Exhibit 10.9
EMPLOYMENT
AGREEMENT
Made and entered in Tel Aviv on the
__ 2 nd of January
2000
BETWEEN
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Mr. Ran Oz
of
Nahal Gaton 27
Modin, Israel
(hereinafter: “The
Employee”)
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of the
first party
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and
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BigBand Networks Ltd.
a company formed under the laws of
Israel,
of
______, Building #4
P.O. Box 58108
Tel-Aviv, Israel
(hereinafter: the
“Company”)
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of the
other party
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Whereas
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The employee
has been employed by the Company since 30 November 1998;
and
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Whereas
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The Company
desires to continue employing the Employee, and Employee agrees to
continue being employed by the Company and, subject to the Company
and to its directions, to exert efforts in order to advance the
Company’s affairs; and
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Whereas
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The parties
desire to set forth, in writing, their respective rights and
obligations pursuant to the terms of this Agreement.
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Now, therefore, it is declared and
agreed between the parties;
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1.1.
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The preamble to
this Agreement constitutes an inseparable part thereof.
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1.2.
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The division of
this Agreement into paragraphs and the headings given were done as
place-markers and for convenience only, and they are not to be used
for interpretation.
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2.1.
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The Employee
shall be employed on a full-time basis as the Chief Technology
Officer of the Company and will be responsible for defining
advanced technology into the Company process and implementing
market needs into product roadmap and shall be directly subject to
the directives of the CEO or the Board of Directors of the Company
or the Board of Directors of BigBand Networks Inc. (the
“Parent”). The Employee shall devote substantially his
full business time and effort to the affairs of the Company. Any
additional substantive business undertakings of the Employee must
be approved by the Board of Directors of the Company and by the
Board of Directors of the Parent in writing in advance.
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2.2.
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The
Employee’s position is one of the positions, which demand a
special measure of personal trust, as that term in used is the Law
of Hours of Work and Rest 5711-1951, and therefore the provisions
of this Law shall not apply to the Employees, and he shall not be
entitled to payment for overtime hours.
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2.3.
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Employment of
the Employee pursuant to this Agreement will be deemed to commence
as of 1 st January 2000 (“Commencement
Date”).
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3.
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The
Employee’s Undertakings
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3.1.
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The Employee
undertakes, with the signing of this Agreement to operate to the
satisfaction of the Company and to carry out all the instructions
related to his employment in accordance with the directions of the
CEO and the resolutions of the Board of Directors of the Company
and the Board of Directors of the Parent and subject to the
provisions of the Company’s Memorandum and Articles of
Association.
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3.2.
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Without
detracting from that said, the Employee shall substantially devote
his entire knowledge, experience, time and energy to his work at
the Company, and shall work to the best of his abilities,
conscientiously, with dedication and loyalty for the advancement of
the Company and its success.
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3.3.
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The Employee
shall immediately inform the Company and the Parent in writing
regarding any matter or other subject with which he or his family
is connected, and regarding which conflict of interests may arise
between him and the Company.
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3.4.
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The Employee
shall use his best efforts to bring to the knowledge of the Company
and the Parent for its attention, without any delay, any
information, including information regarding business opportunities
in the fields of activity of the Company or of the Company’s
subsidiaries, of which he shall become aware of during his
employment at the Company.
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4.1.
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The
Employee’s salary shall be a monthly total amount of the NIS
equivalent of $10,000, (hereinafter; “The Base
Salary”). The aforementioned Base Salary is exclusive of
amounts payable by the Company for the social benefits as set forth
in paragraphs 5, 6 and 7 to this Agreement.
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4.2.
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In the event
that the Employee meet certain tasks, to be agreed by the
employees, CEO of the Company, the Board of Directors of the
Company and the Board of Directors of the Parent, the Employee
shall receive a performance bonus of up to 30% of the Base salary
for such period.
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4.3.
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The Company may
at its sole discretion increase the Employee’s salary (by
10%) upon the occurrence of certain milestones set forth in Exhibit
B hereto.
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4.4.
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The Employee
shall receive the Base Salary and social benefits payable in
respect of periods of Employee’s military reserve duty. The
Company shall be entitled to receive and to retain any amounts
payable by the National Insurance Institute or any other agency or
entity in respect of such periods. The Company shall pay or
reimburse the Employee for all reasonable business expenses
incurred of paid by the Employee in the performance of his duties
and responsibilities hereunder, subject to (i) any reasonable
expense policy set by the Company as may be modified from time to
time, and (ii) such reasonable substantiation and
documentation requirements as may be specified by the Company from
time to time.
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5.
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Further Social
Benefits
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The Company shall on behalf of the
Employee, make contributions into a Manager’s Insurance
Policy and/or Pension Fund and/or Provident Fund to be selected by
the Employee and to be maintained in the name of Employee in the
following amounts:
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13.33%
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of the Base
Salary to be contributed by the Company
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5%
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of the Base
Salary to be contributed by the Employee
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6.
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Professional
Advancement Fund
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The Company shall on behalf of the
Employee, make contributions into a professional advancement fund
[keren hishtalmut] in the name of Employee in the amount of 7.5% of
the Base Salary, provided that the Employee also contributes 2.5%
of the Base Salary. Notwithstanding the foregoing, any amounts to
be paid under this section, which exceed those permitted by the
section 3E of the Income tax Ordinance, will be paid to the
Employee directly.
The Company shall obtain disability
insurance for the Employee at a premium up to 2.5% of the Base
Salary.
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8.1.
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The Employee
shall be entitled to annual paid vacation of 24 workdays for every
year of work.
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8.2.
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It is possible
to accumulate and/or get remuneration for the days of vacation
without limit, provided that all vacations shall be coordinated
with the Company.
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The Company will provide the
Employee with a car of a make, model and specification of his
choice, provided that the engine size of the car will not exceed
1800cc, for business use and personal use by him and his immediate
family. The Company will pay all maintenance and usage expenses for
such car.
The Employee shall be entitled to
sick leave according to the provisions of the law.
The Employee shall be entitled to
Convalescence pay as determined by the law.
The Employee shall be entitled to
automatic release, without any conditions, of all the money of any
kind whatsoever which shall accumulate, including monies which
shall accumulate in to the Employee’s benefit pursuant to
section 5 and the Professional Advancement Fund, immediately upon
termination of his employment at the Company for any reason
whatsoever, except in circumstances detailed in section 14 below.
Payment of funds accumulated for the specific purpose of severance
pay pursuant to section 5 above shall be credited towards the
obligation of the Company to pay severance pay to the
Employee.
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13.
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The Term of the
Agreement
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This Agreement shall commence on the
Commencement Date, and shall continue in full force and effect
until terminated by the Employee or the Company.
The Employee is entitled to bring
this Agreement to an end by written notice to the Company, to be
delivered at least six (6) months in advance. If the Employee
gives notice to the Company to accordance with the preceding
sentence, the Company shall be permitted to stop the de-facto
employment of the employee immediately, but this on the condition
that it pays the Employee the full salary and the additional
conditions, as if the Employee was still de-facto employed by the
Company, for such period.
If the Company gives notice
regarding the termination of this Agreement at any time, the
Company shall be permitted to stop the de-fecto employment of the
employee immediately, but this on the condition that it pays the
Employee the full salary and the additional conditions, as if the
Employee was still de-facto employed by the Company, as said in the
Agreement, for the period of advanced notification of twelve
(12) months. Any payments made pursuant to the clause shall
not be credited against the Company’s liability for severance
pay under the relevant law. The Employee shall not be entitled to
twelve month’s notice in case of termination by the Company
for good cause pursuant to section 14.1 or in the event of death or
disability of the Employee as follows: In the event of the
Employee’s death or Disability (as defined herein) during the
term hereof, the Employee’s employment and this Agreement
shall immediately and automatically terminate and the Company shall
pay to the Employee (or in the case of death, the Employee’s
designated beneficiary or, if no beneficiary has been designated by
the Employee, his estate), any Base Salary earned but unpaid
through the date of death or Disability and any other benefits owed
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the Employee as detailed in section
12 above. For the purposes of this Agreement, “
Disability ” shall mean any physical incapacity or
mental incompetence (i) as a result of which the Employee is
unable to perform substantially all his duties and responsibilities
hereunder for an aggregate of 120 days, whether or not consecutive,
during any calendar year, and (ii) which cannot be reasonably
accommodated by the Company without undue hardship. Any
determination of disability shall be made by a qualified physician
or physicians selected by the Company in a reasonable manner. The
failure of the Employee to submit to a reasonable examination by
such physician or physicians shall constitute a conclusive
determination of a permanent Disability.
In the event of a Change in Control
(as defined herein), the Employee’s employment shall be
deemed terminated by the Company not for good cause if, within one
(1) year after the closing of a Change in Control, any of the
following has occurred: (1) a reduction in salary or material
reduction in the level of benefits of the Employee as in effect on
the date immediately prior to the closing of a Change in Control;
(2) a diminution in the nature or scope of the
Employee’s authority, duties or responsibilities in effect
immediately prior to the closing of the Change in Control; or
(3) a change in location of the principal office to which the
Employee must report of greater than 50 miles.
“ Change in Control
” shall mean: (x) any merger or consolidation after
which the voting securities of the Company outstanding immediately
prior thereto represent (either by remaining outstanding of by
being converted into voting securities of the surviving or
acquiring entity) less than 50% of the combined voting power of the
voting securities of the Company or such surviving or acquiring
entity outstanding immediately after such event; or (y) any
sale of all or substantially all of the assets, technology or
capital stock of the Company (other than in a spin-off
