Exhibit 10.1
EMPLOYMENT AGREEMENT - XXXX XXXXXX
This Employment Agreement (the "Agreement") is made and
entered into as of July 15, 1999 by and among (i) ESC MEDICAL SYSTEMS,
Inc., a Delaware corporation, with its principal offices at 000 Xxxxxxxx
Xxxx, Xxxxxxx, XX 00000, X.X.X. ("ESCI"), (ii) ESC Medical Systems Ltd., an
Israeli public company, with its principal offices at the New Industrial
Park, Yokneam, Israel ("ESCL, and jointly with ESCI, the "Companies"), both
of the first party, and XX. XXXX XXXXXX residing at __________________ (the
"Executive"), of the second party.
WHEREAS, the Companies desire to employ and secure for
themselves the services of the Executive upon the terms and subject to the
conditions specified herein, and
WHEREAS, the Executive will provide his services pursuant to
this Agreement to both Companies, and, based on the Executive
responsibilities, the Companies respective needs for his services, and the
parties' experience during the months preceding the signing of this
Agreement, the Companies and the Executive estimate the allocation of the
Executive's time and efforts between the Companies to be 75% to ESCI and
25% to ESCL, and accordingly each of the Companies will each satisfy the
rights and benefits of the Executive hereunder in accordance with such
allocation, unless otherwise specified herein; and
WHEREAS, the Executive desires to accept employment with the
Company upon the terms and subject to the conditions specified herein.
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:
1. EMPLOYMENT. Each of the Companies hereby employs the
Executive in the capacity of the Chief Financial Officer of each Company,
respectively, 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.
2. DUTIES. (a) The Executive agrees to devote his full
business time (except for certain exceptions as approved from time to time
by the CEO), attention, best efforts and ability to the affairs of the
Companies, as set forth in the preamble of this Agreement. He shall report
to the Chief Executive Officer of ESCL (the "CEO"). The Executive shall
have responsibility for the financial affairs of the Companies and the
other group companies, 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.
(b) The Executive acknowledges that his capacity is a
fiduciary position and requires a special degree of trust, his duties and
responsibilities may entail irregular work hours and extensive traveling
and relocation, for which he is adequately rewarded by the compensations
provided for in this Agreement, and that accordingly the provisions of the
Work Hours and Rest Law, 1951 (or any equivalent U.S. federal or state
labor law) will not apply to his employment with the Company.
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(c) When the Executive performs services for the Companies,
the Executive shall be, at all times, an employee of the Companies. While
performing such services, the Executive shall not engage in any activities
that may interfere or conflict with the proper discharge of his duties.
3. TERM AND TERMINATION. The term of this Agreement shall
commence on July 15, 1999 and shall continue in full force and effect until
terminated pursuant to the terms hereof.
(a) 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 45 days or non-consecutive
45 days in any six month period; or (D) for cause. For purposes of this
Agreement, an event or occurrence constituting "cause" includes, but is not
limited to:
(i) The Executive's failure or refusal to perform
specific directives of his superior;
(ii) Dishonesty of the Executive affecting the
Companies;
(iii) The Executive's conviction of a felony or of any
crime involving moral turpitude, fraud or
misrepresentation;
(iv) Any gross negligence or willful conduct 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;
(v) Any material breach of any of the provisions of
this Agreement.
(b) 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 pursuant to any applicable law, but in no event less than the last
month's base salary per each 12-month period of the Executive's employment
with the Company and a pro-rata portion for any shorter period since the
last anniversary of the Executive's employment prior to the effective date
of such termination ("Severance Payment"). such payments shall be less
deductions for all applicable taxes and withholdings. 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. 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.
4. BASE SALARY. As compensation for services rendered
hereunder, the Companies shall pay the Executive, in allocation between
them as set forth in the preamble of this Agreement, an annual base salary
of U.S. $120,000 (one hundred and twenty thousand United States Dollars),
less deductions for all applicable taxes and withholdings, payable in
twelve equal monthly installments in conformance with the regular payroll
dates and practices for salaried personnel of the Company during the term
of the Agreement. The Executive's salary level shall be reviewed by the CEO
annually or at such other times as the CEO shall determine. The Company 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 Company's favor, shall be credited against future
salaries.
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5. 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 (less deductions for all applicable
taxes and withholdings), 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):
(a) VACATION. The Executive shall be entitled to twenty (20)
business days of vacation per year in accordance with Company's policy. The
specific dates of such vacations shall be coordinated in advance with the
CEO. The Executive shall not be entitled to accumulate or to redeem any
unused vacation days in excess of an aggregate of forty days.
(b) OPTIONS. Upon the execution of this Agreement, the
Executive shall be granted options to purchase up to 150,000 (one hundred
and fifty thousand) Ordinary Shares, par value NIS 0.10 per share, of ESCL
under the terms and conditions of one of the employees equity incentive
plans maintained by ESCL, as designated for the senior executives of the
Companies. The options shall vest with the Executive in five (5) equal
annual installments of 30,000 (thirty thousand) options each, upon each
anniversary of the Executive's employment with the Companies, the first
occurring on July 15, 2000, and will be exercisable at a price per share of
US$5.0625. The options shall otherwise be under such terms as the Board
and/or the Compensation Committee of ESCL may determine.
(c) CERTAIN SOCIAL BENEFITS. The Companies shall grant the
Executive all the social benefits, such as pension, life insurance, health
insurance, disability insurance, certain saving programs and others as are
granted to each Companies' respective senior executives in the Executive's
rank and under their usual terms pursuant to such Company's current policy
(including employees' participation therein). Each Company shall grant such
benefits on the basis of the portion of the Base Salary payable thereby
hereunder. Such benefits shall include, but not be limited to, in the case
of ESCL: Manager's Insurance ("Bituach Menahalim"), Disability Insurance,
and Advanced Study Provident Fund ("Keren Hishtalmut"); and in the case of
ESCI: Health Insurance (under the customary terms offered to ESCI's senior
executives).
(d) CERTAIN REIMBURSEMENTS. The Executive shall be entitled
to full reimbursement from the Companies (in allocation between them as set
forth in the preamble of this Agreement) for the following:
(i) The travel expenses of the Executive's wife to
Israel, up to ___ occasions until December 31,
1999; and
(ii) The payments on a lease of a corporate apartment in
the Tel-Aviv area, reasonably satisfactory to the
Executive, which shall serve the Executive during
his stays in Israel, and his telephone expenses.
(iii) Relocation expenses to Israel, as approved by the
CEO.
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6. 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, its subsidiaries, affiliates, or any of its 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.
7. COVENANT NOT TO SOLICIT BUSINESS. (a) Upon termination of
this Agreement the Executive agrees that for a period of two (2) years 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 the Board.
(b) For a period of two (2) years from the date of
termination of this Agreement without the prior written consent of the
Board, the Executive shall not employ, offer to employ, or in any way
directly or indirectly solicit or seek to obtain or achieve the employment
of any person employed by either the Companies, its subsidiaries,
affiliates, or any successors or assigns thereof now or during a two (2)
year period from the date of the Executive's termination of employment,
except for those executives who have left the Companies, its subsidiaries,
affiliates, or any successors or assigns thereof more than one (1) year
prior to the date of the Executive's termination of employment with the
Companies.
(c) For a period of two (2) years from the date of
termination of this Agreement, without the prior written consent of the
Board or the Committee, 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
(c), 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 its affiliates or subsidiaries
prior to the date of this Agreement or hereafter conducted by the Companies
or its affiliates or subsidiaries during the term of this Agreement
anywhere in the world.
(d) The parties hereto agree that the duration and area for
which the covenant not to compete set forth in paragraph 7(c) above is to
be 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), (b) or (c) of this paragraph 7 shall cause irreparable harm to the
Companies, its 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.
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8. 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.
9. 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.
10. NO ASSIGNMENT BY EXECUTIVE. The Executive shall have no
right to assign any of the rights nor 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.
11. 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.
12. 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.
13. NOTICES. All notices hereunder shall be in writing and
delivered by hand or telefaxed 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: ESC Medical Systems Ltd.
X.X. Xxx 000
Xxxxxxx, Xxxxxx
Attention: Chief Executive Officer
To Executive: c/o Trans-Resources, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
14. 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.
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15. 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.
16. 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.
17. 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.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement shall be governed by and construed in accordance with the laws of
the State of Israel. Any litigation concerning any claims under or breach
of this Agreement shall be brought exclusively in the competent courts of
the Tel-Aviv-Jaffa District.
19. 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.
20. 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.
* * * *
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IN WITNESS WHEREOF, the Company and the Executive have
executed this Employment Agreement, as of the day and year first above
written.
ESC Medical Systems Ltd.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Chief Executive Officer
ESC MEDICAL SYSTEMS, Inc.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Chief Executive Officer
North America Operations
XXXX XXXXXX
/s/ Xxxx Xxxxxx
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