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CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made as of the 9th day of
December 2010 (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; and
WINNER.COM (UK) Ltd., a United Kingdom corporation, of Providence House,
Providence Place, Islington, London N1 0NT, UK (the "CONSULTANT"). Each of the
Company and the Consultant may be referred to herein as a "PARTY" and
collectively as the "PARTIES".
WHEREAS, the Company desires to retain the services of the Consultant, through
Mr. Haim Tabak, to serve as the Chief Operating Officer of the Company (the
"COO") (the "SERVICES"), and the Consultant represents that it 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.
Haim Tabak. Accordingly, the Consultant shall serve as, and with the
title, office and authority of, the COO of the Company.
1.2. The Consultant shall have all of the powers, authority, duties and
responsibilities usually incident to the position of a COO of a
corporation. The Consultant shall report to and be under the
management of the Board. The Consultant 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.
1.3. The Consultant agrees to provide the Services from the Company's
offices located in Israel. Without derogating from the above, the
Consultant acknowledges that due to the nature of a COO position, it
shall travel on temporary trips to such other place or places as may
be required from time to time to perform its duties hereunder.
1.4. The Consultant shall devote its, and shall cause Mr. Haim Tabak to
devote his, full time, attention, skill and efforts exclusively to the
performance of the duties and responsibilities under this Agreement.
For the sake of good order, it is clarified that the Consultant shall
be permitted not to provide the Services during periods of time in
which Mr. Haim Tabak shall be on vacation and/or sick leave. During
the term of this Agreement, the Consultant and Mr. Haim Tabak shall
not be engaged in any other business activities.
1.5. In rendering the Services, the Consultant and Mr. Haim Tabak shall
comply with all policies and procedures of the Company, as may be in
effect from time to time.
2.CONSIDERATION
2.1. 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, a monthly fee (the "MONTHLY FEE"") of a sum of United
States Dollars equal to NIS 20,000 (Twenty Thousands New Israeli
Shekels). 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. The Company shall pay or reimburse the Consultant for all 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.
2.3. All payments hereunder, shall be made against Consultant's itemized
invoice, and, if applicable, shall be accompanied by Value Added Tax
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 shall be borne by the
Consultant.
2.4. The Company shall issue to the Mr. Haim Tabak 500,000 (Five Hundred
Thousand) options to purchase shares (the "SHARES") of the Company
(the "OPTIONS"), upon the following terms:
(1) The Options shall be subject to the terms of the Company's Stock
Option Plan, and the Stock Option Agreement to be entered into
between the Company and Mr. Haim Tabak;
(2) The Options shall vest over a period of twenty four (24) months
as of January 1, 2011 (the "DATE OF GRANT") (the "VESTING
PERIOD"), in accordance with the following vesting schedule,
provided that the Consultnat shall continue to provide the
Services to the Company at the end of each relevant vesting
period. 166,666 Options shall be fully vested on the Date of
Grant. The remainder of the Options shall vest on a three-month
basis, as of the lapse of three (3) month following the Date of
Grant and until the lapse of the Vesting Period, in _______eight
(8) installments, each of which shall be equal to 12.50% of the
total number of Options. Following the termination of the
Consultant's engagement with the Company, all unvested Options
shall ipso facto terminate and become null.
(3) Vested Options shall be exercisable at a purchase price of
US$0.11 (Eleven Cents of United States Dollar) per Share.
(4) The Options shall be granted under Section [3(i)][102] of the
Israeli Income Tax Ordinance (New Version), 1961.
(5) Mr. Haim Tabak shall be responsible for payment of any taxes
resulting from the grant or exercise of the Options. The Company
shall deduct at source all the deductions which the Company is
obliged to make for tax imposed upon the grant or exercising of
the Options.
3.TERM AND TERMINATION
3.1. This Agreement shall be in effect for an undefined period commencing
on the Effective Date (the "Term"), and may be terminated by either
Party for any reason, as provided in Section 3.2 hereunder.
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.
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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.
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 also apply to Mr.
Haim Tabak and 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"). The obligations in this Article 5
shall be binding upon Mr. Haim Tabak and/or the Consultant's assigns,
executors and other legal representatives.
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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.
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 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. Haim Tabak.
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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. Haim Tabak, and decides that the Consultant and/or Mr. Haim
Tabak is entitled to payments and/or other benefits in connection with
such employment relationship, then Consultant and Mr. Haim Tabak 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.
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.
9.2. The provisions of this Agreement shall inure to the benefit of the
Parties, their heirs, legal representatives, successors, and assigns.
The Company may 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.
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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first hereinabove written.
/s/ Shimon Citron /s/ Haim Tabak
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WIN GAMING MEDIA, INC. CONSULTANT
By: Shimon Citron By: Haim Tabak
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Its: __________________
ACKNOWLEDGMENT
I, the undersigned, Haim Tabak, hereby represents, warrants and undertakes 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/ Haim Tabak
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HAIM TABAK
Date: __________________
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