EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made as of the 23rd day of
September, 2008 and effective as of 6 June 2008 (the "EFFECTIVE DATE"), by and
between WIN GAMING MEDIA, INC. (the "COMPANY"), a corporation incorporated under
the laws of the State of Nevada with its offices located at 103 Foulk Rd.,
Wilmington, DE 19803, USA from the one hand, and Citron Investments Ltd., an
Israeli Private Company Number 512083270, having its principal place of business
at 4 Ovadia Street, Ramat Gan 52245, Israel (the "CONSULTANT"), from the second
hand. The Company and the Consultant may be referred to as a "PARTY" and
collectively as the "PARTIES".
WHEREAS, the Company desires to retain the services of the Consultant, solely
through Mr. Shimon Citron, to serve as the Chief Executive Officer of the
Company (the "CEO") in a part time capacity (the "SERVICES"), and Shimon Citron
represents that he has the requisite skills and knowledge to serve in such
capacity, and it desires to be engaged in such position, according to the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the Parties' mutual covenants and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. ENGAGEMENT
1.1. The Consultant shall provide the Company with the Services through Mr.
Shimon Citron. Accordingly, Mr. Shimon Citron, shall serve as, and
with the title, office and authority of, the CEO of the Company. Since
the Consultant already started to provide the Company with the
Services commencing on the Effective Date, it is agreed that the
provisions of this Agreement shall apply retroactively from the
Effective Date.
1.2. Shimon Citron shall have effective supervision and control over, and
responsibility for, the strategic direction and general and active
day-to-day leadership and management of the business and affairs of
the Company and the direct and indirect subsidiaries of the Company,
subject only to the authority of the board of directors of the Company
(the "BOARD"). Shimon Citron shall have all of the powers, authority,
duties and responsibilities usually incident to the position of a CEO
of a corporation.
1.3. Shimon Citron shall report to and be under the management of the
Board. The CEO shall comply with the instructions of the Board, or
such persons that the Board may appoint for that purpose, including
instructions concerning procedures and discipline.
1.4. Shimon Citron agrees to provide the Services from the Company's
offices, located in Israel. Without derogating from the above, Shimon
Citron acknowledges that due to the nature of a CEO position, he shall
travel on temporary trips to such other place or places as may be
required from time to time to perform the CEO"s duties hereunder.
1.5. Shimon Citron undertakes to devote at least 25 (twenty five) hours per
week exclusively to the business and affairs of the Company as
required for the provision of the Services. During the term of the
this Agreement, Shimon Citron will be permitted to be engaged in other
business activities, for himself or any other person, provided that
such engagement shall not raise actual or potential conflicts of
interest with the Company's business and affairs. During the term
hereof and thereafter as provided below, neither the Consultant nor
Mr. Shimon Citron will render any services to any supplier or customer
of the Company and/or to any competitor of the Company.
1.6. In rendering the Services, the Consultant and Mr. Shimon Citron shall
comply with all policies and procedures of the Company, as may be in
effect from time to time.
2. CONSIDERATION
In consideration for the Services to be performed by Consultant under the
terms and conditions of this Agreement, the Consultnat shall be entitled to
receive from the Company, during the term of this Agreement, the following
remuneration:
2.1. MONTHLY FEE. In consideration for the Services, the Company shall pay
the Consultant a monthly fee (the "MONTHLY FEE") of Ten Thousand
United States Dollars (US$ 10,000). The Monthly Fee shall be paid at
monthly intervals, in accordance with the normal payroll practices of
the Company. The Company shall make deductions from the Monthly Fee as
is customary and as required under applicable law.
2.2. EXPENSES. The Company shall pay or reimburse the Consultant for all
travel expenses incurred or paid by the Consultant in connection with
the performance of the Services under this Agreement upon approval of
the expense statements or vouchers or such other supporting
information, as it shall be requested from time to time by the Board.
The Company shall also reimburse Mr. Citron for all the expenses
incurred or paid by him in connection with the performance of the
Services, provided that such expenses shall be approved by the Board
in advance.
2.3. MOTOR VEHICLE. The Consultant shall be entitled to repayment by the
Company of expenses incurred by the Consultant in connection with one
automobile owned and operated by Mr. Citron. Such expenses shall
include, without limitation, the insurance (with coverage reasonably
satisfactory to the Consultant), gasoline, oil, tires, warranty and
routine service and other maintenance and repairs for the automobile,
provided that the total amounts payable to the Consultant by the
Company for such expenses shall not exceed One Thousand United States
Dollars (US$ 1,000) per month. The Consultant shall not be entitled to
compensation for fines for traffic violations.
2.4. SPECIAL BONUS. It is agreed that should the Company's valuation,
during the term of this Agreement (including the Notice Period as
defined below), as indicated from the price per share for each of the
Company's shares as quoted on the stock exchange or on an automatic
quotation system (such as the Over The Counter Bulletin Board) in
which the Company's shares are listed or quoted, shall exceed Ten
Million United States Dollars (US$ 10,000,000) throughout a continuous
period of at lease thirty (30) consecutive days, then the Consultant
shall be entitled to receive from the Company a special bonus (the
"SPECIAL BONUS") equals to Two Per Cents (2%) of the average Company's
valuation in such thirty days period.
2.5. LIABILITY INSURANCE. During the term of this Agreement, the Company
undertakes to include Mr. Shimon Citron in the framework of the
Company's Directors and Officers insurance policy, in similar amounts,
terms, conditions and limitations as apply to the other officers of
the Company, from time to time.
2.6. RENEGOTIATION OF TERMS. The Consultant's compensation and benefits
under this Agreement shall be renegotiated on the first anniversary of
the Effective Date.
2.7. All payments hereunder, including payment of the Monthly Fee, the
reimbursement of expenses related to the Motor Vehicle and the Special
Bonus (to the extent the Consultant shall be entitled to receive it),
shall be made against Consultant's itemized invoice, and, if
applicable, shall be accompanied by VAT at the rate prescribed by law,
subject to any set-offs or other deductions of any nature as required
under any applicable law, unless Consultant provides the Company with
appropriate tax exemption documentation. Income tax imposed on the
Consultant in connection with any payments to be made under the
Agreement (including with respect to any shares of the Company granted
to Consultant in lieu of the Special Bonus) shall be borne by the
Consultant. For the avoidance of doubt, the Company shall have the
right to withhold any applicable tax with respect to any payment
and/or other benefit (such as the grant of shares) payable and/or
granted to Consultant hereunder, unless consultant provides the
Company with appropriate tax exemption documentation.
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2.8. For the avoidance of any doubt, the Monthly Fee, the reimbursement of
expenses as provided above and the Special Bonus (to the extent the
Consultant shall be entitled to receive it) (together the
"CONSIDERATION"), constitute the full and final consideration for the
Services, and the Consultant shall not be entitled to any additional
consideration, of any sort for its Services.
2.9. All payments and other benefits hereunder shall be paid and granted to
the Consultant, or any of its counterparts, as shall be informed by
the Consultant to the Company in writing from time to time.
3. TERM AND TERMINATION
3.1. The term of this Agreement shall be six (6) months, commencing on the
Effective Date (the "TERM"), unless and until terminated by either
Party for any reason, as provided in Section 3.2 hereunder, and
thereafter shall be automatically extended for undefined period
following the expiration of such six (6) months.
3.2. This Agreement may be terminated by either Party, at any time, without
any further obligation to the other Party under this Agreement (other
than those obligations surviving termination or expiration hereof), by
ninty (90) days prior written notice to the other Party (the "NOTICE
PERIOD"), unless terminated as a result of a material breach, in which
case this Agreement may be terminated by either Party upon fourteen
(14) days prior written notice to the other Party if such a breach was
not cured during the aforesaid fourteen (14) days period.
3.3. Upon expiration or termination of this Agreement, and during the
Notice Period, the Consultant will transfer its position to the its
replacement in an orderly manner and, in addition to its obligations
under Article 4 below, it will return to the Company any equipment
and/or other property belonging to the Company.
4. CONFIDENTIALITY
4.1. The Consultant shall not disclose or put to its own use, or to the use
of any third party, any Proprietary Information (as hereinafter
defined) of the Company and/or its affiliates of which Consultant has
been or hereafter becomes informed, whether or not developed by the
Consultant.
"PROPRIETARY INFORMATION" shall mean confidential and proprietary
information concerning the business and financial activities of the
Company and/or its affiliates, including, inter alia, the Company's
and/or its affiliates' product research and development, banking,
investments, investors, properties, employees, marketing plans,
customers, trade secrets, test results, processes, data, know-how,
improvements, inventions, techniques and products (actual or planned),
whether documentary, written, oral or computer generated. HOWEVER,
excluded from the above definition with respect to Consultant's
confidentiality undertaking is any information that Consultant can
prove (i) is or later becomes part of the public knowledge except as a
result of the breach of Consultant's undertakings towards the Company;
(ii) reflects information and data generally known in the industries
or trades in which the Company operates; (iii) as shown by written
records, is received by Consultant from a third party exempt from
confidentiality undertakings towards the Company; (iv) the Consultant
is compelled to disclose by court or government action pursuant to
applicable law, provided, however, that Consultant provides the
Company prompt notice thereof so that it may seek a protective order
or other appropriate remedy prior to the compelled disclosure.
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4.2. The Consultant will use the Proprietary Information solely to perform
the Services for the benefit of the Company. The Consultant shall use
best efforts to protect all Proprietary Information.
4.3. Upon termination of its engagement with the Company, the Consultant
will promptly deliver to the Company all documents and materials of
any nature pertaining to its engagement with the Company.
4.4. Consultant recognizes that the Company received and will receive
confidential and/or proprietary information from third parties subject
to a duty on the part of the Company to maintain the confidentiality
of such information and to use it only for certain limited purposes.
At all times, both during its engagement and after its termination,
Consultant undertakes to keep and hold all such information in strict
confidence and trust, and it will not use or disclose any of such
information without the prior written consent of the Company, except
as may be necessary to perform its duties hereunder and in consistent
with the Company's agreement with such third party. Upon termination
of its engagement with Company, Consultant shall act, with respect to
such information, as set forth in Section 4.2 and 4.3 below, mutatis
mutandis.
4.5. Consultant's undertakings under this Article 4 shall remain in full
force and effect after termination or expiration of this Agreement or
of any renewal thereof.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Consultant shall promptly disclose to Company or its nominee, any and
all inventions, designs, original works of authorship, formulas,
concepts, techniques, processes, formulas, trade secrets, discoveries
and improvements resulting, directly or indirectly, from the Services
and/or conceived or made by Consultant or anyone on its behalf in the
course of providing the Company with the Services (the "INTELLECTUAL
PROPERTY"), and hereby assigns and agrees to assign to Company or its
nominee, at the Company's sole discretion, all its interest, save for
moral rights, in any Intellectual Property. Consultant agrees to
assist the Company, as instructed by the Company in every proper way
to obtain and enforce patents, copyrights, mask work rights, and other
legal protections for the Intellectual Property in any and all
countries (the "IP ASSISTANCE"). Whenever requested to do so by the
Company, Consultant will execute any documents that the Company may
reasonably request for use in obtaining or enforcing or extending or
renewing such patents, copyrights, mask work rights, trade secrets and
other legal protections. The obligations in this Article 5 shall be
binding upon the Consultant's assigns, executors and other legal
representatives.
5.2. Consultant agrees that all the Intellectual Property is work made for
hire and will be the sole and exclusive property of the Company or its
nominee, at the Company's sole discretion. All Intellectual Property,
which shall be reduced to practice during and/or within twelve (12)
months after termination of this Agreement, shall be deemed to have
been invented during the term of this Agreement, unless otherwise
proven by the Consultant.
5.3. Consultant's undertakings under this Article 5 with respect to
providing IP Assistance concerning Intellectual Property developed
during the course of the Services shall remain in full force and
effect after termination of this Agreement or any renewal thereof,
PROVIDED, HOWEVER, that the Company compensates Consultant at a
reasonable rate for time or expenses actually spent by him at the
Company request for such assistance after termination of this
Agreement.
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6. ASSURANCES; NO CONFLICT
6.1. Consultant hereby warrants, represents and confirms to Company that on
the date hereof it is free to be engaged by the Company upon the terms
contained in this Agreement and that there are no engagements,
contracts, consulting contracts or restrictive covenants preventing
full performance of its duties hereunder.
6.2. During the Term, and without derogating from any other provision of
this Agreement, the Consultant shall not, directly or indirectly (i)
engage in other activities which conflict with the duties assigned to
him hereunder or raise actual or potential conflicts of interest with
the Company's business, or (ii) receive any payment or other benefits
from any third party, regarding the Services provided to the Company.
The Consultant shall immediately notify the Board of any actual or
potential conflict of interest that may arise with respect to its
Services.
6.3. Consultant hereby further represents warrants and confirms that
nothing in this Agreement conflicts with any of Consultant's current
relationships with any other entity.
6.4. Consultant shall not use the funding, facilities and resources of any
third party to perform the Services hereunder and shall not perform
the Services hereunder in any manner that would give any third party
rights to produce such work. Nothing done in the Consultant work for
any third party shall be considered part of the Services performed
hereunder.
7. COMPETITIVE ACTIVITY; NON-SOLICITATION
7.1. Consultant will not, as long as the Consultant provides Services to
the Company hereunder and for a period of twelve (12) months
thereafter, directly or indirectly, as owner, partner, joint venturer,
stockholder, employee, broker, agent, principal, corporate officer,
director, consultant, licensor or in any other capacity whatsoever
engage in, become financially interested in, be employed by, or have
any connection with any business or venture that is engaged in any
activities which are in direct competition with products or services
offered by the Company and/or its affiliates at the prevailing time or
in direct competition with any research and development efforts in
connection with the Company and/or its affiliates intended products
and services at the prevailing time without the Company's prior
consent.
7.2. During the Term of this Agreement and for a period of twelve (12)
months thereafter, Consultant will not solicit or induce any employee,
advisor, contractor or customer of the Company and/or its affiliates
to terminate or breach any employment, contractual or other
relationship with the Company and/or its affiliates.
8. INDEPENDENT CONTRACTOR
8.1. Consultant agrees and acknowledges that it is performing the Services
hereunder as an independent contractor and that no employer-employee
relationship exists or will exist between the Company and between the
Consultant and/or Mr. Shimon Citron.
8.2. If, despite the Parties' explicit intent as reflected in this
Agreement, a competent court determines the existence of an
employer-employee relationship between the Company and the Consultant
and/or Mr. Shimon Citron, and decides that the Consultant and/or Mr.
Shimon Citron is entitled to payments and/or other benefits in
connection with such employment relationship, then Consultant and Mr.
Shimon Citron shall indemnify the Company and hold it harmless from
any loss or damage incurred by the Company as a result of, or in
connection with, such court decision, including reasonable expenses
and legal fees, and the following provisions shall apply:
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8.2.1. In lieu of the Consideration (including any part thereof paid
in Shares or as a bonus) that was paid to the Consultant by the
Company as of the Effective Date, the Consultant shall be deemed
to be entitled to a reduced consideration, which equals to sixty
percent (60%) of the Consideration (the "REDUCED CONSIDERATION").
The Consultant's entitlement to the Reduced Consideration shall
be regarded as gross compensation and shall apply retroactively
as of the Effective Date.
8.2.2. The Consultant and Mr. Shimon Citron shall be under a duty to
immediately refund to the Company any amount paid on account of
the Consideration by the Company as of the Effective Date in
excess of the Reduced Consideration.
9. MISCELLANEOUS
9.1. The Consultant shall not assign this Agreement or any of its rights
and privileges hereunder, whether voluntarily or by operation of law,
to any person, firm or corporation without the prior written consent
of the Company. Notwithstanding, it is agreed that the Consultant
shall be entitled to assign the Consultant's rights and obligations
under this Agreement to a corporation, provided that following such
assignment the said corporation shall perform all the obligations of
the Consultant under this Agreement solely through Mr. Shimon Citron.
9.2. The provisions of this Agreement shall inure to the benefit of the
Parties, their heirs, legal representatives, successors, and assigns.
This Agreement and the Consultant's rights and obligations hereunder,
may only be assigned by the Consultant as provided in section 9.1
above. Such assignment shall not release Consultant liability directly
to the Company for the due performance of all of the terms, covenants,
and conditions of this Agreement to be complied with and performed by
the Consultant. The Company may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer, or other
disposition of all or substantially all of its business and assets.
The Company may also assign this Agreement to any affiliate of the
Company, provided, however, that no such assignment shall (unless the
Consultant so agrees in writing) release the Company from its direct
liability to the Consultant for the due performance of all of the
terms, covenants, and conditions of this Agreement to be complied with
and performed by the Company.
9.3. Consultant shall be solely responsible for the payment of any taxes,
including all business and income taxes arising out of the
Consultant's activities under this Agreement.
9.4. This Agreement constitutes the entire agreement between the Parties
with respect to the matters referred to herein, and no other
arrangement, understanding or agreement, verbal or otherwise, shall be
binding upon the Parties hereto. This Agreement may not be amended,
modified or supplemented in any respect, except by a subsequent
writing executed by the Parties.
9.5. No failure, delay or forbearance of either Party in exercising any
power or right hereunder shall in any way restrict or diminish such
Party's rights and powers under this Agreement, or operate as a waiver
of any breach or non-performance by either Party of any of the terms
or conditions hereof.
9.6. If any term or provision of this Agreement shall be declared invalid,
illegal or unenforceable, then such term or provision shall be
enforceable to the extent that a court shall deem it reasonable to
enforce such term or provision and if such term or provision shall be
unreasonable to enforce to any extent, such term or provision shall be
severed and all remaining terms and provisions shall be unaffected and
shall continue in full force and effect.
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9.7. For the sake of avoiding any doubt, the provisions of Articles 4, 5,
6, 7, 8 and 9 shall survive the expiration or termination for whatever
reason of this Agreement, unless explicitly provided otherwise
therein.
9.8. Any notice from one Party to the other shall be effectively served if
sent in writing by recorded delivery to the address of the receiving
Party as stated in the preamble to this Agreement, unless said Party
informs the other Party in writing on a change of address.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first hereinabove written.
/s/ Adiv Baruch, Niv Zilberstein /s/ Shimon Citron
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WIN GAMING MEDIA, INC. CONSULTANT
By: Adiv Baruch, Niv Zilberstein
Its: Directors
ACKNOWLEDGMENT
I, the undersigned, Shimon Citron, hereby represent, warrant and undertake that
I fully agree to all the provisions, obligations and restrictions set out in
this Agreement, as if I entered into this Agreement myself and I undertake to
fully comply with all such provisions, obligations and restrictions.
/s/ Shimon Citron
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SHIMON CITRON
Date: September 23, 2008
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