DIRECTORSHIP AGREEMENT
This DIRECTORSHIP AGREEMENT is made and entered as of the 21st of May,
2000, by and between Net2Wireless Corporation, with its principal office at 00
Xx'xxxx Xxxxxx, Xxxx Xxxx, Xxxx Xx'xxxx 00000, Xxxxxx (the "Company") and Xxxxx
Xxxxxx (the "Director").
WHEREAS, the Company is engaged in the development, production and
marketing of certain products, systems and services in the area of wireless
computing and telephony; and
WHEREAS, the Company desires to appoint the Director as a Director of
the Company, and as the Chairman of the Board of Directors of the Company ("the
Board"), and the Director agrees to be appointed as a Director of the company
and as the Chairman of the Board;
In consideration of the covenants, promises and conditions herein
contained, and for other consider-ation as hereinafter described, the parties
hereto agree as follows:
1. Retention as a Director. The Company hereby undertakes to appoint
the Director , as a Director of the Company, and as the Chairman of the Board ,
and the Director hereby agrees to be appointed as a Director of the company,
and as the Chairman of the Board, in accordance with the terms and conditions
set forth herein.
2. Term The term of this Agreement shall be deemed to have commenced
on February 20, 2000 and shall expire on February 19, 2001 (the " Term").
3. Duties. During the term of this agreement, the Director shall
serve as a member of the Board of Directors ("the Board")in the areas of
business development. The Company acknowledges and consents to the fact, that
the Director serves and/or will serve, in future, as a director of other
companies and/or legal entities, other than the Company. While the Director
shall not be required to work on a full-time basis, the Director shall devote
such time and energies to the performance of his duties hereunder as are
reasonably necessary to fulfill its obligations hereunder. In performing its
services and duties for the Company, the Director shall at all times comply
with the policies of, and be subject to the direction of the Company and
applicable law. In particular, the Director shall comply with all laws
applicable to the Company and with all rules and regulations of the Securities
and Exchange Commission. Finally, the Director hereby confirms that he is not
subject to any "statutory disqualification" within the meaning of Section
3(a)(39) of the Securities Exchange Act of 1934, as amended.
4. Option Grant.
In return for the Director's consent to be appointed as a Director
of the company and as the Chairman of the Board, the Director shall receive
options to purchase shares of Common Stock of the Corporation, ("the Option") as
provided under the Stock Option Agreement, attached hereto as Appendix A.
For the avoidance of any doubt, the parties hereby confirm, that the Company has
given the Director, the option under this agreement, solely as an incentive to
agree to serve as a Director and the Chairman of the Board, and that the option
shall, in no way, constitute payment for the execution of Director's duties
under this agreement. The option will become vested immediately, and shall
remain exercisable throughout the term as defined in Appendix A, regardless of
the term of this agreement and/or the termination of Director's appointment as
Director and Chairman of the Board.
5. Director shall not receive any salary, payment or compensation from
the company, for the execution of his duties under this agreement. The company
will reimburse Director for reasonable expenses incurred by Director in the
execution of his duties under this agreement.
6. Covenants of the Director. The Director represents and warrants
the following:
(i) that he is not under any contractual, other restriction or
obligation which conflicts with, or is otherwise inconsistent with its duties
hereunder or the Company 's rights hereunder;
(ii) that he agrees that all Confidential Information (as defined
in Section 7) that is received by him or by his representatives or on behalf of
him, from the Company or its representatives, regarding the Company or its
services, in connection with this Agreement, is the sole property of the Company
and shall be used by the Director only in accordance with the terms and
provisions of the Agreement, and that all services, documentation and
intellectual property created by or for the Director with regard thereto shall
be the exclusive property of and shall vest solely in the Company; with respect
to the foregoing, all Confidential Information (as defined in Section 7)
received by or created by or for the Director with regard thereto shall be the
exclusive property of and shall vest solely in the Company; with respect to the
foregoing, all Confidential Information (as defined below) received by or
created by the Director shall be disclosed to the Company immediately upon
request. The Company hereby confirms that it shall not be considered a breach of
this Agreement to the extent that such Confidential Information has otherwise
become publicly available (other than by reason of Director 's breach of this
Agreement or under any other obligations owed by him to the Company ), where
Director receives information through a third party who Director does not
reasonably know to have breached a confidentiality obligation to the Company,
where required by law, or where permitted by agreement of the parties;
(iii) he is acquiring the options under this Agreement for his own
account for investment; he acknowledges that it is able to bear the financial
risks associated with an investment in the options under this Agreement; he is
an "accredited investor" as that term is defined in Regulation D promulgated
under the U.S. Securities Act of 1933, as amended; and he is capable of
evaluating the risks and the merits of the investment in the options by virtue
of his experience as an investor and his knowledge, experience and
sophistication in the financial and business matters and is capable of bearing
the entire loss of the investment in the options.
7. Disclosure of Information. The Director acknowledges that during
the course of his involvement in the Company 's activities or otherwise, it and
its representatives will obtain or have access to confidential information
concerning the Company 's businesses, strategies, operations, financial affairs,
organizational and personnel matters, policies, procedures and other non-public
matters, or concerning those of third parties, including Intellectual Property
(as defined below). Such information ("Confidential Information") may be
provided in written or electronic form or orally. In consideration of, and as a
condition to, access to Confidential Information, and without prejudice to or
limitation of any other confidentiality obligations imposed by agreement or by
law, the Director hereby undertakes to use and protect Confidential Information
in accordance with any restrictions placed on its use or disclosure. Without
limiting the foregoing, except as authorized by the Company , as required by
law, to the extent that such information has otherwise become publicly available
(other than by reason of its default under this Agreement or under any other
obligation owed by it to the Company ) or where Director receives information
through a third party who Director does not reasonable know to have breached a
confidentiality obligation to the Company, the Director may not disclose or
allow disclosure of any Confidential Information, or of any information derived
therefrom, in whatever form without the prior consent of the Company. The
foregoing obligations will survive, and remain binding and enforceable during
the term of this agreement Period and for a period of two (2) years after the
Expiration Date or the Termination Date (as each is defined below)
notwithstanding any termination of the Director 's service with the Company and
any settlement of the financial rights and obligations arising from its service
with the Company . Upon the earlier of the after the expiration of this
Consultation Agreement, pursuant to section 2 above, or the termination of this
Agreement, pursuant to Section 8 below, the Director agrees to return any and
all Confidential Information received during the term of this agreement.
"Intellectual Property" includes, but is not limited to, client lists,
customer lists, strategies and methods, techniques, computer technology,
technological research, software programs, vendors, lists, corporate financial
information, customer and trader accounts' financial information and business
affiliate lists.
8. Termination. Each party shall have the right to terminate this
Agreement at any time and for any reason upon one (1) month prior Notice (as
defined below) given to the other party. Termination under this Section shall
not relieve the parties of their obligations under Sections 4, 6(ii) and 7 of
this Agreement which shall each survive termination of this Agreement. Upon
termination, all options under this agreement shall remain exercisable in
accordance with the terms of Appendix A for remainder or term.
9. Indemnification & Insurance Coverage
9.1 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 the Director, in his capacity as Director,
commencing on the appointment of Director as a Director of the company.
9.2 Director is not and shall not be liable to the Company for any
losses, claims, damages or liabilities arising from his appointment as Director
and/or any action and/or failure to act in his capacity as Director or from any
act oromission performed or omitted by Director, except for any losses,
claims, damages or liabilities primarily attributable to such Director's fraud,
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
9.3 The Company, to the fullest extent permitted by applicable
law, indemnifies and holds Director 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 the
Director may become subject (i) by reason of having been a Director 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 Director's fraud, gross negligence or willful
misconduct. If Director becomes involved in any capacity in any action,
proceeding or investigation by reason of being or having been a Director or in
connection with any matter arising out of or in connection with this Agreement,
the Company will periodically reimburse the Director for its legal or other
expenses( including the cost of any investigation and preparation) incurred in
connection therewith; provided that Director promptly repays to the Company the
amount of any such reimbursed expenses paid to it to the extent that it is
ultimately determined that Director 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
Director) the foregoing indemnification is unavailable to Director, 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 the Directors 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 the Director 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.
10. Miscellaneous. This Agreement sets forth the parties' final and
entire agreement, and supersedes any and all prior understandings, with respect
to its subject matter. The headings in this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement. No
failure or delay by either party in exercising any right, option, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof, or the
exercise of any other right, option, power or privilege. This Agreement can be
changed, waived or terminated only by a writing signed by both the Director and
the Company.
11. Assignment. This Agreement may not be assigned in whole or in part
by the Director . This Agreement shall be assignable by the Company to any of
its subsidiaries or affiliates and may be reassigned by such subsidiary or
affiliate to the Company; provided that each such assignee shall agree in
writing to assume all obligations of the Company hereunder, and provided further
that no assignment shall be made without the prior consent of both parties.
This Agree-ment shall inure to the benefit and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, legatees and permitted assignees of the parties hereto.
11. Notices. Any payment, notice or other written communication (a
"Notice") may be given by facsimile, first class mail, postage pre-paid or by
courier to the mailing address or facsimile numbers set forth above, or to such
other addresses or facsimile numbers as either party may designate by notice,
similarly given to the other party. Notices shall be deemed to have been
sufficiently made or given: (i) fourteen (14) days after being dispatched by
mail, postage pre-paid, (ii) seven (7) days after delivery to an air courier
company or (iii) within five (5) days of the receipt of a facsimile transmission
confirmation sheet.
12. Governing Law. This Agreement shall be governed by, and construed
under and in accordance with, the laws of the State of New York, without
reference to principles relating to conflicts of laws.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
NET2WIRELESS CORPORATION
By: /s/
Name: Xxxxxxxx Xxxxxxxx
Title: CEO
/s/
Xxxxx Xxxxxx
