PERSONAL EMPLOYMENT
AGREEMENT
THIS PERSONAL
EMPLOYMENT AGREEMENT (the “Agreement”) is made and
entered into this 6th day of May, 2009 by and between TopSpin
Medical (Israel) Ltd. (the “Company”), and Eldad
Yehieli (the “Employee”).
1.
Position . The Employee shall serve as the Finance Manager
of the Company and the Company’s parent corporation, TopSpin
Medical, Inc. (the “Parent”). The Employee shall report
regularly and shall be subject to the direction and control of the
Company’s Chief Executive Officer or, if no person is serving
in such capacity, the Company’s Board of Directors or anyone
designated by it for this purpose. The Employee shall perform his
duties diligently, conscientiously and in furtherance of the
Company’s best interests. The Employee agrees and undertakes
to inform the Company, immediately after becoming aware of any
matter that may in any way raise a conflict of interest between the
Employee and the Company. During his employment by the Company, the
Employee shall not receive any payment, compensation or benefit
from any third party in connection, directly or indirectly, with
his position in the Company.
2.
Full Time Employment . The Employee will be employed on a
full time basis. The Employee shall devote his entire business time
and attention to the business of the Company and shall not
undertake or accept any other paid or unpaid employment or
occupation or engage in any other business activity, except with
the prior written consent of the Company.
3.
Employee’s Representations and Warranties .
3.1. The
Employee represents and warrants that the execution and delivery of
this Agreement and the fulfillment of its terms: (i) will not
constitute a default under or conflict with any agreement or other
instrument to which he is a party or by which he is bound; and
(ii) do not require the consent of any person or entity.
Further, with respect to any past engagement of the Employee with
third parties and with respect to any permitted engagement of the
Employee with any third party during the term of his engagement
with the Company (for purposes hereof, such third parties shall be
referred to as “Other Employers”), the Employee
represents, warrants and undertakes that: (a) his engagement with
the Company is and/or will not be in breach of any of his
undertakings toward Other Employers, and (b) he will not
disclose to the Company, nor use, in provision of any services to
the Company, any proprietary or confidential information belonging
to any Other Employer.
3.2. The
Employee acknowledges and agrees that all information technology
systems of the Company to which he shall have access are the sole
and exclusive property of the Company, and that all such systems
are and shall be monitored by the Company regularly, at its
discretion. Employee understands that he should have no expectation
of privacy in his use of such systems.
Term and
Termination of Employment
4.
Term . The Employee’s employment by the Company will
commence on May 6, 2009 (the “Commencement Date”),
and shall continue until it is terminated pursuant to the terms set
forth herein.
5.
Termination at Will . Either party may terminate the
employment relationship hereunder at any time by giving the other
party 45 days prior written notice (the “Notice
Period”). It is clarified that the Company is entitled to
terminate this Agreement and the employment relationship with
immediate effect upon a written notice to Employee and payment to
the Employee of a one time amount equal to the Salary (as defined
below) to which the Employee would have been entitled during the
Notice Period, in lieu of such prior notice.
6.
Termination for Cause . The Company may immediately
terminate the employment relationship for Cause, 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 Employee’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 Employee severance
payment under applicable law.
7.
Notice Period; End of Relations . During the Notice Period
and unless otherwise determined by the Company in a written notice
to the Employee, the employment relationship hereunder shall remain
in full force and effect, the Employee shall be obligated to
continue to discharge and perform all of his duties and obligations
with Company, and the Employee shall cooperate with the Company and
assist the Company with the integration into the Company of the
person who will assume the Employee’s
responsibilities.
8.
Proprietary Information; Assignment of Inventions and
Non-Competition . By executing this Agreement the Employee
confirms and agrees to the provisions of the Company’s
Proprietary Information, Assignment of Inventions and
Non-Competition Agreement attached as Schedule A
hereto.
Salary and
Additional Compensation; Insurance; Advanced Study
Fund
9.
Salary . The Company shall pay to the Employee as
compensation for the employment services a base salary in the gross
amount of NIS25,000 (the “Salary”). The parties agree
that the Salary includes all payments due from the Company for any
and all daily travel costs to which he may be entitled under any
applicable law, collective bargaining agreements or orders, to the
extent any apply. Except as specifically set forth herein, the
Salary includes any and all payments to which the Employee is
entitled from the Company hereunder and under any applicable law,
regulation or agreement. The Salary and any other amount to be paid
to the Employee by the Company under this Agreement, is to be paid
to the Employee in accordance with the Company’s normal and
reasonable payroll practices, after deduction of applicable taxes
and like payments.
Position of Trust . The Employee agrees that Employee’s
position is one that requires a special measure of personal trust
and loyalty. Therefore, the provisions of the Hours of Work and
Rest Law-1951 shall not apply to the Employee and the Employee
shall not be entitled to any compensation for working more than the
maximum number of hours per week set forth in such Law in addition
to the compensation set forth in this Section 9.
10.1. The
Company will insure the Employee under a “Manager’s
Insurance Policy” to be selected by the Company (the
“Policy”), and shall remit to the Policy as follows:
(i) an amount equal to 5% of the Salary for savings and risk
component; (ii) an amount equal to 8 1/3% of the Salary for
severance pay component (the “Severance Pay
Component”); and (iii) amount of up to 2.5% (two and
half percents) of the Salary for loss of earning capacity
component, (collectively, the “Company’s
Contribution”). In addition, the Company shall deduct from
the Employee’s Salary an amount equal to 5% of the Salary,
which it shall remit to the Policy for the savings and risk
component (the “Employee’s
Contributions”).
10.2. The
Company undertakes to transfer the Policy to the Employee within a
reasonable time after termination of the Employee’s
employment with the Company, whether terminated by the Company or
the Employee.
10.3. The
Company’s Contributions will be in lieu of the severance pay
that the Employee will be entitled to in the event of his
termination, all in accordance with the provisions of
Section 14 of the Severance Pay Law, 5723-1963. The
Employee’s signature on this Agreement represents the
Employee’s agreement to the content of this section. The
Company waives in advance any right it may have in the future for
the return of the Company’s Contributions, or any of them,
unless:
10.3.1. The
Employee’s entitlement for severance pay has been deprived by
a judgment, under the provisions of sections 16 or 17 of the
Severance Pay Law, 5723-1963, and as long as it was so deprived;
or
10.3.2. The
employee has withdrawn monies from the Policy not in circumstances
of death, disability or retirement at the age of 60 or
more.
A copy of the Order and Confirmation Regarding
Payments of Employers to Pension Funds and Insurance Funds instead
of Severance Pay is attached as Schedule B to this
Agreement.
10.4. The
Company’s Contribution to the Policy shall be calculated
solely based on the Salary, and the Employee’s entitlement to
severance pay, if any, shall be calculated solely based on the
Salary and no other payment, right or benefit to which the Employee
is entitled under this Agreement or by law shall be taken into
account in such calculations.
11.
Further Education Fund . The Company together with the
Employee will maintain a Further Education Fund (“Keren
Hishtalmut”). Each month, the Company shall contribute to
such fund an amount equal to 7.5% of the Salary and the Employee
shall contribute to such fund an amount equal to 2.5% of the
Salary. All of the Employee’s aforementioned contributions
shall be transferred to the fund by the Company by deducting such
amounts from each monthly Salary payment. Notwithstanding the
aforesaid, the Employee may instruct the Company in writing to pay
him directly, together with his/hers monthly Salary and after
deducting the applicable taxes, the amount exceeding the income tax
exempted amount. For the avoidance of doubt, no amount remitted by
the Company in respect of this Section 11 shall be considered
as part of the Salary for purposes of any deduction therefrom or
calculation of severance pay.
12.
Expenses . The Company will reimburse the Employee for
business expenses borne by the Employee, provided that such
expenses were approved in advance by the Company, and against valid
invoices furnished by the Employee to the Company.
13.
Vacation . The Employee shall be entitled to 16 paid
vacation days during each year, to be taken at times subject to the
reasonable approval of the Company. Up to 15 of unused vacation
days may be carried forward from one year to the next and any such
carried unused vacation day shall be forfeited without any payment
at the end of the second year. The Employee shall not receive
payment in lieu of any accrued and unused vacation days, except in
the context of his termination in accordance with applicable
law.
14.
Sick Leave ; Recuperation Pay. The Employee shall be
entitled to sick leave and Recuperation Pay (“Dmei
Havra’a”) pursuant to applicable law.
15.
Company Car . Employee shall be entitled to the full time
use of a class 2 Company car. The Company shall pay all the
expenses in connection with the maintenance and use of the said
car, except for the applicable tax and other payments as set forth
below. Employee hereby undertakes to use the car reasonably and
properly, as if he owned the car, and to return the car to Company
immediately upon the termination of this Agreement. The Employee
shall be liable for any and all income tax liability app
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