Exhibit 10.1





Exhibit 10.1




CONSULTING AGREEMENT




This Consulting Agreement (the “Agreement”) is made effective as of April 19, 2009, by and between
TopSpin Medical (Israel) Ltd. (the “Company”) of 53 Derech Hashalom, Givataim, Israel, and
Top-Notch Consultancy 2009 Ltd. (the “Consultant”).




			
	WHEREAS	 	Mr. Ehud Gilboa, the controlling shareholder of the Consultant (“Gilboa”), is a director at
the Company, as well as a director at TopSpin Medical Inc., its parent company (the “Parent”);
and







			
	WHEREAS	 	The Company wishes the Consultant, solely through Gilboa, to perform certain Services (as
defined below) and the Consultant is willing to provide such Services through Gilboa, all
subject to the terms and conditions of this Agreement.






NOW, THEREFORE, the parties hereby agree as follows:




	 	1	 	Consultancy.







	 	1.1	 	Consulting Period. The Consultant shall serve as a consultant to the
Company and the Parent (collectively, together with any other subsidiary of the Company
or the Parent, the, the “Group”) in respect of the Services for a period commencing on
the date of this Agreement and continuing until termination of this Agreement in
accordance with Section 7 below (the “Consulting Period”).

	 
	 	1.2	 	Experience. The Consultant represents that it (including Gilboa) has
the capability, know-how, expertise and experience necessary to perform the Services.
The Consultant, through Gilboa, will devote sufficient time and efforts to performing
the Services under this Agreement, as may be required to accomplish the duties
described below.

	 
	 	1.3	 	No Conflicts. The Consultant represents that the performance of the
Services or any other duties and obligations of the Consultant hereunder do not and
will not conflict with, or breach, any prior agreement, contract, patent disclosure
agreement, non-competition agreement, any restrictive covenant relating to the
involvement whatsoever of each of the Consultant and Gilboa with the Company or any
other instrument to which the Consultant or Gilboa are a party or by which they are
bound. Consultant shall immediately and without delay inform the Company’s Chairman of
the Board of Directors (the “Board”) of any affairs and/or matters that might
constitute a conflict of interest with the provision of Services. Consultant will
inform the Company of any other potential conflict of interests with its business at
the relevant time.

	 
	 	1.4	 	Reliance. Consultant understands that the Company is relying on the
representations made by Consultant in this Section 1 in making its decision to enter
into this Agreement.





 


 









 






	 	2	 	Services. The Consultant agrees and undertakes to provide the Services
exclusively through Gilboa. During the Consulting Period, Consultant, solely through Gilboa,
shall provide services functionally equivalent to the position of an interim CEO of the Group, as
may reasonably be requested by the Board (the “Services”). The Consultant shall provide at
least [80] hours of Services per month. The Consultant undertakes to perform its duties and
obligations under this Agreement with the highest degree of professionalism. The Consultant
shall devote his know-how, expertise, talent, experience and best efforts to the performance
of the Services, and shall act to promote the Group’s business and affairs, and performs and
discharges the Services faithfully, with devotion, honesty and fidelity. The parties agree
that during the consulting period neither the Consultant nor Gilboa shall engage in any
business or professional activity, other than current activities of the Consultant and/or
Gilboa as disclosed to the Board by the Consultant prior to th adate hereof, unless: (i) the
Consultant provided the Company with a prior written notice and acquired the consent of the
Board to such additional activity; and (ii) such additional activity does not breach this
Agreement, its Annexes or any other agreement between the Company and the Consultant and/or
Gilboa, including, without limitation, the provisions of Exhibit A. The Consultant
shall report to, and provide its services under the direction of, the Company’s Board.
Gilboa shall use the title of ‘Chief Executive Officer’ on all business related materials
and interactions with individuals and entities during the course of his Services.







	 	3	 	Legal Relationship; Independent Contractor. The parties hereto acknowledge that
the legal relation between the Company and Consultant’s employees, including Gilboa (the
"Employees”), is limited in the manner expressly provided herein. Notwithstanding anything
contained herein to the contrary, the parties hereto acknowledge and agree that neither
shall be deemed to be an employee, partner or a joint venturer of the other. Without
limiting the foregoing, the Consultant shall be solely responsible for all its federal,
state and local income taxes, unemployment insurance tax, social security tax and cell-phone
related taxes. Both parties agree to the following:







	 	3.1	 	The Consultant (including its Employees) is an independent contractor, not an
employee of the Company or any other member of the Group. The Company shall not be
responsible for the Consultant or its Employees’ acts while performing the Services
hereunder, whether on the Company’s premises or elsewhere. By signing this Agreement,
the Consultant acknowledges and agrees that as a Consultant to the Company neither the
Consultant nor it’s Employees’ are entitled to receive from the Company or any other
member of the Group any social benefits (including without limitation, paid vacation
days, paid sick leave, severance payments, pension funds, etc.).







	 	3.2	 	Gilboa was offered by the Company the option to be engaged by the Company as
its employee, in consideration for salary and other benefits (including, without
limitation paid vacation days, paid sick leave, severance payments, managers’
insurance, recreation pay and advanced notice fees), such that the total cost to the
Company of such employment will be equal to the Fees. Gilboa declined such offer and
demanded from the Company that no employer-employee relations be established between
himself and the Company, and that the Consultant provides the Services, at his own
initiative and free will and based on the Gilboa’s and Consultant’s sole
considerations.





 


 









 






	 	3.3	 	Each of the Company and the Consultant (including any of its Employees) is
estopped from making any claim regarding the existence of employer-employee relations
between the Consultant’s Employees and the Company or any other
member of the Group.







	 	3.4	 	If, despite the parties’ express representations and agreements hereunder, it
shall, at any time, be determined by a court of competent jurisdiction or by any other
governmental authority, that employer-employee relations exist between the Company (or
any other member of the Group) and the Consultant’s Employees and, the Consultant’s
Employees shall become entitled to any rights and/or payments resulting from the
existence of such relations, and/or the Company (or any other member of the Group)
shall be required to bear any additional expenses or costs (specifically including any
taxes or obligatory payments to the tax authorities, the National Insurance
authorities, etc.), the parties agree and undertake that the aggregated “salary” to
which the Consultant’s Employees are entitled for their services as an such deemed
employee of the Company hereunder shall be equal to 60% of the Fees (together, the
“Compensation”), and the Consultant undertakes in such event to immediately repay and
return to the Company any amounts in excess of said Compensation received by its
employee from the Company. The Consultant further undertakes to indemnify the Company
for any loss, payment, expense or damage caused to the Company (or any other member of
the Group) as a result of such determination







	 	4	 	Compensation. In consideration for the Services, the Consultant shall be
entitled to a monthly fee of NIS34,105, plus VAT, against an invoice furnished by it to the
Company (the “Monthly Consideration”). In recognition of its efforts and contribution to the
Group, through Gilboa, the Consultant shall be entitled to receive the Monthly Consideration
retroactively from January 1, 2009 (the “Effective Date”).







	 	5	 	Additional Benefits. The Company shall bear up to 50% of all fixed and variable
maintenance costs of the cellular phone used by the Consultant.

	 
	 	6	 	Confidentiality and Assignment.







	 	6.1	 	Consultant and each of its Employees providing the Services shall execute the
Proprietary Information and Confidentiality Agreement, in the form attached hereto as
Exhibit A.







	 	6.2	 	Consultant acknowledges that the Parent Company is a publicly traded company
and as such Consultant and each of its Employees providing the Services shall abide by
all applicable laws in connection therewith, including relating to insider trading and
the like.







	 	7	 	Term and Termination.







	 	7.1	 	Either party may terminate this Agreement at any time, and for any reason or
for no reason, upon 45 days prior written notice to the other party.

	 
	 	7.2	 	This Agreement may be terminated immediately by the Company in the event of:







	 	7.2.1	 	Breach by the Consultant of any material provision of this Agreement
which is not curable or is not cured by the Consultant within 7 days after its
receipt of notice thereof from the Company containing a description of the breach
or breaches alleged to have occurred (it being understood that the provisions of
Exhibit A of this Agreement are deemed to be material provisions);





 


 









 






	 	7.2.2	 	Persistent neglect by the Consultant or material failure by the
Consultant to adequately perform the Services;







	 	7.2.3	 	Any act of moral turpitude by the Consultant or action by the
Consultant to intentionally harm the Group;







	 	7.2.4	 	The Consultant becoming bankrupt; the filing by or against the
Consultant of a petition in bankruptcy, or a composition with creditors or any
similar action in consequence of debt.







	 	7.3	 	This Agreement may be terminated immediately by the Consultant in the event of:







	 	7.3.1	 	If the Company ceases doing business as a going concern, makes an
assignment for the benefit of creditors, files a voluntary petition in bankruptcy,
is adjudicated bankrupt or insolvent, files a petition seeking for itself any
reorganization, liquidation, dissolution or similar arrangement under any statute,
law or regulation, or files an answer admitting the material allegations of a
petition filed against it in any such proceeding, consents to or acquiesces in the
appointment of a trustee, custodian, receiver or liquidator of all or any
substantial part of its assets or properties; or







	 	7.3.2	 	If the Company fails to pay any sum when due to the Consultant or
otherwise is in material breach or default of this Agreement and fails to cure such
breach or default within fourteen (14) days in the case of non- payment or within
thirty (30) business days in the case of any other material default after receipt
of written notice from the non-defaulting party.







	 	8	 	Miscellaneous.







	 	8.1	 	Notices. All notices or other communications hereunder shall be in
writing and shall be given in person, by registered mail, or by facsimile transmission
(provided that written confirmation of receipt is provided), at the above address or at
such address as a party may from time to time designate in writing to the other
parties. Notices shall be deemed to be received 4 days after being sent or 24 hours
after being faxed.







	 	8.2	 	No Assignment. The performance of the Consultant’s obligations
hereunder may not be transferred or assigned by the Consultant. The Company may assign
this Agreement to any successor in interest with the written consent of the Consultant.







	 	8.3	 	Governing Law. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Israel without giving effect to
the principles of conflict of law thereof. Any action instituted by any of the parties
shall be brought in the appropriate court in the State of Israel, which shall have
exclusive jurisdiction over such actions, and each party hereto submits itself to the
personal jurisdiction of the courts in Israel.







	 	8.4	 	Enforcement. If it is necessary for either party to enforce the terms
of the Agreement through legal action, the prevailing party in said legal action shall
be entitled to recover its reasonable attorneys’ fees and costs incurred in such
enforcement against and from the nonprevailing party.





 


 









 






	 	8.5	 	Preamble; Annexes/Titles. The preamble to this Agreement and the
Exhibit attached hereto form integral parts hereof. The titles in this Agreement are
intended for convenience purposes only and they do not have and shall not be ascribed
any weight in the interpretation hereof.







	 	8.6	 	Entire Agreement; Amendment, etc. This Agreement and its Exhibit are
the entire agreement between the parties with respect to the subject matter hereof, and
supersede all prior understandings, agreements and discussions between them, oral or
written, with respect to such subject matter. This Agreement shall not be modified or
amended except by a written instrument, signed by the parties hereto. All remedies
specified herein or otherwise available shall be cumulative and in addition to any and
every other remedy provided hereunder or now or hereafter available at law or in
equity. No waiver or failure to act with respect to any breach or default hereunder,
whether or not the other party has notice thereof, shall be deemed to be a waiver with
respect to any subsequent breach or default, whether of similar or different nature.







	 	8.7	 	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.







	 	8.8	 	Counterparts. 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.






IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.



	 	 	 
	/s/ Avi Molcho

	 	/s/ Ehud Gilboa
	 

	 	 
	TopSpin Medical (Israel) Ltd.

	 	Top-Notch Consultancy 2009 Ltd.
	By: Avi Molcho
	 	 
	Title: Director
	 	 
	 
	 	 
	/s/ Tami Sharbit-Bachar
	 	 
	 
	 	 
	TopSpin Medical (Israel) Ltd.
	 	 
	By: Tami Sharbit-Bachar
	 	 
	Title: Director of Finance
	 	 
	 
	 	 
	The undersigned hereby agrees to be bound by the provisions of the Agreement.
	 
	 	 
	/s/ Ehud Gilboa
	 	 
	 	 	 
	Mr. Ehud Gilboa
	 	 
	Date: April 19, 2009
	 	 






 


 









 







Exhibit A

to Consulting Agreement by and between TopSpin Medical (Israel) Ltd.

and the Consultant whose name is set forth herein




	 	 	 
	Name of Consultant:

	 	Top-Notch Consultancy 2009 Ltd.
	Company No. of Consultant:

	 	514231190 







	 	1	 	General

	 
	 	 	 	Capitalized terms herein shall have the meanings ascribed to them in the Consulting
Agreement to which this Exhibit is attached (together with this Exhibit, the “Agreement”).
For purposes of any undertaking of the Consultant toward the Company or other term of the
Agreement, the term “Company” shall include the Company, the Company’s parent company, and
all subsidiaries and affiliates of such parent company or the Company.

	 
	 	2	 	Confidentiality; Proprietary Information.







	 	2.1	 	Consultant acknowledges and agrees that Consultant had and will have access to
confidential and proprietary information concerning the business and financial activities
of the Company, including information relating to the Company’s research and development,
banking, investments, investors, properties, employees, marketing plans, customers,
suppliers, trade secrets, test results, processes, data, know-how, improvements,
inventions, techniques and products (actual or planned), and any confidential information
received by the Company from third parties. Such information, whether documentary,
written, oral or computer generated, shall be referred to as “Proprietary Information”.







	 	2.2	 	Proprietary Information shall be deemed to include any and all proprietary
information relating to the Company’s business, financial condition or activities, which
is disclosed by or on behalf of the Company and irrespective of form but excluding
information that is or shall become part of the public knowledge (including without
limitation the industries or trades in which the Company operates) except as a result of
the breach of the Agreement or this Exhibit by the Consultant. For the removal of doubt,
general skills and experience gained during the Consultant’s engagement by the Company
shall not be considered Proprietary Information hereunder.







	 	2.3	 	Consultant recognizes that the Company received and will receive confidential or
proprietary information from third parties, subject to a duty on the Company’s part to
maintain the confidentiality of such information and to use it only for
certain limited purposes. In connection with such duties, such information shall be
deemed Proprietary Information hereunder, mutatis mutandis.





 


 









 






	 	2.4	 	Consultant agrees that all Proprietary Information, and patents, trademarks,
copyrights and other intellectual property and ownership rights in connection therewith
and applications therefor shall be the sole property of the Company and its assigns. At
all times, both during Consultant’s engagement by the Company and after Consultant’s
termination, Consultant will keep in confidence and trust all Proprietary Information,
and the Consultant will not use or disclose any Proprietary Information or anything
relating to it without the written consent of the Company, except as may be necessary in
the ordinary course of performing Consultant’s duties under the Agreement.







	 	2.5	 	Upon termination of Consultant’s engagement with the Company, Consultant will
promptly deliver to the Company all documents and materials of any nature pertaining to
Consultant’s work with the Company, and will not take with Consultant any documents or
materials or copies thereof containing any Proprietary Information.







	 	2.6	 	Consultant’s undertakings set forth in this Section 2 shall remain in full force
and effect after termination of the Agreement or any renewal thereof.







	 	3	 	Disclosure and Assignment of Inventions.







	 	3.1	 	Consultant understands that the Company is engaged in a continuous program of
research, development, and production and marketing in connection with its business and
that, as an essential part of Consultant’s engagement with the Company, Consultant is
expected to make new contributions to and create inventions of value for the Company.







	 	3.2	 	Consultant undertakes and covenants that it will promptly disclose in confidence to
the Company all inventions, improvements, designs, concepts, techniques, methods,
systems, processes, know how, computer software programs, databases, mask works and trade
secrets (“Inventions”), whether or not patentable, copyrightable or protected as trade
secrets, that are made or conceived or first reduced to practice or created by
Consultant, either alone or jointly with others, during the period of Consultant’s
engagement, whether prior to or after the date hereof, .







	 	3.3	 	Consultant agrees that all Inventions (excluding Inventions that in the reasonable
judgment of the company’s Board of Directors (a) are not developed using equipment,
supplies, facilities, Proprietary Information or trade secrets of the Company, (b) do not
result from or in connection with work performed by Consultant for the Company, and (c)
do not relate to the Company’s business or current or anticipated research and
development) will be the sole and exclusive property of the Company (“Company
Inventions”).







	 	3.4	 	Consultant hereby irrevocably transfers and assigns to the Company all worldwide
patents, patent applications, copyrights, mask works, trade secrets and other
intellectual property rights in any Company Invention, and any and all
moral rights that Consultant may have in or with respect to any Company Invention.





 


 









 






	 	3.5	 	Consultant agrees to assist the Company, at the Company’s expense, in every proper
way to obtain for the Company and enforce patents, copyrights, mask work rights, and
other legal protections for the Company’s Inventions in any and all countries. Consultant
will execute any documents that the Company may reasonably request for use in obtaining
or enforcing such patents, copyrights, mask work rights, trade secrets and other legal
protections. Such obligation shall continue beyond the termination of Consultant’s
engagement with the Company. Consultant hereby irrevocably designates and appoints the
Company and its authorized officers and agents as Consultant’s agent and attorney in
fact, coupled with an interest to act for and on Consultant’s behalf and in Consultant’s
stead to execute and file any document needed to apply for or prosecute any patent,
copyright, trademark, trade secret, any applications regarding same or any other right or
protection relating to any Proprietary Information (including Company Inventions), and to
do all other lawfully permitted acts to further the prosecution and issuance of patents,
copyrights, trademarks, trade secrets or any other right or protection relating to any
Proprietary Information (including Company Inventions), with the same legal force and
effect as if executed by the Consultant himself, during and beyond the termination of
Consultant’s engagement with the Company.







	 	3.6	 	Consultant’s undertakings set forth in this Section 3 shall remain in full force
and effect after termination of the Agreement or any renewal thereof.







	 	4	 	Non-Compete.







	 	4.1	 	Consultant agrees and undertakes that, so long as Consultant is engaged by the
Company and for a period of twelve (12) months following termination of Consultant’s
engagement for whatever reason, Consultant will not, directly or indirectly, as owner,
partner, joint venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor or in any capacity whatsoever engage in, become
financially interested in, be employed by, or have any connection with, any business or
venture that competes with the Company; provided, however, that Consultant may own any
securities of any corporation which is engaged in such business and is publicly owned and
traded but in an amount not to exceed at any one time three percent of any class of stock
or securities of such company, and so long as Consultant has no role in the publicly
owned and traded company as director, officer, employee, consultant or otherwise.







	 	4.2	 	Consultant agrees and undertakes that during the period of Consultant’s engagement
and for a period of twelve (12) months following termination, Consultant will not,
directly or indirectly, including personally or in any business in which Consultant is an
officer, director or shareholder, for any purpose or in any place, solicit for employment
or employ any person employed by the Company (or retained by the Company as a consultant,
if such consultant is prevented thereby from continuing to render its services to the
Company) on the date of
such termination or during the preceding twelve (12) months.





 


 









 






	 	4.3	 	If any one or more of the terms contained in this Section 4 shall for any reason be
held to be excessively broad with regard to time, geographic scope or activity, the term
shall be construed in a manner to enable it to be enforced to the extent compatible with
applicable Israeli law.







	 	5	 	Enforcement.

	 
	 	 	 	The Company may enforce the Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without prejudice to any other rights and remedies
that the Company may have for the breach of the Agreement. The Agreement shall be enforced
to the fullest extent permissible under the laws of the State of Israel, without regard to
its conflict of law principles, and inure to the benefit of any successor to all or
substantially all of the Company’s business. If any portion of the Agreement shall be
adjudicated to be invalid or unenforceable, it shall be deemed to be amended to delete such
portion. The Consultant’s rights and obligations hereunder shall be in addition to the
Consultant’s obligations towards the Company pursuant to applicable law or in equity.
Consultant expressly consents to the exclusive personal jurisdiction and venue of Tel Aviv
labor courts for any lawsuit arising from or relating to the Agreement.






	 	 	 	 	 
	4/19/09

	 	Avi Molcho
	 	/s/ Avi Molcho
	 
	Date

	 	Name:
	 	Signature:






The undersigned hereby agrees to be personally bound by the provisions of this Exhibit A
and the Agreement as if he was the “Consultant”



/s/ Ehud Gilboa                    

Mr. Ehud Gilboa

Date: April 19, 2009