Personal Employment Agreement, dated February 16, 2024, between LabStyle Innovation Ltd. and Tomer Ben-Kiki

Exhibit 10.35

​

PERSONAL EMPLOYMENT AGREEMENT

​

THIS PERSONAL EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into this February 16, 2024 by and between LabStyle Innovation Ltd., a company incorporated under the laws of the State of Israel, with its offices at HaTochen 8, Cesarea Industrial Park, 3088900, Israel (the “Company”), and Employee Tomer Ben Kiki (Israeli I.D. 024956120) residing at 2 Levi Eshkol St. Tel Aviv, Israel (the “Employee”).

​

WHEREAS,the Company wishes to employ the Employee, and the Employee wishes to be employed by the Company, as of the Commencement Date (as such term is defined hereunder); and

​

WHEREAS,the parties hereto desire to state the terms and conditions of the Employee’s employment by the Company, as set forth below.

​

NOW, THEREFORE, in consideration of the mutual premises, covenants and other agreements contained herein, the parties hereby agree as follows:

​

General

​

1.Position. The Employee shall serve in the position described in Exhibit A attached hereto. In such position the Employee shall report regularly and shall be subject to the direction and control of the Company’s management and specifically under the direction of the person specified in Exhibit A. 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. For purposes of this Agreement, references to “third party” shall not include a parent company, subsidiaries and affiliates of the Company.

​

3.Location. The Employee shall perform his duties hereunder at the Company’s facilities in Israel, but he understands and agrees that his position may involve significant domestic and international travel or working from home where required.

​

4.Employee’s Representations and Warranties. 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.

​

Term of Employment

​

5.Term. The Employee’s employment by the Company shall commence on the date set forth in Exhibit A (the “Commencement Date”), and shall continue until it is terminated pursuant to the terms set forth herein.

​

​

6.Termination at Will. Either party may terminate the employment relationship hereunder at any time, without the obligation to provide any reason, by giving the other party a prior written notice as set forth in Exhibit A (the “Notice Period”). The Employee acknowledges and agrees that he has been given ample opportunity to consider the aforesaid waiver and further acknowledges that the Base Salary includes due consideration for such waiver. Notwithstanding the foregoing, the Company is entitled to terminate this Agreement and related employment with immediate effect upon a written notice to Employee and to pay the Employee a one time amount equal to the Salary and all other benefits that would have been paid to the Employee during the Notice Period, in lieu of such prior notice.

​

The Company and Employee agree and acknowledge that the Company’s Severance Contribution to the Insurance Scheme in accordance with Section 11 below, shall, provided contribution is made in full, be instead of severance payment to which the Employee (or his beneficiaries) is entitled with respect to the Salary upon which such contributions were made and for the period in which they were made (the “Exempt Salary”), pursuant to Section 14 of the Severance Pay Law 5723 – 1963 (the “Severance Law”). The parties hereby adopt the General Approval of the Minister of Labor and Welfare, which is attached hereto as Exhibit C. The Company hereby forfeits any right it may have in the reimbursement of sums paid by Company into the Insurance Scheme, except: (i) in the event that Employee withdraws such sums from the Insurance Scheme, other than in the event of death, disability or retirement at the age of 60 or more; or (ii) upon the occurrence of any of the events provided for in Sections 16 and 17 of the Severance Law. Nothing in this Agreement shall derogate from the Employee’s rights to severance payment in accordance with the Severance Law or agreement or applicable ministerial order including the General Approval of the Minister of Labor and Welfare, as set forth in this Section 6, in the event contributions to the Insurance Scheme in accordance with Section 11 below have not been made in full.

​

7.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 herein (a) conviction of any felony by the Employee involving moral turpitude affecting the Company or its affiliates or any crime involving fraud; (b) action taken by the Employee intentionally to materially harm the Company or its affiliates; (c) embezzlement of funds of the Company or its affiliates by the Employee; (d) falsification of Company’s or its affiliates’ records or reports by the Employee; (e) ownership by the Employee, direct or indirect, of an interest in a person or entity (other than a minority interest in a publicly traded company) in competition with the products or services of the Company or its affiliates, including those products or services contemplated in a plan adopted by the Company or its affiliates; (f) any material breach of the Employee’s fiduciary duties or duties of care to the Company (except for conduct taken in good faith) which, to the extent such breach is curable, has not been cured by Employee within fifteen (15) days after its receipt of notice thereof from Company containing a description of the breach or breaches alleged to have occurred; (g) any material breach of the Proprietary Information, Assignment of Inventions and Non-Competition Agreement attached as Exhibit B by the Employee; and (i) any other act or omission that constitutes “cause” under the laws of the State of Israel. In the event of termination for Cause, the Employee’s entitlement to severance pay will be subject to Sections 16 and 17 of the Severance Law.

​

8.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.

​

Covenants

​

9.Proprietary Information; Assignment of Inventions and Non-Competition. Upon the execution of this Agreement, the Employee will execute the Company’s Proprietary Information, Assignment of Inventions and Non-Competition Agreement attached hereto as Exhibit B. Exhibit B hereto shall survive the expiration or other termination of this Agreement.

​

​

Salary and Additional Compensation; Insurance

​

10.(a) Salary. The Company shall pay to the Employee as compensation for the employment services an aggregate monthly base salary in the amount set forth in Exhibit A (the “Base Salary”). In addition, since the Employee may, from time to time, work overtime hours and since the Company cannot keep specific track of all of the Employee’s overtime hours, the Company shall pay to the Employee an additional monthly gross amount, as set forth in Exhibit A paid for all of the Employee’s overtime hours, as they may be from time to time (the “Additional Compensation” the Additional Compensation and Base Salary together shall constitute the “Salary” for purposes of this Agreement). 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 and the Employee shall not be entitled to any additional payment, including, for avoidance of doubt, any payment for overtime hours of work or reimbursement for travel expenses to and from his home to the workplace (which are paid on global basis through the payment of the Additional Compensation). The Employee’s Salary and other terms of employment may be reviewed and updated by the Company’s management, from time to time, at the Company’s discretion. The Salary is to be paid to the Employee no later than the 9^th day of each calendar month after the month for which the Salary is paid, after deduction of applicable taxes and like payments.

​

You hereby agree and acknowledge that other than the compensation set forth herein you shall not be entitled to any additional compensation irrespective of the number of hours and/or scope of employment actually worked by you.

​

(b) Special Compensation for Non-Competition Obligations. The Employee acknowledges that 20% of the Salary is paid as special supplementary monthly compensation in consideration for the Employee’s non-competition undertakings and obligations set forth in Exhibit B hereto (the “Special Non-Competition Monthly Compensation”). The Employee warrants and represents that the Special Non-Competition Monthly Compensation constitutes a real, appropriate and full consideration to any prejudice he may suffer due to his non-competition undertakings and obligations set forth in Exhibit B hereto, including but not limited to restriction of his freedom of employment.

​

11.Insurance and Social Benefits.

​

11.1.The Company will insure the Employee under a “Manager’s Insurance Policy” (“Bituach Menahalim”) (“Policy”) or a Pension Fund (“Pension Fund”), to be selected by the Employee. The employee shall be entitled to contributions to a pension arrangement of his choice (the “Pension Arrangement”), at the following monthly rates:

​

​

​

​

​

​

11.2.By signing this Agreement, you acknowledge that in accordance with the terms of the General Order, if you choose to be insured in a Pension Arrangement, which is not a pension fund, you must also be insured in disability insurance, ensuring loss of earning payment of 75% of the Salary (or the relevant portion of the Salary which the you choose to insure in such an arrangement).

​

11.3.Additionally, the Company together with the Employee will maintain an advanced study fund (“Keren Hishtalmut”) and the Employee and the Company shall contribute to such fund an amount equal to 2.5% (two percent and one half of a percent) of the Salary and 7.5% (seven percent and one half of a percent) of the Salary, respectively. All of the Employee’s aforementioned contributions shall be transferred to the above referred to plans and funds by the Company by deducting such amounts from each monthly Salary payment. Any tax results for payments made for amounts greater than the maximum amount exempt from tax under applicable laws will bear upon the employee.

​

Additional Benefits

​

12.Expenses. The Company will reimburse the Employee for traveling expenses in Exhibit A.

​

13.Vacation. The Employee shall be entitled to the number of vacation days per year as set forth in Exhibit A, as coordinated with the Company (with unused days to be accumulated up to the limit set pursuant to applicable law).

​

14.Sick Leave; Convalescence Pay. The Employee shall be entitled to that number of paid sick leave per year as set forth in Exhibit A (with unused days to be accumulated up to the limit set pursuant to applicable law), and also to Convalescence Pay (“Dmei Havra’a”) pursuant to applicable law.

​

15.Taxes. The Employee agrees that he is solely responsible for all United States income and employment tax obligations arising out of the performance of services under this Agreement, including, without limitation, any obligations arising under Internal Revenue Code Section 409A and/or 4999. Any payments to be made under this Agreement upon a termination of employment will only be made upon a “separation from service” under Internal Revenue Code Section 409A. Notwithstanding anything in the Agreement to the contrary, if the Employee is a “specified employee” within the meaning of Internal Revenue Code Section 409A(a)(2)(B)(i), no payments that are “deferred compensation” subject to Internal Revenue Code Section 409A that would otherwise be payable upon the Employee’s “separation from service” (as defined in Internal Revenue Code Section 409A) shall be made to the Employee prior to the date that is six (6) months after the date of the Employee’s “separation from service” or, if earlier, the Employee’s date of death. Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Internal Revenue Code Section 409A that is also a business day.

​

16.Stock Options. You will be entitled to a stock option grant to purchase up to 358,974 shares of the Company’s common stock, subject to the approval of the Company’s Board of Directors. 145,871 of these options will vest on the grant date and the remining 213,103 options will vest over two years in eight equal quarterly amounts elapsed from the grant date. This Option grant is subject, in all respects, to the approval of the Company’s Board of Directors.  The options ” will serve as an inducement grant pursuant to Nasdaq Listing Rule 5635(c)(4) and will be issued outside of the Company’s 2020 Equity Incentive Plan (the “Plan”) but will otherwise follow the material terms of similar grants issuable pursuant to the Plan. The vesting period shall immediately end, and all shares shall immediately vest, in the event a Change in Control (as defined in the Plan) occurs prior to, or within 180 days of, the termination of a grantee’s employment or retention with the Company.

​

​

​

​

You also hereby acknowledge that all equity based grants are subject to the Company’s Clawback Policy, which provides for the recoupment (or clawback) of certain executive compensation in the event of an accounting restatement resulting from material noncompliance with financial reporting requirements under the federal securities laws of the United States.

​

Miscellaneous

​

16.The laws of the State of Israel shall apply to this Agreement and the sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement shall be the Tel-Aviv Regional Labor Court. The provisions of this Agreement are in lieu of the provisions of any collective bargaining agreement, and therefore, no collective bargaining agreement shall apply with respect to the relationship between the parties hereto (subject to the applicable provisions of law). 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 nonperformance by either party of any terms or conditions hereof. In the event it shall be determined under any applicable law that a certain provision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement, unless the business purpose of this Agreement is substantially frustrated thereby. The preface and exhibits to this Agreement constitute an integral and indivisible part hereof. This Agreement constitutes the entire understanding and agreement between the parties hereto, supersedes any and all prior discussions, agreements and correspondence with regard to the subject matter hereof, and may not be amended, modified or supplemented in any respect, except by a subsequent writing executed by both parties hereto. The Employee acknowledges and confirms that all terms of the Employee’s employment are personal and confidential, and undertake to keep such terms in confidence and refrain from disclosing such terms to any third party. All references to applicable law are deemed to include all applicable and relevant laws and ordinances and all regulations and orders promulgated there under, unless the context otherwise requires. The parties agree that this Agreement constitutes, among others, notification in accordance with the Notice to Employees (Employment Terms) Law, 2002. Nothing in this Agreement shall derogate from the Employee’s rights according to any applicable law, extension order, collective agreement or other agreement with respect to the terms of Employee’s employment.

​

IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the date first hereinabove set forth.

​

​

​

Exhibit A

​

To the Personal Employment Agreement by and between

LabStyle Innovation Ltd. and the Employee whose name is set forth herein

​

​

​

Exhibit B

​

To the Personal Employment Agreement by and between

LabStyle Innovation Ltd. and the Employee whose name is set forth herein

​

​

General

​

​

Confidentiality; Proprietary Information

​

​

to Employee’s engagement with the Company, and will not take with him any documents or materials or copies thereof containing any Proprietary Information.

​

Disclosure and Assignment of Inventions

​

Prior Inventions: [fill-in, if any.]

​

​

​

​

clarified that the provisions concerning assignment of Inventions contained in Section 8 and this Section ‎11 will apply also to any “Service Inventions” as defined in the Israeli Patent Law, 1967 (the “Patent Law”). However, in no event will such Service Invention become the property of the Employee and the provisions contained in Section 132(b) of the Patent Law shall not apply unless the Company provides in writing otherwise. The Employee will not be entitled to royalties or other payment with regard to any Prior Inventions, Company Inventions, Service Inventions or any of the intellectual property rights set forth above, including any commercialization of such Prior Inventions, Company Inventions, Service Inventions or other intellectual property rights. The Employee irrevocably confirms that the consideration explicitly set forth in the employment agreement is in lieu of any rights for compensation that may arise in connection with the Inventions under applicable law and the employee hereby expressly and irrevocably confirms that the provisions contained in Section 134 of the Patent Law shall not apply and he waives any right to claim royalties or other consideration with respect to any Invention.

​

Non-Competition

​

​

in which Employee may be an officer, director or shareholder, solicit for employment any person who is employed by the Company, or any person retained by the Company as a consultant, advisor or the like who is subject to an undertaking towards the Company to refrain from engagement in activities competing with the activities of the Company (for purposes hereof, a “Consultant”), or was retained as an employee or a Consultant during the six months preceding termination of Employee’s employment with the Company.

​

Reasonableness of Protective Covenants

​

​

Remedies for Breach

​

​

Intent of Parties

​

​

IN WITNESS WHEREOF the Employee has signed this Agreement as of the date first hereinabove set forth.

​

​

​

Exhibit C

​

GENERAL APPROVAL REGARDING PAYMENTS BY EMPLOYERS TO A PENSION FUND AND INSURANCE FUND IN LIEU OF SEVERANCE PAY UNDER THE SEVERANCE PAY LAW, 5723-1963

​