ADVISORY AGREEMENT
THIS
AGREEMENT is between IXI Mobile, Inc. (the “Company”) and Xxxxx Xxxxx
(“Advisor”), for services as hereinafter provided is entered as of November 15,
2005 (“Effective Date”).
| 1. |
APPOINTMENT.
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1.1.
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The
Company hereby appoints Advisor, and Advisor hereby agrees to be
appointed
by the Company, as a member of the Company’s Advisory Board. Advisor shall
actively assist the Company in its business development efforts.
Furthermore Advisor shall meet with the Company’s senior executives and
Board of Directors and give advise with respect to the Company’s strategic
and technical direction and development at such times, places and
locations, and regarding such subject matters, as shall be mutually
designated by the Company and the Advisor from time to time (the
“Services”).
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| 2. |
COMPENSATION
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2.1.
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In
consideration for the Services rendered the Company shall pay Advisor
as
follows:
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2.1.1.
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As
of the Effective date and until the Company’s IPO a monthly fee $5,000,
against the production of a valid invoice.
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2.1.2.
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After
the Company’s IPO, a monthly fee $10,000, against the production of a
valid invoice.
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2.2.
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In
addition, you shall be granted Stock Options as
follows:
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2.2.1.
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Upon
approval of the Company’s Board of Directors, Advisor shall be granted
185,571 options (representing 1% of the Company’s fully diluted share
holding on the Effective Date) to purchase Common Stock of the
Company, at
an exercise price per share of US$0.05 in accordance with the Company’s
applicable stock option plan and Advisor’s stock option agreement with the
Company. (the "Grant"). Beginning on the Effective Date, the Total
Grant
options shall vest over a forty eight (48) months period, such
that 1/48
of the Options shall vest on the first of each month as of the
Effective
Date, provided that at each such time Advisor is an Advisor to
the Company
pursuant to this Agreement. Vested options may be exercised at
any time up
to ten years from date of grant so long as Advisor is an Advisor
to the
Company pursuant to this Agreement. Unless otherwise agreed by
the
Company, all vested options must be exercised within 90 days of
the day at
which Advisor ceases to be an Advisor to the Company (i.e., Advisor
shall
have 60 days after termination of consultancy to exercise all options
which were vested on date consultancy was terminated). Anything
herein to
the contrary notwithstanding, if prior to the initial public offering
of
the securities of the Company (the “IPO”) all the outstanding shares or
assets of the Company were to be sold to a third party in one transaction
or a series of related transactions (a “Change of Control Event”), then
all the options shall vest immediately prior to the consummation
of such
Change of Control Event.
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If
the
outstanding shares of the Company shall at any time be changed or exchanged
by
declaration of a stock dividend (bonus shares), stock split, combination
or
exchange of shares, re-capitalization, or any other like event by or of the
Company, and as often as the same shall occur, then the number, class and
kind
of Shares subject to the Option therefore granted, and the Option Price,
shall
be appropriately and equitably adjusted so as to maintain the proportionate
number of Shares without changing the aggregate Option Price
| 3. |
INDEPENDENT
CONTRACTOR RELATIONSHIP
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3.1.
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Nature
of Relationship.
Advisor’s relationship with the Company will be that of an independent
contractor and nothing in this Agreement should be construed to
create a
partnership, joint venture, or employer-employee relationship.
Advisor is
not the agent of the Company and is not authorized to make any
representation, contract, or commitment on behalf of the Company
unless
specifically required or authorized in writing to do so by the
Company.
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| 3.2. |
Advisor
Responsible for Taxes and Records.
Advisor will be solely responsible for all tax returns and payments
required to be filed with or made to any federal, state or local
tax
authority with respect to Advisor’s performance of services and receipt of
compensation and/or options under this Agreement.
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| 4. |
CONFIDENTIAL
INFORMATION;
ASSIGNMENT OF INVENTIONS; NON
COMPETE
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4.1.
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Confidentiality.
Without derogating from any and all Advisor's duties and obligations
to
the Company as a member of the Company's Board of Directors, Advisor
additionally undertakes to keep confidential, and not to use for
any
purpose whatsoever except for internal purposes, any and all information
relating, in any way, to the Company which had been provided to
Advisor by
the Company or was otherwise obtained by the Advisor, other than
information which Advisor can document is within the public domain
or was
independently developed by Advisor without use of information provided
by
the Company or which Advisor is required to disclose by applicable
law.
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4.2.
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Assignment
of Inventions.
Advisor hereby assigns to the Company all right, title and interest
he may
have or acquire in all inventions, including patent rights ("Inventions")
developed by Advisor during its engagement by the Company and which
arise
out of or relate to his engagement with the Company hereunder,
and agrees
that all such Inventions shall be the sole property of the Company
and its
assigns. Advisor further agrees to reasonably assist the Company
(at the
Company's expense) to obtain and enforce patents, copyrights or
other
rights on said Inventions in any and all
countries.
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4.3.
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Non
- Competition.
During the term of this Agreement, and for a period of 6 months
after
termination of this Agreement, Advisor may render services to others
as an
advisor, provided however
that the Advisor shall not render any services for any business
or
organization that sponsors, produces or sells goods or services
which
compete or are intended to compete or that conflict with the business
of
the Company.
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| 5. |
TERMINATION
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5.1.
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Termination.
Either party may terminate this Agreement with or without cause
upon
thirty (30) days prior written notice to the other party
hereto.
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5.2.
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Survival
of Section 3.
Notwithstanding the provisions of Section 5.1 above, the provisions
of
Section 4 above shall survive any termination or expiration of
this
Agreement.
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| 6. |
GENERAL
PROVISIONS
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6.1.
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Reimbursement
of Expenses.
The Company shall reimburse Advisor for his necessary direct and
actual
out-of-pocket expenses with regard to the services provided by
him,
provided that the Company will give prior approval with respect
to such
expenses.
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6.2.
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Governing
Law.
This Agreement will be governed and construed in accordance with
the laws
of the State of Delaware.
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6.3.
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Entire
Agreement; Headings.
This agreement sets forth the entire understanding and agreement
of the
parties as the subject matter of this Agreement. It may not be
changed
orally but only by a written document signed by both parties. Titles
or
headings to the sections of this Agreement are not part of the
terms of
this Agreement, but are inserted solely for
convenience.
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6.4.
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Successors
and Assigns.
Neither this Agreement nor any of the rights or obligations of
Advisor
hereto arising under this Agreement may be assigned or transferred
without
prior written consent from the Company. This Agreement will be
for the
benefit of the Company’s successors and assigns, and will be binding on
and for the benefit of Advisor’s heirs and legal
representatives.
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6.5.
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Notices.
All notices, requests and other communications under this Agreement
must
be in writing and must be mailed by registered or certified, postage
prepaid and return receipt requested, or delivered by hand to the
party to
whom such notice is required or permitted to be given. If mailed,
any such
notice will be considered to have been given three business days
after it
was mailed, as evidenced by the postmark. If delivered by hand,
any such
notice will be considered to have been given when received by the
party to
whom notice is given, as evidenced by written and dated receipt
of the
receiving party. The mailing address for notice to either party
will be
the address shown on the signature page of this agreement. Either
party
may change its mailing address by notice as provided by this Section
6.5.
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[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
In
Witness whereof the parties have executed this Agreement on the date
above.
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Xxxxxx
Xxxxx
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/s/
Xxxxx Xxxxx
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IXI
Mobile, Inc.
By:
Xxxxxx Xxxxx
Title:
Chairman
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Xxxxx
Xxxxx
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