Exhibit 10.12


 


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT is made as of the 1st
day of August, 1999


 


BETWEEN:


 


	
  (1)

  	
   

  	
  Ness Technologies, Inc.

  
	
   

  	
   

  	
  a
  Delaware Corporation

  
	
   

  	
   

  	
  with
  offices at 21 Aminadav St.

  
	
   

  	
   

  	
  Tel
  Aviv 67067

  
	
   

  	
   

  	
  Israel (the “Company”)

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Mr. Aharon Fogel

  
	
   

  	
   

  	
  of
  3 Tarsat St., Tel Aviv

  
	
   

  	
   

  	
  Israel
  (the “Executive”)

  



 


WHEREAS, the Company desires to employ the Executive to provide
services to the Company, its affiliates and its subsidiaries, 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 on August 1, 1999 (the “Effective
Date”) and shall end on July 31, 2001 (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 three (3) 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 Chairperson of the Board of
Directors of the Company, the Chairperson of the Company’s subsidiary, Advanced
Technologies Ltd. and shall provide such other services to the group of
companies that are subsidiaries or affiliates of the Company (the “Group”) as
he shall be requested from time to time by the Board of Directors of the
Company.


 


(b)                                  The
Executive agrees to devote at least 50% (fifty percent) of his working time and
efforts to the performance of his duties for the Company and the Group.


 


(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.


 


(d)                                  The
Executive hereby declares that he is employed solely by the Company and not by
any other entity that is part of the Group and acknowledges that no
employee-employer relationship shall exist between himself and any entity that
is part of the Group other than the Company; provided, however, that the
Executive shall make himself available to the business of the Group when
requested by any part of the Group.  In
addition, the Executive is aware that other entities in the Group may reimburse
the Company for part of its expenses in connection with the Executive’s employment
and services.


 


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 at the rate of US$12,000 per
month, as converted into NIS based upon the representative rate of exchange of
the United States Dollar on the day prior to the Effective Date, which said 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”).  Value Added Tax (VAT), if applicable, shall
be added to each payment of the Monthly Salary.  The Monthly Salary shall be payable in NIS, against a receipt.


 


(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


 


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time of their payment, pursuant to any applicable law, except that the
Company shall pay the VAT, if applicable, in connection with the Monthly
Salary.


 


The Executive acknowledges that he is responsible to make all
provisions, deductions and contributions from the Monthly Salary to any plan,
purpose or program, whether required hereunder, required under law or elected
by the Executive (including, without limitation, pension programs, disability
insurance, advanced educational funds, vacation allowance, etc.) and represents
that he shall have no claim against the Company or the Group in respect
thereof.


 


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


 


(d)                                  Bonus. 
Subject to the complete discretion of the Company’s Board of Directors,
the Company shall pay to the Executive an annual bonus that shall be 40% (forty
percent) of the higher of (i) the bonus paid to the Chief Executive Officer of
the Company in respect of such year; and (ii) the bonus paid to the Chief
Executive Officer of the Company’s subsidiary, Advanced Technologies Ltd. in
respect of such year.  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.


 


(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 or the Group, 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)                                     Managers Insurance Policy.  During the Employment Period, the Executive
shall contribute to an insurance company as part of a Managers Insurance
Policy, an amount equal to 18 1/3% of the Monthly Salary (out of which 10%
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.


 


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.


 


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(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 Executive has not substantially performed his 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


 


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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 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 the 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


 


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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.  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, 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 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.


 


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(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.


 


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, 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:


 


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If to the Executive:


3 Tarsat St.


Tel Aviv Israel


 


If to the Company:


21 Aminadav St.


Tel Aviv 67067


Israel


 


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.


 


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; and any
prior agreement of the parties hereto or of the Executive and the Group in
respect of the subject matter contained herein is hereby terminated and
canceled.  Any modifications to this
Agreement can only be made in writing signed by the Executive and an
appropriate Company Officer.


 


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


 


 


	
   

  	
  Ness
  Technologies, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
  4/17/00

  	
   

  	
  BY:

  	
  /s/ Morris Wolfson, /s/ Raviv Zoller

  	
   

  
	
   

  	
  Name:

  	
  Morris Wolfson,

  	
  Raviv Zoller

  
	
   

  	
  Title:

  	
  Director

  	
  C.F.O.

  
	
   

  
	
   

  
	
  DATE:

  	
  4/17/00

  	
   

  	
  /s/ Aharon Fogel

  	
   

  
	
   

  	
  Aharon Fogel

  
									



 


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