Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement, effective as of the 16th day of
September, 2003 (the “Effective Date”), is made by and between RadView
Software, Inc., a New Jersey corporation (“RadView”) and Christopher Dineen
(“Employee”).


 


WHEREAS RadView is a wholly owned subsidiary of RadView Software Ltd.,
an Israeli corporation (“Parent”);


 


WHEREAS Employee and RadView have entered into an agreement which
includes among other things, a covenant not to compete with RadView by the
Employee, a non-solicitation agreement and an assignment of inventions
agreement; and


 


WHEREAS Employee and RadView desire to set forth additional terms of
Employee’s employment;


 


NOW, THEREFORE, the parties hereto agree as follows:


 


1.   
Definitions.


 


For purposes of this Agreement:


 


a.               “Accrued Obligations” shall mean all
amounts of Annual Compensation due and owing, reimbursements properly submitted
for expenses incurred prior to the termination date and any accrued but unused
vacation owed to the Employee as of the termination date.


 


b.              “Cause” shall mean any act of or omission
by Employee in the conduct of Employee’s duties and responsibilities that
constitutes gross negligence or willful misconduct, or any act of or omission
by Employee that involves dishonesty or criminal conduct.  In the event the Board of Directors of
RadView (the “Board”) determines it has reason to terminate Employee’s
employment for Cause, it shall give written notice to Employee stating the specific
grounds constituting Cause.  In the event
that the Cause alleged constitutes any act or omission in the conduct of
Employee’s duties and responsibilities which constitutes gross negligence or
willful misconduct, Employee shall have an opportunity within five (5) days
after receiving such notice to meet with the Board to discuss such allegations
of Cause.


 


c.               “Change of Control”
shall mean:  (i) any sale, lease,
exchange or other transfer (in one transaction or a series of transactions) of
all or substantially all of the assets of RadView or Parent; (ii) individuals
who, as of the date hereof, constitute the entire Board of Directors of RadView
or of Parent (the “Incumbent Directors”) cease for any reason to constitute at
least a majority of the Board of Directors of such company, provided that any
individual becoming a director subsequent to the date hereof whose election was
approved by a vote of at least a majority of the then Incumbent Directors shall
be, for the purposes of this provision, considered as though such individual
were an Incumbent Director; (iii) any consolidation or merger of RadView or
Parent with any other entity where the shareholders of RadView or Parent
immediately prior to the consolidation or merger, would not, immediately after
the consolidation or merger, beneficially own, directly or indirectly, shares
representing fifty percent (50%) of the combined voting power of all of the
outstanding securities of the entity issuing cash or securities in the
consolidation or merger (or its ultimate parent corporation, if any); (iv) a
third person, including a “person” as defined in Section 13(d)(3) of the
Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly, of securities of RadView or of
Parent representing fifty percent (50%) or more of the total number of votes
that may be cast for the election of the directors of RadView; or (vi) the
Board of Directors of RadView or Parent, by vote of a majority of all the
Directors, adopts a resolution to the effect that a “Change-in-Control” has
occurred for purposes of this Agreement.


 


d.              “Good Reason” means that (i) Employee’s
compensation has been materially reduced (and such reduction is not part of an
overall reduction in compensation affecting other Employees of RadView), (ii)
Employee’s position, duties or responsibilities have been materially reduced,
(iii) the Employee’s primary place of employment is


 

















 


moved to a location greater than sixty (60) miles away from its then
current location, or (iv) RadView has not paid to Employee when due any
undisputed compensation, including salary or bonus, and in all such cases
(i-iv) the condition continues beyond 15 business days from the date RadView’s
Board is notified in writing of its existence. 
Notwithstanding anything contained herein to the contrary, a material
reduction in Employee’s position, duties or responsibilities shall be deemed to
have occurred if, for example and without in anyway limiting the foregoing, a
Change of Control resulting in RadView or Parent becoming a subsidiary of
another entity occurs and Employee’s position, duties or responsibilities are
not otherwise reduced (unless Employee is also awarded identical or superior
position, duties and responsibilities with any such parent entity).


 


2.  Change of Control.


 


Upon a Change of Control, 50% of all unvested
stock options and/or restricted shares held by Employee shall immediately vest.


 


3. 
Termination of Employment Subsequent to a Change of Control.


 


a.               If, within 12 months of a Change of
Control (i) Employee terminates his employment with Good Reason or (ii)
Employee’s employment is terminated without Cause, then, in either case,
Employee will receive on his termination date the Accrued Obligations and
severance pay equal to six (6) months of his annual base salary then in effect
payable in equal installments (minus applicable withholdings) over a
six-(6)-month period following such termination;


 


b.              Employee shall
continue to receive the same health benefits as he was receiving prior to such
termination for six (6) months following such termination; and


 


c.               All remaining
unvested stock options and/or restricted shares shall immediately vest.


 


4. 
Termination of Employment Absent a Change of Control.


 


a.               If, absent a Change of Control within
the preceding twelve (12) months, (i) Employee terminates his employment with
Good Reason or (ii) Employee’s employment is terminated without Cause, then, in
either case, Employee will receive (i) on his termination date the Accrued
Obligations and (ii) severance pay equal to three (3) months of his annual base
salary then in effect payable in equal monthly installments (minus applicable
withholdings) following such termination;


 


b.              Employee shall
continue to receive the same health benefits as he was receiving prior to such
termination for three (3) months following such termination.


 


5.              Governing
Law; Arbitration; Injunctive and Other Relief


 


This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely in Massachusetts (without regard
to its conflict of laws statutes).  Each
party hereby irrevocably consents to the exclusive jurisdiction of the federal
and state courts located in Massachusetts with respect to any actions that may
arise in connection with this Agreement and are not required by this Section 5
to be arbitrated.  Except as provided in
this Section 5, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration administered
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.


 


Each of the parties to this Agreement acknowledges that a breach of
this Agreement may cause the other party irreparable harm that may not be
adequately compensated by money damages. 
Therefore, in the event of a breach or threatened breach by a party,
injunctive or other equitable relief will be available to the other party, and
any arbitrator acting pursuant to this Agreement shall have the authority to
provide such injunctive or other equitable relief.  Remedies provided herein are not exclusive.


 


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The arbitrator shall have the authority to award such remedies or
relief that a court of the Commonwealth of Massachusetts could order or grant
in an action governed by Massachusetts law, including, without limitation,
specific performance of any obligation created under this Agreement, the
issuance of an injunction, or the imposition of sanctions for abuse or
frustration of the arbitration process. 
The arbitration proceedings shall be conducted in Boston, Massachusetts.


 


Notwithstanding the foregoing, any party may bring and pursue an action
in any federal or state court located in Massachusetts seeking provisional
relief, including a temporary restraining order or preliminary injunction,
pending an arbitration proceeding.  Any
provisional relief obtained shall be discontinued once the arbitrator has
assumed jurisdiction and ordered such discontinuance.


 


6.              Miscellaneous


 


a.               Survival.  Notwithstanding anything in this Agreement
to the contrary, Section 5 shall survive any termination of this Agreement.


 


b.              Successors and Assigns. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.


 


c.               Entire Agreement; Amendment.  This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereto and thereof.  None of
this Agreement or any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by both of the parties
hereto.


 


d.              Notices, etc.  All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
certified or registered mail, postage prepaid, delivered either by hand or by
messenger, or transmitted by electronic telecopy (fax) addressed:


 


	
  If to RadView:

  
	
   

  	
  Ilan Kinreich

  
	
   

  	
  RadView Software, Inc.

  
	
   

  	
  7 New England Executive Park

  
	
   

  	
  Burlington, MA  01803

  
	
   

  	
   

  
	
  If to Employee, at:

  
	
   

  	
  Christopher Dineen

  



 


or at such other address as any party shall have furnished to the
others in writing.  All such notices and
other written communications shall be effective (i) if mailed, seven (7) days
after mailing (if mailed from outside the United States, such mailing must be
by airmail and said seven (7) days shall be fourteen (14) days),  (ii) if delivered, upon delivery, or  (iii) if faxed, one (1) business day after
transmission and acknowledgement of receipt by telephone or fax.


 


e.               Delays or Omissions.  No delay or omission to exercise any right,
power or remedy accruing to either party hereto upon any breach or default of
the other party under this Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or any similar breach or default
thereafter occurring.  No waiver of any
single breach or default shall be deemed a waiver of any other breach or
default theretofore or thereafter occurring. 
Any waiver, permit, consent or approval of any kind or character on the
part of any party hereto of any breach or default under this Agreement or any
waiver on the part of any party hereto of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. 
All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.


 


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f.                 Separability.  In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.


 


g.              Prior Agreements.  In the event of conflict between the terms
of this Employment Agreement and any prior written or oral agreements related
to Employee’s employment with RadView, the terms of this Employment Agreement
shall prevail.


 


IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the Effective Date.


 


	
  Employee:

  	
   

  	
  RADVIEW SOFTWARE, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ CHRISTOPHER DINEEN

  	
   

  	
   

  	
  /s/  ILAN KINREICH

  	
   

  
	
  Name: Christopher Dineen

  	
   

  	
  By:  Ilan Kinreich

  	
   

  
	
   

  	
   

  	
  Name: Chief Executive Officer

  	
   

  
					



 


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