Exhibit 10.17


 


EMPLOYMENT AGREEMENT


 


THIS
AGREEMENT is made on the 14th  day of May
2004


 


BETWEEN:


 


	
  Ness Technologies, Inc.

  
	
  a Delaware
  Corporation

  
	
  with offices
  at Kiryat Atidim,

  
	
  Tel Aviv,
  Israel (the “Company”)

  
	
   

  
	
  Mr. Yaron Gramazi

  
	
  of 3
  Hameshorerert Rachel St.,Rishon L’Zion

  
	
  Israel (the “Executive”)

  



 


WHEREAS, the
Company desires to employ the Executive as the CFO of the Company and the
Executive is willing to commit himself to be employed by the Company; and


 


WHEREAS, the
parties desire to enter into this Agreement setting forth the terms and
conditions of the employment relationship of the Executive with the Company;


 


NOW,
THEREFORE, in consideration of the premises and the
mutual agreements set forth below, and intending to be legally bound, the parties
hereto hereby agree as follows:


 


1.                                       Personal Employment Agreement.  This Employment Agreement is the only
agreement, which shall govern the relations between the Company and the
Executive, and shall exclusively determine the Executive’s terms of employment
by the Company.  This Agreement shall be
binding upon the parties, and shall not be subject to any other agreements or
arrangements of any kind.


 


2.                                       Term. 
The period of employment of the Executive by the Company hereunder (the
“Employment Period”) shall commence not later than June 15, 2004 (the
“Effective Date”) and shall end on December 31, 2005 (the “Initial
Period”), unless sooner terminated as provided in Section 5 hereof;
provided, however, that the Employment Period shall automatically be extended
for successive one year periods (each a “Renewal Period”) unless either of the
parties shall give to the other party written notice of its desire not to so
extend the Employment Period no later than six (6) months prior to the
expiration of Initial Period or the Renewal Period, as the case may be.


 

















 


3.                                       Position and Duties.


 


(a)                                   During
the Employment Period, the Executive shall serve as the Chief Financial Officer
of the Company and a member of the executive management and shall provide such
other services to the Company, as he shall be requested from time to time by
the Company.


 


(b)                                  The
Executive agrees to devote all of his working time and efforts to the
performance of his duties for the Company.


 


(c)                                   The
Executive’s services are included among the positions of management and the
positions requiring a special degree of personal trust and the Company is not
able to supervise the number of working hours of the Executive.  Accordingly, the provisions of the Hours of
Work and Rest Law 1951 will not apply to the Executive and he will not be
entitled to any additional remuneration whatsoever for his work with the
exception of that specifically set out in this Agreement.


 


4.                                       Compensation and Related Matters.


 


(a)                                   Monthly Salary.  As compensation for the performance by the
Executive of his obligations hereunder, during the Employment Period, the
Company shall pay the Executive a monthly salary of 60,000 NIS which sum shall
be adjusted at the time of each payment of the salary in accordance with the
changes in the Israeli Consumer Price Index (the “Monthly Salary”). It is
hereby stated that such adjustment to the CPI shall be deemed to include any
incremental cost of living addition to which the executive may become entitled
and that the Executive shall not be entitled to such additions. Once a year the
parties will review the Executive salary. The first review shall take place not
later than 6 months as of the commencement of this Agreement.


 


(b)                                  Gross Salary.  The Monthly Salary represents the Executive’s gross salary, and
includes all of the salary components and various supplements and benefits
and/or all supplements under any law and/or expansion order and/or any special
or general collective bargaining agreement that may apply to the relations
between the Company and the Executive. 
It is hereby acknowledged and agreed that all payments to the Executive
by the Company, including, without limitation, the Monthly Salary and other
benefits and payments of any kind, as provided in this Agreement are, unless
otherwise required by law, stated in gross figures, and there shall be deducted
therefrom all relevant taxes and/or charges that shall apply to them, at the
time of their payment, pursuant to any applicable law.


 


(c)                                   Options.  The Executive shall be entitled to that number of options to
purchase shares of Common Stock of the Company as set forth in Exhibit A,
in accordance with the terms of the option agreement, in the form attached
hereto as Exhibit A.  It is
hereby clarified that such options shall be at all times subject to the
Company’s Employee Share Option


 


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Plan and the
applicable provisions of the Israeli Tax Code and any rules and regulations
promulgated thereunder.


 


(d)                                  Bonus. 
The Executive shall be entitled to an annual bonus of up to 120K$ that
shall be calculated as follows: up to 60k$ linked to the CEO’S Bonus (i.e. -
the ratio between the actual bonus and 60k$ shall be equal to the ratio between
the CEO’S actual bonus compared with the CEO Maximum Bonus) and up to
additional 60k$ based on achieving performance targets prescribe annually be
the Board of Directors or its compensation Committee. The targets for 2004 that
shall defined by the CEO not later than 3 months as of the commencement of this
Agreement.  In the event that the
Company shall employ the Executive only during part of a fiscal year, the bonus
shall be paid in part, in proportion to that part of the fiscal year during
which the Executive was employed hereunder. All bonuses are gross and subject
to tax, payable in NIS and are not part of the Executive regular salary.


 


(e)                                   Expenses. The Company shall promptly
reimburse the Executive for all reasonable business expenses incurred during
the Employment Period by the Executive in performing services hereunder,
including all expenses of travel and living expenses while traveling on
business or at the request of and in the service of the Company, provided that
such expenses are incurred and accounted for in accordance with the policies
and procedures established by the Company, including the submission to the
Company of appropriate vouchers or receipts for such expenses.


 


(f)                                     Company Car. The Executive shall be
entitled to the use of a Company car, in accordance with the Company’s policy
and as customary for executives of the Company.  The Company shall pay all expenses in connection with the car,
and shall reimburse the Executive for all income taxes imposed in connection
with his use of the car.


 


(g)                                  Managers Insurance Policy.  During the Employment Period, the Company
shall contribute to an insurance company as part of a Managers Insurance
Policy, which shall be the property of the Company an amount equal to 131/3% of
the Monthly Salary (out of which 5% shall be for provident funds and 8 1/3% shall
serve to cover severance compensation). 
Any tax payable in respect of such contributions to the insurance
company shall be paid by the Company. 
The aforementioned allocations shall be in lieu of severance pay
according to the Severance Pay Law, 1963. The policy will include irrevocable
instructions of the Company for an automatic transfer of title upon termination
of employment for any reason other than termination by the Company for cause.


 


(h)                                  Disability Insurance.  In addition to the foregoing, during the
Employment Period the Company will bear the cost of disability insurance with
an insurance company, which secures a monthly payment to the Executive.  In any event the amount paid by the Company
for such insurance shall not exceed 2.5% of the Executive’s salary.


 


(i)                                      Advanced Study Fund.  The Company shall, during the Employment
Period, make monthly contributions on behalf of the Executive to a recognized
Advanced Study Fund in an amount equal to 7.5% of the Executive’s salary. Any
tax payable in respect of such


 


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contributions
to such fund shall be paid by the Company. In addition the Company shall deduct
2.5% from the Executive’s salary which deduction shall also be paid to such
Fund.


 


(j)                                      Vacation.  The Executive shall be entitled to vacation days and to
compensation in respect of earned but unused vacation days, determined in
accordance with the Company’s vacation plan (currently 24 working days per year
that can be aggregated for up to two years (up to 48 days).  Official state holidays in Israel shall not
be considered as vacation days.


 


(k)                                   Medical Examination.  The Company shall pay for one annual medical
examination of the Executive (Annual Medical Exam), to be performed at a
medical center of the Executive’s choice, provided that the cost of such
examination shall not exceed the cost of a similar examination at the
Tel-HaShomer hospital.


 


(l)                                      Alternative Allocation of Payments.  At the Executive’s request, the Company
shall modify the payments and benefits set forth in this Section 4 by
increasing certain payments and benefits and decreasing others, in accordance
with the Executive’s request, provided, however, that all such modifications
shall not result in any increase to the overall cost to the Company of the
Executive’s employment (including costs in connection with future entitlements
of the Executive or his heirs).


 


(m) Daily Newspaper. The Executive shall be
entitled to daily newspaper on the Company’s account.


 


5.                                       Termination.  The Executive’s employment hereunder may be terminated, in which
case the Employment Period shall end, under the circumstances set forth below:


 


(a)                                   Death. 
The Executive’s employment hereunder shall terminate upon his death.


 


(b)                                  Disability.  If, as a result of the Executive’s incapacity due to physical or
mental illness or injury, the Executive shall have been absent from the
performance of his duties hereunder for a period of three consecutive months or
120 days within a one year period, the Company may terminate the Executive’s
employment hereunder for “Disability.”


 


(c)                                   Cause. 
The Company may terminate the Executive’s employment hereunder for
Cause.  For purposes of this Agreement,
the Company shall have “Cause” to terminate the Executive’s employment hereunder
upon the occurrence of any of the following events:


 


(i)                                       the
conviction of the Executive for the commission of a felony; or


 


(ii)                                    the
failure by the Executive to substantially perform his duties hereunder (other
than such failure resulting from the Executive’s incapacity due to physical or
mental illness or injury) provided that a demand for substantial performance is
delivered by the Company in writing that specifically identifies the manner in
which the Company believes the


 


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Executive has
not substantially performed his duties and provided that failure to meet the
Company’s expectations shall not be considered as failure to perform
duties  (“Demand”). The Company shall
have Cause to terminate the Executive’s employment if the failure to perform
has not been cured within fourteen (14) days after the Demand; or


 


(iii)                                 an
event constituting a material breach of this Agreement by the Executive,
including, but not limited to, breach by the Executive of the provisions of
Section 3 hereof, that has not been fully cured within seven (7) days
after written notice thereof has been given by the Company to the Executive; or


 


(iv)                                serious
misconduct by the Executive (including, but not limited to, breach by the Executive
of the provisions of Section 7 hereof) that is injurious to the Company or
its subsidiaries or any other member of the Group, whether monetarily or
otherwise.


 


(d)                                  Termination by the Company.
Notwithstanding the foregoing, the Company may terminate the Executive’s
employment during the Employment Period at any time for any reason whatsoever,
subject to a prior written notice delivered by the Company to the Executive,
which shall take effect as set forth in Section 6(b) below.


 


(e)                                   Termination by the Executive.  The Executive may terminate his employment
during the Employment Period hereunder, subject to a prior written notice
delivered by the Executive to the Company, which shall take effect as set forth
in Section 6(b) below.


 


6.                                      Termination Procedure.


 


(a)                                  Notice of Termination.  Any termination of the Executive’s
employment by the Company or by the Executive (other than termination pursuant
to Section 5(a) hereof) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 9.  For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable
details the facts and circumstances claimed to provide a basis for termination
of the Executive’s employment under the provision so indicated.


 


(b)                                  Date of Termination.  ”Date
of Termination” shall mean (i) if the Executive’s employment is terminated by
his death, the date of his death, (ii) if the Executive’s employment is
terminated for Disability pursuant to Section 5(b) above, thirty (30) days
after Notice of Termination, (iii) if the Executive’s employment is terminated
pursuant to Section 5(c), the date of Notice of Termination and (iv) if
the Executive’s employment is terminated pursuant to Section 5(d) or (e)
above, then, unless a later date is specified therein, six (6) months after the
delivery of Notice of Termination. The Company shall be entitled to terminate
the employment before the Date of Termination given provided that it gives the
Executive all the benefits set forth in and subject to Section 4 above.


 


(c)                                   Termination by Company for Cause.  If the Executive’s employment shall be
terminated by the Company for Cause, then the Company shall pay the Executive
his Monthly Salary (at the rate in effect at the time Notice of Termination is
given) and all other


 


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unpaid amounts
and benefits through the Date of Termination. 
The Executive shall not be entitled to amounts deposited in pension
programs for severance pay.  The Company
shall have no additional obligations to the Executive under this Agreement
except as set forth in this Section 6(c).


 


(d)                                 Deposits to Pension Programs.  Upon
the termination of the Executive’s employment, provided that such termination
was not for Cause, the Executive shall be entitled to all amounts deposited in
his favor in pension programs, including payments made for severance pay.


 


7.                                       Confidential Information; Noncompetition.


 


(a)                                   Confidential Information.  In consideration of the Company’s agreements
hereunder, and in further consideration of the benefits accruing to the
Executive hereunder, the Executive hereby agrees that he shall not, directly or
indirectly, disclose or use at any time, either during or subsequent to the
Employment Period, any trade secrets or other confidential information, whether
patentable or not, of the Company, its subsidiaries or its affiliates now or
hereafter existing, including but not limited to, any (i) processes, formulas,
trade secrets, innovations, inventions, discoveries, improvements, research or
development and test results, specifications, data and know-how; (ii) marketing
plans, business plans, strategies, forecasts, unpublished financial
information, budgets, projections, product plans and pricing; (iii) personnel
information, including organizational structure, salary, and qualifications of
employees; (iv) customer and supplier information, including identities, product
sales and purchase history or forecasts and agreements; and (v) any other
information (collectively, “Confidential Information”), of which the Executive
is or becomes informed or aware during the Employment Period, whether or not
developed by the Executive, except (A) as may be reasonably required for the
Executive to perform the Executive’s employment duties with the Company, (B) to
the extent such information becomes generally available to the public through
no wrongful act of the Executive, (C) information which has been disclosed
without restriction as a result of a subpoena or other legal process, after the
Company has had the opportunity to request a suitable protective order for such
information, or (D) with the Company’s prior written authorization.  This covenant shall survive the termination
of the Executive’s employment hereunder for a period of three year after
termination.  The Executive agrees to
execute such further agreements and/or confirmations of the Executive’s
obligations to the Company concerning non-disclosure of Confidential
Information as the Company may reasonably require from time to time.  Upon termination of the Employment Period,
the Executive shall promptly deliver to the Company all physical and electronic
copies and other embodiments of Confidential Information.


 


(b)                                  Noncompetition Covenant.  The Executive agrees that at all times
during the Employment Period and thereafter until the first anniversary of the
termination or expiration of the Employment Period (the “Noncompetition
Period”), the Executive shall not, except on behalf of the Company, directly or
indirectly, allow his name to be used by or Participate in any Competitive
Business (as each of such terms is defined below).  For purposes of this Agreement, (A) the term “Participate” means
to have any direct or indirect interest, participation or involvement, whether
as an officer, director, employee, partner, sole proprietor, agent,


 


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representative,
independent contractor, consultant, franchiser, franchisee, creditor, owner,
stockholder or otherwise; provided, however, that the foregoing
shall not prevent the Executive from investing in publicly traded securities
issued by any corporation, provided the holdings thereof by the Executive do
not constitute more than $25,000 in market value of shares, or two percent (2%)
of outstanding shares, whichever is greater, so long as the Executive does not
have any participation in the business management of such entity; and (B) the
term “Competitive Business” means any enterprise, venture or proprietorship
engaged in or which proposes to engage in the development, manufacture, sale,
licensing and/or distribution of any information, products and/or services that
are the same as or substantially similar to information, products and/or
services provided (or in development and proposed to be provided) by any
business unit or division within the Company or the Group; Provided, however,
that the Company acknowledges that the Executive is a partner in the Jerusalem
Venture Capital funds, and agrees that the Executive’s activity in connection
with such funds shall not be considered to be Participation in Competitive
Business for the purposes of this Section 7(b).


 


(c)                                   Non Solicitation of Employees.  The Executive recognizes that he will
possess confidential information about other executives and employees of the
Company, its subsidiaries and affiliates relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with customers of the Company, its subsidiaries and
affiliates.  The Executive recognizes
that the information he will possess about these other employees is not
generally known, is of substantial value to the Company, its subsidiaries and
affiliates in developing their businesses and in securing and retaining
customers, and has been and will be acquired by him because of his business
position with the Company, its subsidiaries and affiliates.  The Executive agrees that, during the
Employment Period and the Noncompetition Period, he will not, directly or
indirectly, solicit or recruit any employee of the Company or its subsidiaries
(hereinafter- the Group) for the purpose of being employed by him or by any
competitor of the Company or of the Group on whose behalf he is acting as an
agent, representative or employee and that he will not convey any such
confidential information or trade secrets about other employees of the Company
or the Group to any other person.


 


(d)                                  Ownership of Developments.  Any invention, improvement, design,
development or discovery conceived, developed, created or made by Executive
alone or with others, during the period of his employment hereunder and
applicable to the business of the Company, whether or not patentable or
registrable, shall become the sole and exclusive property of the Company.  Executive shall disclose the same promptly
and completely to the Company and shall, during the period of his employment
hereunder and at any time and from time to time hereafter (i) execute all
documents requested by the Company for vesting in the Company the entire right,
title and interest in and to the same, (ii) execute all documents requested by
the Company for filing and prosecuting such applications for patents,
trademarks and/or copyrights as the Company, in its sole discretion, may desire
to prosecute, and (iii) give the Company all assistance it reasonably requires,
including the giving of testimony in any suit, action or proceeding, in order
to obtain, maintain and protect the Company’s right therein thereto.


 


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In the event
that the Company is unable to secure the signature of Executive on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright,
trademark or other similar right, whether due to mental or physical incapacity
or any other cause, Executive hereby irrevocably designates and appoints the
Company and each of its duly authorized officers, as his agent and attorney in
fact, to act for and in his behalf and stead, to execute and file any such
document and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, trademarks, or
other rights of protection with the same force and effect as if executed and
delivered by Executive.


 


8.                                       Assignment; Successors.


 


As used in
this Agreement, “Company” and “Group” shall mean as defined above and any
successor (whether direct or indirect, by purchase, merger, consolation or otherwise)
to all or substantially all of the business and/or assets of the Company or the
Group or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.


 


This Agreement
is a personal contract and, except as specifically set forth herein,
Executive’s rights and obligations hereunder may not be sold, transferred,
assigned, pledged or hypothecated by Executive.  This Agreement shall be binding upon Executive, and shall inure
to the benefit of his heirs, executors and administrators, and upon the
Company, its successors and assigns.


 


The rights and
obligations of the Company hereunder may, in whole or in part, be sold,
transferred or assigned by the Company to any affiliated or successor
corporation; provided, however, that any such transfer will not
relieve the Company of its obligations hereunder.


 


9.                                       Notice.  For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) ten (10) days after having been mailed by certified or registered
mail, return receipt requested, postage prepaid, addressed as follows:


 


If to the
Executive:


of 3 Hameshorerert Rachel St.,Rishon L’Zion Israel


 


If to the
Company:


Kiryat
Atidim,Tel Aviv, Israel Att. Raviv Zoller, CEO&President


 


or to such
other address as any party may have furnished to the other in writing in
accordance therewith, except that notices of change of address shall be
effective only upon receipt.


 


10.                                 Choice of Law.  This
Agreement and the legal relations between the parties hereto shall be governed
by and in accordance with the laws of the State of Israel.


 


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11.                                 Counterparts.     This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


12.                                 Waiver.     Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant or condition, nor
shall any waiver or relinquishment of any right or power hereunder at any one
or more times be deemed a waiver or relinquishment of such right or power at
any other time or times.


 


13.                                 Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company.


 


14.                                 Validity.  The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.  Upon determination that any term or other
provision is invalid, illegal or incapable of being enforced, this Agreement
shall be modified so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable law.


 


15.                                 Entire Agreement.  This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of the Company or any party hereto;  Any modifications to this Agreement can only
be made in writing signed by the Executive and an appropriate Company Officer.


 


IN
WITNESS WHEREOF, the parties have executed this
Agreement on the date first above written.


 


 


	
   

  	
  Ness Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  DATE:14.5.04

  	
  BY:

  	
  /s/ Raviv
  Zoller

  	
  /s/Aharon
  Fogel

  
	
   

  	
   

  	
  Name: Raviv
  Zoller

  	
  Aharon Fogel

  
	
   

  	
   

  	
  Title:President
  & CEO

  	
  Chairman of
  the Board

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:14.5.04

  	
   

  	
  /s/ Yaron
  Garmazi

  	
   

  
	
   

  	
   

  	
  Yaron
  Garmazi

  



 


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