DIRECTORSHIP AGREEMENT
This DIRECTORSHIP AGREEMENT is made and entered into on 13th
day of October, 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 Ben-Zion Weiner (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 the Director agrees to be appointed as a Director
of the company;
In consideration of the covenants, promises and conditions
herein contained, and for other consideration 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 the Director hereby agrees to be
appointed as a Director of the company, in accordance with the terms and
conditions set forth herein.
2. Term The term of this Agreement shall commence on October 15, 2000
and shall expire on October 15, 2003 (the " Term").
3. Duties. During the term of this agreement, the Director shall serve
as a member of the Board of Directors ("the Board"). 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 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.
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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
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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 or omission 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, judgements 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 judgement
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
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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
Director 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 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
Agreement 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
communication 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.
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IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above written.
NET2WIRELESS CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: CEO
/s/ Ben-Zion Weiner
---------------------------
BEN-ZION WEINER
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