PERSONAL EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 2nd day of
September, 2000, by and between Net2Wireless Israel Ltd. a corporation organized
and existing under the laws of the state of Israel (the "Company"), and Xxxxxxxx
Xxxxxxxx (I.D. No. 057175945) (the "Executive").
WHEREAS the Company wishes to employ the Executive, and the Executive agrees to
be employed by the Company; and
WHEREAS the parties wish to regulate their relationship in accordance with the
terms and conditions set forth in this employment agreement;
NOW, THEREFORE, in consideration of the mutual premises, covenants and other
agreements contained herein, the parties hereby agree as follows:
1. The Position
1.1. The Company hereby employs the Executive and the Executive hereby
agrees to be employed by the Company in the position of the president of the
Company (the "President") and if so required by the Company's Board of
Directors, as a chief executive officer (a "CEO") of Net2Wireless Corporation
("Net2Wireless Corporation"). The foregoing shall not derogate from the
Company's right to determine that the Executive shall serve in any other
position in the Company and/or in Net2Wireless Corporation, as shall be mutually
agreed upon by the Executive and the Company. The Executive shall carry his
office faithfully and devotedly, in accordance with the objectives of the
Company, as they are defined by the Company's Board of Directors, from time to
time.
1.2. It is hereby acknowledged and agreed that the position of the
Executive in the Company is a senior one and/or requires a special degree of
trust and/or is one in which working hours cannot be supervised; accordingly,
the provisions of The Work and Rest Hours Law, 1951 (the "Rest Hours Law"), and
the regulations promulgated hereunder, concerning separate and/or additional pay
for overtime or for working weekends or on national holidays, shall not apply to
this Agreement and to the Executive's employment hereunder.
1.3. The Executive acknowledges and agrees that the compensation provided
for in Section 3 of this Agreement constitutes proper, fair and just
remuneration for the requirements and responsibilities of the Executive's
position and his obligation to work at irregular hours.
1.4. The Executive acknowledges and agrees that the Salary (as hereinafter
defined) has been determined in such a manner as to include any and all payments
to which he is entitled for his employment hereunder, including payments to
which the Executive would have otherwise been entitled had The Rest Hours Law
been applicable to the Executive's employment hereunder, and the Executive shall
not be entitled to any additional bonus, payment or other compensation, other
than as provided herein, for working more than forty-three (43) hours per week.
In the event that the Executive, at any time, requests any additional
compensation from the Company in respect of his Employment hereunder under the
provisions of the Rest Hours Law, the Salary shall then retroactively be reduced
by the amount so claimed by the Executive so that all monthly payments payable
to the Executive as of that date shall not exceed the Salary.
2. Executive's Duties
2.1. During the Executive's employment with the Company, the Executive
shall have the authority, functions, duties and responsibilities normally
associated with such position and as from time to time may be prescribed by the
Board of Directors.
2.2. During the term of this Agreement, the Executive shall perform and
discharge well and faithfully his office and obligations under his position with
the Company and/or Net2Wireless Corporation and all duties that may be assigned
to him by the Company from time to time in accordance with this Agreement, and
shall report to the Board of Directors.
2.3. The Executive hereby undertakes to comply with all of the Company's
disciplinary regulations, work rules, policies, procedures and objectives, as
may be issued by the Company from time to time.
2.4. The Executive is aware that, in the course of carrying out his duties
hereunder, he will be required from time to time to travel abroad, and he
undertakes to do so.
2.5. The Executive shall devote his entire working time, energy, talent,
working knowledge, experience, and best efforts to the business and affairs of
the Company and to the performance of his duties hereunder.
2.6. The Executive shall not assume any employment obligations unrelated to
the Company and/or Net2Wireless Corporation (and/or any subsidiary thereof) and
shall not be retained as a consultant or advisor or contractor (whether or not
compensated therefor) to any other business without the prior written consent of
the Company's Board of Directors.
2.7. Notwithstanding anything contained in this Agreement to the contrary,
the parties hereto agree that the Executive shall be entitled to serve as a
non-executive Director on the Board of Directors of other companies provided
such companies do not compete with the Company, Net2Wireless Corporation and
their subsidiaries or affiliates.
3. Compensation
3.1. The Company shall pay the Executive a monthly gross salary of NIS
165,448 (one hundred sixty five thousand four hundred forty eight New Israeli
Shekels) (hereinafter the "Salary").
3.2. The Salary shall be payable on the first (1st) day of the
consecutive calendar month following the calendar month of employment to which
the payment relates.
3.3. Unless otherwise agreed upon between the parties the Salary will
increase each year in the rate of 10% (ten percent).
3.4. The Salary shall be adjusted on a monthly basis according to the Cost
of Living Index increase or the change in the exchange representative rate of
the United States Dollar against the New Israeli Shekel, whichever is higher,
but in no event shall the Salary be less than the Salary 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 exchange of the US Dollar last
known on September 01, 2000, as the case may be.
3.5. Israeli income tax and other applicable withholdings with respect to
the Salary and/or all other payments to the Executive hereunder, shall be
deducted by the Company at source from the Salary and/or all other such
payments, which are subject to withholding.
3.6. The Salary and/or any adjustments thereto may be payable by the Company
or by Net2Wireless Corporation or a subsidiary or another affiliate of the
Company, at the Company's discretion.
3.7. The Salary shall serve as the basis for deductions and contributions
for all fringe benefits, including managers' insurance policy and advanced study
fund (keren hishtalmut), and for the calculation of all social benefits.
3.8. Bonus. If at the end of any fiscal year during the Initial Term and/or
any of the Renewal Terms (each, as hereinafter defined) Net2Wireless
Corporation's consolidated post tax profit will be higher than $0, the Executive
will be entitled to a bonus equal to 2.5% of Net2Wireless Corporation's
consolidated post tax profit (the "Bonus"). Each year the Company will pay the
Bonus, if any, to the Executive within 30 day from the date Net2Wireless
Corporation publishes its annual financial reports.
4. Social and Fringe benefits
4.1. Managers' Insurance
Unless specified otherwise, during the term of the Executive's employment
hereunder:
4.1.1. The Company shall contribute an aggregate monthly amount equal
to 13.33% of the Salary as premium on a Managers' Insurance (Bituach Menahalim)
policy (the "Managers' Insurance Policy") acceptable to the Executive, which
contributions shall be allocated as follows: 8.33% towards Severance pay (the
"Company's Severance Contribution Component") and 5% towards compensatory
payments. In addition, the Executive shall contribute, and for that purpose he
hereby irrevocably authorizes and instructs the Company to deduct from his
Salary at source, an aggregate monthly amount equal to 5% of the Salary to such
Managers' Insurance Policy as the Executive's premium in respect of the
compensation component of that Managers' Insurance Policy. Subject to Section
4.1.4 below, the Company shall be the owner of all rights in such manager's
insurance policies, and the Executive shall be the beneficiary thereof.
4.1.2. In addition, the Company shall contribute an aggregate monthly
amount equal to up to 2.5% of the Salary as premiums on a disability insurance
policy.
4.1.3. The Company will bear any and all taxes applicable to the Executive
in connection with amounts paid by the Executive and/or the Company to the
Managers' Insurance Policy and/or said disability insurance policy under this
Section 4.1, including such amounts which exceed the amounts exempted from tax
under the income tax regulations applicable to payments to Managers' Insurance
Policy.
4.1.4. Upon termination of the Executive's employment hereunder, for any
reason whatsoever other than Termination for Cause (as hereinafter defined in
Section 11 below), the Company shall transfer the ownership of the Managers'
Insurance Policy to the Executive, in accordance with the terms stipulated
therein, provided, however, that in the event of Termination for Cause, then,
without derogating from any right of the Company under any applicable law, the
Executive shall not be entitled to, and the Company shall not transfer to the
Executive the ownership in the Company's Severance Contribution Component and
any proceeds in respect thereof and/or any severance pay to which the Executive
may otherwise be entitled under any applicable law.
4.2. Advanced Study Fund
4.2.1. The Company shall contribute an aggregate monthly amount equal
to 7.5% of the Salary towards an advanced study fund (Keren Hishtalmut) (the
"Advanced Study Fund").
4.2.2. The Executive shall contribute, and for that purpose he hereby
irrevocably authorizes and instructs the Company to deduct from his Salary at
source, an aggregate monthly amount equal to 2.5% of the Salary as the
Executive's participation in such Advanced Study Fund.
4.2.3. The Company will bear any and all taxes applicable to the
Executive in connection with amounts payable by the Executive and/or the Company
to the Advanced Study Fund under this Section 4.2, including such amounts which
exceed the amounts exempted from tax under the income tax regulations applicable
to payments to Advanced Study Fund.
4.3. Recreation Pay (Dmey Havra'ah)
The Executive shall be entitled to annual recreation pay (Dmey Havra'ah) in
an amount to be determined in accordance with Israeli regulations as in effect
from time to time with respect to such pay.
4.4. Company Car
4.4.1. The Company shall provide the Executive with a Company car (the
"Company Car") to be placed at the Executive's disposal, for his business and
personal use and for the use of the members of his immediate family (i.e. the
Executive's parents, children, spouse and/or sibling), provided that the
Company's procedures in respect thereof are followed. Such Company Car shall be
of a make and size customarily provided to executives in positions similar to
that of the Executive by companies in a stage of development similar to that of
the Company.
4.4.2. The Company shall bear the fixed and ongoing expenses relating
to the Company Car and to the use and maintenance thereof, excluding those
arising due to violations of law, and subject to income tax regulations and the
provisions of any applicable law.
4.4.3. The Executive shall bear and pay all expenses relating to any
violation of law by the Executive and/or by any said member of his immediate
family while using the Company Car.
4.4.4. The Executive shall take good care of such Company Car and ensure
that the provisions of the insurance policy and the Company's rules relating to
the Company Car are strictly, lawfully and carefully observed and that the
Company Car is properly maintained.
4.4.5. Following the termination of the Executive's employment with the
Company and upon the Company's first request, the Executive shall return the
Company Car (together with its keys and any other equipment supplied and/or
installed therein by the Company) to the Company's principal office. The
Executive shall not have any rights of lien with respect to the Company Car
and/or any of said other equipment.
4.4.6. The value of the monthly use of the Company Car shall be added to the
Salary, in accordance with the income tax regulations applicable thereto, as
straightforward income, and the Company shall bear any and all taxes applicable
to Executive in connection with said Company Car and the use thereof.
4.5. Vacation
4.5.1. The Executive shall be entitled to paid annual leave of 25
(twenty five) working days per each 12 (twelve) month period of the Executive's
employment hereunder.
4.5.2. Each such leave shall be coordinated with the Company and taken
with adequate regard for the needs of the Company.
4.5.3. Any leave days remaining unused at the end of any 12 (twelve) months
period may redeemable by the Company and/or accrued for use only during the next
succeeding 12 (twelve) month period of the Executive's employment hereunder,
after which period the right to use or redeem the same shall expire.
4.6. Sick Leave
The Executive shall be entitled to sick leave in accordance with the
provisions of the Sickness Pay Law, 1976.
5. Options
In light of the Executive's material contribution to the Company's and
Net2Wireless Corporation's business activities:
5.1. The Executive is hereby granted, for no additional cost, options
(the "Options") to purchase up to 1,200,000 (one million two hundred thousand)
shares of Common Stock of Net2Wireless Corporation (the "Option Shares"), at a
price per share of US$32.00 each (the "Exercise Price"), subject to the vesting
schedule set forth in Section 5.1.1 below.
5.1.1. The Options shall vest over a period of 2 (two) years according
to the following vesting schedule:
(i) 400,000 (four hundred thousand) Option Shares shall vest on the
date hereof;
(ii) Additional 400,000 (four hundred thousand) Option Shares shall
vest on the first anniversary of the date hereof;
(iii) Additional 400,000 (four hundred thousand) Option Shares shall vest on
the second anniversary of the date hereof;
5.1.2. The Option Shares shall be exercisable for a period of 10 (ten)
years commencing on the respective vesting date of each portion of the Option
Shares (the "Option Period").
5.1.3. Upon termination of employment for any reason other than
Termination for Cause, the Executive shall be entitled to exercise any or all
Option Shares which shall have become vested within 90 (ninety) days of the
effective date of termination and to the extent that he has not so exercised
said vested Option Shares they shall terminate upon the expiration of said 90
(ninety) day period.
5.2. In addition to the foregoing, in the event that the Market
Valuation (as specified hereunder) of Net2Wireless Corporation shall increase by
one billion US Dollars or more following the closing of the Merger, then, the
Executive shall be granted additional options immediately vested (the
"Additional Options") to purchase 180,000 (one hundred eighty thousand)
additional shares of Common Stock of Net2Wireless Corporation (the "Additional
Option Shares") for each increase of one billion US Dollars in the Market
Valuation (which shall be attributed to the Surviving Entity (as defined below)
following the Merger (as defined below)), provided the number of Additional
Option Shares shall not exceed 1,800,000 (one million eight hundred thousand) in
the aggregate. The exercise price per share shall equal the Fair Market Value
(as defined in section 5.4 hereunder) of such Additional Option Shares at the
date of grant. The Additional Option Shares shall be exercisable for a period of
10 (ten) years commencing on the date of each grant pursuant to this Section 5.2
(the "Additional Option Period").
5.3. Notwithstanding anything contained herein to the contrary, in the
event that the entity surviving the transaction (the "Merger") contemplated by
the agreement signed by Net2Wireless Corporation and Sensar Corporation as of
December 8, 1999, as amended, (the "Surviving Entity") shall merge with or into
any other unaffiliated entity (other than a merger in which the Surviving Entity
is the surviving corporation) all Option Shares and Additional Option Shares,
whether or not vested, shall vest immediately in their entirety upon the
consummation of the said merger and shall become exercisable. Executive will be
entitled to exercise all such vested Option Shares and Additional Option Shares
within 90 (ninety) days of receipt of notice from the Surviving Entity of the
consummation of such transactions. All Option Shares and Additional Option
Shares not so exercised within said time period shall expire.
5.4. The number of Option Shares and Additional Option Shares issuable
upon the exercise of the Option and the Additional Option and the exercise price
thereof shall be subject to adjustment in the event of a distribution of bonus
shares by Net2Wireless Corporation or the Surviving Entity, as the case may be,
or in the event of a consolidation or subdivision of Net2Wireless Corporation or
the Surviving Entity's share capital prior to the end of the Option Period
and/or the Additional Option Period (as applicable). The Option Shares and the
Additional Option Shares may be exercised by written notice delivered to
Net2Wireless Corporation or the Surviving Entity, as the case may be, setting
forth the number of Options and/or Additional Options being so exercised
together with payment of the exercise price therefor in cash by way of a wire
transfer of immediately available funds to Net2Wireless Corporation or the
Surviving Entity's account, as the case may be, upon a 7 (seven) day prior
written notice to Net2Wireless Corporation or the Surviving Entity (the
"Exercise Date").
5.5. For the purpose of this Section 5 the term "Fair Market Value"
shall mean:
(i) If the Common Stock or Options are listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the NASDAQ National Market or the NASDAQ Small Cap Market, the
Fair Market Value shall be the average of the last reported sale prices or the
average of the means of the last reported bid and asked prices, respectively of
Common Stock or Options, respectively, on such exchange or market for the 20
(twenty) business days ending on the last business day prior to the Exercise
Date; or
(ii) If the Common Stock are not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the Fair Market Value
shall be as determined in good faith by the Board of Directors of Net2Wireless
Corporation or the Surviving Entity, as the case may be.
6. Confidentiality
6.1. The Executive 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 the business of the
Company, Net2Wireless Corporation and/or any of their subsidiaries, that the
Executive has acquired during his employment under this Agreement, or in
consequence of his employment, or related to his employment under this
Agreement, without the prior written consent of the Company, Net2Wireless
Corporation and/or any of their subsidiaries, as the case may be.
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, suppliers,
finances, and any other data related to the business or affairs of the Company,
Net2Wireless Corporation and/or any of their subsidiaries, as the case may be.
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: 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 Executive; (ii) rightfully obtained by the Executive from a
third party not under any obligation of confidentiality to the Company,
Net2Wireless Corporation and/or any of their subsidiaries, as the case may be;
(iii) provided by the Company, Net2Wireless Corporation and/or any of their
subsidiaries, as the case may be, to a third party not under any obligation of
confidentiality; (iv) approved for release by written authorization of the
Company, Net2Wireless Corporation and/or any of their subsidiaries, as the case
may be; or (v) disclosed pursuant to the requirement of any governmental agency,
court, or by operation of law, provided the Company has been furnished with a
prior written notice with respect to such disclosure .
6.2. All documents and/or other tangible form of information,
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 Executive's possession or prepared by the Executive in
connection with his employment under this Agreement are the exclusive property
of the Company. The Executive agrees to return to the Company all such documents
and information upon termination of this Agreement unless specific written
consent is obtained from the Company to release any such records.
7. Ownership Rights
7.1. Any and all rights, titles and interests in and to all inventions,
improvements, mask works, discoveries or works, whether or not capable of being
patented or copyrighted, which the Executive may conceive, make, develop,
author, or work on, in whole or in part, independently or jointly with others in
consequence of his employment with the Company or related in any way to the
Company's Business (hereinafter "Proprietary Information") will be vested in the
Company exclusively, and the Executive shall not be entitled to any further
right, compensation or reward in connection therewith, other than as
specifically set forth in this Agreement.
7.2. Without additional Salary or consideration, (i) the Executive
hereby assigns and will in the future assign to the Company, and acknowledges
and will in the future acknowledge the Company's full and exclusive ownership of
the Proprietary Information, and (ii) the Executive shall assist the Company to
obtain any legal protection on all such Proprietary Information, and shall,
before or after termination of this Agreement, execute all documents and make
all other action legally necessary to vest the Company with full and exclusive
title to such Proprietary Information and to protect the same against
infringement by others.
7.3. The Executive will not transfer any Proprietary Information to any
third party without prior written consent of the Company, which consent shall
not be withheld save for reasonable arguments.
8. Non-Competition and Non-Solicitation
8.1. The Executive hereby covenants with the Company that, throughout
the term of this Agreement and thereafter during a period of 12 (twelve) months
following the effective date of termination of his employment howsoever arising,
he will not, without the prior written consent of the Company and/or
Net2Wireless Corporation (as applicable), engage, directly or indirectly, in any
capacity whatsoever, whether independently or as an Executive, consultant or
otherwise, through any corporate body or with or through others, in any activity
competing, directly or indirectly, with the activities of the Company and/or
Net2Wireless Corporation and/or any of their subsidiaries or affiliates, as the
same shall exist from time to time during the term of this Agreement and
thereafter as shall exist at the effective date of termination of his employment
hereunder.
8.2. The Executive hereby further covenants with the Company that he
will not, at any time during the continuance of this Agreement and for a period
of twelve (12) months following the effective date of termination hereof,
whether on his own account or for others, and whether directly or indirectly, in
any way offer, solicit, interfere with or endeavor to entice away from the
Company, Net2Wireless Corporation and/or any of their subsidiaries or
affiliates, any person, firm or company with whom the Company, Net2Wireless
Corporation and/or any of their subsidiaries or affiliates shall have any
contractual or commercial relationship as an Executive, consultant, licenser,
joint venture, supplier, customer, distributor, agent or other contractor of
whatsoever nature, existing or under negotiation on or prior to the effective
date of termination of the Executive's employment hereunder.
9. Indemnification & Insurance Coverage
9.1. Throughout the term of the Agreement and for a period of six (6)
years thereafter, the Company will maintain an Officers and Directors Insurance
policy for the Executive, 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 Executive, in his capacity as Director and/or
CEO of Net2Wireless Corporation and any subsidiary of the Net2Wirless
Corporation, commencing on the appointment of the Executive as a Director and/or
CEO of Net2Wireless Corporation.
9.2. The Executive is not and shall not be liable toward the Company
for any losses, claims, damages or liabilities arising from his appointment as
Director and/or CEO of Net2Wireless Corporation and/or any action and/or
failure to act in his capacity as such or from any act or omission performed or
omitted by the Executive, except for any losses, claims, damages or liabilities
primarily attributable to the Executive's fraud, gross negligence or willful
misconduct as finally and irreversibly determined by a court of competent
jurisdiction.
9.3. The Company, to the fullest extent permitted by applicable law, shall
indemnify and hold the Executive 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
Executive may become subject (i) by reason of being and/or having been a
Director and/or CEO of Net2Wireless Corporation, and/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 the Executive's
fraud, gross negligence or willful misconduct. If the Executive becomes
involved, in any capacity, in any action, proceeding or investigation by reason
of being and/or having been a Director and/or CEO of Net2Wireless Corporation or
in connection with any matter arising out of or in connection with this
Agreement, the Company will periodically reimburse the Executive for its legal
or other expenses (including the cost of any investigation and preparation)
incurred in connection therewith; provided that the Executive promptly repays to
the Company the amount of any such reimbursed expenses paid to it to the extent
that it is ultimately determined that the Executive is not entitled to be
indemnified by the Company in connection therewith. If, for any reason (other
than the fraud, gross negligence or willful misconduct of Director and/or CEO),
the foregoing indemnification is unavailable to the Executive, or is
insufficient to hold it harmless, then the Company shall be obliged, to the
fullest extent permitted by law, to contribute to the amount paid or payable by
the Executive 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 the Executive 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. Term of Agreement
10.1. The initial term of this Agreement shall be 3 (three) years
commencing on August 01, 2000 (the "Commencement Date of Employment"), unless
otherwise agreed upon in writing between the Company and the Executive
(hereafter "Initial Term"), subject to the provisions for termination as set
forth in Section 11 herein below.
10.2. The Initial Term, will be automatically renewed for an additional
consecutive periods of 2 (two) years each (each, a "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 11
herein below.
11. Termination; Effect of Termination
11.1. For the purpose of this Section 11 "Notice Period" shall mean at
least 12 (twelve) months prior written notice, of the intention to terminate the
Agreement.
11.2. Each of the Company and the Executive shall have the right to
terminate the Executive's employment hereunder at any time subject to the terms
of the Notice Period as stipulated in Section 11.1 above.
11.3. During the Notice Period, the Executive shall continue his
employment with the Company in accordance with the terms and provisions of this
Agreement if the Company requires him to do so, and will continue to discharge
his office and cooperate with his replacement unless the Company terminates this
Agreement prior to the end of the Notice Period. During the Notice Period,
whether the Company requires the Executive to continue his employment or not,
the Company will continue to pay the Executive all payments and honor all the
commitments owed to the Executive in accordance with this Agreement.
11.4. In the event the Company terminates the Agreement prior to December
31, 2003, other than a Termination for Cause, the Company will pay the Executive
an amount equal to the Salary multiplied by the number of calendar months from
the effective date of said termination until December 31, 2003. As used herein,
the term "Termination for Cause" means a termination of the Executive's
employment in the event the Executive is found guilty in a final and
irreversible verdict of a competent court, of (i) a dishonorable criminal
offense made towards the Company; (ii) a breach of his duties of trust or
loyalty to the Company; and/or (iii) a deliberate cause of harm to the Company's
business affairs.
12. Representations and Warranties
The Executive represents and warrants to the Company as follows:
12.1. As of the Commencement Date of Employment the Executive will be
free to be employed by the Company and by Net2Wireless Corporation upon the
terms contained in this Agreement and, subject to the execution hereof, there
are no employment contracts, consulting contracts or restrictive covenants
preventing full performance of the Executive's duties and obligations hereunder
to the Company and to Net2Wireless Corporation.
12.2. The Executive will not use, during the course of his employment
with the Company, any trade secrets or proprietary information in such a manner
that may breach any confidentiality and/or other obligation the Executive may
have with any former employer(s).
12.3. The Executive hereby confirms that, at the date hereof, the Executive
is not engaged in any affairs and/or matters that might entail a conflict of
interest with the Executive's employment and/or position with the Company and/or
with Net2Wireless Corporation, and should there be, or insofar as there might
be, the same, the Executive shall immediately and without delay inform the
Company or Net2Wireless Corporation (as applicable) of same.
13. General Provisions
13.1. The Company shall withhold, or charge the Executive with, all
taxes and other compulsory payments as required under law in respect of all
benefits of his employment hereunder.
13.2. The parties acknowledge that no adequate remedy at law exists in
which to enforce the terms and conditions of this Agreement. Therefore, in the
event the Executive breaches the confidentiality, non-compete, non-solicitation
and/or assignment of inventions provisions of this Agreement, the Company shall
be entitled to seek, in any court of competent jurisdiction and in addition to
all other remedies, temporary or permanent injunctive relief against the
Executive (including the issuance of a mandatory injunction) prohibiting the
continuing breach of the Agreement, without showing any actual damage, and/or a
decree for specific performance in connection with any breach of any obligation
or undertaking hereunder.
13.3. The Company's failure or delay in enforcing any of the provisions of
this Agreement shall not, in any way, be construed as a waiver of any such
provisions, or prevent the Company thereafter from enforcing each and every
other provision of this Agreement which were previously not enforced.
13.4. Any notice to be given to the Company under this Agreement shall be
addressed to the Company at the offices of the Company. Any notice to the
Executive shall be addressed to his home address at 00/0 Xxxxxx Xxxxxx, Xxxx
Xxxxxx, Xxxxxx. Either party hereto may designate a different address by a
written notice to the other party pursuant to this Section 13.4. Each notice
and/or demand given by one party to the other in connection with this Agreement,
shall be in writing and shall be either delivered by hand or sent by registered
mail or transmitted by facsimile to the other party at the address stated in
this Section 13.4 or as otherwise notified pursuant to this Section 13.4, and
such notice and/or demand shall be deemed given at the expiration of 72 (seventy
two) hours from the date of mailing by registered mail in Israel or immediately
if delivered by hand or on the date transmitted by facsimile upon transmission
and electronic confirmation of receipt or (if transmitted and received on a
non-business day) on the first business day following transmission and
electronic confirmation of receipt.
13.5. This Agreement shall be interpreted and construed in accordance with
the laws of the State of Israel. The parties submit to the exclusive
jurisdiction of the competent courts of Tel-Aviv-Jaffa in any dispute related
to this Agreement.
13.6. Captions and paragraph headings used in this Agreement are for
convenience only and shall not be used for the interpretation thereof.
13.7. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof, supersedes all prior agreements and
understandings between the parties hereto with respect thereto and is intended,
to the extent allowed under the Israeli law, to override any statutory
provisions related to the employment of the Executive by the Company.
13.8. This Agreement shall not be amended, modified or varied by any oral
agreement or representation other than by a written instrument executed by both
parties or their duly authorized representatives.
13.9. The provisions of this Agreement shall, where possible, be interpreted
in a manner necessary to sustain their legality and enforceability. Without
derogating from the foregoing, in the event that any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect due to the fact that it is over-broad or
insufficiently limited in time, the parties hereby authorize, to the maximum
extent legally permissible, the tribunal interpreting such provision(s) to
replace the invalid, illegal or unenforceable provision(s) with valid
provision(s) the effect of which come as close as possible to that of the
invalid, illegal or unenforceable provision(s). The validity, legality and
enforceability of the remaining provisions contained herein shall in no way be
affected or impaired as a result of any provision contained in this Agreement
being held invalid, illegal or unenforceable in any respect.
13.10. This Agreement shall not be assigned nor any obligation hereunder be
subcontracted by the Executive to any third party without the Company's prior
written consent.
13.11. This Agreement fully and completely sets forth the entire agreement
between the parties relating to the subject matter hereof. All prior
agreements, understandings, and courses of dealing between the parties, written
or oral, are merged into and superseded by this Agreement. This Agreement shall
become effective and binding upon the parties as of the date first stated above.
[intentionally left blank]
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the day and
year set forth above.
Net2Wireless Israel Ltd.
By: /s/
Name: ---____________________
Title: ____________________
/s/
Xxxxxxxx Xxxxxxxx
We, the undersigned, Net2Wireless Corporation, hereby consent to the provisions
of the above agreement as far as such provisions are applicable to us, including
without limitation, the provisions of Section 5 therein
Net2Wireless Corporation
By: /s/
Name: ___________________
Title: ___________________
