MANAGEMENT AGREEMENT
made and entered into in Tel Aviv, Israel, as of the 16th day of February
2000, by and between Net2Wireless Israel Ltd., a corporation organized and
existing under the laws of the state of Israel ("Net2Wireless") of the first
part; and Yarsig Ltd. (the "Company") of the second part;
WHEREAS Net2Wireless is engaged in the research and development, marketing,
sale and support of wireless communication technology; and
WHEREAS Net2Wirelessis interested in receiving management services from the
Company, and the Company agrees to provide management services to Net2Wireless,
as more fully set forth herein;
WHREAS the Company has entered into an employment agreement with Xxxxx Xxxxx
(the "Employment Agreement"); and
WHEREAS the parties have agreed that the management services shall be
provided, behalf of the Company, by Yarsig Ltd.;
NOW, THEREFORE in consideration of the premises herein, and the mutual promises
and undertakings herein contained and set forth, and for other good and valuable
consideration, made over by each party to the other, the receipt of which is
hereby acknowledged, it is covenanted and agreed as follows:
1. Management Services
1.1 The Company shall provide management services to Net2Wireless,
beginning on March 01, 2000 (the "Effective date"). The Company undertakes to
make available to Net2Wireless the services of Xxxxx Xxxxx ("Xxxxx") for the
entire period of Xxxxx'x employment with the Company. The parties agree that the
employment of Xxxxx is a fundamental term of this Agreement, and in the event
that Xxxxx'x employment with the Company is terminated for any reason (whether
by the Company or by Xxxxx), this Agreement may be terminated by either party in
accordance with the provisions of Section 6, below.
1.2 The Company undertakes to cause Xxxxx to devote, subject to the
provisions of this Agreement, his business time toward fulfilling the Company's
obligations and duties to Net2Wireless in the management of the Net2Wireless as
an Executive Vice President and General Counsel of the Net2Wireless and
Net2Wireless Corporation, and to carry his office faithfully and devotedly, in
accordance with the objectives of Net2Wireless, as they are defined by
Net2Wireless's Board of Directors, from time to time.
2. Management Fees
Net2Wireless shall pay the Company a monthly management fees in the
aggregate sum of NIS 100,500 (One Hundred Thousand Five Hundred New Israeli
Shekel) (the "Management Fees"), payable as follows:
2.1 The Management Fees shall be paid on a monthly basis in arrears on
the first day of each month.
2.2 The Management Fees shall be paid, along with applicable V.A.T.
(Value Added Tax), against a lawful tax invoice.
2.3 The Management Fees will be adjusted on a monthly basis according
to cost of living index increase or the change in the exchange representative
rate of the US Dollar against the New Israeli Shekel, whichever the higher, but
in no event the Management Fees will be less than the Management Fees during the
preceding month. For the purpose of computing said adjustment the basis will be
the cost of living index or the representative rate of the US Dollar last known
on March 01, 2000, as the case may be.
2.4 Unless otherwise agreed upon between the parties the Management
Fees will increase each year in the rate of 10% (ten percent).
3. No Employer-Employee Relationship
The parties declare that this agreement creates no employer-employee
relationship between the Company's personnel or principals, including Xxxxx, and
Net2Wireless, nor shall it entitle any of the Company's personnel, including
Xxxxx, to any payment and/or benefit from Net2Wireless customarily paid or
conferred upon an employee pursuant to the law and/or custom and/or precedent.
4. Term of Agreement
4.1 The initial term of this Agreement shall be 3 (three) years
commencing on January 1st, 2000, unless otherwise agrees upon in writing between
Net2Wireless and the Company (hereafter "Initial Term"), subject to the
provisions for termination as set forth in Section 14 hereinbelow.
4.2 The Initial Term will be automatically renewed for additional
periods of 2 (two) years each (each hereafter "Renewal Term") (the Initial Term
and all successive Renewal Terms will hereinafter be referred to as the "Term"),
subject to the provisions for termination as set forth in Section 5 hereinbelow.
5. Termination; Effect of Termination
5.1 For the purpose of this Section "Notice Period" shall mean at least
6 (six) months prior notice, of the intention to terminate the Agreement.
5.2 Each of Net2Wireless and the Company shall have the right to
terminate the Company's employment with Net2Wireless at any time subject to the
terms of the Notice Period as stipulated in Section 5.1 above.
During the Notice Period, the Company shall continue to render the
management services to Net2Wireless in accordance with the terms and provisions
of this Agreement if Net2Wireless requires it to do so, and will cause Xxxxx to
continue to discharge his office and cooperate with his replacement unless
Net2Wireless terminates the Agreement prior to the end of the Notice Period.
During the Notice Period, whether Net2Wireless requires or does not require the
Company to continue to render to it services of any kind, Net2Wireless will
continue to pay the Company all payments and honor all the commitments owed the
Company in accordance with this Agreement.
5.3 In the event Net2Wireless terminates the Agreement Net2Wireless
will, at the election of the Company, pay the Company, either of the following:
(i) the amount equal to the Management Fees multiplied by 6 (six); or (ii) 6
(six) consecutive monthly payments of the Management Fees.
6. Confidentiality
6.1 The Company shall regard and retain as confidential, and will not
divulge to any third party or use for any unauthorized purposes, either during
or after the term of this Agreement, any proprietary or confidential information
or know-how relating to or deriving from Net2Wireless's Business that Company
has acquired while providing the services to Net2Wireless under this Agreement,
or in consequence of providing the services to Net2Wireless, or related to the
services provided under this Agreement, without the prior written consent of
Net2Wireless.
Confidential Information includes, but is not limited to, information
related to actual or anticipated products, inventions, hardware, software,
methods of manufacture, trade secrets, business plans, customers, supplies,
finances, and any other data related to the business or affairs of Net2Wireless.
Confidential Information will include written information or oral information in
tangible or intangible form.
Notwithstanding any of the foregoing, the following information shall
not be deemed Confidential Information which is (i) in the public domain or
falls into the public domain through no breach of this Agreement on the part of
the Company; (ii) rightfully obtained by the Company from a third party not
under any obligation of confidentiality to Net2Wireless; (iii) provided by
Net2Wireless to a third party not under any obligation of confidentiality; (iv)
approved for release by written authorization of Net2Wireless; or (v) disclosed
pursuant to the requirement of any governmental agency, court, or by operation
of law.
6.2 All documents including, but not limited to, notebooks, notes,
memoranda, records, diagrams, blueprints, bulletins, formulas, reports, computer
programs and other data of any kind coming into the Company's possession or
prepared by the Company in connection with the services provided under this
Agreement are the exclusive property of Net2Wireless. The Company agrees to
return to Net2Wireless all such documents upon termination of this Agreement
unless specific written consent is obtained from Net2Wireless to release any
such record.
7. Ownership Rights
7.1 The rights to all inventions, improvements, mask works, discoveries
or works, whether or not capable of being patented or copyrighted, which the
Company may conceive, make, develop, author, or work on, in whole or in part,
independently or jointly with others in the course of providing services to
Net2Wireless or in consequence of providing the services to Net2Wireless or
related in any way to Net2Wireless's Business (hereinafter "Proprietary
Information") will be vested in Net2Wireless exclusively.
7.2 Without additional Management Fees or consideration, the Company
hereby assigns and will in the future assign to Net2Wireless, and acknowledges
and will in the future acknowledge Net2Wireless's full and exclusive ownership
of the Proprietary Information.
7.3 The Company will not transfer any Proprietary Information to any
third party without prior written consent of Net2Wireless, which consent shall
not be withheld save for reasonable arguments.
8. Indemnification & Insurance Coverage
8.1 Throughout the term of the Agreement and for the period of six (6)
years thereafter, the company will maintain an Officers and Directors Insurance
policy for the Director, and other insurance coverage on substantially the same
terms and levels that it provides to the Company's senior Executive Officers, at
the company's sole expense. This insurance shall cover any and all actions
committed and/or omitted by Xx. Xxxxx, in his capacity as General Counsel of
Net2Wireless Corporation and any subsidiary of the Net2Wirless Corporation,
commencing on the appointment of Xx. Xxxxx as a General Counsel of Net2Wireless
Corporation.
8.2 Xx. Xxxxx is not and shall not be liable to the Company for any
losses, claims, damages or liabilities arising from his appointment as General
Counsel and/or any action and/or failure to act in his capacity as General
Counsel or from any act or omission performed or omitted by Xx. Xxxxx, except
for any losses, claims, damages or liabilities primarily attributable to such
Xx. Xxxxx'x fraud, gross negligence or willful misconduct as finally determined
by a court of competent jurisdiction.
8.3 The Company, to the fullest extent permitted by applicable law,
indemnifies and holds Xx. Xxxxx harmless (and his respective successors and
assigns) against any losses, claims, damages, liabilities, costs or expenses
(including legal fees, judgments and amounts paid in settlement) to which Xx.
Xxxxx may become subject (i) by reason of having been a General Counsel to the
Company or (ii) in connection with any matter arising out of or in connection
with this Agreement, unless a court of competent jurisdiction, in a judgment
that has become final and that is no longer subject to appeal or review,
determines that any such loss, claim, damage, liability, cost or expense is
primarily attributable to Xx. Xxxxx'x fraud, gross negligence or willful
misconduct. If Xx. Xxxxx becomes involved in any capacity in any action,
proceeding or investigation by reason of being or having been a General Counsel
or in connection with any matter arising out of or in connection with this
Agreement, the Company will periodically reimburse Xx. Xxxxx for his legal or
other expenses (including the cost of any investigation and preparation)
incurred in connection therewith; provided that Xx. Xxxxx promptly repays to the
Company the amount of any such reimbursed expenses paid to it to the extent that
it is ultimately determined that Xx. Xxxxx is not entitled to be indemnified by
the Company in connection with such action, proceeding or investigation as
provided in the exception contained in the immediately preceding sentence. If
for any reason (other than the fraud, gross negligence or willful misconduct of
General Counsel) the foregoing indemnification is unavailable to Xx. Xxxxx, or
is insufficient to hold it harmless, then the Company must, to the fullest
extent permitted by law, contribute to the amount paid or payable by Xx. Xxxxx
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and Xx. Xxxxx on the other hand or, if such allocation is not permitted by
applicable law, to reflect not only the relative benefits referred to above but
also any other relevant equitable considerations.
9. Miscellaneous
9.1 All notices and other communications under this Agreement shall be
in writing and shall be deemed given to the parties at the addresses set forth
below (or to such other address as a party may have specified by notice given to
the other parties pursuant to this provision):
If to Net2Wireless:
00 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxx Xxxxxx 00000
Attention: General Counsel
Fax: 00-000-0000
If to the Company:
X.X. Xxx 00000
Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Fax: 00-000-0000
9.2 This Agreement represents the entire agreement of the parties and
may be amended only by a written amendment executed by both parties.
9.3 This Agreement shall be governed by the laws of Israel. The parties
submit to the exclusive jurisdiction of the competent courts of Tel-Aviv-Jaffa
in any dispute related to this Agreement or deriving therefrom.
9.3 This Agreement supersedes all prior agreements and understandings
between the parties as to its subject matter.
9.4 Captions and paragraph headings used herein are for convenience
purpose only and shall not be used in construing it.
9.5 This Agreement shall become effective and binding upon the parties
as of the date first stated above.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date set forth
above.
/s/ /s/
Net2Wireless Israel Ltd. Yarsig Ltd.
