SWISSINSO HOLDING INC. OUTSIDE DIRECTORS’ AGREEMENT
Exhibit 10.17
THIS OUTSIDE DIRECTORS’
AGREEMENT (the “Agreement”) is executed and entered into effective as of
_____________, 2009 (the “Effective Date”) by and between SwissINSO Holding
Inc., a Delaware corporation with offices at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Company”), and _________________, an
individual with offices at _______________________________ (the
“Director”).
WHEREAS,
the Company has requested that Director serve on its Board of Directors as an
independent director;
WHEREAS,
in order to induce Director to serve on the Board, the Company has agreed to pay
Director the compensation set forth below and to obligate itself contractually
to indemnify Director to the fullest extent permitted by applicable law;
and
WHEREAS,
Director has agreed to serve on the Board in consideration of the
foregoing.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Director hereby covenant and agree as follows:
1. Service
By Director; Duties; Fiduciary Duty. Director agrees to serve
as a member of the Board of Directors of the Company (the “Board”) during the
term of this Agreement (the “Term”). Notwithstanding the foregoing,
Director may at any time and for any reason resign as a member of the Board,
subject to the provisions of this Agreement and any contractual or other
obligation imposed by operation of law. As an independent member of
the Board, Director shall use his best efforts to perform the duties commonly
incident to the office, including, without limitation, attending or otherwise
participating in all regular and special meetings of the Board; reviewing the
performance of the officers of the Company; making himself reasonably available
for consultation with the officers of the Company immediately before and after
Board meetings, as needed; advising the Company in development and
implementation of its strategic development and business plans; assisting the
Company in the development of its capitalization plan; and doing all other
things reasonably requested by the Board in order to advance the business and
economic interests of the Company and its shareholders. Director
acknowledges and agrees that, in his capacity as a member of the Board, he has a
fiduciary duty to the Company and its shareholders. Accordingly,
Director agrees to use his best efforts to refrain from and avoid any action or
activity that would constitute or be likely to create a conflict of interest
with respect to his duties to the Company or a breach of his fiduciary duty to
the Company and its shareholders. Director further covenants and
agrees to use his best efforts to comply with and abide by all policies,
procedures, guidelines and governing principles as may be adopted by the Board
from time to time, to serve the Company faithfully and to the best of his
ability and to devote that amount of time, attention and effort to the Company
which is reasonably necessary in order to satisfy the requirements of the
Board.
2. Term. This
Agreement shall be effective as of the Effective Date and shall continue for a
period of one (1) year thereafter (the “Term”), terminating on the first
anniversary of the Effective Date (the “Termination Date”). This
Agreement will terminate automatically without the necessity of further notice
or action of any kind upon the Termination Date, or earlier upon Director’s
resignation or removal from the Board for any reason. Following the
expiration of the Term, Director may be elected to serve on the Board for
additional terms, subject to the approval of the shareholders of the Company,
and in such event, it is anticipated that the Company will enter into a new
agreement with Director.
3. Director’s
Fee; Options; Expenses. The Company shall pay Director an
annual director’s fee in the amount of $24,000, payable in
equal monthly installments in advance on or before the first day of each month
throughout the Term. The Company shall also grant to Director a
non-qualified stock option (the “Option”) under a Stock Incentive Plan to be
adopted by the Company to purchase 300,000 shares (the “Option Shares”) of the
Company’s common stock (the “Common Stock”) at an exercise price equal to the
closing selling price of the Common Stock on the date of grant. The
terms and conditions of the Option shall be set forth in a separate Stock Option
Agreement to be provided by the Company. The Option Shares shall vest
as follows: 100,000 shares on the date of grant, 66,667 shares on the first
anniversary of the date of grant, 66,667 shares on the second anniversary of the
date of grant and 66,666 shares on the third anniversary of the date of grant,
assuming that Director is still a member of the Board on each of such
dates. The Company will also reimburse Director promptly for all
reasonable, pre-approved business expenses reasonably incurred by Director in
the pursuit and furtherance of the Company’s business. Such expenses
shall be reimbursed only upon presentation to the Company of appropriate
documentation substantiating such expense.
4. Protection
of Company Property. Director recognizes and acknowledges that
he will have access to Confidential Information (as defined below) relating to
the business of the Company or of persons with whom the Company may have
business relationships. Except as permitted herein or as may be
approved by the Company from time to time, Director will not, during the Term or
at any time thereafter, use, disclose or permit to be known by any other person
or entity any Confidential Information of the Company (except as required by
applicable law or in connection with the performance of Director’s duties and
responsibilities hereunder). If Director is requested or becomes
legally compelled to disclose any of the Confidential Information, he will give
prompt notice of such request or legal compulsion to the Company. The
term “Confidential Information” means information relating to the Company’s
business affairs, proprietary technology, trade secrets, patented processes,
research and development data, know-how, market studies and forecasts,
competitive analyses, pricing policies, vendor and supplier lists, employee
lists, employment agreements (other than this Agreement), personnel policies,
the substance of agreements with customers, suppliers and others, marketing
arrangements, customer lists, commercial arrangements, or any other information
relating to the Company’s business that is not generally known to the public or
to actual or potential competitors of the Company (other than through a breach
of this Agreement). This obligation shall continue until such
Confidential Information becomes publicly available, other than pursuant to a
breach of this Section 4 by Director, regardless of whether Director continues
to be employed by the Company.
5. Indemnification;
D&O Insurance. The Company shall indemnify Director to the
fullest extent permitted under, and otherwise in accordance with the provisions
of, Section 145 of the General Corporation Law of the State of Delaware in
effect on the Effective Date or as such laws may from time to time be
amended. The Company shall at all times during the Term of this
Agreement maintain a standard policy of D&O insurance covering the actions
of the Board, including those of Director, on behalf of the Company, in an
amount to be determined by the Board.
6. General
Provisions.
6.1 Modification
and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
6.2 Severability. If
any provision of this Agreement (or any portion thereof) is held to be invalid,
illegal or unenforceable for any reason whatever, such provision shall be
limited or modified in its application to the minimum extent necessary to avoid
the invalidity, illegality or unenforceability of such provision, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby and to the fullest extent
possible, the provisions of this Agreement shall be construed so as to give
effect to the intent manifested by the provision (or portion thereof) held
invalid, illegal or unenforceable.
6.3 Notices. Any
notice or other communication in connection with this Agreement may be made and
is deemed to be given as follows: (i) if in writing and delivered in person or
by courier, on the date when it is delivered; or (ii) if sent by certified or
registered mail or the equivalent (return receipt requested), on the date such
mail is delivered. Any such notice or communication given pursuant to
this section shall be addressed to the intended recipient at its or
his address (which may be changed by either party at any time)
specified at the beginning of this Agreement.
6.4 Governing
Law; Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
conflicts of law principles thereof. Venue for any suit or action to
enforce or interpret this Agreement shall lie exclusively in the State and
Federal courts of Delaware.
6.5 Attorney
Fees. If any suit or action is instituted to enforce or
interpret this Agreement, the prevailing party shall be entitled, in addition to
the cost of disbursements otherwise allowed by law, such sum as the court or
arbitrator may adjudge reasonable attorneys’ fees in such suit or
action.
6.6 Entire
Agreement. This Agreement constitutes the entire agreement of
the parties as it relates to the subject matter hereof and hereby supersedes all
other agreements and understandings of the parties relating to the subject
matter hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
By:______________________________
Xxxx
Xxxxxxxx
Chief
Executive Officer
DIRECTOR
__________________________________
