Exhibit 10.10
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Employment and Services Agreement
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Duly made and executed in Haifa, Israel
as of the 2nd day of March, 2003
by and between
Attunity Ltd.
Company no. 520038019
of Einstein Building, Tirat Carmel 39101, Israel
(Hereinafter "ATTUNITY")
OF THE FIRST PART
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And
Arie Gonen
I.D. NO. 00168950/4
2 Pinhas Lavon St.
Haifa, Israel
(Hereinafter "GONEN")
OF THE SECOND PART
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WHEREAS GONEN has acted as CEO and Chairman of the Board of ATTUNITY from
October 1, 1987 until November 22, 2000 and has acted as Active
Chairman since November 22, 2000 until the date herein; and
WHEREAS ATTUNITY is searching for a new CEO for the Company and desires
to appoint GONEN as Interim CEO until a CEO is appointed and
GONEN agrees to serve as Interim CEO of ATTUNITY until a CEO is
appointed; and
WHEREAS ATTUNITY desires to continue the services of GONEN as Chairman of
the Board of ATTUNITY, and GONEN desires to serve as Chairman of
the Board of Attunity on the terms and conditions set forth
herein;
NOW, THEREFORE, in condition of the mutual promises and undertaking of the
parties, it is hereby agreed as follows:
1. DUTIES AND RESPONSIBILITIES
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1.1. Subject to the terms and conditions of this Agreement (i) GONEN shall
serve as Chairman of the Board of ATTUNITY, and (ii) GONEN shall also
serve as Interim CEO of ATTUNITY until a new CEO is appointed for
ATTUNITY.
1.2. During the term of GONEN's employment, GONEN shall:
1.2.1. Devote his full working time and best efforts to the business
and affairs of ATTUNITY and the performance of his duties
hereunder (this Section 1.2.1 is not applicable to the Services
Period as described in section 7 herein); and
1.2.2. Not engage in or be associated with, directly or indirectly,
any competitive business, duties or pursuits; and
1.2.3. Not undertake or accept any other paid or unpaid employment or
occupation or engage in or be associated with, directly or
indirectly, any other businesses, duties or pursuits to the
extent such activities will materially interfere with his duties
hereunder (this Section 1.2.1 is not applicable to the Services
Period as described in section 7 herein).
2. TERM AND TERMINATION
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2.1. This Agreement shall remain in effect until the end of the term of the
Services Period (as defined in Section 7.2 below), unless earlier
terminated in accordance with the terms and provisions of this Section
2.
2.2. ATTUNITY shall have the right to terminate this Agreement at any time
for Justifiable Cause (as hereunder defined) as determined by the
board of directors of ATTUNITY, by giving GONEN written notice of
termination for cause. In such event, this Agreement and the
employment relationship shall be deemed effectively terminated upon
the time of delivery of such notice.
The term "Justifiable Cause" shall mean (a) a serious breach of trust
including but not limited to theft, embezzlement, breach of fiduciary
duty, prohibited disclosure to unauthorized person or entities of
confidential or proprietary information of or relating to ATTUNITY and
the engaging by GONEN in any prohibited businesses competitive to the
business of ATTUNITY and its subsidiaries, affiliates or associated
companies, or (b) any willful failure to perform competently any of
GONEN's fundamental functions or duties hereunder or other cause
justifying termination or dismissal under applicable law.
2.3. During the period following the Termination of Employment Date (as
defined in Section 7.2 below), GONEN shall cooperate with ATTUNITY and
use his best effort to assist the integration into ATTUNITY's
organization of the person or persons who will assume GONEN's
responsibilities.
3. COMPENSATION
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3.1. Commencing September 1, 2002 and until the Termination of Employment
Date (as defined in Section 7 below), ATTUNITY shall pay GONEN as
compensation a monthly gross salary of ninety thousand 90,000 New
Israel Shekels ("NIS") payable until the 9th of the following month
(the "Gross Salary"). The Gross Salary payable each month shall be
linked to the Israeli Consumer Price Index published by the Israeli
Central Statistic Bureau. The base index will be the index of December
2002. Such compensation shall be comprehensive and all - inclusive in
that it shall be deemed to include all overtime payments according to
the terms of the Working Hours and Rest Law 5711 - 1951 or any other
similar law or provision which may apply.
3.2. GONEN shall be entitled to the use of an automobile owned by ATTUNITY
("Company Car"), the price of which will not exceed seventy five
($75,000) Thousand US Dollars. ATTUNITY shall reimburse GONEN for all
expenses relating to the use and upkeep of such automobile. ATTUNITY
will replace such Company Car at least every forty eight (48) months.
Upon termination of this Agreement for any reason, GONEN will have the
option to purchase such automobile at its book value at the time of
such termination. GONEN will keep the Company Car for six (6) months
commencing from the Termination of Employment Date as set for in
Section 7 herein.
3.3. GONEN shall be entitled to full reimbursement for his home telephone
expenses, including calls made abroad.
3.4. GONEN shall be entitled to a refund for all-reasonable entertainment
and living expenses both in Israel and abroad, upon the furnishing of
receipts, relating to his employment with ATTUNITY.
3.5. ATTUNITY and GONEN shall obtain and maintain Managers Insurance
(Bituach Menahalim) in the customary form for the exclusive benefit of
GONEN. ATTUNITY shall pay an amount equal to 13.33% of each monthly
Gross Salary payment towards the premiums payable in respect of such
insurance. GONEN shall pay, by deduction from salary, 5% of each
monthly Gross Salary and ATTUNITY shall pay an additional amount equal
to 2.5% of each monthly Gross Salary for insurance against disability.
It is hereby agreed that GONEN's benefits under the foregoing
insurance shall come in lieu of, and as full and final substitution
for severance pay to which GONEN may otherwise be entitled under
applicable law.
When GONEN's employment is terminated for whatsoever reason (except
for Justifiable Cause) GONEN will be entitled to a severance payment
that is calculated at two times his last Gross Salary (as described in
Section 3.1) multiplied by the number of years since October 1, 1987,
less the amount accumulated in the severance component of the Manager
Insurance specified above and GONEN's Managers Insurance will
transferred to GONEN.
3.6. GONEN shall be entitled to "Keren Hishtalmut" as customary for all
ATTUNITY employees.
3.7. GONEN shall be entitled to paid annual vacation of twenty five (25)
working days, based on five (5) working days week, with respect to and
during each twelve (12) month period of his employment hereunder. Such
vacation, in respect to any year, may be carried forward. GONEN will
be entitled to be paid for unutilized accrued vacation on a yearly
basis. However, Gonen agrees to waive his accrued vacation until
December 31, 2002.
3.8. In the event that GONEN shall be required by ATTUNITY to spend time
abroad, he shall be entitled to a special grant equal to the amount of
days he has spent outside Israel multiplied by a daily rate of one
hundred and thirty four US Dollars ($134), in addition to the
reimbursement of his expenses as specified in 3.4 above.
3.9. GONEN shall be entitled to a bonus according to the Bonus Plan
attached hereto as Schedule 1. In addition, commencing 2002, the Board
of Directors will be entitled to award GONEN with additional bonuses,
which shall not exceed One Hundred Thousand US Dollars ($100,000) per
calendar year.
3.10.Upon signing this Agreement GONEN will be granted four hundred
thousand (400,000) options at a share price of $1.75 to be vested over
three equal annual installments starting September 1, 2002. In the
event that GONEN'S employment is terminated (except for Justifiable
Cause) all options shall vest upon the Termination Date. GONEN will be
entitled to exercise these options until December 31, 2008.
3.11.GONEN agrees and accepts that in January 2002 the Company implemented
a twenty percent (20%) temporary salary reduction plan for all its
employees and as long as this reduction plan for all employees is not
changed GONEN's Gross Salary will be reduced by twenty percent (20%).
This reduction will not apply to Section 3.5 regarding which the
salary mentioned in Section 3.1.1 shall prevail.
4. PROPRIETARY INFORMATION
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4.1. GONEN acknowledges and agrees that ATTUNITY possesses and will
continue to possess and acquire information, trade secrets and
technology that has been created, discovered or developed, or has
otherwise become known to ATTUNITY in the field of computer software
and services, including without limitation, information and technology
that has been assigned or otherwise conveyed to ATTUNITY, which
information has commercial value in the business in which ATTUNITY is
engaged. Such information, whether documentary, written oral or
computer generated, shall be deemed to be and referred to as
"Proprietary Information", which includes but is not limited to trade
marks, trade secrets, copyrights, processes, formulas, data and
know-how, improvements, inventions, techniques, products, forecasts,
third party products and know-how and customer lists.
4.2. Proprietary Information shall be deemed to include any and all
proprietary information disclosed by or on behalf of ATTUNITY and
irrespective of form but excluding information that (a) was known to
GONEN prior to his association with ATTUNITY and can be so proven by
GONEN; (b) shall have become a part of the
public knowledge except as a result of breach of this Agreement by
GONEN; (c) shall have been received by GONEN from a third party having
no obligation towards ATTUNITY; (d) reflects general skills and
experience gained during GONEN's employment by ATTUNITY; or (e)
reflects information and data generally known within the industries or
trades in which ATTUNITY competes.
4.3. GONEN agrees and declares that all Proprietary Information, patents
and other rights in connection therewith shall be the sole property of
ATTUNITY and it's assigns. At all times, both during his employment by
ATTUNITY and after its termination, GONEN will not use or disclose any
Proprietary Information or anything relating thereto without the
written consent of ATTUNITY except as may be necessary in the ordinary
course of performing his duties hereunder.
4.4. Should, for any reason, any one or more of the terms contained in
Sub-Paragraphs 4.1. 4.2. And 4.3 of this Section 4 be held to be
excessively broad with regard to time, geographic scope or activity,
that term shall be construed in a manner to enable it to be enforced
to the extant compatible with applicable law.
4.5. GONEN's undertakings in this Paragraph 4 shall remain in full force
and effect for two (2) years after termination of this Agreement.
5. NON-COMPETITION
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GONEN agrees and undertakes that he will not, during the term of this
Agreement (including the Service Period) and for a period of one year
thereafter:
5.1. Directly or indirectly, as owner, partner, joint venturer, stock
holder, employee, broker, agent, principal, trustee, corporate
officer, director, licensor, licensee or any capacity whatsoever
engage in, become financially interested in, be employed by, or have
any connection with in Israel or any other country any business or
venture worldwide that is engaged in any activities involving either
(a) products or services similar to the actual products then produced
by ATTUNITY or its subsidiaries or affiliates, or (b) information
processes, technology or equipment in which ATTUNITY or its
subsidiaries or affiliates then has a proprietary interest; provided,
however that GONEN may own any securities of any corporation which is
engaged in such business and is and is publicly-owned and trade but in
any amount not
to exceed at any one time ten percent (10%) of any class of stock or
securities of such company, so long as he has no active role in the
publicly-owned and traded company as traded company as director,
employee, consultant or otherwise.
5.2. Employ (other that through ATTUNITY or its subsidiaries) any person
employed by ATTUNITY during the previous twelve (12) months for any
purpose or in any place in any business in which he is deemed to be a
control person as defined under any Israeli or U.S. securities or
banking laws or regulations.
5.3. Should, for any reason, any one or more of the terms contained in
Sub-Paragraphs 5.1 and 5.2 of this Section 5 be held to be excessively
broad regard to time, geographic scope or activity, that term shall be
construed in a manner to enable it to be enforced to the extent
compatible with applicable law.
6. NO RESTRICTION ON EMPLOYMENT
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GONEN represents and warrants that on the date hereof he is free to be
employed by ATTUNITY upon the terms contained in this Agreement and that
there are no employment contracts, consulting contracts or restrictive
covenants preventing full performance of his duties hereunder.
7. TERMINATION OF GONEN's EMPLOYMENT AND THE SERVICES PERIOD
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7.1. When a new CEO is appointed upon the Board's decision, GONEN will stop
serving as Interim CEO of ATTUNITY.
7.2. After a new CEO is appointed, ATTUNITY shall have the option to
continue GONEN's employment up to twelve (12) months after such
appointment and GONEN will have such title, authority and duties as
determined by the Board. ATTUNITY shall give GONEN thirty (30) days
notice of the termination of his employment with ATTUNITY (the
"Termination of Employment Date"). After the Termination of Employment
Date, GONEN shall not be entitled to the Gross Salary and the other
benefits specified in Section 3 above (except as expressly specified
in Section 3.2 and according to Sections 3.9 and 3.10) and the
following provisions will instead apply:
7.2.1. For a period of thirty six (36) months commencing on the
Termination of Employment Date
(the "Services Period"), GONEN undertakes to provide up to fifty
four (54) hours of consulting services per month to ATTUNITY and
not more than One thousand nine hundred forty four (1,944) hours
on an accumulative basis. The Board of ATTUNITY will exclusively
determine GONEN's duties and title during the Services Period.
GONEN will be entitled to all the payments under this Section 7.2
herein regardless of whether ATTUNITY utilizes GONEN's services.
GONEN recognizes that from time to time the Board might require
from GONEN to provide more than fifty four (54) hours per month.
In such events GONEN will make his best effort to comply with
such requests, however, GONEN's accumulative commitment will not
exceed one thousand nine hundred forty four (1,944) hours for the
Services Period.
7.2.2. In the event that GONEN will be required by ATTUNITY to travel
abroad, a full day will be calculated at eight (8) hours and will
include GONEN's flying time. In such an event, GONEN shall be
entitled to a payment that is equal to the amount of days he has
spent outside Israel multiplied by a daily rate of one hundred
thirty four US Dollars ($134), in addition to the reimbursement
of his reasonable expenses, in accordance with ATTUNITY'S expense
reimbursement policy.
7.2.3. In consideration for GONEN's availability to provide the
Consulting Services during the Services Period, ATTUNITY shall
pay GONEN thirty six (36) monthly payments of thirteen thousand
five hundred US Dollars ($13,500) plus VAT (the "Payments"), to
be paid by the 25th of each month. GONEN will furnish ATTUNITY
with an invoice for each month by the 30th of the month. Payments
will be made in NIS in accordance with a last known
representative exchange rate published by the Bank of Israel.
These monthly payments will not be changed as long as the
accumulative commitment specified in section 7.2.1 will not
exceed one thousand nine hundred forty four (1,944) hours for the
Services Period.
7.3 The parties acknowledge that during the Services Period, there will
not be any employer - employee
relationship between ATTUNITY and GONEN and GONEN will be acting as an
independent contractor.
8. GENERAL PROVISIONS
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8.1. This Agreement shall not be amended, modified or varied by any oral
agreement or representation or otherwise than by a written instrument
executed by both parties or by their duly authorized representative.
8.2. No failure, delay or forbearance of either party in exercising any
power or right hereunder shall in any way restrict or diminish such
party's rights and powers under this Agreement, or operate as a waiver
of any of the terms or conditions hereof.
8.3. If any term or provision of this Agreement shall be declared invalid,
illegal, or unenforceable, to the extent that a court shall deem it
reasonable to enforce such term or provision and if such term or
provision shall be unreasonable to enforce to any extent, such term or
provision shall be severed and all remaining terms and provisions
shall be unaffected and shall continue in full force and effect.
8.4. The terms and conditions of this Agreement supersede those of all
previous agreements and arrangements, either written or oral, relating
to the subject hereof, including the Employment Agreement between
ATTUNITY and GONEN dated January 1, 1996 and including the Agreement
dated September 1, 2002.
8.5. This Agreement is personal to GONEN and GONEN shall not assign or
delegate his rights or duties to a third party, whether by contract,
will or operation of law, without ATTUNITY's prior written consent,
except moneys and compensation rights that may be passed to his heirs.
8.6. This Agreement shall inure to the benefit of ATTUNITY's successors and
assigns.
8.7. Each notice and/or demand given by one party pursuant to this
Agreement shall be given in writing and shall be sent by registered
mail to the other party at the address appearing in the caption of
this Agreement or by facsimile and such notice and/or demand shall be
deemed given at the expiration of twelve (12) hours after dispatch by
facsimile, three (3) days from the date of mailing by registered mail
or immediately if
delivered by hand. Such address shall be effective unless notice of
change in address is provided by registered mail to the other party.
8.8. Any dispute arising out of or in connection with this Agreement will,
in the failure of the parties to reach an amicable agreement, be
finally settled by a single arbitrator appointed in accordance with
the agreement of the parties. In the absence of agreement within
twenty one (21) days from the written request of one party for the
appointment of an arbitrator, the chairman of the Israeli Bar
Association shall appoint an arbitrator.
The arbitrator shall be a lawyer knowledgeable in the laws
appertaining to computers and software. The arbitrator shall be bound
in his deliberations by the substantive laws of the State of Israel
and shall provide the parties with written reasons for his decision.
8.9 This Agreement is subject to the required corporate approvals of
Attunity.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Attunity Ltd. Arie Gonen
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SCHEDULE 1 - BONUS PLAN
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During the term of the Agreement GONEN will be responsible for signing
agreements with International Distributors, raising funds and merger and
acquisitions initiatives for ATTUNITY. GONEN will receive a bonus according to
the following:
1. Commencing January 1, 2003 and until December 31, 2007, ATTUNITY will
pay GONEN nine percent (9%) of all licenses and maintenance revenues
received by ATTUNITY from International Distributors, which the Board
assigned GONEN to appoint (including the International Distributors
were appointed during 2002). This bonus will be paid within sixty (60)
days of the receipt of payments from the Internal Distributors.
However, this yearly bonus will not exceed the lower of (i) five
percent (5%) of the yearly net profit excluding impairment of
intangible Assets of ATTUNITY and (ii) one hundred thousand US Dollars
($100,000) per year.
2. GONEN will also receive an additional bonus that is equal to sixteen
percent (16%) of revenues received from Oracle (Transparent Gateways)
for the year starting March 2003, and a bonus that is equal to six
percent (6%) of revenues received from Oracle (Transparent Gateway) in
2004. These bonuses will be paid within fourteen (14) days of the
receipt of payments from Oracle.
3. In the event that GONEN will be assigned by the Board to raise funds
for ATTUNITY, GONEN will be entitled to three-year warrants at the
closing price of fund raising deal for up to seven percent (7%) of the
amount of shares that were issued in the fund raising deal, the exact
percentage to be determined by the Board of ATTUNITY. To remove doubt,
this provision will only apply to investors introduced to ATTUNITY by
GONEN.
4. In the event that GONEN will be assigned by the Board to manage an
acquisition transaction, GONEN will be entitled to a fee that is of up
to seven percent (7%) of the proceeds of such transaction, the exact
percentage to be determined by the Board of ATTUNITY.