INTELLI-CHECK – MOBILISA, INC. DIRECTOR AGREEMENT
EXHIBIT
10.1
INTELLI-CHECK –
MOBILISA, INC.
This
Agreement (this “Agreement”) is made as of March 14, 2008 by and among
Intelli-Check – Mobilisa, Inc., a Delaware corporation (the “Company”), and each
of the individuals signatory hereto (each a “Director” and collectively, the
“Directors”).
WITNESSETH:
WHEREAS,
this Agreement is made pursuant to the Merger Agreement, dated November 20,
2007, by and among the Company, Intelli-Check Merger Sub, Inc., a Washington
corporation, Mobilisa, Inc., a Washington corporation, and certain common
shareholders of Mobilisa, Inc. (“Mobilisa” and the Merger Agreement, the “Merger
Agreement”).
WHEREAS,
pursuant
to the Merger Agreement, the parties hereto wish to provide for:
(i)
the orderly appointment of the Company’s board of directors (the “Board”)
immediately after the Effective Time (as such term is defined in the Merger
Agreement); (ii) the orderly naming of individuals to the slate of directors
presented to the Company’s stockholders for election; and (iii) the orderly
appointment of certain of the Company’s officers (any such appointment of
directors and officers, the “Appointments”).
WHEREAS, it
is a
condition of the Merger Agreement that each of the Voting Parties enter a voting
agreement with the Company in the form of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
AGREEMENT
1. Terms.
Capitalized terms used and not otherwise defined herein that are defined in
the
Merger Agreement shall have the meanings given to such terms in the Merger
Agreement.
2. Covenants.
During
the term of this Agreement, to the extent he or she is entitled under the
Company’s Certificate of Incorporation and the Delaware General Corporation Law,
each Director agrees to use his or her best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
desirable to implement the Appointments contemplated by this Agreement. Neither
the Company nor any Director will, by any voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be performed
hereunder by the Company or any such Director, as applicable, but will at all
times in good faith assist in the carrying out of all of the provisions of
this
Agreement and in the taking of all such actions as may be necessary or
appropriate in order to protect the rights of each Director hereunder against
impairment.
3. Board
of Directors.
3.1 Composition
of the Board.
(i) Immediately
after the Effective Time, the Company’s Board shall be composed of eight (8)
directors, four (4) of whom shall be appointed by the Board prior to the
Effective Time (the “Intelli-Check Directors”) and four (4) of whom shall be
appointed by Mobilisa’s board of directors prior to the Effective Time (the
“Mobilisa Directors”).
(ii) The
initial Intelli-Check Directors and the initial Mobilisa Directors shall
be:
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Intelli-Check
Directors
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Mobilisa
Directors
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Xxxxxxx
Xxxx
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Xxxxxx
Xxxxxx
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Xxxx
X. Xxxxxxx
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Xxxxxx
Xxxxxx
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|
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Xxxxxx
X. Money
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Xxxx
Xxxxxx
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Xxx
X. Xxxxx
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Xxxx
Xxxxxx
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3.2 For
a
period of not less than one (1) year after the date hereof and subject to the
Company’s Certificate of Incorporation and the Delaware General Corporation Law,
each Director agrees:
(i) In
connection with each annual or special meeting of stockholders where the Board
is to be elected, the Intelli-Check Directors shall be entitled to name four
(4)
persons to the slate of directors presented to the Company’s stockholders for
election; and
(ii) In
connection with each annual or special meeting of stockholders where the Board
is to be elected, the Mobilisa Directors shall be entitled to name four (4)
persons to the slate of directors presented to the Company’s stockholders for
election.
3.3 Size
of the Board.
For a
period of not less than one (1) year after the date hereof, the parties hereto
agree that they shall maintain the size of the Board at eight (8) persons,
unless the Board unanimously (with all directors voting) votes to increase
the
number of directors on the Board.
3.4 Obligations;
Removal of Directors; Vacancies.
Each of
the Directors and the Company agree not to take any actions that would
materially and adversely affect the provisions of this Agreement. The parties
acknowledge that the fiduciary duties of each member of the Company’s Board are
to the Company’s stockholders as a whole. In the event any director elected
pursuant to the terms hereof ceases to serve as a member of the Company’s Board,
the Company and the Directors agree to take all such action as is reasonable
and
necessary, to cause the election or appointment of such other substitute person
to the Board as may be designated on the terms provided herein.
-2-
4. Officers.
Immediately
after the Effective Time:
(i) the
Intelli-Check Directors shall have the right to designate the Chairman and
appoint a Chief Financial Officer and a Chief Technology Officer; and
(ii) the
Mobilisa Directors shall have the right to designate the Vice Chairman and
appoint a Chief Executive Officer.
5. Successors
in Interest of the Directors and the Company.
The
provisions of this Agreement shall be binding upon the successors in interest
of
any Director with respect to any of such Director’s rights herein.
6. Grant
of Proxy.
Should
the provisions of this Agreement be construed to constitute the granting of
proxies, such proxies shall be deemed coupled with an interest and are
irrevocable for the term of this Agreement.
7. Specific
Enforcement.
It is
agreed and understood that monetary damages would not adequately compensate
an
injured party for the breach of this Agreement by any party hereto, that this
Agreement shall be specifically enforceable, and that any breach of this
Agreement shall be the proper subject of a temporary or permanent injunction
or
restraining order. Further, each party hereto waives any claim or defense that
there is an adequate remedy at law for such breach or threatened breach and
agrees that a party’s rights would be materially and adversely affected if the
obligations of the other parties under this Agreement were not carried out
in
accordance with the terms and conditions hereof.
8. Term.
The
term of this Agreement shall commence on the date hereof and end one (1) year
from the date hereof.
9. Amendments
and Waivers.
Except
as otherwise provided herein, any provision of this Agreement may be amended
or
the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the prior written
consent of all parties to this Agreement.
10. Severability.
In the
event that any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
-3-
11. Governing
Law.
This
Agreement and the legal relations between the parties arising hereunder shall
be
governed by and interpreted in accordance with the laws of the State of Delaware
without reference to its conflicts of laws provisions.
12. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one
instrument.
13. Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement among
the
parties, and supersedes any prior agreement or understanding among the parties,
with regard to the subjects hereof and thereof, and no party shall be liable
or
bound to any other party in any manner by any covenants except as specifically
set forth herein.
14. Jurisdiction;
Venue.
With
respect to any disputes arising out of or related to this Agreement, the parties
consent and submit to the exclusive jurisdiction of, and venue in, the state
or
federal courts in Wilmington County in the State of Delaware.
-4-
This
Agreement is hereby executed effective as of the date first set forth
above.
COMPANY
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INTELLI-CHECK
- MOBILISA, INC.
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a
Delaware corporation
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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[Signature
page to the Director Agreement]
DIRECTOR
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/s/
Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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/s/
Xxxx X. Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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/s/
Xxxxxx X. Money
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Name:
Xxxxxx X. Money
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/s/
Xxx X. Xxxxx
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Name:
Xxx X. Xxxxx
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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[Signature
page to the Director Agreement]
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Name:
Xxxx Xxxxxx
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/s/
Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
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[Signature
page to the Director Agreement]
