditions set forth below.
DUTIES. a) The Executive agrees to devote his full business time (except for
certain exceptions as approved from time to time by the Chief Executive Officer
of Lumenis Ltd. ("CEO")), attention, best efforts and ability to the affairs of
the Companies. The Executive shall report to the CEO. The Executive shall have
responsibility for the business affairs of the Companies and it's other
subsidiaries, with the powers and duties as customarily assigned to such office
and/or as otherwise may be defined by the CEO from time to time.
While performing services for the Companies, the Executive shall not engage in
any activities that may interfere or conflict with the proper discharge of his
duties.
TERMS AND TERMINATION. The term of the Agreement shall have commenced on July 1,
2001 and shall continue in full force and effect until terminated pursuant to
the terms hereof.
The Agreement and the Executive's employment may be terminated (A) at any time
at the option of either the Executive or both Companies jointly, and subject to
a ninety (90) days prior written notice ("Prior Notice"); (B) upon the death of
the Executive; (C) in the event of the inability of the Executive to perform his
duties hereunder, whether by reason of injury (mental or physical),
illness or otherwise, incapacitating the Executive for a continuous period
exceeding 60 days or non-consecutive 60 days in any six month period; or (D) for
cause. For purposes of this Agreement, an event or occurrence consisting "cause"
includes, but is not limited to:
Dishonesty of the Executive affecting the Companies;
The Executive's conviction of a felony or any crime involving moral turpitude,
fraud or misrepresentation;
Any gross negligence or willful misconduct of the Executive resulting in
material loss to the Companies or any of its affiliates or material damage to
the reputation of the Companies or any of its affiliates;
Any material breach of any of the provisions of this Agreement.
Subject to the provisions of paragraph (c) hereunder, in the event of a
termination of this Agreement and the Executive's employment by the Companies
pursuant to a Prior Notice, the Companies shall only be obligated to pay (i)
Executive's base salary and benefits through the Prior Notice period specified
above, provided that the Executive continues his employment obligations through
such period, and (ii) the lump sum severance payment to which the Executive
shall be entitled of one month base salary per each 12-month period of the
Executive's employment with the Companies, according to the last base salary
paid to the Executive, and a pro-rata portion for any shorter period (based on
the principle of severance under Israeli law) ("Severance Payment"). The
Companies shall have no further obligation to make any salary payments or
provide any benefits to the Executive after the expiration of such Prior Notice
period, except as required by applicable law and by this Agreement.
Notwithstanding the foregoing, either company may, in its sole discretion, elect
not to require the services of the Executive during the Prior Notice period, but
shall continue to pay the Executive's base salary and benefits through such
period.
Notwithstanding the aforesaid, in the event of termination of this Agreement and
the Executive's employment hereunder (i) pursuant to a Prior Notice initiated by
the Companies, (ii) a Change of Control in Lumenis Ltd. (as such term is defined
in Lumenis Ltd. 2000 Share Option Plan), at the option of either the Executive
or the Companies, or (iii) by the Executive for "good cause", including without
limitation, where the Executive's duties are materially diminished, the
Executive is required to relocate or payments and benefits due to him are
reduced then, subject to the Executive delivering a standard release of claims
with the Companies, the Companies shall be obligated to pay the Executive (A) a
total lump sum amount of $350,000 (three hundred and fifty thousand United
States Dollars) as well as all benefits described in Section 5 hereunder for a
twelve (12) month period, from the date of termination (beginning immediately
after the termination of the Prior Notice period), (B) participation bonus (as
described in Section 5(c) hereunder) as if the Executive was employed in the
Companies for the full calendar year in which termination occurs and for which
such bonus is granted, and (C) acceleration of vesting of all unvested options
that would by their terms vest in the a 12 month period following the
termination.
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BASE SALARY. As compensation for services rendered hereunder, the Companies
shall pay the Executive, an annual base salary of U.S. $250,000 (two hundred and
fifty thousand United States Dollars), payable in twelve equal monthly
installments in conformance with the regular payroll dates and practices for
salaried personnel of the Companies during the term of the Agreement. The CEO
shall review the Executive's salary level annually or at such other times as the
CEO shall determine. The Companies and the Executive shall reconcile any
difference between all advances on account of salary made to the Executive prior
to the date of this Agreement and any balance, if in the Executive's favor,
shall be paid to the Executive, and if in the Companies' favor, shall be
credited against future salaries.
BENEFITS. In addition to the compensation set forth in paragraph 4 above, the
Executive shall receive the following benefits, and only such benefits, from the
Companies, it being understood that any wage-based benefits shall be calculated
exclusively on the basis of the base salary (without consideration to any other
benefit);
VACATION. The executive shall be entitled to twenty-five (25) business days of
vacation per year in accordance with Companies policy. The specific dates of
such vacations shall be coordinated in advance with the CEO.
CERTAIN BENEFITS. The Companies shall grant the Executive with all benefits,
such as pension, life insurance, health insurance, disability insurance, certain
saving programs and others as are granted to the Companies' senior executives in
the Executive's rank and under their usual terms pursuant to the Companies'
current policies (including the employees' participation therein).
Such benefits shall include, but not be limited to, 401(k) plan participation.
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PERFORMANCE BONUS. As an Executive Officer of the Companies the Executive will
be eligible to participate in the Company Bonus Plan for Executive Officers at a
100% base participation rate for meeting 100% targets such as revenue, profit
and other targets as will be set by the CEO and as shall be approved each
calendar year by the Board of Directors of Lumenis Ltd. The plan is specifically
designed to reward participants based upon the attainment of corporate and
personal performance goals.
OPTIONS.
The Executive will be entitled to periodic grants of options as part of
total compensation as recommended by the CEO in writing and approved by the
Board consistent with Lumenis Ltd.'s practice of compensating executive officers
and as per Stock Option plans in effect.
CERTAIN REIMBURSEMENTS. The Executive shall be entitled to full reimbursement
from the Companies for expenses incurred during the performance of his duties
upon submission of substantiating documents, according to the Companies'
standard policy. Without limiting the above, the Companies shall, during the
term of this Agreement reimburse the Executive for all payments actually made by
him in leasing a car for his personal use together with all reasonable expenses
of maintaining and operating such car and (ii) in the use of his home and mobile
telephones.
CONFIDENTIAL INFORMATION. The Executive agrees not to divulge or use, except in
furtherance of the Companies' business at any time during his employment or
after the termination of his employment with the Companies, any confidential and
other proprietary information ("Confidential Information") obtained at any time,
disclosed to the Executive or developed by the Executive in the course of the
Executive's employment with the Companies or regarding the business of either
the Companies, their subsidiaries, affiliates, or any of their customers, except
that the Executive may disclose certain necessary information to co-workers
employed at the Companies and to third parties when required to do so in
connection with the performance of his duties hereunder. "Confidential
Information" shall mean information which is not known to the public and shall
include, but not be limited to, trade secrets, know-how, data, technical or
non-technical, whether written, graphic or oral, the names and addresses of
prospective or existing investors, customers, supply sources, ideas, financial
information, operations policies, marketing strategies, business development
plans, corporate assets, financial forecasts, and historical financial results.
COVENANT NOT TO SOLICIT BUSINESS. (a) Upon termination of this Agreement the
Executive agrees that for a period of one (1) year he will not directly or
indirectly solicit any business from individuals or entities that are customers
at the time of the termination of this Agreement of the Companies, any of its
subsidiaries or affiliates, without the prior written consent of Lumenis Ltd.
Board of Directors.
For a period of one (1) year from the date of termination of this Agreement
without the prior written consent of the CEO, the Executive shall not employ,
offer to employ, or in any way directly or indirectly solicit or see to obtain
or achieve the employment of any person employed by either the Companies, their
subsidiaries, affiliates, or any successors, or assigns thereof now or during a
one (1) year period from the date of the Executive's termination of employment,
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except for those executives who have left the Companies, their subsidiaries,
affiliates, or any successors or assigns.
For a period of one (1) year from the date of termination of this Agreement,
without the prior written consent of the CEO, the Executive shall not
participate, directly or indirectly (whether as advisor, principal, agent,
partner, officer, director, employee, stockholder, associate or consultant of),
in any Business Entity (except for an interest of less than 5% in any entity
whose securities are traded in any exchange). For purposes of this paragraph
7(b), the term "Business Entity" shall mean any person, partnership, corporation
or other business entity that at the time of the Executive's involvement with
the Companies is involved in any competition with any business carried on by the
Companies or their affiliates or subsidiaries prior to the date of this
Agreement or hereafter conducted by the Companies or their affiliates or
subsidiaries during the term of this Agreement anywhere in the world.
The parties hereto agree that the duration and area for which the covenant not
to compete set forth in paragraph 7(b) above is to b effective and reasonable in
terms of their geographical and temporal scope. In the event that any court
determines that the time period and/or area are unreasonable and that such
covenant is to that extent unenforceable, the parties hereto agree that such
covenant shall remain in full force and effect for the greatest period of time
and in the greatest geographical area that would not render it unenforceable. In
addition, the Executive acknowledges and agrees that a breach of paragraph 6 or
sections (a), or (b) of this paragraph 7 shall cause irreparable harm to the
Companies, their subsidiaries, and/or its affiliates and that the Companies
shall be entitled to specific performance of this Agreement or an injunction
without proof of special damages, together with the costs and reasonable
attorney's fees and disbursements incurred by the Companies in enforcing their
rights under paragraph 6 and this paragraph 7.
INTELLECTUAL PROPERTY ASSIGNMENT. Any invention or know-how which shall occur to
the Executive during the period of his employment relating to the business of
the Companies or the use of any of its technologies, notwithstanding that it is
perfected or reduced to specific form at any time thereafter provided that its
conception arose during such period, including all rights therein and in any
patent or other form of legal protection with respect thereto, shall become the
sole property of the Companies, without need for any specific action or notice
or any consideration to the Executive other than as provided for by this
Agreement.
DEDUCTIONS AND WITHHOLDINGS. The Companies shall be entitled to deduct and
withhold from any amount payable to the Executive, whether pursuant to this
Agreement or otherwise, any and all taxes, withholdings or other payments as
required under any applicable law.
NO ASSIGNMENT BY EXECUTIVE. The Executive shall have no right to assign any of
the rights or to delegate any of the duties created by this Agreement and any
assignment or attempted assignment of the Executive's rights, and any delegation
or attempted delegation of the Executive's duties, shall be null and void. The
Companies retain the right at any time to assign any of its rights or delegate
any of its duties under this Agreement.
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CONDITIONS. The Executive represents that he has full authority to enter into
this Agreement and that the performance of his duties under this Agreement will
not interfere with or violate the terms of any other agreement, arrangement or
understanding.
BENEFIT. Except as otherwise expressly provided herein, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, beneficiaries, personal representatives, successors and
assigns.
NOTICES. All notices hereunder shall be in writing and delivered by hand or
faxed or mailed to the address stated below of the party to which such notice is
given, or to such changed address as such party shall have given to the other
party by written notice provided, however, that any notice of change of address
shall be effective only upon receipt by the other party.
To the Companies:
Lumenis Ltd.
000Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
To Executive:
c/o Trans-Resources, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SEVERABILITY OF PROVISIONS. If any of the provisions of this Agreement is held
invalid, such provisions shall be severed and the remainder of the Agreement
shall remain in force and shall not be affected thereby.
NO ORAL CHANGES. This instrument constitutes and contains the entire Agreement
between the parties except as otherwise expressly stated herein. This Agreement
may be changed only in writing, and must be signed by the party against whom
enforcement of any waiver, modification, discharge or other change is sought.
WAIVER. Neither party's failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
ENTIRE AGREEMENT. The Agreement contained in this instrument supersedes and
cancels any and all prior agreements between the parties hereto, express or
implied, written or oral, relating to the subject matter hereof. This Agreement
sets forth the entire agreement between the parties hereto with respect to the
subject matter hereof.
GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. Any
litigation
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concerning any claims under or breach of this Agreement shall be brought
exclusively in the competent courts of the State of New York.
DESCRIPTIVE HEADINGS. The paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all such counterparts shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Companies and the Executive have executed this
Employment Agreement, as of the day and year first above written.
Lumenis Ltd.
By: /s/ Xxxxx Xxxxxxx
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Xxxx. Xxxxx Xxxxxxx
Chairman of the Board
Lumenis Inc.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Chief Financial Officer
/s/Xxxx Xxxxxx
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Xxxx Xxxxxx
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