Exhibit 10.3
Employment Agreement with Accrued Compensation - Xxxxxx Xxxxx
November 15, 2005
Xxxxx Biometry, Inc.
000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxxxxxxx
00000
Dear Xxxxxx:
In reference to your employment agreement "adjustment to employment position/
compensation" dated May 17, 2005 we are pleased to inform you that the Company
has awarded you 59,410 shares of common stock of Xxxxx Biometry, Inc. as
additional compensation for the period April 1, 2005 to June 10, 2005. By
accepting these shares, you are acknowledging that you have received full
payment for any and all obligations under that agreement for the referenced
period. Please be advised that said shares will be registered pursuant to Form
S-8. We recognize and acknowledge that your services were not, in any way, in
connection with the sale of securities in a capital-raising transaction, nor
were they directly or indirectly in connection with promoting or maintaining a
market for Xxxxx'x securities.
Regards,
------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
Xxxxx Biometry, Inc.
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This AGREEMENT, effective as of the 17th day of May 2005, is made by and
between Xxxxx Biometry, Canada, Inc., a Canadian corporation (the "Company"),
and Xxxxxx Xxxxx, a resident of the province of Ontario (the "Executive").
RECITALS
A. The Company is in the business of developing a Finger Print
Biometrics business (the "Business");
B. The Company desires to retain the services of the Executive;
C. The Executive is willing to be employed by the Company; and
D. The parties hereto desire to enter into this Agreement in order to
set forth the respective rights, limitations and obligations of both
the Company and the Executive with respect to the Executive's
employment with the Company, the Confidential Information, the
Discoveries, and the other matters set forth herein.
NOW THEREFORE, in consideration of the employment of the Executive by the
Company, the compensation paid to the Executive and the Company continuing to
provide Confidential Information to the Executive, as well as the other mutual
promises and consideration hereinafter contained, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Term.
Subject to the provisions for termination hereinafter provided, the Executive's
employment hereunder shall commence on April 1, 2005 (the "Employment Date") and
unless otherwise extended, end one year after the Employment Date commences (the
"Contract Termination Date"). The Contract Termination Date shall be
automatically extended for a successive one (1) year period at the end of each
contract year unless the Board of Directors of the Company (the "Board") shall
give contrary notice to the Executive, pursuant to the terms of Section 11
below, at least ninety (90) days prior to the end of the each contract year.
2. Position and Duties.
During the Employment Term, the Executive shall serve as Chief Engineer.
The Executive will report to the Company's Vice President of Product Operations
and perform such employment duties, consistent with his position, as specified
in the Job Description. The Executive shall not have the ability to enter into
any agreements or contracts or otherwise legally bind the Company without the
express consent and approval of the President. The Executive shall devote his
full productive time, energy and ability to the proper and efficient conduct of
the Company's business. The Executive may only devote reasonable periods of time
to service as a Director of other businesses, with the prior written approval
and consent of the President, to the extent that such service does not interfere
with the performance of his obligations hereunder.
Similarly, the Executive may engage in such charitable or community activities
as shall not interfere with the performance of his obligations hereunder. The
Executive shall observe and comply with all lawful and reasonable rules of
conduct set by the Board for executives of the Company, and shall endeavor to
promote the business, reputation and interests of the Company.
3. Compensation.
(a) Base Compensation.
As defined in further detail below, during the Employment Term the Company
shall pay the Executive a Base Compensation, subject to annual review, as
the Board, in its sole discretion, may determine. The Base Compensation
shall be paid in Canadian Dollars in accordance with the Company's normal
payroll practices. The Base Compensation paid to the Executive shall be
eighty thousand (C$ 80,000) per year, payable bi-weekly in arrears.
The Proposed Compensation shall be deferred until the Company receives US
$2,000,000 in funding (the Funding") whether obtained through equity
investment, loans or net product sales and shall be paid as set forth
herein ("Deferred Compensation"). During such period, salary will be paid
at the previous rate of C$4,000 per month and the balance deferred until
the funding is complete. Upon the Company's receipt of the Funding, the
Employee shall commence receiving the proposed compensation and the
Company will commence payment of the Deferred Compensation to the
Employee. The Deferred Compensation shall be paid in equal installments
over a period of three (3) months from the date of receipt of the Funding.
The Deferred Compensation can be paid in cash or common shares valued at a
price equal to the closing price of the previous day, at the discretion of
management. Regardless of the foregoing, commencement of payment of the
Deferred Compensation shall not be deferred beyond October 31, 2005.
Other Compensation.
(i) Annual Bonus: The Executive shall be eligible to receive a
Performance Bonus (the "Bonus") for the achievement of the
performance goals as determined by the Board, and dependent upon the
financial performance of the Company. The annual bonus may be paid
in cash, fully vested stock, restricted stock, or a combination
thereof.
(ii) The Executive shall be granted 50,000 fully-vested shares upon the
signing of this agreement
(iii) The Executive shall be granted 150,000 options upon certification by
the Chief Financial Officer of the Company that the Executive has
attained Milestone I as defined in Schedule B attached hereto
(iv) The Executive shall be granted 100,000 options upon certification by
the Chief Financial Officer of the Company that the Executive has
attained Milestone II as defined in Schedule B attached hereto
(v) The Executive shall be granted 50,000 options upon certification by
the Chief Financial Officer of the Company that the Executive has
attained Milestone III as defined in Schedule B attached hereto
(vi) The Executive shall be granted 50,000 options upon certification by
the Chief Financial Officer of the Company that the Executive has
attained Milestone IV as defined in Schedule B attached hereto
(viii) The Executive shall be eligible to participate in any Company
incentive plan established by the Company under the terms and conditions
of the Plan.
(b) Expenses.
The Executive shall be entitled to receive prompt reimbursement for all
reasonable business expenses pre-approved by the President (exclusive of
any commuting expenses) incurred by him in the course of his employment by
the Company.
(c) Other Benefits.
(i) Insurance: The Executive shall be entitled to participate in or
receive benefits on the same basis as other executive officers of the
Company under any employee benefit plans and arrangements applicable to
senior management including life insurance plans, pension and
profit-sharing plans, medical and health plans or other employee welfare
benefit plans, annual paid vacation, sick leave, sick pay and short-term
and long-term disability benefits and holidays, as in effect from time to
time.
(ii) Vacation: The Executive shall be entitled to receive two (2) weeks of
paid vacation per contract year, which shall accrue from April 1, 2005 to
recognize the efforts of the executive in the founding of the Company's
business. Such vacation days shall accrue and become vested on the first
anniversary day of each year of the Employment Term. This benefit shall be
reviewed by the Board of Directors and the Executive from time to time and
increased when appropriate.
(iii) Holidays: The Executive shall be entitled to the designated Company
holidays.
4. Termination.
The Executive's employment by the Company pursuant hereto is subject to
termination during the Employment Term as follows:
(a) Death. The Executive's employment hereunder shall terminate upon his
death. In such event, the Executive's Base Compensation and any prorated amount
of the Bonus, if any, shall be paid through the date of the Executive's death.
Eligibility for all other benefits shall be determined by the terms of any
applicable plan or program.
(b) Disability. The Company may, by written notice to the Executive,
terminate the Executive's employment if, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties hereunder for ninety (90) consecutive days or for a total
of one hundred eighty (180) days in any three hundred sixty five (365) day
period (the "Disability Period"). In the event of such termination, the
Executive shall receive the same benefits payable in the event of death;
provided however that, if the Company should adopt a disability policy at any
time during the Employment Term, the terms of such policy shall govern.
(c) Termination by the Company for Cause or Executive's Voluntary
Termination. The Company shall be entitled to terminate the Executive's
employment at any time, by written notice to the Executive, for Cause, as
defined herein:
(i) fraud or embezzlement on the part of the Executive;
(ii) conviction of or the entry of a plea of nolo contendere by the
Executive to any felony or other crime of fraud or moral turpitude;
(iii) any act of willful or negligent misconduct by the Executive
which is either intended to result in substantial personal enrichment of
the Executive at the expense of the Company or any of its subsidiaries or
affiliates, or has a material adverse impact on the business or reputation
of the Company, any of its subsidiaries or affiliates, or directors or
other officers (such determination to be made by the Company's Board of
Directors in the good faith exercise of its reasonable judgment); or
In the event of termination for Cause, the Executive's Base Compensation
and other benefits shall be paid through the Date of Termination (as hereafter
defined), and the Executive shall have no further rights to compensation or
benefits other than as determined by the terms of any applicable plan or
program. The Executive shall not be eligible to receive any portion of his
Annual Bonus.
The Executive may terminate his employment hereunder voluntarily at any
time with xxxxxx (90) day's written notice to the Board. In the event of the
Executive's voluntary termination, the Executive shall be entitled to receive
his Base Compensation and prorated Bonus, if any, and benefits through the Date
of Termination.
(d) Without Cause. The Company may terminate the Executive's employment at
any time by giving written notice to the Executive of its intent to terminate
this Agreement without Cause. In such event:
(i) the Executive shall be paid his Base Compensation, any
prorated Bonus and other benefits to which the Executive is entitled for the
remainder of the Employment Term, provided that the Base Compensation shall
represent not less than 3 months pay in lieu of notice of termination;
(ii) all stock options held by the Executive under any stock
option plan of the Company shall become fully exercisable, and shall remain
exercisable for a period of 180 days following the Date of Termination; and
(iii) the Executive shall have such other rights in respect of
any incentive, other compensation plan or benefit plan or program as may be set
forth in such plan or program.
(e) Change in Control. Notwithstanding any other provision of this
Agreement, should a "change in control" occur, the Employee, at his sole option
and discretion, may terminate his employment under this Agreement at any time
within one (1) year after such change of control upon fifteen (15) days notice.
In the event of such termination, Company shall pay to the Employee a severance
payment ("Severance Payment") equal to three (3) times the base amount as
defined in paragraph 3(a) above. The amount determined under the foregoing
provisions of this Section 4(e) shall be payable no later than one (1) month
after the effective date of the Employee's termination of employment. A change
in control means: the acquisition, without the approval of the Company's board
of directors, by any person or entity, other than Company or a "related entity,"
of more than twenty percent (20%) of the outstanding shares of Company's voting
common stock through a tender offer, exchange offer or otherwise; the
liquidation or dissolution of the Company following a sale or other disposition
of all or substantially all of its assets; a merger of consolidation involving
the Company which results in the Company not being the surviving parent
corporation; or any time during any two-year (2) period in which individuals who
constituted the board of directors of Company at the start of such period (or
whose election was approved by at least two-thirds of the then members of the
board of directors of Company who were members at the start of the two-year
period) do not constitute at least fifty (50%) of the board of directors, for
any reason. A related entity is the parent, a subsidiary or any employee benefit
plan (including a trust forming a part of such a plan) maintained by the
Company, its parent or a subsidiary.
(f) Date of Termination. The date upon which a termination pursuant to
this Section 4 becomes effective (the "Date of Termination" or "Termination
Date") shall be: the date upon which the party terminating this Agreement gives
the other party written notice thereof in accordance with Section 11 hereof.
5. Confidential Information.
(a) The Executive recognizes that the services to be performed by him
hereunder are special, unique and extraordinary and that, by reason of his
employment with the Company, he may acquire Confidential Information (as
hereinafter defined) concerning the operation of the Company, the use or
disclosure of which would cause the Company substantial loss and damage which
could not be readily calculated and for which no remedy at law would be
adequate.
Accordingly, the Executive agrees that he will not (directly or indirectly) at
any time, whether during or after the Employment Term:
(i) knowingly use for an improper personal benefit any
Confidential Information that he may learn or has learned by reason of his
employment with the Company; or
(ii) disclose any such Confidential Information to any person
except (A) in the performance of his obligations to the Company hereunder, (B)
as required by a court of competent jurisdiction, (C) in connection with the
enforcement of his rights under this Employment Agreement or (D) with the prior
consent of the Board.
As used herein, "Confidential Information" includes information with
respect to the Company's facilities and methods, trade secrets and other
intellectual property, systems, patents and patent applications, procedures,
manuals, confidential reports, financial information, business plans, prospects
or opportunities, personnel information or lists of customers and suppliers;
provided, however, that such term shall not include any information that is or
becomes generally known or available publicly other than as a result of
disclosure by the Executive which is not permitted as described in clause (ii)
above, or the Company discloses to others without obtaining an agreement of
confidentiality.
(b) The Executive confirms that all Confidential Information is the
exclusive property of the Company. All business records, papers and documents
and electronic materials kept or made by the Executive relating to the business
of the Company which comprise Confidential Information shall be and remain the
property of the Company during the Employment Term and at all times thereafter.
Upon the termination of his employment with the Company or upon the request of
the Company at any time, the Executive shall promptly deliver to the Company,
and, without the express consent of the Board, shall retain no copies of any
written or electronic materials, records and documents made by the Executive or
coming into his possession concerning the business or affairs of the Company and
which comprise Confidential Information.
(c) The Executive shall keep the terms of this Agreement strictly
confidential, other than as may be necessary to enforce his rights hereunder or
as otherwise required by law, or for estate planning or personal financial
reasons.
6. Non-Competition.
(a) During the Employment Term and for a period of one (1) year after the
Termination Date (the "Restricted Period"), the Executive shall not directly or
indirectly, for his own account or for the account of others, serve as an
officer, director, stockholder, owner, partner, employee, promoter, consultant,
advisor, manager or otherwise participate in the promotion, financing,
ownership, operation, or management of, or assist in or carry on through a
proprietorship, corporation, partnership or other form of business entity or
otherwise that intends to compete against the Company or any of its affiliates
or customers.
Nothing in this Section 6 shall prohibit the Executive from acquiring or
holding any issue of stock or securities of any Person that has any securities
registered under Section 12 of the Exchange Act, listed on a national securities
exchange or quoted on the automated quotation
system of the National Association of Securities Dealers, Inc. so long as the
Executive is not deemed to be an "affiliate" of such Person as such term is used
in paragraphs (c) and (d) of Rule 145 under the Securities Act and the
Executive, members of his immediate family, or persons under his control do not
own or hold more than five percent (5%) of any voting securities of any such
Person.
(b) During the Restricted Period, the Executive shall not, whether for his
own account or for the account of any other person (excluding the Company):
(i) solicit or contact in an effort to do business with any person
who was a customer or a potential customer of the Company during the term
of this Agreement, or any affiliate of any such person, if such
solicitation or contact is for the purpose of competition with the
Company;
(ii) solicit or induce any of the Company's employees to leave their
employment with the Company or accept employment with anyone except the
Company; or
(iii) interfere in a similar manner with the business of the
Company.
Nothing herein shall prohibit or preclude the Executive from performing
any other types of services that are not precluded by Section 6 (a) for any
other Person.
(c) The Executive has carefully read and considered the provisions of this
Section 6 and, having done so, agrees that the restrictions set forth in this
Section 6 (including the Restricted Period, scope of activity to be restrained
and the geographical scope) are fair and reasonable and are reasonably required
for the protection of the interests of the Company, its officers, directors,
employees, creditors and shareholders. The Executive understands that the
restrictions contained in this Section 6 may limit his ability to engage in a
business similar to the Company's business, but acknowledges that he will
receive sufficiently high remuneration and other benefits from the Company
hereunder to justify such restrictions.
7. Inventions.
(a) Disclosure of Inventions: The Executive shall promptly disclose to the
Company (or any persons designated by it) all discoveries, developments,
designs, improvements, inventions, blueprints, formulae, processes, techniques,
computer programs, strategies, and data, whether or not patentable or
registerable under copyright or similar statutes, made or conceived or reduced
to practice or learned by the Executive, either alone or jointly with others,
during the period of employment that result directly from tasks assigned to the
Executive by the Company and relate specifically to the Business or result from
the use of premises or property (including computer systems and engineering
facilities) owned, leased or contracted for by the Company (all such
discoveries, developments, designs, improvements, inventions, formulae,
processes, techniques, computer programs, strategies, blueprints, know-how and
data are hereinafter referred to as "Inventions"). The Executive will also
promptly disclose to the Company, and the Company hereby agrees to receive all
such disclosures in confidence, all other discoveries, developments, designs,
improvements, inventions, formulae, processes, techniques,
computer programs, strategies, blueprints and data, whether or not patentable or
registerable under copyright or similar statutes, made or conceived or reduced
to practice or learned by the Executive, either alone or jointly with others,
during the period of employment for the purpose of determining whether they
constitute "Inventions", as defined above.
(b) Ownership of Inventions.
(i) All Inventions shall be the sole property of the Company and its
assigns, and the Company and its assigns shall be the sole owner of all patents,
copyrights, trademarks and other rights in connection therewith. The Executive
does hereby assign to the Company any rights the Executive may have or acquire
in such Inventions. The Executive shall assist the Company (at the Company's
expense) in obtaining and, from time to time, enforcing patents, copyrights,
trademarks and other rights and protections relating to said Inventions in any
and all countries. The Executive will execute all documents necessary to apply
for and obtain such patents, copyrights, trademarks and other rights and
protections on such Inventions, as the Company may request, together with any
assignments thereof to the Company or persons designated by it. The Executive's
obligation to assist the Company in obtaining and enforcing patents, copyrights,
trademarks and other rights and protections relating to such Inventions shall
continue beyond the termination of employment, but the Company shall compensate
the Executive at a reasonable rate after the Executive's termination, for time
actually spent by the Executive at the Company's request on such assistance.
(ii) In the event the Company is unable, after reasonable effort, to
secure the Executive's signature on any document or documents needed to apply
for or prosecute any patent, copyright or other right or protection relating to
an Invention, for any reason whatsoever, the Executive does hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
his agent and attorney-in-fact, to act for and on his behalf to execute and file
any such application or applications and to do all other lawfully permitted acts
to further the prosecution and issuance of patents, copyrights or similar
protections solely with respect to Inventions with the same legal force and
effect as if executed by the Executive and the Executive does ratify, affirm and
approve all such lawfully permitted acts accordingly.
8. Specific Performance.
The Executive acknowledges that a breach of any of the covenants contained
in this agreement may result in material, irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall cease and
the Company, without posting any bond, shall be entitled to obtain a temporary
restraining order and a preliminary or permanent injunction restraining the
Executive from engaging in activities prohibited by this agreement or such other
relief as may be required to enforce any of the covenants contained in this
agreement.
9. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior to
the effectiveness of any such succession shall be a material breach of this
Agreement. As used in this Employment Agreement, "Company" shall mean the
Company as defined in this Agreement and any successor to its business or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's spouse or, if
there is no such spouse, to the Executive's estate. This Agreement is personal
to the Executive and may not be assigned by him.
10. Resignation as Officer and/or Director.
In the event that the Executive's employment is terminated for any reason
whatsoever or the Executive voluntarily terminates his employment, the Executive
agrees to resign immediately as an Officer and/or Director of Company.
11. Notice.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand or mailed by United States overnight
express mail, or nationally recognized private delivery service on an overnight
basis, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxx Xxxxx
000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxx
X0X 0X0
With copies to: Xxxxxxxx X. Xxxxxxx
The Galleria
0 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Company: Xxxxx Biometry, Inc.
Notices may also be sent to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
12. Arbitration of Disputes.
Any controversy or claim arising out of or relating to this Agreement or
the breach hereof, other than an action brought by the Company for injunctive or
other equitable relief in the enforcement of the Company's rights under Section
8 above, in which case such action may be brought in any court of competent
jurisdiction, shall be settled by arbitration in accordance with the laws of the
Province of Ontario by a single arbitrator. Such arbitration shall be conducted
in the City of Ottawa, Ontario in accordance with the rules of the ADR Institute
of Canada. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. In the event that it shall be necessary
or desirable for the Executive to retain legal counsel and/or incur other costs
and expenses in connection with the enforcement of any or all of the Executive's
rights under this Agreement, the Company shall pay (or the Executive shall be
entitled to recover from the Company, as the case may be) the Executive's
reasonable attorneys' fees and other reasonable costs and expenses in connection
with the enforcement of said rights (including the enforcement of any
arbitration award in court) in the event that an arbitration award is made in
favor of the Executive, unless and to the extent that the arbitrators shall
determine that under the circumstances recovery by the Executive of all or part
of any such fees and costs and expenses would be inequitable or otherwise
unjust.
13. Attorneys' Fees.
The prevailing party in any legal or arbitration proceedings brought by or
against the other party to enforce any provision of this Agreement shall be
entitled to recover against the non-prevailing party the reasonable attorneys'
fees, court costs, arbitration fees and other expenses incurred by the
prevailing party.
14. Representations and Warranties.
The Executive hereby represents and warrants that he is willing and able
to enter into this Employment Agreement and to render his services pursuant
hereto and that neither the execution and delivery of this Employment Agreement,
nor the performance of his duties hereunder, violates the provisions of any
other agreement to which he is a party or by which he is bound. It is further
provided that the Executive shall indemnify the Company for any and all damages
and/or expenses (including attorney's fees) that may result from a breach of
such representations.
15. Expenses.
Each party shall pay its own expenses incident to the performance or
enforcement of this Agreement, including all fees and expenses of its counsel
for all activities of such counsel undertaken pursuant to this Agreement, except
as otherwise herein specifically provided.
16. Waivers and Further Agreements.
Any waiver of any terms or conditions of this Agreement shall not operate
as a waiver of any other breach of such terms or conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision hereof; provided, however,
that no such written waiver, unless it, by its own terms, explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the provision
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision. Each of the parties hereto agrees
to execute all such further instruments and documents and to take all such
further action as the other party may reasonably require in order to effectuate
the terms and purposes of this Agreement.
17. Amendments.
This Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
waiver, change, modification, consent or discharge is sought.
18. Severability.
If any provision of this Agreement shall be held or deemed to be, or shall
in fact be, invalid, inoperative or unenforceable as applied to any particular
case in any jurisdiction or jurisdictions, or in all jurisdictions or in all
cases, because of the conflict of any provision with any constitution or statute
or rule of public policy or for any other reason, such circumstance shall not
have the effect of rendering the provision or provisions in question invalid,
inoperative or unenforceable in any other jurisdiction or in any other case or
circumstance or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Employment Agreement shall be reformed and construed
in any such jurisdiction or case as if such invalid, inoperative or
unenforceable provision had never been contained herein and such provision
reformed so that it would be valid, operative and enforceable to the maximum
extent permitted in such jurisdiction or in such case.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and in pleading or proving any provision of this Agreement,
it shall not be necessary to produce more than one of such counterparts.
20 Survival.
Sections 3, 4, 5, 6, 7, 8, 11, 12, and 20 shall survive the termination of
this Agreement.
21. Section Headings.
The headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
22. Gender.
Whenever used herein, the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall include all
genders.
23. Entire Agreement.
This Agreement together with any attachments or Exhibits hereto contains
the entire agreement of the parties and there are no other promises or
conditions in any other agreement, whether oral or written. This Agreement
supersedes any prior written or oral agreements between the parties.
24. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the law (other than the law governing conflict of law questions)
of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
Executive:
Name:
--------------
Xxxxxx Xxxxx
Xxxxx Biometry, Inc.
By:_______________________________________
Xxxxx Xxxxxxx
President
Xxxxx Biometry, Canada, Inc.
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SCHEDULE A - Job Description
The Chief Engineer is responsible for designing, coding, testing and documenting
products prior to commercial release. Duties will include: analyzing end user
needs; designing efficient, user-friendly features specifications; developing
features/functions per user needs; prototyping on target software and hardware
platforms as part of proof-of-concept/prototype; performance tuning to ensure
optimal throughput; implementation and tuning of graphical user interfaces to
ensure ease of use by customer system administration personnel; and development
of appropriate error checking, annunciation and handling routines. (May be
required to serve as second/thirdlevel tech support resource working in
conjunction with Solutions Engineering and/or Tech Support.)
Responsibilities
Code to Software Design Specifications - Follow R&D software specifications
regarding overall product design, including module definition, data structures
and format, functional requirements, data flow, data capacities, user interface
requirements, and error checking/handling.
Software Testing and Integration Testing - Perform software testing of
individual modules to verify features and functions per design specifications.
Perform integration and interoperability testing with other system/product
modules to ensure proper communication flows, shared data integrity, overall
product performance factors and features/functions as called out by the
specifications.
Source Code Control and Configuration Management - Ensure consistency in
software build process and software design through use of source code control
and configuration management tools throughout the development process.
Communication, planning and organizational skills - Demonstrated capability to
succinctly document code, test cases, test results, and functional deficiencies;
proven ability to manage time allocation and lab resources to meet critical
deadlines. Teamwork and communication with existing team members is required,
however the individual must also be self-motivated and able to work
independently when required.
SCHEDULE B Milestones
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Milestone I
To attain Milestone I, the Company, through its Board of Directors, shall, in
its sole discretion, approve:
- The productization of the Company's Biometric Security
Software System as specified in the Project Overview document;
debugging of various performance functions of the system.
- Ensure weekly progress reports on the development of these
components as well as those required for the completion of the
BIN-2.
- The integration of the BIN-2 into a new version of the
Biometric Security Software System
- An " Access Control System in a Box" (canned access control
application) with increasing levels of security including
hardware requirements.
- The interfaces required between Xxxxx'x software and the
Dynatrol System developed by Xxxxxxx.
Milestone I
To attain Milestone II, the Company, through its Board of Directors, shall
approve as successful the development of an interoperable database search system
using the BIN-1 and BIN-2; provide liaison between Xxxxx Biometry and HJT,
ensuring that a good working relationship continues to exist between the two
companies. (this includes acting on behalf of Company for any R&D
projects including the current Biometric Truck Ignition project and the proposed
M1 Standards Data Exchange project to be defined and negotiated.)
MilestoneI
Manage and participate in the team effort required for the interpretation of
underlying source code, its architecture and functionalities, ensuring that
upgrades and new versions are incorporated in the process.
Milestone IV
To attain Milestone IV, the Company, through its Board of Directors, shall
approve as successful the completion of Milestones I, II and III in a 12 month
period
