Employment Agreement - Defense Industries International and Tosh Boris
PERSONAL EMPLOYMENT AGREEMENT
drawn up and signed on 19th December 2002
BETWEEN DEFENSE INDUSTRIES INTERNATIONAL
An overseas company, no.
Whose address in Israel is Erez Industrial Area
POB 779, Ashkelon 78101
(Hereinafler "the Company")
PARTY OF THE FIRST PART
AND TOSH BORIS, I.D. 069692648
of 58 Shapira St., Petach Tikva
(Hereinafter: "the Employee")
PARTY OF THE SECOND PART
WHEREAS The Employee wishes to work for the Company in the
position of Deputy General Manager;
AND WHEREAS the Employee has represented that he has suitable
knowledge, experience and skills to carry out his
work for It; company;
AND WHEREAS the Company agrees to employee the Employee on the
terms set forth in this Agreement and the Employee
accepts position as defined in this Agreement and/or
in any other capacity and/or position that may be
delegated to him by the Company;
AND WHEREAS the parties wish. to formalize the Employee's terms
of employment in this Agreement;
THEREFORE THE PARTIES AGREE, STIPULATE AND DECLARE AS FOLLOWS:
1. PREAMBLE AND SPECIAL TERMS
1.1 The preamble to this agreement constitutes an integral part of it
and will be interpreted as one of its provisions.
1.2 The parties agree that everything specified in writing in the
special terms, if any and marked as Schedule A to this Agreement.
will constitute an integral. part of this agreement.
2. TERM OF THE AGREEMENT
2.1 This Agreement. will come into force en the Employee's first day of
work at the Company, that is on 01.01.03.
2.2 The Company's obligation towards the Employee will come into torte
on the actual day he starts work in the Company.
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3. DEFINITION OR THE EMPLOYEE'S POSITION
3.1 It is agreed that the Employee's position will be defined as Deputy
General Manager of the Company and will be responsible for managing
negotiations on behalf of the Company with various clients, in order
to promote Company sales significantly, and for this purpose he will
be required to manage and supervise other employees, to work subject
to the instructions given by the Company's General Manager and/or
according to the decisions of the Company's Board of Directors and
to represent the Company before various bodies and institutions as
required by virtue of the position.
3.2 As specified in the preambles. the above job definition does not
detract from the Employee's obligation to work in the Company in the
position and/or in any other area and/or job which may be imposed on
him by the Company at its sole discretion.
3.3 The job of the Employee in the Company will be to act and/or make
use of his experience, to develop and increase the Company's
revenues and in particular, to increase the volume of the Company's
annual sales year on year. and on this basis he will also be
personally compensated as specified in the salary clause below.
4. SCOPE OF THE POSITION
4.1 The Employee undertakes to carry out his work as required by the
position in any location as instructed by the Company.
4.2 The Employee undertakes to work extra hours as required by the
position, all according to the Company's instructions and subject to
the contents of this Agreement.
5. SPECIAL AGREEMENT
5.1 This agreement is personal and special and it formalizes and deals
fully with the relationship between the Company and the Employee.
and exclusively sets forth the Employee's terms of employment in the
Company.
5.2 In view of the contents of sub-clause 5. I above., the general
and/or special group and/or other agreements, including any
attachment thereto, which are drawn up from time to time between
employees and the General Federation of Labor and/or agreements
between the Company and any of its other employees, will not apply
to the relationship between the parties under this Agreement, apart
from the contents of any Extension Orders which may apply to the
Employee by virtue of the law.
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6. PERSONAL TRUST
6.1 The Employee undertakes In perform his work with dedication and
loyalty, to use all his skills. knowledge and experience for the
benefit and promotion of the Company, and at a high level of
efficiency and as determined by the Company.
6.2 The Employee undertakes to comply with the Company's instructions
regarding the manner of performing the work. and to strictly follow
the instructions and guidelines of his superiors on behalf of the
Company.
6.3 During the term of the Agreement, the Employee will devote all his
time, energy and skill to performing his work for the Company and he
undertakes not to engage directly and/or indirectly. with and/or
without pay. in any additional work and/or employment except with
the Company's prior written permission.
6.4 During the term of the Agreement. the Employee undertakes not to
accept any payment or other benefits from any third party that arc
directly and/or indirectly related to his work with the Company, if
the Employee breaches this undertaking he will he considered to be
in fundamental breach of this Agreement and in addition. the money
or goods that he so receives will belong to the Company which may
deduct this amount or the value of the goods from any money due to
the Employee from if. and this without detracting from any other
relief anchor remedy available to the Company according to this
Agreement and/or any law.
6.5 The Employee undertakes to inform the Company, immediately and
without delay, of any matter or subject in which he has a personal
interest and/or that are liable to give rise to a conflict of
interest with his work in the Company.
6.6 Employee undertakes to avoid any action or emission that causes
and/or is likely to :anise any employee, customer nr supplier of the
company to change and/or cancel any agreement with the Company, so
long as such changes do not cause the Company any damage.
The above undertaking will apply to the Employee during his period
of work in the Company and during one year after the cessation of
his work in the Company, for any reason whatsoever. If the Employee
broaches the above undertaking, he wilt be considered le he in
fundamental breach and in addition the Company may subtract the
amount from any money due to the Employee from the Company, and this
without detracting from any other relief and/or remedy available to
the Company according to this Agreement and/or any law.
6.7 The Employee hereby declares that he is personally responsible for
the completeness and/or good working order of any Company equipment
and/or assets which are entrusted to him end if it. emerges that any
damage is canned 10 the Company willfully and/or with prior intent
by the Employee and/or anyone acting on his behalf, then the
Employee will bear all the costs and damages and 'or remedies
granted to the Company by this agreement. and/or any law and it may
deduct these costs and damages from any money due to the Employee
from the Company.
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7. LINKED CORPORATIONS:
7.1 The Employee declares that he knows that there is a business and/or
legal link between the Company and other corporation of which the
Company and/or Company shareholders are numbered among their
shareholders or in which they are partner's (hereinafter "Linked
Corporations"). The Corporations linked to the Company are mentioned
in the definitions section of clause 11(2) below; "Company's annual
sales volume".
7.2 The Employee hereby declares that his undertakings according to this
Agreement are also valid with respect to the Linked Corporations,
jointly and separately, notwithstanding the filet that there is no
employee employer relationship of any kind whatsoever between him
and the Linked Corporations.
7.3 To remove any doubt, it is stressed that the contents of sub-clauses
7.1 and 7.2 above do net impose on the Linked Corporations any
obligation whatsoever with respect to the Employee and that an
employee employer relationship exists solely between the patties to
this Agreement, as specified in it.
8. EXAMINATIONS
The Employee undertakes to give the Company any lull and detailed
information about his medical condition, as requested by the Company, and
to notify any change in his medical condition after starting work at the
Company, at the Company's request.
9. PERIOD OF EMPLOYMENT
The parties agree that the period of the Employee's employment in the
Company will be subject to fulfillment of the Employee's undertakings and
his success in his work, all to the satisfaction of the company's General
Manager and or its Board of Directors, as defined in this Agreement and in
particular in clause 3 above.
10. WORKING DAYS AND HOURS OF WORK
10.1 The Employee's days of work and hours of work in the Company will be
according to the Company's instructions and at its sole discretion.
10.2 The minimum extent of the work that the Employee is required to
perform in the Company is at least 180 hours per month.
11. SALARY
11.1 For his work the Company will pay the Employee gross monthly salary
of NIS22,000 per annum which includes all the benefits to which the
Employee is entitled under this Agreement.
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11.2 Definitions:
A. EXTENT OF COMPANY'S ANNUAL SALES includes in this Matter the
sales volume of all the following companies. together. for the
purposes of calculating the annual sales of the Company. as
specified below:
(1) Defense Industries International
(2) Export Erez
(3) Mayotex. Ltd.
(4) Achidatex Ltd.
(5) Dragonwear Ltd.
(6) M.G.M. Ltd. (although the Employee knows that at the time of
signing this Agreement, an agreement between M.G.M. Ltd and the
Company has not yet been signed, and all subject to the fact
that such an agreement will be signed in future, if signed. For
the purpose of calculating Company's annual sales, it is agreed
that if such an agreement is signed between the Company and
M.G.M. Ltd, the annual sales volume of M.G.M. Ltd.(hereinafter
"M.G.M.") will be considered part of the Company's sales for the
year 2002, all for the purpose of calculating the Company's
annual sales. The addition of M.G.M. to the volume of annual
sales is conditional on an agreement being signed between the
Company and M.G.M. no later than 31.12.03).
B. GROWTH IN ANNUAL SALES a growth in the volume of the Company's
annual sales in the current year compared to the annual sales in
the preceding year, as expressed in the Company's consolidated
reports.
C. DIFFERENCE IN THE VOLUME OF ANNUAL SALES the difference between
the volume of Company sales in the current year compared to the
volume of sale sin the preceding year.
D. CALCULATION OF THE ADDITIONAL COMPENSATION multiplying the
difference in the volume of annual sales by 1.5% (one and a half
percent) only all according to the value of the Company's dollar
rate. The Compensation will be paid according to the
representative rate of the dollar as known at the time of
payment.
11.3 The Company will pay the Employee apart from what is stated in
clause 11.1 above, in return for his work and success at managing
the Company and promoting its sales and management. among other
things and only according to the growth in the Company's annual
sales. as specified below:
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11.3.1 IN THE FIRST YEAR OF THE EMPLOYEE'S EMPLOYMENT IN THE COMPANY if
there is a growth in the Company's annual sales in the current year
compared to the previous one, as expressed in the Company's
consolidated reports, then the Employee will be entitled to payment
in addition to his salary as specified in clause 11.1 above, payment
that is derived from his actual success in increasing the Company's
annual sales volume, as follows:
(1) The payment to which the Employee is entitled will be calculated
according to the difference in the Company's sales volume in
dollars, between annual sales in the year 2002 and annual sales
in the year 2003 (hereinafter "the difference") and from this
difference the Employee will be entitled to payment in shekels
equal to the dollars, according to the representative rate of
the dollar as known a the time of payment, on the basis of the
difference multiplied by 1.5% as specified in the calculation of
additional compensation above.
(2) For this purpose each quarter the calculation will he made and
if there is a. growth in sales compared to the volume of sales
in the same quarter of the previous year, a partial bonus will
he paid to the Employee, based on an increase in the quarterly
difference (hereinafter: "the quarterly difference") between the
years 2002 and 2003, so that the payment will be made in cash in
the Employee's salary at the end of each quarter, in shekels
equal to the dollar value of the quarterly difference times 1
5%. and the remainder will he calculated at the end of the year
on an annual basis,
(3) If the employee employer relationship is terminated before the
end of a full. year. the calculation will be made as if the
Employee was employed up to the end of the quarter in which the
employee employer relationship terminated and the bonus
calculation will be limited to those quarters in which the
Employee was employed, according to the calculation of the
additional compensation, as specified above.
(4) If there is no growth in the sales volume, the Employer will not
be entitled to the additional payments stated above.
11.3.2 IN THE YEARS FOLLOWING THE FIRST YEAR the key to the benefit will be
any growth in sales of that year relative to the preceding veal.
(hereinafter: "the difference between the annual sales volumes") and
the Employee will be entitled to an additional overall benefit, like
the addition to his salary specified in clause 11.1, and all subject
to fulfillment of all the following conditions:
(1) There is a growth in the Company's annual sales volume, the
Employee will receive in his salary at they end of rhea year an
amount in shekels equal to the dollars representing the 111;i
since in growth between the annual sales volumes times 1.5%, as
a calculation of the, additional compensation.
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(2) At his sole discretion the Employee may choose that instead of
the compensation specified in clause 11.3.2 (1) above, he will
receive options relating to that compensation due to him or part
of it, all according to actual realization (hereinafter "the
options") as specified below.
Each option can be purchased for $1 (one US dollar), in relation
to the additional compensation actually realized, at the
Employee's discretion, and the options will be exchangeable for
2 ordinary shares, at the Employee's option (hereinafter "the
allocation day"), as explained below:
2.1 At the end of the first year, the Employee's choice will
apply to eligibility for the options plan as defined in Ibis
clause. which will continue for five consecutive years. as
necessary. At the beginning of each of the above years,
starting from the serried year of employment and during five
consecutive years thereafter, each year will be calculated
separately from the preceding one.
2.2 In order to remove any doubt it is hereby clarified that if
the Employee chooses to realize his rights under the option
plan, then the Employee will be eligible to receive any
monetary compensation in return for the part that. is not
realized, all as specified in clause 11.3.2 (1) above, so
that. the option plan is a replacement for that pall of the
compensation that is not realized as stated in clause
11.3.2(1) above.
2.3 Converting the options to ordinary shares: the right of
conversion to ordinary shares of each of the options
belonging to a particular annual allocation will apply at
the following times:
o 1/3 of the quantity of options will be free for conversion
ONE year from the date of allocation.
o An additional 1/3 of the quantity will be free for
conversion TWO years from the date of allocation.
o An additional 1/3 of the quantity will be free for
conversion THREE years from the date of allocation.
2.4 Maintaining the real value of the options: The relative
value of the options, and as a result of that the relative
value of the shares to be exchanged in future on. the basis
of these options, out of the total share capital, will not
be affected even if there is any change in the share capital
as a result of a benefit linked to the share capital that
has or may have an adverse effect on the value of the
options and/or the shares to be converted in future.
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2.5 To remove all it is hereby clarified that if the Employee
does not fulfill the stipulations of clause 11.3.2.1 above,
regarding the growth in the Company's annual sales in the
current year compared to the preceding one, then the
Employee will not be entitled to receive any option and/or
any additional compensation whatsoever to his salary as in
clause 11.1 above.
2.6 For the purpose of realizing the options, the Employee must
send a written notice by registered mail to the Company al
its address given above.
11.3.3 The salary will he paid once a month, no later than the ninth day of
each Gregorian month for the previous month.
11.3.4 From the second month of work onwards, the salary will be augmented
by cost of living increases and salary increases as stipulated from
time to time in the general group agreement between the Coordination
Bureau of the Financial Organizations and the General Federation of
Labor in Israel according to the Extension Orders published from
time to time by law for all employees in the economy.
11.3.5 The salary stated in sub-clause 1 above is gross and includes all
the additions and/or accompanying expenses, apart from those
specifically stated in writing in this Agreement and/or agreed in
advance in writing between the parties in future.
12. GENERAL/SOCIAL CONDITIONS
12.1 EXECUTIVE INSURANCE/PENSION The Company undertakes to continue
paying for the Employee, during his employment in the Company
insurance in the framework of existing policies, adjusted for his
gross salary as updated from time to time. On termination of the
employee employer relationship all elements of the executive
insurance/pension plan will be automatically released in favor of
the Employee.
12.2 TRAINING FUND The Company undertakes to continue making deposits
into the existing training fund and/or the new one to be opened when
the time comes, adjusted to the Employee's gross salary as updated
from time to time. On termination of the employee employer
relationship, all elements of the fund savings will be automatically
released in favor of the Employee.
12.3 VEHICLE - The Employee is entitled to receive a level 3 car from the
Company for work purposes. The value of' the vehicle will he
incorporated in the Employee's salary, as mentioned in clause 11.1
above.
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13. ANNUAL LEAVE AND RECUPERATION PAY
13.1 The Employee will be entitled to annual leave of one month's working
days each year.
13.2 The leave cannot be accumulated except with the Company's written
approval. Unused annual leave can he redeemed for money according to
the dates set by the Company.
13.3 Leave dates will be arranged. in advance with the Company and
require its approval.
13.4 The Employee will be entitled to recuperation pay for 10 days each
year.
14. SICKNESS
14.1 The Employee will be entitled to paid sick leave as provided in the
Sick Leave Act 5736-1976.
14.2 The Employee will not be entitled to payment of sick leave from the
Company if he is paid by his insurance and/or in any other
framework.
14.3 It is agreed that accumulated unused sick leave cannot be redeemed
for money.
15. RESERVE DUTY
15.1 During military reserve duty the Employee will be entitled to
receive his full salary from the Company as stated in this
agreement.
15.2 The Employee undertakes to give the Company, immediately alter
finishing his reserve duty, suitable confirmation for submission in
the National Insurance Institute, so that the Company can claim its
due from the NII.
15.3 If such confirmation is not produced by the Employee to the Company
within 7 days of the end of his reserve duty, then the amount that
the Company should have received from the NII for his reserve duty
will be deducted from his salary.
15.4 The Company knows that the Employee does one day stints of IDF
reserve duty and therefore all the calculations and/or confirmations
specified in this clause will be dealt with separately for each
quarter.
16. EXPENSES
The Employee is entitled to be reimbursed for living expenses and other
expenses incurred during his work as approved by the Company management
each and every month, all for the purposes of carrying out his work for the
Company.
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17. TAXES AND COMPULSORY PAYMENTS
The amounts mentioned in this Agreement relating to salary payments and
additional benefits are all gross amounts (unless otherwise explicitly
stated) and the Company may deduct from them, before actual payment is made
to the Employee taxes and other compulsory payments that the Employee owes
or will owe. according to any law.
18. NOTICE
The Company will inform the Employee if it wishes to terminate the
relationship with him under this contract 45 days in advance of its
intention to terminate his employment in the Company during the first year
of work. In the same way the Employee undertakes to inform the Company of
his intention to cease working for the Company at any time, with prior
notice of 45 days during his first year. Such notice and/or notices will be
sent by either party to the other by registered mail to the address
appearing in this Agreement. All periods mentioned in this clause will
change from the second year onwards to 60 days instead of 45 days.
19. CONFIDENTIALITY
19.1 During the Employee's period of employment with the Company, the
Employee undertakes not to transfer or make use of Company
information or information that reaches him as part of his work for
the Company and/or relating to the Company, which is not in the
public domain, and for a period of 12 months from the end of his
employment in the Company.
19.2 During the Employee's period of employment with the Company, and for
12 months thereafter as specified in clause 19.1 above, the Employee
undertakes to maintain the confidentiality of everything relating to
Company business and matters and not to harm the Company's
reputation and/or its pool of customers in any way.
19.3 The Employee declares and confirms that any material documents
and/or information relating to his work in the Company in which he
receives during and/or as a result of his work in the Company are
the exclusive property of the Company and he must maintain full
confidentiality in this respect, both during his employment in the
Company and for 12 months from the end of his employment.
19.4 The parties agree that without detracting from the foregoing, the
above includes any information relating to the Company where
transferring, revealing or making use of it may harm the Company
and/or may benefit one or more of the Company's competitors in their
competing business activities.
19.5 The framework of Company secrets also includes information about
Company jobs, assets and equipment, its list of employees, its list
of customers and its list of suppliers.
19.6 Any invention and/or idea discovered by the Employee during his work
for the Company in connection with the Company business will be
considered company property and will belong to it exclusively, and
the Company may do as it pleases and register the said invention or
idea in its name.
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19.7 The Employee hereby declares that he understands the restrictions
placed on him in sub-clauses 19.1-6 above and that in consideration
of the terms of the Agreement and the compensation that he is to
receive thereby, he considers them reasonable and acceptable
demands.
20. PROHIBITION ON COMPETITION
20.1 The Employee undertakes that for 12 months after the end of his
employment with the Company he will not for any reason approach any
of the Company's customers and/or will not receive from Company
customers nor from any person, company or other body any order,
proposal or other deal in which the Company is engaged at that time
or intending to engage.
20.2 The undertaking in sub-clause 20.1 above will apply to the Employee
alone and/or together with any other person and/or persons and/or
other company and/or any other body that are engaged in and/or about
to engage in similar business and/or likely to compete with the
Company.
20.3 The Employees hereby declares that he understands the restrictions
placed on him in sub-clauses 20.1-2 above and that in consideration
of the terms of the Agreement and the compensation that he is to
receive thereby, he considers them reasonable and logical demands.
21. ENDING THE RELATIONSHIP
21.1 Without detracting from the Company's authority to dismiss the
Employee during his period of employment as specified in the section
"Period of Employment" in this Agreement, the parties agree that if
the Employee fails to meet the Company's expectations and targets
all as specified in clause 3 above, then the Company may dismiss the
Employee, with prior notice as specified in clause 18 above.
21.2 Notwithstanding the contents of sub-clause 21.1 above, and without
detracting from the authority granted to the Company in the section
on "Period of Employment" in this Agreement, the Company may dismiss
the Employee with no prior notice and without paying any dismissal
compensation in the following cases;
(1) Serious breach of trust by the Employee and/or
(2) Passing on Company secrets without its permission, and/or
(3) Causing any employee or customer or supplier of the Company to
change or cancel an agreement with the Company and this causing
it damage, and/or
(4) Working in another place without the Company's permission.
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21.3 The Company retains the right not to make use of the prior notice
period as specified above, in full or in par, to dismiss the
Employee immediately and to pay him in lieu of that period of the
prior notice in which he does not work. The basis for calculating
the monetary value of the prior notice period will be the last
salary for the last month of work including associated conditions.
21.4 If the Employee voluntarily resigns, then the Company will pay the
Employee for the prior notice period, so that the Employee may hand
over his work to his successor in a fitting manner, with
explanations based on his experience of managing the Company, and
all if the Company so wishes.
21.5 If the Employee resigns without giving the Company prior notice as
required. the Employee will compensate the Company to the amount of
the salary he would have received for the prior notice period that
he did not work, and the Company may deduct this amount from any
money it may owe the Employee without detracting from any relief
and/or remedy granted to the Company according to this Agreement
and/or any law.
HANDLING OVER THE JOB
22.1 If the Employee's employment with the Company is terminated or ends,
the Employee undertakes immediately to return to the Company all
equipment, documents, information and any other material which he
received or which was prepared by him in connection with his work
until his employment ended or was terminated.
22.2 The Employee undertakes to hand over his job in an orderly manner to
his replacement and/or according to the Company's instructions and
to cooperate with the Company so that the job is handed over in a
fit and proper manner.
23. WAIVER OR PRECEDENT
If the Company waives any right granted to it under this Agreement, such
waiver will not constitute a precedent regarding any other identical or
similar case, will not be used to judge any other identical or similar
case, and the Company will not be prevented from subsequently at any time
claiming any right which it previously waived.
24. VALIDITY OF PREVIOUS AGREEMENTS
This agreement replaces any previous agreements, whether written or verbal,
between the Company and the Employee.
25. CANCELLATION OR CHANGE.
Any change and/or cancellation of any of the clauses of this Agreement will
be exclusively in a written document to be signed by the parties.
26. JURISDICTION
The parties hereby grant the Courts in Beer-Sheba local jurisdiction for
any conflicts arising out of this Agreement and/or the relationship between
the parties and/or from any actions or omissions relating to the engagement
under this Agreement whether within the borders of the Sale of Israel or
outside them.
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27. INTERPRETATION
27.1 The headings of the clauses in this Agreement arc given for
convenience only and are not to be taken into account when
interpreting the Agreement.
27.2 The parties hereby agree that all the provisions of this Agreement
show the views of the parties to the Agreement and their complete
views in any case of interpretation.
27.3 The parties hereby agree that the contents of this Agreement will
not be subject to the rule of interpretation according to the views
of its. formulators,
28. NOTICES
28.1 The addresses of the parties to this Agreement are as stated in the
preamble.
28.2 Any notice sent by registered mail by one of the parties to the
other according to such address will be considered as delivered
within 72 hours of being sent, and if delivered by hand, at the time
of delivery.
IN WITNESS WHEREOF, the parties have set their hands
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The Employee The Company