Declaratory Judgment – General (Tel Aviv) 50607-05-22 Matan Budker – Clo Medical Ltd. - part 3

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11. ... Moreover, even though Dr. Budker believed that he should receive options at the rate of tens of percent - as is customary in startups that develop a product whose technological feasibility has not yet been proven - you claimed that the company already has theoretical proof that it is indeed possible to predict a deterioration in hospitalized patients, a claim that in retrospect turned out to be false, and that therefore Dr. Budker should make do with options at a rate of only 2%" (emphasis added)
12. Hence, the plaintiff's claims against the defendant in real time were that he was promised options from day one in exchange for a commitment to work for the company for a period of up to 18 months; that an options agreement would be signed within a month, a maximum of two months, and that the rate of options he agreed to - 2% - was due to his deception in relation to the company's "proof of feasibility".
13. From the totality of the evidence that was laid out before us, we learned that at no stage was the plaintiff promised to receive options "from day one" but only after and subject to the approval of the company's options plan, that no timetable was set for the signing of the options agreement and that the plaintiff was not misled in relation to the company's proof of feasibility. It should also be noted that from the evidentiary fabric, the discrepancy is evident in the manner in which the plaintiff interpreted the terms of the engagement between the parties and his status in the defendant and the manner in which the defendant interpreted the matter , all as we will detail below.

The negotiations between the parties and the signing of the employment agreement

42. There is no dispute that prior to the signing of the employment agreement, the parties held talks for several weeks, in which drafts were exchanged on which the plaintiff commented, asked for clarifications, and took an active part in the negotiations. Contrary to the plaintiff's claim, we have not been persuaded that the defendant concealed material details from the plaintiff in order to make the decision to engage with her.  And what is this supposed to say?
43. The plaintiff submitted to the court a transcript of the conversations that were recorded between him and Gal on December 3.14 and from 20 January 2015 (hereinafter respectively - transcript 03.12.14 and transcript  01.15, Appendices 3 and 4 to the plaintiff's affidavit[3]), a draft employment agreement  dated 02.12.14 with the plaintiff's comments and an exchange of drafts between the parties (Appendices 5B and 6 to the plaintiff's affidavit).
44. An examination of the transcript of the conversation dated December 3, 2014 shows that after the first draft of the employment agreement was sent, the plaintiff complained that the issue of options was not mentioned in the employment agreement, and in response Gal explained to him that a separate agreement would be signed  since "this employment contract is not related to options" and the plaintiff confirmed in his testimony that Gal had indeed told him: ...We are now signing an employment agreement, regulating your terms, and when the stage comes to the options agreement, we will sign the options agreement" (transcript of December 3, 2014, p. 1; Transcript, pp. 28, 32-36).
45. In the same conversation , the plaintiff commented that he was making a "material distinction" between those who were absorbed into the company "after the feasibility and before the feasibility" when the company was "still before the feasibility" and therefore he "expects" that it will be embodied in the options that they will discuss "in another contract".  Gal clarified to the plaintiff that "our feasibility is a possibility that will last many, a lot, a lot of time.  Feasibility doesn't start with algorithms, it's that we're going to go through a long period of time here until things come and prove it" (Transcript 03.12.14, p. 24).
46. The plaintiff continued to insist that since he arrived at a relatively early stage of the company, he was entitled to a high rate of options. However, Gal explicitly clarified to him that this was "unrelated" since "the scales are on the order of a percentage" for the first grant after dilution, out of appreciation for the plaintiff "and the belief that you will be able to come and work with us and move this company forward...".  In response, the prosecutor responded: "A percentage of a lot is good."  Gal noted that he hoped that the plaintiff had not reached "something short-term" and that the compensation would be given in accordance with the company's advancement and contribution to its activities (transcript 03.12.14, pp. 26, 31-33).
47. In the same conversation, the plaintiff sought to ensure that after raising the funds, his salary would be ILS 13,000 for a part-time job. At the end of the conversation, after the plaintiff asked to change some of the clauses relating to intellectual property and was answered by Gal in the negative, "You can't change...", it was agreed that the plaintiff would submit his amendments to the agreement in the "Track Changes" agreement and these would be forwarded to the lawyers (transcript 03.12.14, pp. 35, 38).
48. On January 11, 2015, after the first investment in the company, the plaintiff was sent a new employment agreement - which the plaintiff commented on (Appendix 6 to the plaintiff's affidavit), and on January 20, 2015, a meeting was held between Gal and the plaintiff in order to discuss the terms of the agreement.
49. In the transcript of the conversation dated January 20, 2015, the parties discussed the significance of the partial scope of employment, with Gal stating that he was sure that the plaintiff would work at least 50% of the job, while the plaintiff, for his part, replied that "there will be times" that he would not be able to reach this scope except for an average of 30%-40%, and Gal replied, "There is no problem, in the overall, in the year, in the month, in the quarter." Later, the plaintiff sought to understand what Income Tax Plan 102 is (a taxation mechanism regulated in Section 102 of the Income Tax Ordinance [New Version] for the Granting of Options that allows for a tax benefit in accordance with the conditions set forth in Section 102), and Gal replied: "As long as you work, there is no problem.  The question is what happens when you don't work.  I have to come and leave you," and clarified that the minimum required hours is 5-6 hours of work per month.  When Gal was asked: "And you won't have a problem paying it even if I don't do anything in those 5 hours?He replied: "I will try to do so, but if you don't, then fine" (transcript of January 20, 2015, pp. 62-63).
50. The plaintiff, for his part, stated that they should agree on when it would be acceptable for him to reduce from 50% of his job per day per week and then to the minimum 5 hours. In response, Gal asked: "I don't understand, you don't want to work?" and the plaintiff replied that he needed flexibility.  Finally, the plaintiff noted that for 9 months to a year he would be able to work for two and a half days (50%), and after a year and a half he would be reduced to 5/6 hours per month (transcript of 20 January 2015, p. 66).
51. On January 27, 2015, the plaintiff signed the employment agreement, after the defendant rejected the changes he requested to make in the intellectual property clauses. In another conversation between Gal and the plaintiff that was recorded on the same day, Gal clarified to the plaintiff that there is  a complete separation between the company's ownership of all intellectual property and the signing of an options agreement.

On the basis of the evidence presented above, the following conclusions are sought:

52. First, the plaintiff chose to sign the employment agreement after lengthy negotiations had been conducted between him and Gal over the course of a month and a half, and  after Gal had answered all his questions and was given a long time to consult with an attorney (transcript of January 20, 2015, p. 51).   No pressure was exerted on the plaintiff and he even confirmed in his testimony that "no one pointed a gun at [him] in the head" (Transcript, pp. 14, para. 30).
53. Some of the plaintiff's comments to the employment agreement were accepted and some were not, while the agreement explicitly stated that all of his inventions for the defendant and during the period of his employment belonged to the defendant (see the employment agreement paragraphs 3, 5, exhibit A, Appendix 7 to the plaintiff's affidavit).
54. The defendant accepted the plaintiff's request for a flexible and part-time position, which was defined in the employment agreement as 'part time' , and contrary to his claim, we did not find that Gal deceived him by not putting in writing the exact terms that had been agreed upon (Protocol, p. 61, para. 18 onwards). On the contrary.  From the totality of the evidence , we are persuaded that the goal was to benefit the plaintiff and not to fail him.
55. Thus, Gal was asked in his interrogation why it was not written in the employment agreement that the plaintiff would work less than 50% of the job, that he might have gone on unpaid leave during the period of work, etc., and replied: "The definition as I read it defines this thing exactly, even today, I employ people not on a full scale, on a partial scale, I let them work from home, I give them work in each of the foundations in which they create work. Therefore, the definition of "part time" is  a definition that gives me a space of flexibility as well, but especially to the employee, and at the end of the day, we did not force Matan to reach any employment agreement, we gave all the flexibility space, only this space of flexibility came out of the ebuse..."  (Protocol, pp. 62, 36 ff., pp. 63, 1-4, 66 s. 24-26).
56. 200Second, the parties agreed on a partial employment framework whereby the plaintiff would be employed for a period of 9 months to a year in the scope of 30% to 50%, with the plaintiff noting that after a year and a half he might be reduced in the scope of the job to 5 or 6 hours per month, after Gal made it clear to him that the receipt of the options was contingent on him being an employee of the company.
57. Thus, alongside the defendant's agreement to the flexible employment format, it was made clear to the plaintiff that he must work a minimum number of hours in order to be eligible for options, and it is not superfluous to note in this context that in the conversation of January 20, 2015, the plaintiff undertook not to disappear suddenly (transcript of January 20, 2015, p. 67).
58. Gal testified throughout his cross-examination that he explained to the plaintiff from the beginning what the option plan under section 102 of the Income Tax Ordinance included, including a one-year cliff, and that his testimony was consistent and reliable (transcript, pp. 75, paras. 30 ff., pp. 76, 1-25, p. 81, 11).
59. Evidence that the plaintiff was aware of the conditions for receiving options, and in particular the condition that requires a period of 4 years of employment, we found in the email message that the plaintiff sent to Gal on January 22, 2015, moving to the signing of the employment agreement, in which he asked for "something that would guarantee" that he would not be fired during a period of minimum time in order for him to receive the options, and asked to think of other alternatives if this was not possible: "Because paying 25% tax instead of 50% is good, but many things can go wrong in four years" (Appendix 5A to the plaintiff's affidavit).  It should be noted that in his cross-examination and in response to the question of whether his request was granted, the plaintiff  replied that Gal had told him that the issue of the options would be settled in another contract, and thus in fact admitted that there was no promise that he would not be fired in order for him to receive the options at the end of the period (Protocol, p. 39, paras. 15-17).
60. Gal was asked in his testimony why he did not respond to the email sent by the plaintiff and testified that he did not remember since 10 years had passed. However, he added: "Do you know of one workplace that promises an employee that he won't be fired? Do you know of one case where a person receives options or royalties if he doesn't do anything? Do you know of one such case? I mean, it's not clear? ... In the State of Israel or in the Western world, there is no such thing as a promise to stay in a job, if I can't deliver what I promised the investor, do you think they would have kept me in the company for one minute?" (Transcript, p. 83, paras. 1-17).

And later on: "...  No one promised him shares, it was an option plan like all the people in his company, it was always and always subject to a performance system that each of us was measured, whether the first employees were the last employees.  That's how they work in every company I know, including high-tech companies" (Protocol, p. 87, 15-33).

61. Third, Gal made it clear to the plaintiff several times that the option agreement would be signed separately when the company would have an approved option plan and that this agreement was not related to the employment agreement.  Contrary to the plaintiff's claim in the cancellation letter, no evidence was presented that the defendant undertook that this agreement would be signed within a month or two of the date of signing the employment agreement, and this was not even mentioned in this agreement.
62. Gal testified in his cross-examination that at the initial point in time when the negotiations with the plaintiff were conducted, the company had not raised money and therefore there was no possibility of granting options. After raising funds, the company approached the Income Tax Authority, received approval under Section 102 of the Income Tax Ordinance,  and granted options to its employees a few months later.  Gal added that this was explained to the plaintiff explicitly, but "in his worldview" the plaintiff wanted to work for a very short period of time, to get options and to go do other things (Transcript, pp. 64, 13-29).

When asked again in his interrogation how he claims that the employment agreement is exhaustive, if he told the plaintiff that he would sign another agreement, he replied: "We discuss this matter over and over again and for the fourth time we are referring to it in every high-tech company, there is an employment contract, an option contract, two different things, OK? The employment contract defines the relationship between the employee and the company, the option contract gives him equity, with the sole approval being by the shareholders or the board of directors..." (Transcript, p. 82, paras. 1-9).

63. It should be recalled that the plaintiff received a salary for his work in the company and as part of the terms of his employment he signed with full knowledge that the intellectual property he would develop during the period of his employment with the company would belong to it alone - language that is consistent with the provisions of the law (see, for example, section 34 of the Copyright Law, 5768-2007, which states that "an employer is the first owner of the copyright in a work created by his employee for the purpose of his work and during it, unless otherwise agreed").  In the employment agreement, it  was stated in Rachel, your little daughter, that he exhausted all the agreements between the parties and canceled any agreement and/or other agreement (clause 9 of the agreement).
64. The plaintiff's claim in the cancellation letter that he bound his consent to the delivery of his property in the employment agreement in light of the promise "for a guaranteed capital remuneration from day 1" (paragraph 6 of the reply summaries) not only does not arise from the employment agreement, but it does not arise even from the transcripts of the conversations between the parties, and the plaintiff did not even prove an alleged undertaking by the company or anyone on its behalf that the granting of future options is in exchange for his waiver of the property right.
65. As stated, it was repeatedly clarified to the plaintiff that the options agreement would be signed only when the company had an approved plan, and therefore in any case this was not a capital remuneration from day one, as he sought to claim retroactively, but subject to the terms of the plan (including the initial one-year (cliff) provision). Not only that, but the parties did not agree on  a specific date on which the options agreement would be signed and its terms, so the plaintiff's position that the two agreements were intertwined in such a way that the signing of the employment agreement actually included an agreement regarding the granting of mined options, in view of the lack of the requirement of specificity required at the time of entering into the agreement.
66. Hence, even if the defendant breached her obligation to sign an option agreement (which was not proven), this breach does not entitle him to cancel the employment agreement in which he received compensation for his work and which was actually implemented by both parties. This is even more true when it was made clear to the plaintiff that the terms of the employment agreement  were the same for all of the company's employees, except for the scope of the position and the remuneration clause, and in addition, it was made clear to him that the company was not willing to make any change in the clauses relating to the intellectual property.  See Gal's testimony in this regard:

"I wouldn't hire an employee with no connection to options or options, I wouldn't give a person a salary if he didn't sign these things, period, there's no connection between them, you're mixing out of so many things.  I don't understand what the relationship between them is, every employee at Chlo Medical has an employment contract, and when the board of directors convenes, there is an option contract based on what exists, so was and will be going forward" (Protocol, p. 69, 20-3).

67. The fact that the plaintiff hoped and expected a substantial monetary consideration that exceeded the salary paid to him as wages, and therefore agreed to the terms of the agreement, does not lead to the conclusion that he was misled by the defendant.
68. Fourth, the only alternative offered to the plaintiff is employment as a salaried employee and receiving options in a separate agreement at the rate of 1%. Despite the plaintiff's claim that he was misled regarding the question of his status in such a way that Gal presented him with a representation that it was preferable for him to engage as an employee and not as a consultant, an examination of the evidence shows that at no stage was the plaintiff offered to engage in a different format than that of a salaried employee.  In a conversation dated 03.12.14 Gal detailed to the plaintiff the names of the defendant's consultants - among them the former Director General of the Ministry of Health, as well as various doctors with experience in the clinical world, "people whom we carefully selected and each of whom has significant weight" and was not offered anything in this regard (transcript of December 3, 2014, pp. 27-28, 31; see also Gal's testimony, Transcript, pp. 74, paras. 18-34).
69. Similarly, it was not proven that the plaintiff was offered royalties under receipt of options. As is well known, royalties are paid to the owner of a property or a right for their use when the plaintiff signed the employment agreement as a salaried employee and not as the owner of the property in the company.  Therefore, the plaintiff's claim that he "waived" royalties should not be accepted, because they were not offered to him in the first place, and the only option that was on the agenda for the defendant was to employ him as a salaried employee and provide options later on (see Gal's testimony - transcript, pp. 68, 69, paras. 16-18).
70. Fifth, as to proving the feasibility as of the date of the commencement of the negotiations, we found that the plaintiff did not meet the burden required to prove that he was misrepresented or that the amount of options offered to him was affected by this. As noted above, during the conversation of 03.12.14 Gal noted to the plaintiff that "the feasibility ... It will continue for many, many more time..." and detailed the challenge facing the company (transcript of December 3, 2014, pp. 6, 14).  In his cross-examination, when the plaintiff was referred to Gal's words, he replied that the company had not passed the first hurdle at all - proof that the problem was solvable, and claimed that Gal admitted to it around the months of May-June.  When asked, "Where does he say that?" The plaintiff replied that he remembered that he had said it, but it had not been recorded (transcript, pp. 31, paras. 1-26), so that in fact no evidence was presented that Gal had giventhe plaintiff false information.
71. The plaintiff sought to learn from this that the defendant's engagement with Prof. Shahar of Ben-Gurion University for the purpose of producing a predicator did not succeed as evidence of a "serious concealment" in relation to the proof of feasibility (paragraph 7 of the plaintiff's affidavit). When confronted in his interrogation that the deal with Ben-Gurion University had not been executed at all, the plaintiff replied that Gal had told him that it had been executed in a conversation he had with him in March 2015.  When confronted with the fact that he had no personal knowledge of this, the plaintiff relied on the fact that in a conversation on June 3, 2015, when he asked to be paid royalties, Gal replied that it was not an academic institution (Transcript, p. 27, para. 4 ff.).  Our eyes see that the matter was removedor taken out of context, and it has not been proven at all that a deal was made with Ben-Gurion University, as well as that it failed (see Gal's testimony - Protocol, pp. 73, 33-35).
72. It should be recalled that the plaintiff confirmed that he had received all the materials relating to his work for the defendant in December 2014 prior to the signing of the employment agreement, so that the defendant had in fact provided all the information on the basis of which the plaintiff could have learned about the existence of proof of feasibility. When asked in his interrogation on this matter, "You had almost two full months to understand that Gal had deceived you and that there was no possibility," the plaintiff replied that what made him think there was a possibility was the ILS 2.5 million investment that the defendant had raised.  To the question: "So Meir (the investor - A.M.) misled you?" the plaintiff replied that it was he who made him understand that there was proof of feasibility due to  the amount of the investment (Transcript, pp. 33, 10 ff., pp. 34, 1-3).
73. The plaintiff did not prove that Gal gave him false information and that he relied on this information when making the decision to engage with the defendant. The plaintiff's testimony showed that it was the investment in the defendant that ultimately led him to believe in the proof of feasibility - a fact that weakens his claim of misleading.
74. It is possible that the plaintiff believed that there would be a "breakthrough" in the venture in a short period of time, and when this did not materialize, he sought to point an accusing finger at Gal, claiming that he had deceived him. We found support for the above in a conversation that the plaintiff's father had with Gal in May 2015, in which his father stated that he understood from the plaintiff that "his contribution is very significant to the results" and therefore he asks that there be a correlation between his contribution and the remuneration (Appendix 10, pp. 131 and 135 to the plaintiff's affidavit).  Gal explained in this conversation that at the moment there is no progress as the plaintiff has difficulty "translating what is currently being done into an algorithmic language" and clarified that the plaintiff will be compensated like all the company's employees in granting options (p. 134 of the plaintiff's affidavit).
75. In the conversation that Gal and the plaintiff's father held, the gap was reflected between the way the plaintiff saw his contribution and achievements in the company and the way Gal saw things in relation to the company's real situation, when it was clear that Gal also felt some disappointment with the pace of the venture's progress.  Gal's words in this conversation reflect his conduct throughout and the fact that he reflected the difficulties and challenges as they were  and did not mislead the plaintiff - neither during the negotiations nor during the employment relationship.
76. We will add that we have not found any basis for the plaintiff's claim that if he had known that there was no proof of feasibility, he would have insisted on receiving the same remuneration as the founder, since the latter confirmed in his testimony that he was not offered to be absorbed as a founder of the defendant, so that this alternative was not on the agenda at all with or without proof of feasibility (Protocol, pp. 16, 38; see also the testimony of Haim, pp. 6, 23-36).

(b) The plaintiff went on unpaid leave in a unilateral act and thus breached the employment agreement

77. As noted at the outset, in June 2015, the relationship between the parties came to a screeching halt over the terms of the options agreement. Gal testified in his affidavit that during the month of May 2015, the company's option plan was approved and therefore it acted to prepare the agreements with the employees and to convene the board of directors (Appendix 2 to Gal's affidavit).  According to his version, the plaintiff was "impatient, and instead of continuing to invest in developing models that would suit the forecasting system and promote the company, he invested his efforts in an attempt to promote the signing of an options agreement, while at the same time continuing to demand that his working hours be reduced" (paragraph 44 of Gal's affidavit).
78. The main dispute, as expressed in the two conversations that took place between the plaintiff and Gal in June 2015, related to the question of what are the conditions for receiving the options, i.e., the minimum working hours that the plaintiff will have to work in order to remain an employee of the company and whether he will have to physically come to the company's offices.
79. In a conversation dated June 3, 2015 (a transcript was submitted at the beginning of the evidentiary hearing), Gal raised to the plaintiff the dissatisfaction of his superiors with his performance at work, while the plaintiff, for his part, replied that if he worked hard he would be able to solve the "problem" and expressed concern that if he left before the company made an "exit" he would not be able to get rich like the other employees and would not make "a lot of money". In response, Gal reminded the plaintiff that he was receiving money for his work, that the company's situation had not progressed as expected after six months, and that no employee had received options.
80. Later in the conversation, Gal mentioned that he would have to work the "bare minimum" in order to obtain options, and when the plaintiff asked, "Aren't you sure it's better to do a different model with me? Gal replied: "There is no other model" and explained to the plaintiff that the company had chosen Plan 102, which is approved by the Income Tax. Gal explained to the plaintiff that he would have to work "an hour a week, two hours, I don't know exactly...  In order to maintain a relationship..." with the company, and when the plaintiff reminded him that it had been agreed that he would work three hours a month and even if he did not work them there would be no problem, Gal replied that he could not guarantee that "the Income Tax will not exceed it."
81. About a week later, on June 11, 2015, the plaintiff arrived at the company's offices and had another conversation with Gal, in which he demanded to receive the "larger money" for which he had come to work (Appendix 12 to the plaintiff's affidavit, pp. 142-143). In the same conversation, the plaintiff noted that although he had committed to a year of work, he had not committed to any scope of the position and had tried at length to persuade him of his contribution and achievements to the company.  Gal explained to the plaintiff that the company was not facing an exit and that it was only at the beginning of the road, and therefore he found it difficult to understand why the plaintiff was "terrible, terribly stressed" when no options were granted to any employee in the company (see Gal's testimony regarding the dissatisfaction with the plaintiff's achievements - Protocol, p. 77, paras. 16 ff.).
82. The plaintiff went on to repeat that he had agreed with Gal that he would remain an employee of the company "on a small scale" for the tax benefit given in Plan 102 of the Income Tax Ordinance. When Gal confirmed this, the prosecutor added: "Even if I don't actually work those hours," and Gal responded: "There is no such thing."  According to the plaintiff: "I told you that I will not be able to give these hours in practice," Gal replied: "But you can sit down and give three hours in return...  4 hours a month, right?".
83. After a long conversation regarding the venture itself and its progress, the plaintiff abruptly remarked: "Listen, Gal, listen, A. I have to disappear for a while, I don't know if it's weeks and I don't know if it's a month. I have to disappear, I told you I don't know what kind of job I can commit to and I didn't commit...".  When Gal said to him: "Do you understand that as a company I can't count on you?The plaintiff replied: "It is possible that I will return in a few weeks" (p. 160 of the plaintiff's affidavit).
84. Gal later reminded the plaintiff that he had agreed with him on a reduction in the scope of the job after a year. When the plaintiff stated that he did not know where he would be in another year, "maybe in California," Gal noted that they would try to solve the problem and asked him if he could continue to work two hours a week, and the plaintiff replied that he wanted to think about it.
85. When the plaintiff repeated that he was "not here for a salary," Gal offered him to work in exchange for options, similar to other employees, and the plaintiff replied in the negative, noting that those employees have a prestigious university that funds them (p. 167 of the plaintiff's affidavit).
86. The evidence placed before us indicates that it was the plaintiff who reneged on the agreements reached by the parties and decided to 'break the rules'.  As mentioned above, in conversations from 01/2015 prior to the signing of the employment agreement, the plaintiff asked for flexibility in work and Gal agreed that the work framework would be flexible and adapted to the plaintiff's needs: "As far as I am concerned, you will determine every week, I will always want more and you will be more limited, okay" (transcript of 20.01.15, p. 61).  Gal asked that the plaintiff work 50% of the position on an annual basis, and the plaintiff replied that  he might work 30%-40%, and Gal replied, "No problem."  He also noted: "There may be a period when there is nothing to talk to me for a month" and Gal noted, "Well, go on" (ibid., p. 62).  The plaintiff noted that he could not be "here" for 4 years and later noted that it was necessary to summarize when it would be acceptable for him to work only 5 hours.  He went on to note that "it is very possible that in a year and a half from now I will move to those 5 or 6 hours" and added that he can also work from abroad (ibid., pp. 66-67).
87. As stated, the plaintiff undertook to work for the company for 9 months to a year and a half, in the scope of 30% to 50%, and thereafter in the scope of 5/6 hours per month (transcript of January 20, 2015, p. 66).

As for the period after this period of time, the issue of the framework of the hours of employment and the location from which it will be carried out remained open, with the parties not explicitly agreeing and clarifying the terms of work during this period until the completion of the 4 years for the purpose of receiving the options, which led to each of them interpreting the terms that were agreed upon differently.

88. In the conversations of June 2015 and in his claim before us, the plaintiff sought to rely on one statement by Gal from which he sought to learn that he would be entitled to options even if he did nothing after a minimum period of 9 months. The plaintiff referred to the part of the conversation in which Gal told him that the minimum hours required to receive the options is 5-6 hours of work per month, and to the question, "And you won't have a problem paying it even if I don't do anything during those 5 hours?He replied: "I will try to do so, but if you don't, then fine" (transcript of 20 January 2015, p. 63).  This statement led the plaintiff to the conclusion that Gal promised him that even if he did not work, he would pay him a salary (Transcript, pp. 41, 2-3, 43, 20-28).
89. We do not believe that reading the full transcripts of the conversations we can learn from this single sentence, which was made in the framework of a long discourse regarding the working conditions and which to a large extent remained vague on the part of both parties (and not only on the part of Gal, so that we found it difficult to reconcile the plaintiff's claim of misleading), about Gal's agreement that the plaintiff would work for only a year and a half and then do nothing and receive a "salary" or options.
90. We found support for this in Gal's interrogation Asher was asked: "When did you know he wanted to come for a short time?..." He replied: "We talked about him working for the first two years and then he would reduce the scope of his job".  And later on: "He didn't say 9 months, he said I'll be here between 9 months and 2 years And I recommend that you read the documentation And after that, I'll drop in job percentages (Transcript, p. 64, 30-33, p. 90, paras. 4-6); Similarly, in a conversation dated June 11, 2015, Gal said:You told me a year and after that I will drop my job percentage...  That's what you said(p. 162) To the plaintiff's affidavit).
91. Similarly, Haim testified that he did not know at all that there was a discussion regarding the length of the period in which the plaintiff would work for the company, but only about the scope of the position - since the plaintiff did not consider himself to be working 100% of the time (transcript, pp. 4, 34 ff., pp. 5, paras. 1-6).
92. Although the plaintiff stated that he would not be able to be physically present with the company for four years, at the same time he added that he would be able to work from abroad, so it is not possible to learn that he undertook employment for only a year and a half, after which he expected that he would do nothing for the company and would be entitled to any kind of compensation.  It should be recalled that the employment agreement did not specify the period of employment of the plaintiff.
93. Beyond that, and as Gal explained in his testimony and in the conversations he had with the plaintiff, the purpose of granting the options is to provide an incentive to the employees to be part of the company's success so that they will continue to produce and contribute to it, so that the plaintiff's interpretation of the conversation between the parties according to which he will be entitled in any case and without any conditions is unreasonable in our view - in the absence of an explicit linguistic anchor for this (Transcript, p. 63, para. 34 ff., 78 s. 35 ff., p. 79 s. 1-4,  transcript 03 December 2014, p. 32).
94. To this, we will add that the plaintiff was unable to prove that the terms agreed with him were only for appearances and that the company had no intention of granting him options. Gal testified in his cross-examination that the process of receiving the options is gradual, so that the entitlement is after  a cliff of one year, with each year opening the relative part.  Hence, if the plaintiff had finished the work after 13 months, he would have received "a quarter plus something" from the options and the company would have tried to find a mechanism in which he would continue to contribute to the company - for example, by working 4 hours a month (Transcript, pp. 80, paras. 1-12).  He also testified that as long as the plaintiff had fulfilled "a small part of his promises" - he would have fought for him to receive the options (ibid., pp. 80, 31-37).
95. To the Tribunal's question as to what contribution an employee who works such a small amount of 4-6 hours per month, and whether it is possible to understand from this that the options are ostensibly contingent on the fact that there was an employee-employer relationship only in the formal aspect, Gal replied that he has employees who come for an hour a week and whose contribution is very significant (Protocol, pp. 90, 29 ff., 91 S. 1-2).
96. Evidence that the defendant sought to find a solution so that the plaintiff could receive the options was found in a conversation on June 11, 2015, in which Gal asked whether the plaintiff would be able to come to the office two hours a week, and when the plaintiff noted that he might be in California in a year, Gal replied that they would try to solve the problem (p. 163 of the plaintiff's affidavit).  When the plaintiff was referred to this conversation in his interrogation, he clarified that he was not willing to physically come to work after 9 months of work.  When asked to refer to a part of the transcript that supports his claim that Gal "will I physically tell you 4 years if there are no options?" The plaintiff evaded giving a concrete answer and did not refer to the part of the transcript in which he was told this (Transcript, pp. 44, 25 ff., pp. 45, 19-27).
97. We have not lost sight of Gal's statement in the transcript of June 11, 2015 that he checked only last month that in order to benefit from the tax benefit in Plan 102, there must be an employment relationship between the employee and the company "in such a capacity" (p. 147 of the plaintiff's affidavit). In his cross-examination, he testified that he did not know that "there is a minimum scope in which there is an employee-employer relationship" since the employees in the two companies he managed worked at full capacity (Transcript, pp. 86, 6-13).  We did not find that this would change our decision, since already at the stage of the engagement, Gal clearly presented to the plaintiff that he had to work  a minimum number of hours in order to be considered an employee, and he did not retract his statements.
98. As we noted above, Gal tried to make adjustments so that the plaintiff could work on a minimal scale and would be entitled to receive the options. However, the plaintiff repudiated all the agreements, claimed that he had been misled and did not give him an opportunity to clarify the matter, and instead chose to announce that he would not come to work for an indefinite period of time, with a unilateral notice.
99. The plaintiff chose to abandon his job, even though it was not proven that the defendant reneged on its obligations and thus thwarted the possibility of signing an options agreement. The plaintiff undertook a minimum employment of a year and a half, after which he would reduce the hours to a few hours per month, but he reneged on his undertaking.  The plaintiff admitted in his interrogation that during the months of his work, which amounted to only six months, he worked only about 25% of the scope of his job - that is, less than the minimum to which he was committed, and in the evidentiary hearing he testified that he did not commit to any scope of the job (Transcript, p. 25, para. 7).
100. The plaintiff was asked in his cross-examination whether when he informed Gal that he would disappear, he did not think that he should give advance notice in light of his status in the company, and replied that after Gal admitted that the entire arrangement between them was "based on tax fraud", he did not see himself obligated to work, and in addition, he had personal matters that he kept postponing, and therefore he announced that he was going on unpaid leave, without obtaining permission. According to him, he "determines how much I work from where I work and the relationship has also reached a certain snail."

When asked by the court whether he was "aware of such a possibility that an employee announces that he has gone on unpaid leave", he replied: "Again I would work in things that are more when I practice and things like that are set according to certain times, so I would practice" (pp. 46, 24 ff., pp. 47, 25 ff., pp. 48, 1-3).

101. If so, the plaintiff worked for the defendant for about six months and received wages for his work, and for a reason that is not clearly explained in his version, he decided in June that the time had come to grant him options, no matter what. When it was made clear to the plaintiff that the granting of the options was subject to certain conditions, the plaintiff chose to announce a sudden absence - which led, after more than two months  and after he chose not to attend the hearing, to his dismissal.
102. We are unable to accept the plaintiff's argument that he was entitled to "disappear" and that this was agreed upon between the parties. As stated, the plaintiff undertook not to disappear suddenly, and in any event, an employee who wishes to go on vacation, especially when it is a long period without a return date, must obtain the employer's approval to do so and is not entitled to take the law into his own hands.

Summary

103. As detailed above, in order to prove the foundations of the cause of deception, it is necessary to prove a defect in the will of a party who entered into the contract due to a misrepresentation presented to him by the other party. Hence, in order to meet the burden, the plaintiff must prove that there was a mistake "with regard to material details on the pre-contractual level"; that there is a subjective causal connection between the deception and the plaintiff's mistake in the sense that the non-disclosure of the details of the agreement led him to an error; and in addition, that there is a causal connection between the mistake and the plaintiff's engagement in the employment agreement.
104. We have not been persuaded that there was an error with respect to the terms agreed upon between the parties relating to the options agreement - both with regard to the date of signing, the duration and scope of the employment and the amount of options to which the plaintiff will be entitled (the 'Proof of Feasibility'). As part of the negotiations conducted between the parties, it was agreed that an option agreement would be signed, but the date on which it would be signed was not agreed, and the plaintiff even admitted in his interrogation that he did not know any employee with whom an options agreement was signed during the period of his employment.  In addition, despite the fact that Gal may have failed in his language by confirming that the plaintiff would be entitled to options even if he "would not do anything" in the 5 or 6 monthly hours in which he would be employed, it was possible to learn from the wording and context that in order to receive an options agreement, the plaintiff was required to be one of the company's employees - even if the meaning was a limited employment, and this was explained to him even before the engagement between the parties.
105. In addition, we have not been persuaded that there is a subjective causal connection between the deception and the alleged mistake and between the mistake and the engagement. The plaintiff testified in his cross-examination that apart from the economic aspect, he signed the employment agreement for several reasons, including - because he was a fan of  challenges, since he thought he would have  free time since it was a project that dealt  with saving lives (pp. 14, 31 ff., pp. 15, 1-10).
106. The evidence clearly reflected that the plaintiff was not satisfied with the delay in signing the options agreement and also with the fact that he was required to meet the conditions in order to be eligible for the options. However,  the plaintiff's desire to receive additional compensation in addition to the salary and his retrospective perception that he was entitled to receive a higher rate of options, does not lead to the conclusion that in real time he entered into an employment agreement with the defendant due to a mistake that is the result of deception.  Even if the plaintiff was disappointed in his engagement with the defendant, it is possible that this was a mistake in the feasibility of the transaction, which is not included in the cause of deception.
107. In the margins, and with regard to the claim of statute of limitations and delay, we will clarify that we found it difficult to reconcile the conduct of the plaintiff - who, on the one hand, froze for almost 7 years and did nothing despite the cancellation notice (such as filing a legal proceeding, restitution of the salary he received, in accordance with section 21 of the Contracts Law, etc.), and on the other hand, but due to a random meeting that he defined as a "miracle" with Prof. Pesach, during which he was told a vague statement from which he learned that he may have made some contribution to the company, but admitted that "there is a great deal of hidden on the disclosed" - he chose a few months before the grounds for filing this proceeding became statute of limitations (Transcript, pp. 11, s. 3 ff., p. 12, s. 4).

We note, with respect to the claim of limitation, that even though the claim was dismissed on its merits, the plaintiff did not present a uniform version with respect to the date on which he first learned that he had been misled and claimed a number of dates, some of which were close to the date on which the statute of limitations applied to the proceeding, which was filed on May 23, 2022 (see paragraph 6 of the cancellation letter - August 13, 2015, paragraph 8.9 of the statement of claim - June 11, 2015, transcript, p. 42, paras. 15-28 - end of May 2015).