Exhibit 10.6
DIRECTOR AGREEMENT
DIRECTOR AGREEMENT effective as of the 4th day of November, 1998 by and
among Xxxxx Xxxxxxx (hereinafter referred to as "Xx. Xxxxxxx") and VDC
Corporation Ltd., a Bermuda company having an address at 00 Xxxxx Xxxx Xxxx,
Xxxxxxxxx, XX 00000 (hereinafter referred to as the "Company").
WITNESSETH
WHEREAS, Xx. Xxxxxxx has been elected to serve as a member of the
Company's Board of Directors (a "Director") and Xx. Xxxxxxx has agreed to serve
as a Director, each upon the terms and conditions contained within this Director
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Term, Duties and Acceptance
a. The Company hereby retains Xx. Xxxxxxx as a Director to render
his services to the Company in such capacity.
b. Xx. Xxxxxxx hereby agrees to serve as a Director and agrees to
devote his best efforts, energy and skill to such position.
c. Xx. Xxxxxxx agrees to serve as a Director for the term for
which he was elected unless he retires or is removed from
office.
2. Compensation and Expense Reimbursement
a. As compensation (the "Compensation") for his service as a
Director, Xx. Xxxxxxx shall receive options to purchase the
Company's stock upon the terms and conditions set forth in
that certain Option to Purchase Common Shares of VDC
Corporation Ltd. by and between Xx. Xxxxxxx and the Company
dated November 4, 1998.
b. Other than the Compensation, Xx. Xxxxxxx shall not receive a
salary, payments or reimbursement of any kind for his service
as a Director.
c. The Company shall not pay or reimburse Xx. Xxxxxxx for
out-of-pocket expenses incurred by him in the performance of
his duties as a Director, nor for attending telephonic or
physical meetings of the Company's Board of Directors (the
"Board").
3. Resignation and Removal from Office
a. Xx. Xxxxxxx may resign from his position as a Director upon
thirty (30) days written notice to the Board.
b. Xx. Xxxxxxx may be removed from office as Director on the
terms and conditions set forth in the corporate law of the
current jurisdiction of incorporation of the Company and on
the terms and conditions set forth in the Company's governing
documents.
4. Trade Secrets and Confidential Information
Xx. Xxxxxxx recognizes and acknowledges that certain information
including, without limitation, information pertaining to the financial condition
of the Company, its systems, methods of doing business, agreements with
customers or suppliers or other aspects of the business of the Company or which
is sufficiently secret to derive economic value from not being disclosed
("Confidential Information") may be made available or otherwise come into the
possession of Xx. Xxxxxxx by reason of his service to the Company. Accordingly,
Xx. Xxxxxxx agrees that he will not at any time disclose any Confidential
Information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever or make use to his personal advantage or to the
advantage of any third party, of any Confidential Information, without the prior
written consent of the Board. Xx. Xxxxxxx shall, upon termination of his service
to the Company, return to the Company all documents which reflect Confidential
Information (including copies thereof). Notwithstanding anything heretofore
stated in this Section 4, Xx. Xxxxxxx'x obligations under this Section 4 shall
not, after termination of Xx. Xxxxxxx'x service to the Company, apply to
information which has become generally available to the public without any
action or omission of Xx. Xxxxxxx (except that any Confidential Information
which is disclosed to any third party by an employee or representative of the
Company who is not authorized to make such disclosure shall be deemed to remain
confidential and protectable by Xx. Xxxxxxx under this Section 4).
5. Severability
The invalidity or unenforceability of any term of this Agreement shall
not affect the validity or enforceability of this Agreement or any of its other
terms; and this Agreement and such other terms shall be construed as though the
invalid or unenforceable term(s) were not included herein, unless the effect
would be to vitiate the parties' fundamental purposes in entering into this
Agreement.
6. Breach
Xx. Xxxxxxx hereby recognizes and acknowledges that irreparable injury
or damage shall result to the Company in the event of a breach or threatened
breach by Xx. Xxxxxxx of any of the terms of Section 4 hereunder, and Xx.
Xxxxxxx therefore agrees that the Company shall be entitled to an injunction
restraining Xx. Xxxxxxx from engaging in any activity constituting such breach
or threatened breach. Nothing contained herein shall be construed as prohibiting
the
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Company from pursuing any other remedies available to the Company at law or in
equity for breach or threatened breach of this Agreement, including but not
limited to, the recovery of damages from Xx. Xxxxxxx and removal from office as
a Director.
7. Arbitration
All controversies which may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement shall be
determined by binding arbitration applying the laws of the State of Delaware as
set forth in Section 11 hereof. Any arbitration pursuant to this Agreement shall
be conducted in Stamford, Connecticut before the American Arbitration
Association in accordance with its arbitration rules. The arbitration shall be
final and binding upon all the parties (so long as the award was not procured by
corruption, fraud or undue means) and the arbitrator's award shall not be
required to include factual findings or legal reasoning. Nothing in this Section
7 will prevent either party from resorting to judicial proceedings if interim
injunctive relief under the laws of the State of Delaware from a court is
necessary to prevent serious and irreparable injury to one of the parties, and
the parties hereto agree that the federal and state courts located in Stamford,
Connecticut shall have exclusive subject matter and in personam jurisdiction
over the parties and any such claims or disputes arising from the subject matter
contained herein.
8. Remedies Cumulative
Except as otherwise expressly provided herein, each of the rights and
remedies of the parties set forth in this Agreement shall be cumulative with all
other such rights and remedies, as well as with all rights and remedies of the
parties otherwise available at law or in equity.
9. Counterparts
This Agreement may be executed via facsimile transmission signature and
in counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
10. Waiver
The failure of either party at any time or times to require performance
of any provision hereof shall in no manner affect the right at a later time to
enforce the same. To be effective, any waiver must be contained in a written
instrument signed by the party waiving compliance by the other party of the term
or covenant as specified. The waiver by either party of the breach of any term
or covenant contained herein, whether by conduct or otherwise, in any one or
more instances, shall not be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
11. Governing Law
This Agreement shall be governed by the laws of the State of Delaware
without regard to principles of conflict of laws.
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12. Complete Agreement
This Agreement constitutes the complete and exclusive agreement between
the parties hereto which supersedes all proposals, oral and written, and all
other communications between the parties relating to the subject matter
contained herein.
13. Warranties
Xx. Xxxxxxx represents, warrants, covenants and agrees that he has a
right to enter into this Agreement, that he is not a party to any agreement or
understanding whether or not written which would prohibit or restrict his
performance of his obligations under this Agreement and that he will not use in
the performance of his obligations hereunder any proprietary information of any
other party which he is legally prohibited from using.
14. Notice
Any notice, demand, or communication given in connection with this
Agreement shall be in writing and shall be deemed received (a) when delivered if
given in person or by courier or courier service, or (b) on the date and at the
time of transmission if sent by facsimile (receipt confirmed) or (c) five (5)
business days after being deposited in the mail postage prepaid.
15. Key Man Insurance
The Company shall have the right to obtain what is commonly known as
"Key Man Insurance" on the life of Xx. Xxxxxxx in such amount as the Company
deems appropriate. Xx. Xxxxxxx agrees to cooperate in all manner in the
obtaining of such a policy. All expenses involved in connection with the
obtaining and maintaining of such a policy shall be that of the Company.
16. Assignment
This Agreement shall inure to the benefit of and be binding upon the
Company, its successors and assigns. By way of illustration, and not limitation,
if the Company merges with and into VDC Communications, Inc., (the "Subsidiary")
and Xx. Xxxxxxx serves as a Director of the Subsidiary following the merger,
then the terms of this Agreement shall inure to the benefit of and be binding
upon the Subsidiary.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
4th day of November 1998.
WITNESS: VDC CORPORATION LTD.
/s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxxxx X. Xxxxx
------------------ ---------------------------------------------
Xxxxxxxxx X. Xxxxx, Chief Executive Officer
WITNESS:
/s/ Xxxx Standard /s/ Xxxxx Xxxxxxx
----------------- ----------------------------------
Xxxxx Xxxxxxx
Agreed to and accepted this 4th
day of November, 1998
VDC COMMUNICATIONS, INC.
By:/s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxxxx X. Xxxxx, President
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