2:
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (Agreement) is made and entered into this 6th
day of November, 2003, by and between Invisa, Inc., a Nevada corporation,
(the Company) and Xxxx X. Xxxxxx (Employee).
R E C I T A L S:
WHEREAS, Employee wishes to be employed by the Company, and the
Company wishes to employ the Employee.
WHEREAS, the parties acknowledge that the Company has advised
Employee that the auditor s opinion which accompanies the Company s
Financial Statements for the year ended December 31, 2002, expressed
concern over the Company s ability to remain a going concern.
WHEREAS, the parties further acknowledge that the Company has
informed Employee that GM Capital Partners, Ltd. is its exclusive
consultant in matters relating to capital formation, and Employee
has advised the Company that he met with GM Capital Partners, Ltd.
concerning GM Capital Partners, Ltd.s future capital plans, and the
Company has advised Employee that the statements, opinions and
representations of GM Capital Partners, Ltd. are its own and do not
constitute representations or promises of the Company.
WHEREAS, the Company and the Employee are desirous of setting
forth in this definitive Employment Agreement their respective
rights and obligations in respect to Employee s employment with the
Company.
NOW, THEREFORE, in consideration of Employee s employment and
in consideration of the mutual promises in this Agreement, and
for additional good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the parties hereto, the
Company and the Employee agree as follows:
1. Employment and Term. On the terms and subject to the
conditions of this Agreement, the Company agrees to employ
the Employee and the Employee accepts such employment.
Employee s employment under this Agreement shall commence
on the date hereof, and shall continue in effect for a
period of 38 months from the date hereof and it shall
terminate at the end of said 38-month period (Termination Date),
unless earlier terminated pursuant to Paragraph 6 hereinbelow.
2. Duties. The Employee is employed by the Company to perform
the duties specified from time to time by Board of Directors
and as set forth on Exhibit A which is attached hereto,
incorporated herein and made a part hereof (Duties).
3. Compensation. As compensation for Employee performing
the Duties, the Company shall pay Employee the compensation,
as set forth on Exhibit B which is attached hereto,
incorporated herein and made a part hereof (Compensation).
4. Vacations. Employee shall be entitled each year to a vacation
as provided in Exhibit B, during which time Employee s
Compensation shall be paid in full.
5. Fringe Benefits and Reimbursement of Expenses.
a. Employee shall be entitled to participate in any group
plans or programs maintained by the Company, if any,
such as health insurance or other related benefits as
may be in effect from time to time and offered to the
other employees of the Company (Benefits).
b. Company acknowledges that it will pay for reasonable
expenses incurred by Employee in furtherance of his duties
to the Company which shall include, without limitation,
expenses for entertaining, travel and similar items. All
such expenses will be in incurred in accordance with policies
adopted by the Company from time to time.
c. The Company shall provide Employee actual gasoline
expenses for Company business at IRS rates.
6. Termination of Employment.
6.1 Prior to the Termination Date, this Agreement and
all the rights and obligations of the parties hereto shall
terminate immediately: (i) in the event of the Employee s
death; or (ii) if the Company ceases to conduct business.
6.2 Prior to the Termination Date, the Company may,
upon written notice to the Employee, immediately thereafter
terminate the Employee s employment for proper cause,
pursuant to the grounds set forth herein (For Cause), and
in the event of such For Cause termination, the Employee
shall not be entitled to any Compensation or Lump Sum
Severance Package Compensation as hereinafter defined
following the date set forth on the written notification of
such For Cause termination, other than options that are fully
vested as of the date of the For Cause termination. The grounds
for For Cause termination are the occurrence of any of
the following: (i) felony conviction of Employee;
(ii) Employee s engagement in illegal business practices
in connection with the Company s business; (iii) Employee s
intentional and material misappropriation of the Company s
assets; (iv) the Employee s material breach of:
Company policies; this Agreement; the Covenant Not To Compete
Agreement attached hereto as Exhibit C; the Confidentiality/Waiver
of Interest Agreement attached hereto as Exhibit D. With respect
to a For Cause termination under (iv), the written notice
will provide the Employee 10 days within which to cure
the breach (Cure Period), and if same is not cured within
that period, the For Cause termination will become immediately
effective. With regard to the Covenant Not to Compete Agreement
attached as Exhibit C and the Confidentiality/Waiver of
Interest Agreement attached as Exhibit D, the Cure Period will
run concurrently with (and not be in addition to) the Mediation
Period as defined in Exhibits C and D.
6.3 Prior to the Termination Date, the Company may, upon
30 days written notice to the Employee, immediately thereafter
terminate the Employee s employment without cause (For Cause
being limited to the grounds set forth in Paragraph 6.2
herein above). In the event of such without cause termination,
the Company shall pay to Employee, a lump sum severance payment
in an amount equal to the Compensation (as set forth on Exhibit B)
and Benefits as described in Paragraph 5 hereinabove, which would
have been due and owing to Employee during the 12 month period
following the date of such termination as if such termination
had not occurred (Lump Sum Severance Package Compensation).
The Lump Sum Severance Package Compensation shall be paid to
Employee within 30 days of the termination.
6.4 Notwithstanding anything to the contrary contained
in this Agreement, Employee shall be not terminated under
section 6.2 or 6.3 of this Agreement because of any medical
or heath condition unless Employee is deemed disabled which
for purposes of this Agreement shall be defined as follows:
(1) Employee has been declared legally incompetent by a final
court decree (the date of such decree being deemed to be the
date on which the disability occurred); or (2) Employee has
been found to be disabled pursuant to a Disability
Determination. A Disability Determination means a finding
that Employee, because of a medically determinable disease,
injury, or other mental or physical disability, is unable to
perform substantially all of his regular duties to the Company
and that such disability is determined or reasonably expected
to last at least nine (9) months. The Disability Determination
shall be based on the written opinion of the physician regularly
attending the Employee regarding the disability is in question.
The date of such written opinion is the date on which the disability
will be deemed to have occurred. If Employee is terminated in
accordance with the provisions of this paragraph, Employee shall
receive a lump sum disability severance payment in an amount equal
to the Compensation (as set forth on Exhibit B) and Benefits as
described in Paragraph 5 hereinabove which would have been due
and owing to Employee during the nine-month period following
the date of such termination (Lump Sum Disability Severance
Package Compensation). The parties acknowledge and agree that
0in the event of termination under (1) or (2) of this Paragraph,
the sole severance package compensation Employee shall be
entitled to receive from the date of such termination shall
be the Lump Sum Disability Severance Package Compensation
and no other compensation, other than options that are fully
vested as of the date of the termination. The Lump Sum Disability
Severance Package Compensation shall be paid to Employee
within 30 days of the termination.
6.5 Prior to the Termination Date, the Employee may,
upon 30 days written notice to the Company, terminate Employee s
employment with the Company, and in such event, Employee shall
not be entitled to any compensation following the date of such
termination, other than options that are fully vested as
of the date of the termination.
6.6 In the event this Agreement is not terminated prior
to its Termination Date as set forth hereinabove in this
Paragraph 6, then in such event this Agreement shall terminate
upon the Termination Date.
6.7 Notwithstanding anything to the contrary in this
Agreement, the Covenant Not to Compete Agreement or the
Confidentiality/Waiver of Interest Agreement, Employee
may terminate this Agreement if, in the aggregate, the
Company misses two pay periods. A missed pay period shall
be defined as a pay period where the missed payment has
not been cured within seven days of its due date. In the
event Employee terminates under this Paragraph, said
termination will not be deemed For Cause and Employee shall
be entitled to the Lump Sum Severance Package Compensation.
7. Non-Competition. Simultaneously with his execution of this
Agreement, Employee shall execute a Covenant Not to Compete
Agreement with the Company, as set forth on Exhibit C which
is attached hereto, incorporated herein and made a part hereof.
The parties acknowledge and agree that the mediation provisions
and remedy provisions of the Covenant Not to Compete Agreement
as set forth in Paragraphs 4 and 5 respectively thereof are
the dispute resolution and remedy provisions that govern the
parties under the Covenant Not to Compete Agreement, and
Paragraph 13 of this Agreement is not applicable thereto.
8. Confidentiality/Waiver of Interest. Simultaneously with
his execution of this Agreement, Employee shall execute a
Confidentiality/Waiver of Interest Agreement with the Company,
as set forth on Exhibit D which is attached hereto,
incorporated herein and made a part hereof. The parties
acknowledge and agree that the mediation provisions and
the remedy provisions of the Confidentiality/Waiver of
Interest Agreement as set forth in Paragraphs 7 and 8
respectively thereof are the dispute resolution and remedy
provisions that govern the parties under the Confidentiality/Waiver
of Interest Agreement, and Paragraph 13 of this Agreement
is not applicable thereto.
9. Notices. Any notice provided for in this Agreement must be
in writing and must be either personally delivered or mailed
by certified mail, return receipt required, to the recipient
at the address indicated below:
To the Company: To the Employee:
Invisa, Inc. Xxxx X. Xxxxxx
0000 Xxxxxxxxxxxx Xxxxx c/o Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx, XX 00000 Xxxxxxxxxx, Xxxxxxxxx & Xxxxxxxxxx, P.A.
00 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0
Xxxxxxxx, XX 00000
or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the
sending party.
10. Severability. In the event that any provision of this Agreement
shall be held to be unreasonable, invalid, or unenforceable for any
reason whatsoever, the parties agree that: (i) such invalidity or
unenforceability shall not affect any other provision of this
Agreement and the remaining covenants, restrictions, and provisions
hereof shall remain in full force and effect; and (ii) any
arbitrator or arbitration panel, as the case may be, may so modify the
objectionable provision as to make it valid, reasonable, and
enforceable, and such provision, as so modified, shall be valid and
binding as though the invalid, unreasonable, or unenforceable
portion thereof had not been included therein.
11. Complete Agreement. This Agreement contains the entire agreement of
the parties and supersedes and preempts any prior understandings,
agreements or representations between Employee and Company regarding
the employment of Employee.
12. Counterparts. This Agreement may be simultaneously executed in two
counterparts, each of which shall be an original, and all of
which shall constitute but one and the same instrument.
13. Mediation/Arbitration Provision. The parties shall in good faith
endeavor to resolve all claims or disputes arising from or relating
to the terms of this Agreement first by mediation through a
mediator selected by the parties and if not resolved by mediation,
then the parties agree to resolve all claims or disputes by binding
arbitration in accordance with this Section. The party seeking mediation
shall submit a written notice for mediation to the other party
(the Notice). The parties shall agree on a mediator and mediation
date within ten business (10) days from the date of the Notice. If
the parties are unable to agree upon a mediator
and mediation date
within ten (10) days from the date of the Notice, the matter shall,
within twenty (20) days from the date of the Notice, be referred
to the American Arbitration Association for final and binding
arbitration. If the matter is mediated but not resolved by mediation,
the matter shall, within ten (10) days from the last mediation
proceeding, be referred to the American Arbitration Association
for final and binding arbitration. The arbitration proceedings
shall take place in Sarasota County, Florida and shall be governed
by the Florida Arbitration Code and the rules pertaining to
commercial arbitration of the American Arbitration Association
then in effect (except the provisions of this paragraph
shall govern if in conflict with such rules). There shall
be one arbitrator if the amount in controversy is less
than twenty four thousand dollars ($24,000), and otherwise
there shall be three arbitrators. The arbitration award may
be entered in any court of competent jurisdiction, as
provided for in this Agreement, for an order of enforcement
if necessary. The costs of the arbitration shall be divided
equally between the parties. No party shall be entitled to
recover attorneys fees incurred in any arbitration proceeding
from the other party. However, if either party is required
to take legal action to enforce or collect the award, the
prevailing party in such legal action shall be entitled
to collect all costs and reasonable attorney s fees and
other expenses from the other party.
14. Amendments/Waivers. This Agreement may only be modified,
amended, or waived by a writing duly authorized and
executed by all parties.
15. Draftsman. In construing this Agreement, neither of
the parties hereto shall have any term or provision
of this Agreement construed against such party solely
by reason of such party having drafted same as each
provision of this Agreement is deemed by the parties
to have been jointly drafted by the Company and the Employee.
16. Permitted Activities. It is acknowledged that Employee
serves on the Board of Directors of Expanse Networks,
a company whose business is not in competition with that
of the business of the Company. The Company hereby
permits the Employee to continue his service on said
Board of Directors and Employee represents and warrants
to the Company that his service on Expanse Network s Board
of Directors will not interfere with his performance of
his duties for the Company on a full-time basis as described
in this Agreement. Upon the approval of the Company, which
approval shall not be unreasonably withheld or delayed,
Employee may serve on other Boards of Directors of
companies whose businesses are not in competition with
that of the business of the Company and where the Employee s
service on such Boards will not interfere with the
performance of his duties for the Company on a full-time
basis as described in this Agreement.
17. SEC Compliance. Employee acknowledges that the Company,
as of the date hereof, is a Reporting Company under the
Securities Exchange Act of 1934 as amended (the Act). While
the Company remains a Reporting Company, its officers and
directors, and certain shareholders are required to file
periodic reports under Section 16, as it relates to the
ownership, acquisition and disposition of their equity
of Invisa, Inc. Employee agrees that he will timely file
Section 16 reports regarding his equity ownership of
Invisa, Inc. Employee further agrees that he will abide
by Regulation FD and Invisa, Inc. s written policies as
may adopted from time to time regarding xxxxxxx xxxxxxx
and disclosure of non-public information.
18. Special Bank Account. The Company has opened a special
bank account (Special Bank Account). The authorized
signatures of the Special Bank Account are Xxxxxx
Xxxxxx and Xxxxxx X. Xxxxxxx. Funds deposited into the
Special Bank Account will only be used to pay Employee s
Lump Sum Severance Package Compensation, as more
specifically set forth
in Paragraph 6.3 or the Lump
Sum Disability Severance Package Compensation, as
more specifically set forth in Paragraph 6.4,
as the case may be. The Special Bank Account will
be maintained for the initial year of this Employment
Agreement, and thereafter, the funds therein will be
released to the general working capital of the Company.
The Company confirms that it has deposited $250,000
into the Special Bank Account.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first above written.
THE COMPANY: EMPLOYEE:
Invisa, Inc.
By:___/s/ Xxxxxx X. Movizzo__________ __/s/_Herbert M. Lustig___________
Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxx
Director and Authorized Representative
By: ___/s/_Robert W. Knight____________
Xxxxxx X. Xxxxxx
Director and Authorized Representative
EMPLOYMENT AGREEMENT
between Invisa, Inc.
and
Xxxx X. Xxxxxx
In accordance with Paragraph 2,
Employee shall perform the following duties:
Chief Operating Officer:
From November 1 to December 31, 2003, Employee
shall be employed as the Chief Operating Officer
(COO) of the Company. As COO, Employee shall work
with the Company Board of Directors to establish
all revenue targets for the Company, including those
for systems, hardware, development contracts and licensing.
In addition, COO shall have the final decision making authority
for all budgeting and personnel issues. All Company employees
other than the President shall report directly to the COO.
COO shall report directly to the Board of Directors.
Chief Executive Officer:
Commencing January 1, 2004 and continuing through the term
of the Agreement, Employee shall be employed as the Chief
Executive Officer (CEO) of the Company. As CEO, Employee
shall be in charge of, and have the final decision making
authority for the day to day management and operations of
the company which shall include without limitation budgeting,
marketing, research and development and personnel. For
purposes of this Agreement, personnel shall include the
selection, recruitment, hiring, promotion and termination of
employees, consultants and independent contractors. All employees
of the Company including, without limitation, all officers of
the Company, shall report directly to the CEO, except Xxxxxxx X. Xxxxxxx,
the current CTO who shall report to the Board of Directors. The CEO shall
report directly to the Board of Directors and shall work with the Board of
Directors to establish all revenue targets for the Company, including
those for systems, hardware, development contracts and licensing.
Exhibit B
EMPLOYMENT AGREEMENT
between Invisa, Inc.
and
Xxxx X. Xxxxxx
In accordance with Paragraph 3, Employee shall be paid the following
Compensation payable as set forth below:
1. The salary to be paid by Employer hereunder shall be
$195,000 per year, gross salary, payable monthly in
two increments (less customary withholding for federal
and state employment taxes).
2. Four weeks vacation.
3. Stock Option.
As soon as practicable after the date of the Employment Agreement,
but in no event later than the 30th day after the date of the
Employment Agreement, the Company will grant to the Employee options
(Options) to purchase up to 1,400,000 shares of the Company s common
stock. To the maximum extent permitted by law, such Options shall
be incentive stock options as defined in Section 422 of the Internal
Revenue Code of 1986, as amended. The balance of the options shall
be non-qualified options. The option exercise price for the Options
shall equal the average trading price of the Company s common stock
on the over-the-counter market for the ten business days immediately
preceding the date of the Employment Agreement. The Options will
be subject to the terms and conditions specified below and such other
terms and conditions as reasonably agreed to by the Company and the
Employee and set forth in the Option Agreements which will evidence the
grant of the Options. The Options:
a. will vest as to 233,340 shares of the common stock subject
to the Options on June 30, 2004, and as to an additional 116,666
shares of the common stock subject to the Options on each of September
30, 2004, December 31, 2004, March 31, 2005, June 30, 2005, September
30, 2005, December 31, 2005, March 31, 2006, September 30, 2006 and
December 31, 2006;
b. will provide for acceleration in full of vesting upon the closing of
(A) a sale, merger or other transaction by one or more of the
shareholders of the Company of more than 50% of the Company s common
stock to a person or entity which is not directly or indirectly
related to, or affiliated with, the seller(s) of such common stock;
(B) a sale or exchange of substantially all of the assets of the
Company; or (C) a change of control of the Company;
c. will have a term of 10 years from the date of grant, and will
not be subject to earlier termination in the event of the
termination of the Employee s employment with the Company
for any reason (including, without limitation, cause, death,
disability or a
change of control) and notwithstanding anything to the contrary
set forth in the Employment Agreement, any fully vested shares
of common stock which are the subject of the Option shall not
be subject to termination in the event of the termination of
the Employee s employment with the Company for any reason
(including, without limitation, cause, death, disability or a
change of control);
d. will have customary anti-dilution protection, including
protection against any extraordinary dividend made by the
Company; and
e. will not subject any shares acquired upon exercise of the
Options to any transfer restrictions (other than compliance
with applicable securities laws), lock-up provisions or
repurchase rights in favor of the Company or any other
person; and
f. will provide that the option exercise price may be paid
in cash or in shares of Company common stock owned by the
Employee for at least six months.
If the Company desires to grant the Options under its 2003
Incentive Plan (2003 Plan), it must first amend such 2003 Plan,
as soon as possible after the date hereof, to (a) eliminate or
carve-out the Options granted to Employee from the provisions
of Sections 6.6, 6.7, 10.1 and 10.2 thereof relating to repurchase,
early termination and right of first refusal rights, (b) provide
that fair market value will be based on the trading price on the
over-the-counter market or other applicable securities market or
exchange, and (c) will expand the anti-dilution provision in Section
4.2 of the 2003 Plan to include mergers, separations and extraordinary
cash or non-cash dividends or distributions. The Company shall also use
its best efforts to cause any shares of Company common stock acquired
upon exercise of the Options to be covered by a Form S-8 or other form
of Registration Statement, which shall be filed as soon as practicable
after the date of grant, but in any event no later than ten months
from the date of the Employment Agreement.
4. Relocation Allowance
Within 30 days of the full execution of this Agreement, the Company shall
pay to Employee $15,000 as a relocation allowance.
5. Transitional Eight Week Expense Reimbursement
In addition to the expense reimbursement pursuant to Paragraph
5b of this Agreement, the Company shall, in accordance with the
same terms as set forth in Paragraph 5, reimburse the Employee for
lodging, food, car rental, air travel, and other related temporary
living transitional expenses over the initial eight week period
following the date hereof.
Covenant Not to Compete
Invisa, Inc.
This Covenant Not to Compete is made and entered
into by and between Invisa, Inc., a Nevada corporation (hereinafter
referred to as the Company), and Xxxx X. Xxxxxx (hereinafter
referred to as the Second Party).
R E C I T A L S:
WHEREAS, the Company is in the business of developing,
manufacturing and marketing safety and security systems
based upon proprietary technology; and
WHEREAS, Second Party is an employee of the Company; and
WHEREAS, Second Party acknowledges that the Company s
business activities extend throughout the world; and
WHEREAS, Second Party acknowledges that through such
consulting or employment he has and/or will acquire a
special knowledge of the processes, technologies,
drawings, designs and methods of manufacture of the
Company s products; and the clients, accounts, business
lists, prospects, records, corporate policies, operational
methods and techniques and other useful information and
trade secrets of the Company (hereinafter all collectively
referred to and defined as Confidential Information); and
WHEREAS, Second Party acknowledges that the Company s
legitimate business interests include the Confidential
Information and the Company s customer goodwill
(hereinafter referred to and defined as the Company s
Legitimate Business Interests) and that the Company s
Legitimate Business Interests would be harmed if Second
Party engaged in competitive activities with the Company
anywhere in the United States of America; and
WHEREAS, the Company and Second Party, pursuant to the
provisions of Florida Statute 542.33 and 542.335 and
the provisions of this Agreement, wish to enter into
an agreement as embodied herein whereby Second Party
will refrain from owning, managing, or in any manner
or capacity working for a business conducting business
activities which are in competition with those of the
Company as defined herein and from soliciting customers
of the Company and employees of the Company for competitive
purposes as defined herein during Second Party s employment
with the Company and during the period of two years after
Second Party s cessation of employment with the Company
in the geographical location of anywhere within the
United States of America.
NOW, THEREFORE, in consideration of the premises and
the respective covenants and agreements of the parties
herein contained, and for additional good and valuable
consideration the receipt and sufficiency of which are
acknowledged by the parties, including, but not limited to,
the Second Party s employment with the Company and the
continuation of the Second Party s employment with the
Company, the parties mutually agree as follows:
1. Confirmation of Recitals - The foregoing
recitals are true and correct and are hereby ratified
and confirmed by the parties and made an integral part
of this Agreement; as such, the recitals shall be
used in any construction of this Agreement,
especially as it relates to the intent of the parties.
2. Definition of Competition For purposes of
this Agreement:
a. Except as set forth in c. and d. below, Competition
shall mean the creation, development, manufacture
or sale of products or systems using presence sensing
technology, based upon capacitance and/or near field
(two meters or less) radio frequency, developed or
acquired by the Company on an exclusive basis.
b. Competition shall also mean the creation,
development, manufacture or sale of products or
systems that are based upon any other technology
developed or acquired by the Company on an exclusive
basis (New Technology).
c. Unless the based upon items below are part of New
Technology, Competition shall NOT mean the creation,
development, manufacture or sale of products or systems
used for sensing that are based upon lenses, beams,
or emitters (current examples being passive infrared,
heat detection, microwave, radio frequency (which is
not in combination with capacitance and which is
limited to far field [greater than two meters]),
laser, ultrasonic, cameras, or systems based on beams
of light).
d. Competition shall NOT mean the creation, development,
manufacture, sale or resale of products or systems
which would otherwise be within the definition of
Competition, but which have been expressly authorized
or sanctioned by the Company through the sale of products,
license, distribution, or other written agreements.
3. Non-Compete - The Second Party will not do,
or intend to do, any of the following, either
directly or indirectly, during Second Party s
employment with the Company and during the period
of two (2) years (but not more than two years)
after Second Party s cessation of employment
with the Company, anywhere within in the United
States of America:
a. Own, manage, operate, control, consult for,
be an officer or director of, work for, or be employed
in any capacity by any company or any other business,
entity, agency or organization which conducts operations
or activities that are in Competition with those of
the Company; or
b. Solicit prior, current or future customers of the Company
for any purpose in Competition with the Company; or
c. Solicit any current or future employees employed by
the Company without the Company s consent.
The Second Party and Company agree that the phrase
Second Party s cessation of employment with the
Company as used in this Agreement, refers to any
separation of Second Party from his employment at the
Company either voluntarily or involuntarily, either
with cause or without cause, or whether the separation
is at the behest of the Company or the Second Party
(hereinafter referred to and defined as Second Party s
Cessation of Employment). For purposes of this
Agreement and for purposes of determining activity
which is covered by the non-compete provisions of
this Agreement, Second Party s Cessation of
Employment shall not include termination of
employment by the Company without cause unless
all severance obligations of the
Company are being
fully and completely honored and satisfied by the
Company. In the event that the Company terminates
Second Party s employment without cause and fails
to fully and completely honor and satisfy the
severance provisions, this Covenant Not to Compete
shall be unenforceable and of no effect.
4. Mediation. In the event the Company deems
that Second Party has breached this Agreement,
the Company and Second Party agree that prior
to the Company pursuing its remedies under Paragraph
5 below, the Company and Second Party shall,
in good faith, endeavor to resolve all claims or
disputes arising from or relating to the terms of
this Agreement, first by mediation. The mediation
shall be conducted by a mediator selected by the
parties, and shall be concluded not more than 10
business days following the Company s delivery
of notice of breach to the Second Party (the Mediation
Period). In the event the parties are unable to
reach a resolution during the Mediation Period,
the Company shall then be entitled to seek relief in
accordance with Paragraph 5. The parties acknowledge
and agree that the Cure Period as defined in
Paragraph 6.2 of the Employment Agreement between the
Second Party and the Company to which this Agreement
is attached as Exhibit C, shall run concurrently
with (and not be in addition to) the Mediation Period.
5. Injunction and Damages - Second Party agrees
that this Agreement is important, material, confidential,
and gravely affects the effective and successful conduct
of the business of the Company, and it effects its
reputation and good will and is necessary to protect
the Company s Legitimate Business Interests.
Second Party recognizes and agrees that the
Company will suffer irreparable injury in the event
of Second Party s breach of any covenant or agreement
contained herein and cannot be compensated by monetary
damages alone, and Second Party therefore agrees that
the Company, in addition to and without limiting any
other remedies or rights that it may have, either under
this Agreement or otherwise, shall have the right to
obtain injunctive relief, both temporary and permanent,
against the Second Party from any court of competent
jurisdiction (Court) if granted by the Court. Second Party
further agrees that in the event of Second Party s breach
of any covenant or agreement contained herein, the Company,
in addition to its right to obtain injunctive relief,
shall further be entitled to seek damages, including,
but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees
to pay the Company s reasonable attorney s fees and costs for
enforcement of this Agreement, if the Second Party breaches
this Agreement.
6. Miscellaneous - Wherever used in this Agreement,
the phrase directly or indirectly includes, but is not
limited to Second Party acting through Second Party s wife,
children, parents, brothers, sisters, or any other relatives,
friends, trustees, agents, associates or entities with which
Second Party is affiliated with in any capacity. Upon
approval of a majority of the Company s Board of Directors,
the Company may waive a provision of this Agreement only in
a writing signed by a representative of the Board of Directors
of the Company and specifically stating what is waived.
The rights of the Company under this Agreement may be assigned;
however, the covenants, warranties, and obligations of the
Second Party cannot be assigned without the prior written approval
of the Company. The title of this Agreement and the paragraph
headings of this Agreement are not substantive parts of this
Agreement and shall not limit or restrict this Agreement in
any way. This Agreement survives after the Second Party s
Cessation of Employment. No change, addition, deletion, or
amendment of this Agreement shall be valid or binding upon Second
Party or the Company unless in writing and signed by Second
Party and the Company. This
Agreement is intended to be a
valid contract under Sections 542.33 and 542.335, Florida Statutes.
In the event a court of competent jurisdiction determines any
covenant set forth herein to be too broad to be enforceable
or determines this Agreement to be unreasonable, then said
court may reduce the geographical area and/or the length
of time provisions herein, in order to make this Agreement
enforceable and reasonable. This Agreement shall be governed
by Florida law. The parties agree that venue for any action
brought under this Agreement shall be in Sarasota County,
Florida. In construing this Agreement, neither of the parties
hereto shall have any term or provision construed against such
party solely by reason of such party having drafted same as
each provision of this Agreement is deemed by the parties to
have been jointly drafted by the Company and Second Party.
7. Second Party Acknowledgment - The Second Party
acknowledges that he has voluntarily and knowingly entered
into this Agreement and that this Agreement encompasses the
full and complete agreement between the parties with respect
to the matters set forth herein.
Executed this __6th__ day of November 2003.
INVISA INC. SECOND PARTY
By: ___/s/ Xxxxxx X. Movizzo____________/s/_Herbert M. Lustig___________
Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxx
Director and Authorized Representative
By: ____/s/ Xxxxxx X. Knight____________
Xxxxxx X. Xxxxxx
Director and Authorized Representative
Confidentiality/Waiver of Interest Agreement
THIS AGREEMENT is made and entered into by and between Invisa, Inc., a Nevada
corporation (hereinafter referred to and defined as the Company) and Xxxx X.
Xxxxxx (hereinafter referred to and defined as the Second Party).
WHEREAS, the Company is in the business of creating, developing, manufacturing
and marketing safety and security systems using technology, based upon radio
frequency and/or capacitance sensing developed or acquired by the Company on an
exclusive basis (the Technology).
WHEREAS, the Company is the owner of the Technology, and all future inventions,
improvements, modifications or alterations to the Technology; and
WHEREAS, Second Party is an employee and officer of the Company who stands
to benefit if the Company is successful and profitable through meeting its
business goals and objectives; and
WHEREAS, Second Party is fully aware and knowledgeable of the
Company s products utilizing the Technology in existence as
of the date hereof (Products); and
WHEREAS, Second Party recognizes that by virtue of Second Party s relationship
with the Company, Second Party has or will acquire a special knowledge of the
Company s Confidential Information as defined in Paragraph 4 of this Agreement
(Confidential Information) and the Information as defined in
Paragraph 5 of this Agreement (Information); and
WHEREAS, Second Party acknowledges that the Company s Confidential
Information and the Information represent valuable, special and
unique assets of the Company; and
WHEREAS, Second Party acknowledges that the Company s legitimate
business interests include the Confidential Information,
Information, and the Company s customer goodwill
(hereinafter referred to and defined as the Company s
Legitimate Business Interests)
and that the Company s Legitimate Business Interests
would be harmed if Second Party would divulge or disclose
the Confidential Information or the Information to any
third-party while the Second Party is an Employee of
the Company, or thereafter as set forth in this Agreement; and
WHEREAS, in addition to the foregoing, the Second Party
acknowledges that it is in Second Party s and the Company s
best interest that the Technology and any future
improvements, modifications, or alterations to the
Technology, and any products
related thereto developed by or with the assistance of
Second Party shall be the exclusive property of the Company.
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements of the parties herein
contained, and for additional good and valuable consideration
the receipt and sufficiency of which are acknowledged by
the parties, including, but not limited to, the Second Party s
employment with the Company and the continuation of the Second
Party s employment with the Company,
the parties mutually agree as follows:
1. Confirmation of Recitals. The foregoing recitals are true
and correct and are hereby ratified and confirmed by the parties
and are made an integral part of this Agreement; as such, the
recitals shall be used in any construction
of this Agreement, especially as it relates to the intent of
the parties.
2. Waiver of Interest. Second Party acknowledges
and agrees that the Company shall be the sole and
exclusive owner of all rights in or to the Technology
and the Products and all drawings, designs, confidential
ideas, trade secrets, documentation, annotation and other
information related to the Technology and
the Products whether developed by Second Party or otherwise,
including any patent applications, patents, trade names,
trademarks, and copyrights related thereto.
Accordingly, Second Party irrevocably, perpetually,
and absolutely assigns and relinquishes to the Company all
right, title, claim or interest Second Party
has or may have in or to the Technology and the Products
and all drawings, designs, confidential ideas, trade
secrets, documentation, annotation and other information
related to the Technology and the Products, whether developed
by Second Party or with the assistance of Second Party,
including any patent applications, patents,
trade names, trademarks and copyrights related thereto, and
Second Party agrees to execute any and all documentation
necessary to effectuate the above described
transfer of ownership.
3. Future Improvements. Second Party acknowledges
and agrees that the provisions of Paragraph 2 above shall
govern and apply to any improvements,
modifications or alterations to the Technology and the
Products as fully and completely it as applies to the
Technology and the Products in existence
on the date hereof. Second Party further acknowledges
and agrees that the provisions of Paragraph 2 above shall
govern and apply to any new technologies
and products of the Company and any improvements,
modifications, or alterations to new technologies and products
of the Company.
4. Confidential Information. As used in this Agreement, Confidential
Information shall mean any information and data, including but not by way
of limitation, the following: product information, sources of supply,
contractual relationships, other advantageous relationships, prototypes,
sales, marketing and distribution strategies, customer lists, financial
information, and any other information and data, whether in oral, written,
or electronic form. The information and data covered under this Paragraph
shall be deemed Confidential Information only if all of the following
criteria are satisfied: 1) the information and data relates to the business
of the Company; 2) the information and data are the property of the Company;
and 3) the information and data has been designated or marked confidential.
Second Party shall maintain the Confidential Information, on a confidential
basis, and not disclose nor divulge same to any third party, during the term
of Second Party s Employment Agreement with the Company and for a period of
two years thereafter, except as otherwise provided below:
(a) with advance approval of the Company;
(b) information already in the possession of a third party and not disclosed
to said third party by Second Party;
(c) information which is part of the public domain;
(d) information which is disclosed pursuant to a lawful requirement or good
faith obligation to a governmental agency;
(e) information which was developed independently by the Second Party not
in violation of this Agreement.
5. Five-Year Non-Disclosure. Second Party agrees that he will keep
confidential, and not disclose or divulge to any third party during
the term of Second Party s Employment Agreement with the Company and
for a period of five years thereafter, all information, including any
formula, pattern, compilation, program, device, method, technique,
process, schematic, drawing, whether in oral, written or electronic form,
that describes the Technology which the Company has chosen not to patent
or protect through any other form of generally accepted intellectual
property protection (Information). For the purposes of this Agreement,
the Information shall not include:
(a) Information that Second Party disseminates with advance approval of
the Company;
(b) Information already in the possession of a third party and not
disclosed to said third party by Second Party;
(c) Information which is part of the public domain;
(d) Information which is disclosed pursuant to a lawful requirement
or good faith obligation to a governmental agency;
(e) Information which was developed independently by the Second Party
not in violation of this Agreement.
6. Non-Public Information. Second Party acknowledges that the
Company is a public company which is reporting under the Securities
Exchange Act of 1934, and accordingly, is subject to certain
restrictions with regard to the dissemination of information which
is otherwise not generally publicly available (Material Non-Public
Information), including, but not limited to, the requirements of
Regulation FD under the Securities Act of 1933, as amended.
7. Mediation. In the event the Company deems that Second Party
has breached this Agreement, the Company and Second Party agree that
prior to the Company pursuing its remedies under Paragraph 8 below,
the Company and Second Party shall, in good faith, endeavor to resolve
all claims or disputes arising from or relating to the terms of
this Agreement, first by mediation. The mediation shall be
conducted by a mediator selected by the parties, and shall
be concluded not more than 10 business days following the
Company s delivery of notice of breach to the Second Party
(the Mediation Period). In the event the parties
are unable to reach a resolution during the Mediation Period, or
the mediation has not occurred or reached resolution within the
Mediation Period, the Company shall then be entitled to immediately
pursue injunctive relief and any other remedy in accordance with
Paragraph 8. The parties acknowledge and agree that the Cure
Period as defined in Paragraph 6.2 of the Employment Agreement
between the Second Party and the Company to which this Agreement
is attached as Exhibit D, shall run concurrently with (and not be
in addition to) the Mediation Period.
8. Injunction and Damages. Second Party agrees that this
Agreement is important, material and gravely affects the effective
and successful conduct of the business of the Company, and it also
affects the Company s reputation and goodwill, and is necessary
to protect the Company s Legitimate Business Interests. The Second
Party further recognizes and agrees that the Company will suffer
irreparable injury in the event of Second Party s breach of any
covenant or agreement contained in this Agreement and cannot be
compensated by monetary damages alone. Accordingly, the Second
Party agrees that, in addition to and without limiting any other
remedies or rights that the Company may have, the Company shall
have the right to obtain injunctive relief,
both temporary and permanent, against the Second Party from
any court of competent jurisdiction (Court) if granted by
the Court. In addition to said injunctive relief, the Company
shall also be entitled to seek damages,
including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay
the Company s reasonable attorney s fees and costs for enforcement
of this Agreement, if the Second Party breaches this Agreement.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
The parties agree that venue for enforcement of any type under
this Agreement shall be in Sarasota County, Florida.
10. Survivors. This Agreement survives after Second Party
is no longer an employee of the Company.
11. Miscellaneous. No change, addition, deletion, or amendment
of this Agreement shall be valid or binding upon Second Party or the
Company unless in writing and signed by Second Party and the Company.
Upon approval of a majority of the Company s Board of Directors, the
Company may waive a provision of this Agreement only in a writing
signed by a representative of the Board of Directors of the Company
and specifically stating what is waived. The rights of the Company
under this Agreement may be assigned; however, the covenants and
agreements of the Second Party pursuant to this Agreement cannot be
assigned. The title of this Agreement and the paragraph headings of
this Agreement are not substantive parts of this Agreement and shall
not limit or restrict the Agreement in any way. In construing this
Agreement, neither of the parties hereto shall have any term or provision
of this Agreement construed against such party solely by reason of such
party having drafted same as each provision of this Agreement is deemed
by the parties to have been jointly drafted by the Company and Second Party.
12. Second Party Acknowledgment. The Second Party acknowledges that
Second Party has voluntarily and knowingly entered into this Agreement and
that this Agreement encompasses the full and complete agreement between the
parties with respect to the matters set forth herein.
Executed this __6th__ day of November, 2003.
INVISA, INC. SECOND PARTY
By: ___/s/ Xxxxxx X. Movizzo__________ __/s/_Herbert M. Lustig___________
Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxx
Director and Authorized Representative
By: ____/s/ Xxxxxx X. Knight____________
Xxxxxx X. Xxxxxx
Director and Authorized Representative
