EXHIBIT 4.14
(TRANSLATION FROM HEBREW)
25 July, 2004
BY HAND
MR. ARYE GONEN
Dear Mr. Gonen,
Re: YOUR RESIGNATION
Further to our conversations, we hereby confirm your notice of resignation from
your employment at Attunity Ltd. ("the Company"), subject to the contents of
this letter, which sets out in writing the terms of the termination of your
employment as follows:
1. Your employment in the Company will end on the day following approval of
this agreement at the General Meeting (which we intend to call for 14
September, 2005), and subject to the agreement being approved by the
General Meeting as aforesaid. On that date, the employee-employer relations
between you and the Company will end ("the Date of Termination of Your
Employment"). On the Date of Termination of Your Employment you will cease
to serve as a director in the Company and in its subsidiaries, in
accordance with contents of your letter of resignation from the Board of
Directors of the Company and its subsidiaries, which is attached as
Appendix A to this agreement. For the removal of doubt, it is clarified
that on the Date of Termination of Your Employment, all the work relations,
if there were such relations, between you and each of the subsidiaries of
the Company, will also end.
2. Starting 1 August, 2004 and until the Date of Termination of Your
Employment, you will be on unpaid leave of absence and you will not present
yourself for work in the Company. In practical terms, it was agreed between
us that after the Date of Termination of Your Employment you will cooperate
with the Company in transferring your work to your replacement, and that on
the Date of Termination of Your Employment you will cease to act in the
name of the Company, to make representations in its name or to make any
statements in its name.
3. The Company undertakes that the senior employees insurance will continue to
apply to you in respect of the entire period of your employment and service
in the Company and its subsidiaries from the Date of Termination of Your
Employment until the end of the entire limitation period.
4. You are requested to restore to the Company all Company property, equipment
and documents in your possession, and to do so no later than the Date of
Termination of Your Employment. The aforesaid notwithstanding, you may
retain the Company car for six months after the Date of Termination of Your
Employment. The tax in respect of making the car available to you during
that period will be deducted by the Company when makes its accounting. The
other expenses involved in maintaining the car will be paid by the Company.
5. On completion of the accounting which will be made for you soon after the
Date of Termination of Your Employment, and no later than after the elapse
of 14 days from the Date of Termination of Your Employment, the Company
will pay you all the rights and payments due to you, as follows:
5.1 Payment of the balance of salary payable to you on the Date of
Termination of Your Employment and not yet paid, including all the
incidentals customarily paid by the Company and the proportional part
of supplementary sick pay.
5.2 Redemption of unutilized vacation days (it is agreed that the
accumulated balance from 1 January 2003 to 31 July 2004 is 11 days).
5.3 Notwithstanding the provisions of the employment agreement and any
other agreement or undertaking, you will not be entitled to severance
pay but to the release of moneys accumulated to your credit in the
senior employees insurance policy only, as stated in section 5.4
below.
5.4 Release of moneys accumulated to your credit in the senior employees
insurance policy.
5.5 Release of moneys accumulated for you in the study fund.
5.6 Options - Of the options allotted to you in Section 3.10 of the
employment agreement approved on 22 April 2004 by the General Meeting
of the Company, and which was signed between you and the Company ("the
Employment Agreement"), you will be entitled only to 240,000 options
on the terms set out in Section 3.10 of the Employment Agreement, and
the other options which are the subject of that section will be
voided. With regard to the 400,000 options to which you are entitled,
they will become exercisable on the Date of Termination of Your
Employment and you have until 31 August 2009 to exercise them.
5.7 Bonus - Instead of that stated In your Employment Agreement, you will
be entitled only to the following bonuses:
5.7.1 A bonus pursuant to Section 1 of the appendix to the Employment
Agreement, relating to the international distributor Consisi.
5.7.2 A bonus pursuant to Section 4 of the appendix to the Employment
Agreement.
5.8 You will be entitled to receipt of the consultation fees in accordance
with the provisions of Section 7.2 of the Employment Agreement. For
the removal of doubt, it is clarified that during the period of the
consultation services, the following provisions will apply:
5.8.1 You declare that you know that during the period of the
consultation services there are not and there will not be
employee-employer relations between you and the Company, and this
period will not grant you any rights whatsoever as if you were an
employee.
5.8.2 During the period of the consultation services you will attend
to payment of the National Insurance (Social Security) payments
and of any other payment imposed upon you, and all responsibility
for doing so will be yours.
5.8.3 Without derogating from the generality of the aforesaid, it is
hereby agreed that you will not be entitled to severance pay
and/or any other payment and/or consideration deriving from
employee-employer relations or their termination and/or social
benefits, during the period of the consultation services.
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5.8.4 You declare that if you or anyone acting on your behalf sues the
Company, alleging that your relations with the Company as a
consultant were employee-employer relations between you and the
Company, or the National Insurance Institute for any cause with
such an allegation, you will indemnify the Company upon its first
demand, for any expense it incurs or in connection with such a
suit, including attorneys' fees.
5.8.5 Without derogating from the generality of the aforesaid, if due
to a suit as referred to in sub-section 5.8.4 a judicial body
determines that you are an employee of the Company, or that you
are entitled to rights as if you were an employee, or if
additional expenses apply to the Company beyond those stated in
the Employment Agreement, deriving from a determination that
employee-employer relations existed between you and the Company,
and all with regard to the period of the consultation services,
the following provisions shall apply:
5.8.5.1 The consideration that will be paid to you from the start
of provision of the consultation services will be replaced
by a consideration (gross) reduced by 35%, and in such case
you will be seen as entitled only to the reduced
consideration (gross) retroactively from the date of
starting the consultation services (i.e. to a consideration
of 65% of the consideration actually paid).
5.8.5.2 You will be required to repay the Company any amount paid
on the date of the start of the consultation services and
which exceeded the reduced consideration, linked to the
Consumer Price Index (base index: the index known on the
date of each payment; new index: the index known on the date
of actual repayment), and with linked monthly interest
differentials at 4% p.a. The Company may set off these
surplus amounts against any amount payable by it to you or
to anyone acting on your behalf.
5.8.5.3 You declare that you know and that you agree that the
period of your employment in the Company, which will end on
the Date of termination of Your Employment, will not be
taken into account for any purpose and will not grant you
any right whatsoever with regard to the period of provision
of the consultation services.
5.8.6 The Company will not utilize Section 7.3 of the Employment
Agreement, whereby it may pay you the consultation fees in a lump
sum of $250,000, and it declares and undertakes to pay you the
consultation fees in periodic installments, once a month, for 36
months.
5.9 Consideration in respect of extension of the non-competition period to
36 months, in the amount of $400,000, will be paid to you at the
representative exchange rate on the date of payment, within 14 days of
the Date of Termination of Your Employment.
6. Taxes and mandatory payments will be deducted as required by law from all
the amounts and rights you will receive.
7. Confidentiality, intellectual property and non-competition - We remind you
that these duties will continue to apply to you after the termination of
your employment in the Company, with everything that entails.
8. The parties hereby mutually confirm that upon execution of this agreement
and subject to the performance and upholding of its provisions, neither of
them has or will have any allegation and/or claim of any kind whatsoever
against the other, including allegations of the Company due to the
complaint of Mr. Shmuel Bar and the prima facie findings of the committee
of enquiry appointed in the wake of that complaint.
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9. It is clarified that this agreement exhausts all the terms of your
retirement from the Company, and it supersedes everything stated in the
Employment Agreement, in your earlier agreements with the Company, and in
any other undertaking and obligation, whether written or oral, which
predates the execution of this agreement, on the subject of the terms of
your retirement.
Without derogating from the aforesaid, you declare and undertake that
subject to fulfillment of the undertakings of the Company, neither you nor
anyone acting on your behalf and/or in your stead has or will have any
allegation or claim against the Company and/or the subsidiaries and/or
affiliated companies and/or officers and directors and/or its shareholders
and/or anyone acting on their behalf and/or in their stead (and for the
sake of convenience, all of these in this section - the Company), in
connection with your employment and/or its termination, including in
connection with severance pay, pension contributions and social benefits,
shares and/or options, salary payments and salary differentials,
allegations in respect of salary reductions, bonuses and premiums, notice
or its redemption, payment for overtime, payment for working on days of
rest or holidays, reimbursement of expenses of any kind, including payments
for travel, supplementary sick pay, vacation or its redemption (including
any vacation accumulated up to 31 December 2002), sick pay or compensation
for unutilized sick leave and/or in connection with any payment and/or
other social benefits/incidentals of any kind. For the removal of doubt,
the waiver of allegations or claims as set out above shall not apply
against anyone who sues you in connection with the topics which are the
subject of this section or Section 8 above.
Subject to fulfillment of your undertakings under this agreement, the
Company declares as meant in this section that it has no allegations or
claims against you in respect of your work in the Company and your
functioning on the Board of Directors of the Company and/or its affiliated
companies or subsidiaries, to the extent that you worked or served as a
director of those companies, and/or their termination. This declaration
does not apply to causes which arise after the Date of Termination of Your
Employment in respect of facts or events which occurred after the Date of
Termination of Your Employment and in respect of information of which the
Company was unaware on the date of this letter and could not and should not
have been aware thereof (in this case, the burden of proof will be on the
Company to show that it was not aware or could not or should not have been
aware of such information on the date of this letter).
10. Furthermore, the parties declare that they will keep confidential the terms
of this agreement and the circumstances of its execution, unless they are
required otherwise by law, and they will act fairly, reasonably and in good
faith, including not denigrating each other.
11. Any dispute between the parties (except for a dispute arising from a demand
or investigation and/or claim of a third party) relating to any matter
deriving from this agreement, its interpretation, application, breach and
reliefs in respect of its breach, or any other dispute between you and the
Company, will be submitted for mediation before Mr. Aki Friedman. If the
dispute is not resolved in a mediation proceeding, it will be settled
either by arbitration, as described below, and if not, then in a court of
law.
The arbitration will be conducted before an arbitrator who is agreed to by
the parties as follows: if one party to the agreement notifies the other in
writing of the existence of a dispute, his notice will state the identity
of the arbitrator he proposes. Within 14 days of receipt of the notice, the
other party will notify the first party if he agrees to the identity of the
arbitrator or will propose an alternative arbitrator. No notice means
consent to the identity of the arbitrator proposed by the first party. If
the parties are unable to agree on the identity of the arbitrator within 30
days of the notice of the other party, no arbitration proceedings will be
held between the parties and the dispute will be transferred to the
competent court.
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If the parties agree on the identity of the arbitrator, the arbitration
will be conducted only in accordance with Israeli substantive law, but will
not be subject to the procedures customary in the courts in Israel or to
the laws of evidence.
The arbitration award will be given in writing, and will set out the
arbitrator's reasons for his decision. The arbitrator will keep a
transcript of each of the sessions and will forward them to the parties
soon after each session and before the subsequent session convenes. Unless
determined otherwise in the arbitration, each of the parties will bear its
own expenses for the arbitration.
12. You confirm that you have examined your rights and that you have been given
satisfactory explanations, insofar as you requested explanations, as to the
amounts and rights which are your due.
13. This document constitutes both a settlement and admission of clearance
pursuant to Section 29 of the Severance Pay Law, 5723-1963.
14. The Company will participate in the fees of your attorney up to the sum of
$30,000 plus VAT, against an official tax invoice. This sum will be paid by
the Company to your attorney no later than after the elapse of 14 days from
the Date of Termination of Your Employment.
15. We thank you for your work in the Company since 1 October 1987, and wish
you success in your future activities.
Yours sincerely,
Signed: ( - )
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Attunity Ltd.
I hereby affirm that I have read the above, understood its contents, and I
agree, of my own free will and after having been given the opportunity to take
advice on it, to everything stated therein.
Name: Arye Gonen
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Signature: ( - )
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Date: 25/7/2004
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