Exhibit 2.5
NON-COMPETITION
AGREEMENT
This agreement (the “ Agreement
”), is made by and between Zeev Orbach (the “
Employee ”), and Xtend Networks Ltd. (Company
Number 51-282720-5) (the “ The Company ”). The
Employee and the Company shall be hereinafter referred to as the
“ Parties ”.
WHEAREAS: Employee entered into an employment agreement
with the Company dated
(the “ Employment Agreement ”); and
WHEAREAS: in order to enable the Company to effectively
protect its proprietary information, the Company wishes to enter
into this non-competition and waiver Agreement with the Employee;
and
WHEAREAS: subject to the terms and conditions set forth
herein, Employee wishes to enter into this non-competition and
waiver agreement with the Company;
NOW THEREFORE , the parties, intending to be legally bound,
hereby agree as follows:
|
|
1.1.
|
The preamble to
this Agreement shall be deemed an integral part thereof.
|
|
|
1.2.
|
The captions in
this Agreement shall not be deemed a part hereof as they have been
inserted for convenience and orientation only, and they shall not
affect the interpretation of this Agreement.
|
|
|
1.3.
|
Except as set
forth herein, all provisions, terms and conditions of the
Employment Agreement, as amended or replaced from time to time,
shall remain in full force and effect. In the event of any
ambiguity or discrepancy between the provisions of this Agreement
and the Employment Agreements, the terms of this Agreement shall
prevail, and the Employment Agreement shall be deemed to have been
amended and rested accordingly. Specifically, the provisions of
Section below shall replace and supersede the non-competition
provisions of the Employment Agreement.
|
In order to enable the Company to
effectively protect its Proprietary Information, the Employee
agrees and undertakes that:
|
|
2.1.
|
he will not,
during the term of Employee’s employment agreement and for a
period of forty (40) months following termination thereof, for
whatever reason, directly or indirectly, as owner, partner, joint
venturer, stockholder, Employee, service provider, broker, agent,
principal, corporate officer, director, licensor or in any other
capacity whatever engage in, become financially interested in, be
employed by, or have any connection with any business or venture
that is engaged in any activities competing with products or
services offered by the Company during Employee’s employment
with the Company, or which are anticipated, as of the termination
date of his employment, to be offered or produced within a
reasonable time following such termination; provided, however, that
the Employee may own securities of any corporation which is engaged
in such business and is publicly owned and traded but in an amount
not to exceed at any one time one percent of any class of stock or
securities of such company, so long as he has no active role in the
publicly owned and traded company as director, Employee, consultant
or otherwise.
|
|
|
2.2.
|
during the term
of Employee’s employment agreement with the Company and for a
period of 12 months following its termination, he will not, (i)
directly or indirectly, including personally or in any business in
which he is an officer, director or shareholder, for any purpose or
in any place, employ any person employed by the Company or retained
by the Company as a consultant on the date of such termination or
during the preceding six months; or (ii) solicit from the clients
of the Company any business in competition with the Company that
involves activities in which the Company was engaged or had already
planned to be engaged during the term of the Employee’s
employment.
|
|
|
2.3.
|
The Employee
specifically acknowledges, stipulates and agrees as follows: (i)
the protective covenants set forth herein are reasonable and
necessary to protect the goodwill, property and Proprietary
Information of the Company, and the operations and business of
Company; and (ii) the time duration of the protective
|
2
covenants is reasonable and
necessary to protect the goodwill and the operations and business
of Company, and does not impose a greater restrain than is
necessary to protect the goodwill or other business interests of
Company. Nevertheless, if any one or more of the terms contained in
this Section 2 shall for any reason be held to be excessively broad
with regard to time, geographic scope or activity, the term shall
be construed in a manner to enable it to be enforced to the extent
compatible with applicable law.
As full and complete consideration
for the non competition undertaking set forth herein and for the
waiver of all claims by Employee, the Company hereby undertakes to
pay the Employee a one-time net amount of $US 500,000 (Five Hundred
United States Dollars), all subject to and in accordance with the
terms, representations, covenants and conditions of this Agreement.
The Company shall be entitled to set off from such consideration
any amount due to the Company from the Employee, regardless of
whether such amount is due to the Company in connection with
Employee’s employment.
|
|
4.1.
|
The closing of
the transaction contemplated by this Agreement (the
“Closing”) shall take place within fourteen (14) days
following the fulfillment of all of the conditions precedent set
forth in Section 6 below, at the offices of Fischer, Behar, Chen
and Co., 3 Daniel Frisch Street, Tel Aviv, Israel, unless another
date or place is agreed to by the parties hereto.
|
|
5.
|
Representations, Warranties and Agreements of
the Parties
|
Each of the Parties hereby
represents and warrants to the other Party as follows:
|
|
5.1.
|
Capacity . It/he has full legal capacity, power and
authority to execute, deliver, and perform its obligations under
this Agreement, and all schedules thereof.
|
|
|
5.2.
|
Reliance . In deciding to enter into and consummate the
transactions contemplated hereby, the Parties have not relied, as
to tax, securities and other legal matters, on the advice
that
|
|
