Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of December 2010, by and
between WIN GAMING MEDIA (ISRAEL) LTD., a company incorporated under the laws of
Israel located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the "COMPANY"), and
▇▇▇▇ ▇▇▇▇▇, Israeli ID number 27938398 of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
("CARMI"). Each of the Company and Carmi may be referred to herein as a "PARTY"
and collectively as the "PARTIES".
WHEREAS The Company wishes to employ Carmi as the Company's Chief Financial
Officer ("CFO") AS OF JANUARY 1, 2011, and Carmi represents that he has the
requisite skill and knowledge to serve in such position, and he desires to
engage in such employment, according to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the respective agreements of the Parties
contained herein, the Parties agree as follows:
1. EMPLOYMENT
(a) The Company agrees to employ Carmi and Carmi agrees to be employed by
the Company on the terms and conditions set out in this Agreement. The
employment of the CFO shall commence on December 1, 2010 (the
"EFFECTIVE DATE").
(b) Carmi shall be employed as the Company's CFO. Carmi shall perform the
duties, undertake the responsibilities and exercise the authority
customarily performed, undertaken and exercised by persons situated in
a similar capacity, subject to the direction of the Company's board of
directors (the "BOARD"). The CFO shall report regularly to the Board
with respect to his activities.
(c) Excluding periods of vacation, sick leave and military reserve service
to which the CFO is entitled or required, the CFO agrees to devote his
full working time and attention to the business and affairs of the
Company and its subsidiaries as required to discharging the
responsibilities assigned to the CFO hereunder. During the term of
this Agreement, the CFO shall not be engaged in any other employment
with another business entity. It is being understood and agreed that
the CFO may also provide services as Chief Financial Officer to the
Company's parent company, Win Gaming Media, Inc. (the"PARENT") as well
as to all other subsidiaries of the Parent.
(d) This Agreement is a personal agreement governing the employment
relationship between the Parties hereto. This Agreement shall not be
subject to any general or special collective employment agreement
relating to employees in any trade or position that is the same or
similar to the CFO's position, unless specifically provided herein.
(e) Since the CFO position, duties and responsibilities hereunder are in
the nature of management duties that demand a special degree of
personal loyalty and in the nature which does not enable the Company
to supervise his work and rest hours, the provisions of the Law of
Work Hours and Rest 5711 - 1951 shall not apply to the terms of the
CFO's employment hereunder. Accordingly, the statutory limitations of
such law shall not apply to this Agreement. The CFO shall not be
entitled to additional compensation from the Company for working
additional hours or working on rest days, as required by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE CFO
The CFO represents and undertakes all of the following:
(a) There are no other undertakings or agreements preventing him from
committing himself in accordance with this Agreement and performing
his obligations under it.
(b) To the best of the CFO's knowledge, the CFO is not currently, nor will
he by entering into this Agreement be deemed to be, violating any
rights of his former employer and/or in breach of any of his
obligations towards his former employer.
(c) The CFO shall inform the Company, immediately upon becoming aware of,
on every matter in which he or his immediate family members have a
personal interest and which might create a conflict of interests with
his duties under his employment hereunder.
(d) In carrying out the duties under this agreement, the CFO shall not
make any representations or give any guarantees on behalf of the
Company, except as expressly and in advance authorized to do so.
(e) The CFO acknowledges and agrees that from time to time he may be
required by the Company to travel and stay abroad as part of his
duties towards the Company. The company will bear all the expenses of
such travel.
(f) The CFO shall not receive any payment and/or benefit from any third
party, (excluding the Parent), directly or indirectly in connection
with his employment. In the event the CFO breaches this undertaking,
without derogating from any of the Company's right by law or contract,
such benefit or payment shall become the sole property of the Company
and the Company may set-off the value thereof from any sums due to the
CFO from the Company.
(g) The CFO undertakes to use the Company's equipment and facilities only
for the purpose of his employment. The CFO acknowledges and agrees
that the Company is entitled to conduct inspections within the
Company's offices and on the Company's computers, including
inspections of electronic mail transmissions, Internet usage and
inspections of their content, for the Company's relevant needs. For
the avoidance of any doubt, it is hereby clarified that all
examination's finding shall be the Company's sole property.
3. SALARY
In consideration for the employment of the CFO with the Company, the
Company shall pay the CFO a gross monthly salary of NIS 14,000 (fourteen
thousand New Israeli Shekels) (the "BASE SALARY").
The Base Salary shall be payable monthly in arrears, no later than the 9th
day of each month. The Company shall deduct from the Base Salary, AND FROM
ANY OTHER PAYMENT HEREUNDER, all the deductions as required under the law.
4. CFO BENEFITS
During the term of this Agreement, the CFO shall be entitled to the
following benefits:
(a) SICK LEAVE. The CFO shall be entitled to fully paid sick leave
pursuant to the Sick Pay Law 5736 - 1976. Unused sick days may be
accrued by the CFO in accordance with the law.
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(b) VACATION. The CFO shall be entitled to an annual vacation of 18
working days per year. Unused vacation days may be accrued by the CFO
in accordance with the law. The CFO shall be entitled to redeem
vacation days in accordance with the law.
(c) MOTOR VEHICLE. At the end of 6 months of employment, the Company shall
consider providing Carmi a motor vehicle from the Company from level 2
("Group 2") according to the Tax Regulations - Value of the Use of
Vehicle 57-47 1987 (the "CAR"). Terms and conditions of possession and
use of the Car, including gasoline, insurance and replacement, shall
be established by the Company in accordance with policies established
for the employees of the Company. Income tax imposed on Carmi in
connection with the use of the Car shall be borne by Carmi. Carmi
shall not be entitled to compensation for fines for traffic violations
and shall be responsible to any policyholder's participation payments
("Hishtatfut Atzmit") in relation to the Car.
(d) STOCK OPTIONS. At the end of 6 months of employment, the Company shall
consider granting Carmi Stock Options of the Parent in the amount that
would be agreed between Carmi, the Parent and the Company. The Options
shall be subject to the terms of the Parent's Stock Option Plan, and
the Stock Option Agreement to be entered into between the Company or
the Parent and Carmi.
(e) REST HOME ALLOWANCE ("DMEI HAVRA'A"). The CFO shall be entitled to
"Dmei Havra'a" as determined under applicable law.
(f) SOCIAL BENEFITS. The CFO shall be entitled to receive from the Company
the following contributions:
a. PENSION FUND. The Company shall insure the CFO under an accepted
Pension Fund (the "CFO'S INSURANCE"), as follows: (i) the Company
shall pay an amount equal to 5% of the Base Salary towards the
CFOs Insurance for the CFO's benefit and shall deduct 5% from the
Base Salary and pay such amount towards the Managers' Insurance
for the CFO's benefit (and by signing this Agreement, the CFO
gives his consent for such deduction); (ii) the Company shall pay
an amount equal to 8 1/3% of the Base Salary for severance
compensation; and (iii) the Company shall pay an amount of up to
2.5% of the Base Salary towards disability insurance.
b. CONTINUING EDUCATION FUND.
c. It is agreed that the CFO shall bear all the tax imposed under
any applicable law with respect to any payment made toward the
Pension Fund and/or Continuing Education Fund which exceeds the
maximum amount exempt from tax payment under applicable laws.
(g) EXPENSES REIMBURSEMENT: The Company will reimburse the CFO for all
reasonable, business-related expenses and disbursements incurred by
the CFO in carrying out his duties under this Agreement and against
the submission of receipts, provided however that such expenses shall
be approved by the Board.
(h) INDEMNIFICATION OF CFO; D&O INSURANCE: Within 10 (ten) days as of the
execution of this Agreement, the Company shall execute and furnish the
CFO with an Indemnification Agreement in the form that will be
approved by the Board. The Company will add the CFO to the Parent's
existing directors' and officers' liability insurance ("D&O
Insurance"). In any case, the D&O Insurance shall be as broad as any
such insurance obtained for any other officer of the Company.
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(i) Any benefit provided by the Company to the CFO under section 4 to this
Agreement shall not be considered as part of the CFO's salary for
purposes of calculating the CFO's social and other benefits, such as
severance payments, redemption of unused vacation days etc., and such
social and other benefits shall be calculated only out of the Base
Salary.
5. TERMINATION
(a) This Agreement shall be in effect for an undefined period of time
commencing on the Effective Date (the "TERM"). The Company and the CFO
may terminate this Agreement and the employee-employer relationship
between the Parties at any time upon written notice of thirty (30)
days to the other Party (the "NOTICE PERIOD") specifying the effective
date of termination (the "TERMINATION DATE").
(b) During the Notice Period, the CFO shall work in the Company and shall
be entitled to compensation pursuant to Section 3 and to all of the
benefits set forth in Section 4. Notwithstanding the foregoing, the
Company is entitled to terminate this Agreement with immediate effect
upon a written notice to the CFO and to pay the CFO an amount equal to
the Base Salary (as defined above) that would have been paid to the
CFO during the Notice Period in lieu of such prior notice.
(c) Notwithstanding the foregoing, the Company may immediately terminate
the employment relationship with the CFO for Cause (as defined below),
without paying the CFO any payment with respect to the term commencing
following such termination, and such termination shall be effective as
of the time of notice of the same. "CAUSE" means (a) a material breach
of this Agreement; (b) any willful failure to perform or willful
failure to perform competently any of the Company's instructions or
any of the CFO's fundamental functions or duties hereunder; (c)
engagement in willful misconduct or acting in bad faith with respect
to the Company, (d) conviction of a felony involving moral turpitude;
or (e) any cause justifying termination or dismissal in circumstances
in which the Company can deny the CFO severance payment under
applicable law.
(d) During the Notice Period, the CFO shall work in the Company, shall
transfer his position to his replacement in an orderly and complete
manner and shall return to the Company all documents, professional
literature and equipment belonging to the Company, which may be in his
possession at such time.
(e) At the end of the Notice Period, the Company shall transfer to the CFO
ownership of his CFO's Pension Fund and Continuing Education Fund.
6. COMPETITIVE ACTIVITY
During the term of this Agreement and for a period of eighteen (18) months
thereafter, the CFO will not directly or indirectly:
(a) Carry on or hold an interest in any company, venture or other entity
which competes directly or indirectly with the products or services of
the Company or any subsidiary of the Company (a "COMPETING BUSINESS").
(b) Act as a consultant or CFO or officer or in any capacity in a
Competing Business or supply services in competition with the Company
or its subsidiaries services ("RESTRICTED SERVICES") to any person or
entity which was provided with services/products by the Company or its
subsidiaries at any time during the twelve (12) months immediately
prior to the Termination Date.
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(c) Solicit, canvass or approach or endeavor to solicit, canvass or
approach any person or entity which was provided with
services/products by the Company or its subsidiaries at any time
during the twelve (12) months immediately prior to the Termination
Date, for the purpose of offering Restricted Services or products
which compete with the products supplied by the Company or its
subsidiaries at the Termination Date.
(d) Employ, solicit or entice away or endeavor to solicit or entice away
from the Company or its subsidiaries any person employed (whether as
an employee or as a consultant) by the Company or its subsidiaries at
any time during the twelve (12) months immediately prior to the
Termination Date with a view to inducing that person to leave such
employment and to act for another employer in the same or a similar
capacity.
7. CONFIDENTIALITY AND IP RIGHTS
(a) In view of the fact that the CFO's work as an employee of the Company
will bring the CFO into close contact with many confidential affairs
of the Company and its affiliates, including matters of a business
nature, such as information about customers, costs, profits, markets,
sales and any other information not readily available to the public,
such as technical information related to the Company's products and/or
technology as well as plans for future developments, the CFO agrees:
(i) To keep secret all confidential matters of the Company and its
affiliates and not to disclose them to anyone outside of the
Company, either during or after the CFO's employment with the
Company, except with the Company's prior written consent; and
(ii) To deliver promptly to the Company on termination of the CFO's
employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports and other
documents (and all copies thereof) relating to the Company's and
its affiliates' businesses which the CFO may then possess or have
under the CFO's control.
(b) The CFO agrees to execute any separate confidentiality agreements
required by the Company.
(c) The CFO agrees that all memoranda, books, notes, records (contained on
any media whatsoever), charts, formula, specifications, lists and
other documents made, compiled, received, held or used by the CFO
while employed by the Company, concerning any phase of the Company's
business, products, services or trade secrets, shall be the Company's
sole property and shall be delivered by the CFO to the Company upon
termination of the CFO's employment or at any earlier or other time at
the request of the Company, without the CFO retaining any copies
thereof.
(d) The CFO will promptly disclose to the Company, or any persons
designated by it, all information, improvements, inventions, formulae,
processes, techniques, know-how and data, whether or not patentable,
made or conceived or reduced to practice or learned by the CFO, either
alone or jointly with others, during the CFO's employment with the
Company (including after hours, on weekends or during vacation time)
(all such information, improvements, inventions, formulas, processes,
techniques, know-how and data are hereinafter referred to as the:
"INVENTIONS").
(e) The CFO agrees that all the Inventions shall be the sole property of
the Company and its assigns, and the Company and its assigns shall be
the sole owner of all patents and other rights in connection with such
Inventions. The CFO hereby assigns to the Company any rights the CFO
may have or acquire in such Inventions.
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(f) The CFO further agrees as to all such Inventions to assist the
Company, or any persons designated by it, in every proper way to
obtain and from time to time enforce such Inventions in any way
including by way of patents on such Inventions in any and all
countries, and that the CFO will execute all documents for use in
applying for and obtaining patents on and enforcing such Inventions,
as the Company may desire, together with any assignments of such
Inventions to the Company or persons or entities designated by it.
8. MISCELLANEOUS
(a) LAW AND VENUE. The validity, construction and performance of this
Agreement shall be governed by and interpreted in accordance with the
laws of the State of Israel, without giving effect to the principles
of conflict of laws thereof. The competent courts of the city of Tel
Aviv-Jaffa, Israel shall have exclusive jurisdiction to settle all
disputes arising in connection with this Agreement and no other courts
shall have any jurisdiction whatsoever in respect of such disputes.
(b) COUNTERPARTS AND SIGNATURES. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
(c) ASSIGNMENT. This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns, and the
Company shall require such successor or assign to expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession or assignment had taken place. The term "successors and
assigns" as used herein shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the
Company (including this Agreement) whether by operation of law or
otherwise.
(d) NON-WAIVER The waiver, express or implied, by either Party hereto of
any rights hereunder or of any failure to perform or of a breach
hereof by the other Party hereto shall not constitute or be deemed a
waiver of any other right hereunder or any other failure to perform or
a breach hereof by the other Party hereto, whether of a similar or
dissimilar nature.
(e) ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
constitute the entire agreement between the Parties with respect to
the subject matter hereof and supersedes any prior agreement, written
or oral, including the terms of any negotiations in connection with or
relating to this Agreement.
(f) MODIFICATION OF AGREEMENT. No addition or modification of this
Agreement shall be effective or binding on either of the Parties
hereto unless reduced to writing and executed by the respective duly
authorized representatives of each of the Parties hereto.
(g) NOTICE. Any notices to be given hereunder shall be served on a Party
by prepaid registered letter, facsimile or telegram to its address
given herein or such other address as may from time to time be
notified for this purpose. Any notice given by letter shall be deemed
to have been served four days after the time at which it was posted
and any notice given by facsimile or telegram shall be deemed to have
been served 24 hours after it is dispatched.
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(h) SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other
provisions hereof.
(i) EMPLOYMENT TERMS NOTICE. For the purpose of delivering a notice with
respect to the employment terms pursuant to the Law of Notice to
Employee (Employment Terms), 5762 - 2002, this Agreement shall be
considered as complying with the requirements under such Law.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
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Win Gaming Media (Israel) Ltd. ▇▇▇▇ ▇▇▇▇▇
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