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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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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.
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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.
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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 to
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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 imme
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