Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is mad and entered into as of
July 1, 2001 by and among (i) Lumenis Inc., with its principal offices at 000
Xxxx Xxxxxx, Xxx Xxxx, XX, U.S.A., and XX. XXXX XXXXXX (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 the company,
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 Operating Officer of the Company, 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 Lumenis (the "CEO). The Executive shall have responsibility for the
business 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 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 any U.S. federal or state labor law will
not apply to his employment with the Company.
(c) When the Executive performs services for the Companies, the
Executive shall be, at all times, an employee of the Company. 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. TERMS AND TERMINATION. The term of this Agreement shall commence on July
1, 2001 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 consisting "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 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 not event less than the
last month's base salary per each 12-month period f 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 SALAARY. As compensation for services rendered hereunder, the
Company shall pay the Executive, in allocation between them as set forth in the
preamble of this Agreement an annual base salary of U.S. $250,000 (two hundred
and fifty 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
f 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
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Executive's favor, shall be paid to the Executive, and if in the Company's
favor, shall be credited against future salaries.
5. BENEFITS. In addition to the compensation set forth in paragraph 5
above, the Executive shall receive the following benefits, and only such
benefits, from the Companies (less deduction 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) CERTAIN SOCIAL BENEFITS. The Companies shall grant the Executive
with all social benefits, such as pension, life insurance, health
insurance, disability insurance, certain saving programs and others as are
granted to the Company's senior executives in the Executive's rank and
under their usual terms pursuant to the Company's current policy (including
the employees' participation therein).
Such benefits shall include, but not be limited to, 401(k) participation
plan.
(c) PERFORMANCE BONUS. As an Executive Officer of the Company you 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. For extraordinary
performance, bonus may reach up to 200% participation rate. The Plan is
specifically designed to reward participants based upon the attainment of
Corporate and personal performance.
(d) SPECIAL INTEGRATION BONUS. Upon achievement of corporate
integration objectives as set up by Lumenis management, the following
bonuses will apply:
$450,000 paid within 10 business days of announcement of the FY 2002
results based upon the EBITDA schedule for 2002:
EBTDA 2002: $80 mm $100 mm $120
Percentage: 70% 100% 160%
A grant of 35,000, 10 year options, to fully vest on 12/31/2007,
irrespective of performance.
The exercise price of such options will be $24.90.
However vesting of the grant or a portion thereof will accelerate to the
following vesting dates based upon the following schedule:
EBITDA FY 2002: $00.xx $100mm $120mm
12/31/2003: 30% 50% 50%
12/31/2004: 30% 50% 50%
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(e) CERTAIN REIMBURSEMENTS. The Executive shall be entitled to full
reimbursement from the Company for expenses incurred during the performance
of his duties upon submission of substantiating documents, according to the
Company's standard policy. Without limiting the above, the Company 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.
6. CONFIDENTIAL INFORMATION. The executive agrees not to divulge or use,
except in furtherance of the Companies' business an 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.
(a) For a period of two (2) years from the ate 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 see 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.
(b) For a period of two (2) years from the date of termination of this
Agreement, without the prior written consent of the Board of 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,
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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.
(c) 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 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 (1), (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.
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 Company 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 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.
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.
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13. 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 Company:
Lumenis Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
To Executive:
c/o Trans-Resources, Inc.
000 Xxxx 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.
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 th3e meaning or
interpretation of this Agreement.
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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.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement, as of the day and year first above written.
Lumenis Ltd.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
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