PERSONAL EMPLOYMENT AGREEMENT
This Personal Employment Agreement (the "Agreement"), effective as of October
1St, 2002, is made by and among m-Wise Ltd., a company organized under the laws
of the State of Israel (the "Company"), m-Wise, Inc., a company organized under
the laws of the State of Delaware, USA ("m-Wise"), the Company and m-Wise with
principal places of business at 10 Hasadnaot St., Herzliya 46728; and Gabriel
(Gabi) Kabazo (Israeli I.D. No 029482536), residing at 15 Zirelson St. Tel Aviv
62302 (the "Employee").
WITNESSETH
WHEREAS, the Company desires to employ the Employee on the terms and conditions
herein set forth, and the Employee desires to accept such employment on the
terms and conditions herein set forth; and WHEREAS, the Company is a
wholly-owned subsidiary of m-Wise; and WHEREAS, the Employee agrees to render
the services hereunder subject to and in accordance with the provisions hereof.
NOW THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound, the parties hereto hereby declare and agree as
follows:
1. Employment; the Position
1.1. The Company hereby appoints the Employee to serve as the Chief Financial
Officer of the Company and of m-Wise (the "Position"). The Employee shall be
directly subject to the Chief Executive Officer of m-Wise (the "Supervisor").
The Employee acknowledges and agrees that his scope of responsibilities and
duties shall include the provision of services to both the Company and to m-Wise
and that he shall not be entitled to receive any other compensation or payment
with respect to the subject matter hereof either from the Company or from
m-Wise, other than as expressly stated in Section 4 below. The Employee
acknowledges and agrees that the Company and m-Wise may, from time to time,
revise the terms and conditions of the Position, provided, that, such revision
shall be made in accordance with the Employee's skills and provided, further,
that it shall not significantly adversely affect the employment terms of the
Employee or his responsibilities with the Company or m-Wise. 1.2. The Employee
shall be employed on a full-time basis. The Employee shall devote all his
efforts to the performance of his duties and responsibilities under this
Agreement. 1.3. The Employee shall primarily perform his duties hereunder at the
Company's facilities in Israel. Employee acknowledges and agrees that the
performance of his duties hereunder may require significant domestic and
international travel.
2. Special Agreement
It is agreed between the parties hereto that this Agreement is a personal one,
and that the position the Employee holds within the Company and m-Wise is a
management position which requires a special measure of personal trust, as such
terms are defined in the
Working Hours and Rest Law 5711-1951, as amended (for the purposes of this
Section 2, the "Law"). The provisions of any collective bargaining agreements
which exist or shall exist do not, and will not, apply to the employment of the
Employee, whether such agreements were signed among the Government, the General
Federation of Labor and Employers' organizations, or any of such parties, or
whether signed by others, in relation to the field or fields of the Company
and/or m-Wise or in relation to the category of employees to which the Employee
belong (subject to applicable lawful provisions). In light of such trust
relations, the provisions of the Law or any other law which may apply, will not
apply to the employment of the Employee with the Company. Thus, the Employee may
be required from time to time and according to the workload to work beyond the
regular working hours.
3. Representations of the Employee
The Employee represents and warrants toward the Company and m-Wise as follows:
3.1 Employee shall perform faithfully his duties as may be assigned to him from
time to time by the Supervisor to the best of his ability, and shall devote his
full and undivided business time to the promotion of the Company's and m-Wise's
business. Employee undertakes not to engage in any other business activities
other than at the direction, or with the written approval, of the Board of
Directors of m-Wise. 3.2 Employee shall inform the Company, immediately upon
becoming aware of every matter in which he or a member of his immediate family
has a personal interest or which might create a conflict of interests with his
duties under his employment. 3.3 Employee shall not, unless otherwise agreed in
writing by the Company, during the term of this Agreement, engage, employ or
initiate, directly or indirectly, in any other compensatory job, business,
employment or other business related involvement, except for his employment
under this Agreement. 3.4 The execution and delivery of this Agreement and the
fulfillment of the terms hereof shall not constitute a default under or a breach
of any agreement or other instrument to which the Employee is a party or by
which he is bound, including without limitation, any confidentiality or non
competition agreement, and does not require the consent of any person or entity.
3.5 Employee shall not utilize, during the term of this Agreement, any
proprietary information of any of his previous employers. 3.6 Employee shall
abide by the Company and m-Wise's rules and regulations, as shall be published
from time to time. 3.7 In carrying out the duties under this Agreement, Employee
shall not make any representations, or give any guaranties on behalf of the
Company or m-Wise, except as specifically authorized to so do. 3.8. Employee
undertakes not to disclose and to keep in strict confidence the terms and
conditions of this Agreement.
4. Compensation; Social Benefits
4.1. Salary. The Company shall pay the Employee as compensation for
the employment services provided by him pursuant to this Agreement, a monthly
gross salary in the amount of NIS 15,000 (as shall be adjusted from time to time
in accordance with the provisions hereof, the "Salary"). The Salary shall be
adjusted with cost of living increases ("Tosefet Yoker"), in accordance with
customary business standards.
The Salary shall be paid monthly in arrears, on the tenth (10th) day of each
month. 4.2. Car. The Company shall provide Employee with a Company car, with an
engine of not more than 1,600 cc, selected by the Employee (the "Company Car").
The Company Car shall be placed at Employee's disposal, for Employee's business
and personal use and for the use of his spouse. Employee shall take good care of
the Company Car and ensure that the provisions of the insurance policy and the
Company's rules relating to the Company Car are strictly, lawfully and carefully
observed.
Subject to applicable law, the Company shall bear all fixed and ongoing
expenses relating to the Company Car and to the use and maintenance thereof,
excluding expenses incurred in connection with violations of law, which shall be
paid solely by Employee.
The value of the monthly use of the Company Car shall be added to the
Salary, in accordance with income tax regulations applicable thereto, as
straightforward income, and Employee shall bear any and all taxes applicable to
him in connection with said Company Car and the use thereof.
Upon the earlier of (i) the date of termination of the Prior Notice
Period; or (ii) the date of actual termination of employment, for any reason,
the Employee shall return the Company Car (together with its keys and any other
equipment supplied and/or installed therein by Company and any documents
relating to the Company Car) to the Company's principal office. Employee shall
have no rights of lien with respect to the Company Car and/or any of said
equipment and documents. 4.3. Manager's Insurance Scheme. The Company shall
insure the Employee under an accepted "Manager's Insurance Scheme" and/or a
comprehensive financial arrangement, at the election of the Employee, including
insurance in the event of illness or loss of capacity for work (the "Managers'
Insurance"), as follows: (i) the Company shall pay an amount equal to 5% of the
Salary towards the Managers' Insurance and shall deduct 5% from the Salary and
pay such amount towards the Managers' Insurance for the Employee's benefit; (ii)
the Company shall pay an amount up to 2.5% of the Salary towards disability
insurance; and (iii) the Company shall pay an amount equal to 8-1/3% of the
Salary towards a fund for severance compensation, which shall be payable to the
Employee upon severance, whether compensation is required by law or not, except
for (i) such circumstances in which Israeli law denies the right for severance
payment, whereas such payment shall be made in the sole discretion of the
Company; or (ii) the termination of Employee's employment with the Company for
Cause (as defined below).
4.4. Vocational Studies. The Company shall open and maintain a "Keren
Hishtalmut" Fund for the benefit of the Employee (the "Fund"). The Company shall
contribute to such Fund an amount equal to 7-1/2% of the Salary and the Employee
shall contribute to the Fund an amount equal to -2-1/2% of the Salary. The
Employee hereby instructs the Company to transfer to the Fund the Employee's
payment and the Company's contribution from the Salary. 4.5. Vacation; Sick
Leave; Recreation Payment. 4.5.1. Until October 1, 2003, Employee shall be
entitled to a paid annual vacation of sixteen (16) days with respect to and
during each twelve (12) month period of his employment hereunder (the "Vacation
Days"). Thereafter, Employee shall be entitled to additional one (1) Vacation
Day per each year of employment with the Company. Employee may accumulate
Vacation Days, subject to applicable law and the Company's written consent. The
Company, at its discretion, shall be entitled to pay Employee, subject to
applicable law, the value of unused Vacation Days, calculated pro-rata on the
basis of the Salary (including the payment for the Manager's Insurance and for
the Fund), in lieu of the usage of the Vacation Days. 4.5.2. Employee shall be
entitled to Recuperation Pay according to applicable law. 4.5.3. Employee shall
be entitled to sick leave according to applicable law, upon demonstration to the
Company of appropriate medical documentation thereof. Sick leave days may not be
accumulated or redeemed. Payment by the Company of sick leave days due to
Employee in connection with disability payments shall be set-off against
payments received by Employee pursuant to subsection 4.3 above. 4.6. Expenses.
Employee shall be reimbursed by the Company for all reasonable business
expenses, incurred by Employee with respect to travel, lodging, meals and
entertainment activities carried in connection with the fulfillment of
Employee's duties pursuant to this Agreement, whether in Israel or abroad,
provided, that Employee provides proper documentation thereof post factum. 4.7.
Review. The Salary and any additional benefits to which the Employee is entitled
hereunder shall be reviewed by the Board of Directors of m-Wise every twelve
(12) months, commencing as of October 1, 2002. Nothing in this subsection 4.7
shall be deemed as conferring upon the Employee any right for improvement of the
terms of his employment hereunder. 4.8. The Company shall pay Employee the
Salary, including without limitation, payments to the Manager's Insurance,
social benefits and fringe benefits as detailed herein, during the period of the
Employee's military reserve duty, provided, that, Employee shall provide the
Company with documentation evidencing to the fulfillment of such reserve duty.
The Company shall retain National Insurance Institute payment transfers in
connection with such military reserve duty.
5. Options
Subject to the discretion of the Board of Directors of m-Wise, Employee shall be
entitled to receive options to purchase stock of m-Wise under an employee stock
option plan of m-Wise, on the terms
and conditions as shall be determined by the Board of Directors of
m-Wise.
6. Confidentiality; Inventions; Non-Competition Employee undertakes to comply
with and to be bound by the terms and conditions of the m-Wise Israel Employee
Proprietary Information and Inventions Agreement, attached hereto as Exhibit A
(the "Proprietary Information and Inventions Agreement").
7. Term and Termination
7.1. This Agreement shall be in effect as of October 1, 2002, and shall continue
to be in full force and effect for an undefined period, until terminated as
hereafter provided. 7.2. Prior to October 1, 2003, this Agreement may be
terminated by either the Employee or the Company by giving the other party
thirty (30) days prior written notice. Thereafter, this Agreement may be
terminated by the Employee or the Company by giving the other party forty-five
(45) days prior written notice (each, a "Prior Notice Period"). The Company may
choose to pay Employee one (1) Salary and, notwithstanding anything to the
contrary in this Agreement, without limitation, social and fringe benefits, in
lieu of giving him prior written notice. Upon termination of the employment
relationship pursuant to this Section 5 neither the Company or m-Wise shall have
no further obligation or liability other than the Salary earned under this
Agreement and, notwithstanding anything to the contrary in this Agreement,
without limitation, social and fringe benefits, in lieu of giving him prior
written notice prior to the date of termination, and any accrued but unused
vacation. Any outstanding payments due by Employee to the Company or-m-Wise
shall be repaid by Employee no later than three (3) months following termination
of this Agreement. Notwithstanding the aforesaid, the Company may set-off such
outstanding payments due to it against payments due by the Company to Employee,
subject to applicable law. 7.3. Notwithstanding anything to the contrary herein,
the Company may terminate this Agreement at any time, effective immediately and
without need for prior written notice, and without derogating from any other
remedy to which the Company may be entitled, for Cause (as defined herein). For
the purposes of this Agreement, the term "Cause" shall include, but is not
limited to: (i) breach by the Employee of any of his obligations pursuant to
Section 3 of this Agreement or of any other material provision of this
Agreement; (ii) breach by the Employee of any of his obligations pursuant to the
Proprietary Information and Inventions Agreement; (iii) Employee's fraud,
felonious conduct or dishonesty; (iv) Employee's embezzlement of funds of the
Company and/or m-Wise or conduct which caused grave injury to the Company and/or
m-Wise, monetarily or otherwise; (v) Employee's insubordination, incompetence,
moral turpitude, other misconduct of any kind, gross negligence in the
performance of his duties hereunder, material conflict of interest for the
promotion of Employee's benefit; or (vi) Employee's refusal to perform his
duties and responsibilities for any reason other than illness or incapacity. In
the event the Company terminates
Employee's employment for Cause, the Company shall have no further obligation or
liability other than the Salary earned under this Agreement prior to the date of
termination. 7.4. Employee shall cooperate with the Company and m-Wise and use
his best efforts to assist the integration into the Company's organization of
the person or persons who will assume the Employee's responsibilities.
8. Entire Agreement; Amendment; Severability 8.1. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and contains all of the promises, understandings, undertakings, and other
representations made by the parties to each other, all of which are merged
herein. 8.2. This Agreement shall prevail over any prior agreement,
understanding, promise or undertaking of the parties, whether written or oral,
with respect to the subject matter hereof, all of which are merged herein. 8.3.
This Agreement shall not be amended, modified or varied other than by written
instrument executed by both parties or their duly authorized representatives.
8.4. No failure or delay of either party hereto 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 breach or non-performance by
either party of any of the terms or conditions hereof. 8.5. If any provision of
this Agreement (including any sentence, clause or part thereof) shall be
adjudicated to be invalid or unenforceable, such provisions shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudicate is made. In
addition, if any particular provision contained in this Agreement shall for any
reason be held to be excessively broad as to duration, geographical scope,
activity or subject it shall be construed by limiting and reducing such
provision as to such characteristic so that the provision is enforceable to the
fullest extent compatible with the applicable law as it shall then appear. Any
determination of the invalidity or unenforceability of any provision of the
Agreement shall not affect the remaining provisions hereof unless the business
purpose of this Agreement is substantially frustrated thereby.
9. Notice; Addresses
9.1. The addresses of the parties hereto for purposes of this Agreement shall be
the addresses set forth above, or any other address which shall be provided by
due notice. 9.2. All notices in connection with this Agreement shall be sent by
registered mail, transmitted by facsimile or other electronic communication or
delivered by hand to the addresses set forth above, and shall be deemed to have
been delivered to the other party, if sent by registered mail, three (3)
business days from the date of mailing; or if delivered by hand, upon actual
delivery or proffer of delivery. Delivery by facsimile or other electronic
communication shall be deemed to have received upon electronic
confirmation of receipt.
10. Miscellaneous
10.1. The preamble to this Agreement constitutes an integral part hereof. 10.2.
Headings are included for convenience purposes only and are not to be used in
interpreting this Agreement. 10.3. The provisions of this Agreement are in lieu
of any provisions of any collective bargaining agreement, and therefore, no
collective bargaining agreement shall apply with respect to the relationship
between the parties hereto (subject to the applicable lawful provisions). 10.4.
This Agreement is personal and non-assignable by the Employee. This Agreement
shall inure to the benefit of the Company and m-Wise's successors and assigns.
10.5. It is hereby agreed between the parties that the laws of the State of
Israel shall apply to this Agreement and that the sole and exclusive place of
jurisdiction in any matter arising out of or in connection with this Agreement
shall be the applicable court of the Tel-Aviv-Jaffa District.
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IN WITNESS WHEREOF the parties affix their signatures hereto, effective as of
the date first above written.
M-WISE LTD. GABRIEL KABAZO
Signature:___________________
Signature:_____________________
Name: _____________________
Title: _____________________
M-WISE, INC.
Signature:___________________
Name: _____________________
Title: _____________________