EMPLOYMENT AGREEMENT
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT (this
“Agreement”),
dated as of January 14, 2008 (the “Effective
Date”), by and among Technest Holdings, Inc. (the “Company”),
a Nevada corporation, and Xxxx X. Xxxxxxx (the “Executive”)
located in Oxford, Connecticut.
WITNESSETH
THAT
WHEREAS,
the Company wishes to
employ the Executive to render services as the Chief Executive Officer of the
Company on the terms and conditions set forth in this Agreement;
and
WHEREAS,
the Executive wishes
to be retained and employed by the Company on such terms and
conditions;
THEREFORE,
in consideration of
the premises, the mutual agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. Employment: The
Company hereby employs the Executive, and the Executive accepts such employment
and agrees to perform services for the Company as described herein, for the
period of time and upon the other terms and conditions set forth in this
Agreement.
2. Term: Unless
terminated at an earlier date in accordance with Section 8 of this Agreement
or
otherwise extended by agreement of the parties, the term of the Executive’s
engagement hereunder shall be for a period of 5 years (the “Term”),
commencing on the Effective Date. The period of engagement may be
extended by written agreement between the parties, provided that certain
provisions relating to compensation may change upon commencement of any
extension hereto.
3. Position
and
Duties
(a) Service
with the
Company: During the Term of the Executive’s engagement, the
Executive shall be employed in the position of Chief Executive Officer of the
Company.
(b) Service
with
Subsidiaries: During the Term of the Executive’s engagement, he may be
appointed to serve as an officer or director of certain of the Company’s wholly
or majority owned subsidiaries. Such service shall be a duty and
responsibility of the Executive and be governed by the terms of this employment
agreement. Such duties shall be performed by the Executive for no
additional consideration. As of the Effective Date, Executive is
Chief Executive Officer of the Company’s wholly owned subsidiary, Genex
Technologies, Inc.
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(c) Performance
of Duties
The Executive agrees to serve the Company faithfully and to the best of
Executive’s ability and to devote his full working time, attention and efforts
exclusively to the business and affairs of the Company during the Executive’s
engagement by the Company. Any exceptions to this arrangement shall be subject
to approval by the Company’s Board of Directors. The Executive hereby confirms
that Executive is under no contractual commitments inconsistent with Executive’s
obligations set forth in this Agreement and that, during the Term of this
Agreement, Executive will not render or perform services to or for any other
corporation, firm, entity or person which are inconsistent with the provisions
of this Agreement. While Executive remains employed by the Company,
the Executive may participate in reasonable professional, charitable and/or
personal investment activities including participating on the Board of other
corporations, so long as such activities do not individually or in the aggregate
interfere with the performance of Executive’s obligations under this
Agreement.
4. Compensation
(a) Base
Compensation: As compensation for services to be rendered by
the Executive under this Agreement, the Company shall pay to the Executive,
during the Term of the Executive’s engagement and subject to the termination
provisions of Section 8 of this Agreement, a base payment of $350,000 per year
(the “Annual
Salary”), which payment shall be paid in arrears in accordance with the
Company’s normal procedure and policies. The Executive shall be
eligible for periodic cost of living or merit raises at the discretion of the
Company. In addition, the Company agrees to provide the Executive
with $5,000 monthly for auto expense, home office expense, and other personal
expenses.
(b) Bonus
(i) Cash
Compensation: In
addition to the Annual Salary, the Executive shall be eligible to receive annual
cash bonus compensation from time to time in amounts determined as
follows:
A. The
Executive shall be entitled to 5% of the Company’s EBITDA (Earning Before
Interest, Taxes, Depreciation and Amortization) calculated on an annual basis
at
the end of the Company’s fiscal year, up to a maximum allowable cash bonus of
300% of the Annual Salary (the “EBITDA Bonus”),
payable by the Company within 90 days of the end of the Company’s fiscal
year.
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(ii) Equity
Compensation:
In addition to the Annual Salary, the EBITDA Bonus, the Executive shall be
eligible to receive equity bonus compensation under the Company’s 2006 Stock
Award Plan, in amounts determined as follows:
The
Executive shall be entitled to the amount of shares of Common Stock (the “Market
Cap Bonus Shares”) calculated by dividing (x) 7% of the increase, if any,
of the Market Capitalization (as defined below) of the Company’s Common Stock as
of the prior fiscal year end compared to the following fiscal year end, by
(y)
the closing price of the Company’s Common Stock on the trading day immediately
prior to the issuance of such shares. Such Market Cap Bonus Shares
shall be issued within 7 days of the end of the Company’s fiscal
year.
For
purposes of this Agreement, “Market Capitalization” shall mean the average
closing price of the Company’s Common Stock as traded on the Over-the-Counter
Bulletin Board (or if the Common Stock is no longer listed on that market,
the
principal securities exchange or trading market on which the Common Stock is
listed, quoted or traded), for 20 consecutive trading days ending immediately
prior to the measurement date, multiplied by the average number of shares of
the
Company’s Common Stock outstanding for the same 20 consecutive trading
days.
As
an
example, the average closing price for the month of June 2007 was $0.50333
per
share and the average number of shares outstanding for the month of June 2007
was 16,878,451 shares, for a Market Capitalization for the month of June 2007
of
$8,494,924. If the Market Capitalization for the month of June 2008
increases to $10,000,000 for an increase of approximately $1,505,076, the
Executive would be entitled to approximately 140,473 shares ($105,355 (7% of
the
increase in Market Capitalization) divided by $.75, the closing price of the
Company’s Common Stock on the trading day immediately prior to the issuance of
such shares).
(c) Expenses:
The Company
shall pay or reimburse the Executive for all reasonable and necessary
out-of-pocket expenses incurred by the Executive in the performance of the
Executive’s duties under this Agreement, subject to the Company’s normal
policies for expense authorization and verification.
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(d) Liability
Insurance:
The Company agrees to maintain Directors and Officers liability insurance
upon terms and conditions consistent with industry practices.
(e) Benefits:
The
Executive shall be entitled to receive and participate in all benefits offered
to full-time Executives of the Company, including, but not limited to, health
and dental insurance, life insurance, participation in the Company’s 401(k) plan
and vacation benefits.
5. Confidential
Information Except
as permitted or directed by the Company’s Board of Directors in writing or as
required by operation of law, during the Term of this Agreement or at any time
thereafter, the Executive shall not divulge, furnish or make accessible to
anyone or use in any way (other than in the ordinary course of business of
the
Company) any Confidential Information. “Confidential
Information” shall include any information of the Company or any
affiliate, customer, subsidiary, supplier or other business associate of the
Company or any affiliate (including but not limited to any trade secrets or
other private matters) that the Executive has acquired or become acquainted
with
or will acquire or become acquainted with prior to the termination of the period
of the Executive’s engagement by the Company (including engagement by the
Company or any affiliated companies prior to the Effective Date) whether
developed by the Executive or by others, and which is not known or
generally available to the general public or of a type which the Company has
customarily made available to the general public including but not limited
to
any trade secrets, confidential or secret designs, processes, formulae, plans,
devices or material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company, any customer
or
supplier lists of the Company, any confidential or secret development or
research work of the Company, or any other confidential or secret aspects of
the
business of the Company. The Executive acknowledges that the
above-described knowledge or information constitutes a unique and valuable
asset
of the Company and represents a substantial investment of time and expense
by
the Company, and that any disclosure or other use of such knowledge or
information other than for the sole benefit of the Company would be wrongful
and
would cause irreparable harm to the Company. Both during and
after the Term of the Executive’s engagement, the Executive will refrain from
any acts or omissions that would reduce the value of such knowledge or
information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that is
published and publicly available or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other
than
as a direct or indirect result of the breach of this Agreement by the
Executive.
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6. Ventures If,
during the Term of the Executive’s engagement, the Executive is engaged in or
associated with the planning or implementing of any project, program or venture
involving the Company and a third party or parties, all right in such project,
program or venture shall belong to the Company, unless prior written consent
from the Company is obtained. Except as approved by the Board, or its
designee, the Executive shall not be entitled to any interest in such project,
program or venture or to any commission, finder’s fee or other compensation in
connection therewith other than the compensation to be paid to the Executive
as
provided in this Agreement. The Executive shall disclose to the Board
of Directors any arrangement through which the Executive acquires or may acquire
any interest, direct or indirect, in any vendor or customer of the
Company.
7. Intellectual
Property
Rights
(a) Disclosure
and
Assignment The Executive will promptly disclose in writing to
the Company complete information concerning each and every invention, discovery,
improvement, device, design, apparatus, practice, process, method or product,
whether patentable or not, made, developed, perfected, devised, conceived or
first reduced to practice by the Executive, either solely or in collaboration
with others, whether or not during regular working hours, relating either
directly or indirectly to the business, products, practices or techniques of
the
Company or arising out of or relating to the services provided hereunder (the
“Developments”). The
Executive, to the extent that Executive has the legal right so to do, hereby
acknowledges that any and all of the Developments and all originals and copies
of all notebooks, disks, tapes, computer programs, reports, proposals and
materials evidencing, incorporating, constituting, representing or recording
any
Development or Confidential Information or any other information or materials
furnished to Executive by the Company are the sole property of the
Company. The Executive agrees to assign and hereby does assign to the
Company any and all of the Executive’s right title and interest throughout the
world in and to any and all of the Developments and anything tangible which
evidences, constitutes, represents or records any Development (the “Assignment”). During
the period commencing the day after the Executive’s last day performing services
for the Company and ending one year after termination of the Executive’s
engagement with the Company, at the request of the Company, the Executive will
confer with the Company and its representatives for the purpose of disclosing
all Developments to the Company, provided that such conference is at the
Company’s expense and the Executive is compensated at an hourly rate equal to
the Executive’s final Annual Salary divided by two-thousand eighty
(2080).
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(b) Limitation
on Section
7(a) The provisions of Section 7(a) shall not apply to any
Development meeting the following conditions: (i) such Development was developed
entirely on the Executive’s own time without the use of any Company equipment,
supplies, facility or trade secret information; and (ii) such Development does
not relate directly or significantly to the business of the Company, to the
Company’s actual or demonstrably anticipated research or development; or result
from any work performed by the Executive for the Company.
(c) Copyrightable
Material All right, title and interest in all copyrightable material that
the Executive shall conceive or originate, either individually or jointly with
others, and which arises out of the performance of this Agreement, will be
the
property of the Company and are by this Agreement assigned to the Company along
with ownership of any and all copyrights in the copyrightable
material. Upon request and without further compensation therefore,
but at no expense to the Executive, the Executive shall execute all papers
and
perform all other acts necessary to assist the Company to obtain and register
copyrights on such material in any and all countries, except that the Executive
shall be compensated at an hourly rate equal to the Executive’s final Annual
Salary divided by two-thousand eighty (2080) for compliance with this provision
following termination or expiration of this Agreement. Executive
agrees that to the extent the copyright laws of the United States apply to
the
Developments, the Developments constitute “works made for hire” as defined in
the United States Copyright Act. To the extent not considered as
works made for hire, such works are hereby assigned to the Company under the
Assignment provision of this Section 7.
(d) Executive
hereby agrees, without payment of any additional consideration to Executive
to:
(i) promptly disclose all Developments to the Company; (ii) assist the Company
in every reasonable manner to obtain patents or copyrights thereon in any and
all countries for the Company’s benefit; and (iii) to execute all such patent
applications, patent or copyright assignments and other lawful documents, and
to
take all such other actions, as the Company may request to otherwise carryout
the purposes of this Agreement. In connection with this Section 7,
Executive hereby irrevocably grants power of attorney to the Company to act
for
and on Executive’s behalf to execute, register and file any such applications,
and to do all other lawfully permitted acts to further the registration,
prosecution and issuance of patents, copyrights or similar protections with
the
same legal force and effect as if executed by Executive. The
out-of-pocket cost of filing and prosecuting patent applications and obtaining
copyright registration for the Developments shall be borne by the
Company.
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(e) It
is
understood that this Section 7 applies, without limitation, to any and all
oral
communications and writings, including, without limitation, notes, drawings,
specifications, schematics, flow charts, software, algorithms and engineering,
sales, marketing and financial plans, and studies and reports that are prepared,
compiled or acquired by or on behalf of Executive during the Term of this
Agreement.
8. Termination
of
Engagement
(a) Grounds
for
Termination The Executives engagement shall terminate prior to
the expiration of the Term or any extension thereof in the event that at any
time: (i) the Executive dies; (ii) the Company elects to terminate this
Agreement for Cause, as defined in Section 8(b) below, and notifies the
Executive in writing of such election; (iii) the Company elects to terminate
this Agreement without Cause and notifies the Executive in writing of such
election; (iv) the Executive elects to terminate this Agreement and notifies
the
Company in writing of such election; or (v) the Executive elects to terminate
this Agreement for Good Reason, as defined below in Section 8(c) and notifies
the Company in writing of such election.
(b) Cause
Defined “Cause” means that (i) the Executive has willfully or
recklessly breached the provisions of Sections 5, 6 or 7 of this Agreement
in
any material respect; (ii) the Executive has engaged in willful misconduct
which
has resulted in material financial harm to the Company; (iii) the Executive
has
committed fraud or embezzlement in connection with the Company’s business; or
(iv) the Executive has been convicted or has pleaded nolo contendere to a felony
or a crime of moral turpitude.
(c) Good
Reason
Defined “Good Reason” shall mean (i) the assignment of the
Executive to any duties materially inconsistent in any respect with the
Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement or any other action by the Company which results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action
not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; (ii) any termination or reduction
of a
material benefit under any benefits plan in which the Executive participates
unless (1) there is substituted a comparable benefit prior to such termination
or reduction or (2) benefits under such plan are terminated or reduced with
respect to all employees of the Company previously granted benefits thereunder;
or (iii) without limiting the generality of the foregoing, any material breach
of this Agreement by the Company or any successor thereto.
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(d) Effect
of
Termination Notwithstanding any termination of this Agreement,
the Executive, in consideration of the Executive’s engagement hereunder, shall
remain bound by the provisions of this Agreement which specifically relate
to
periods, activities or obligations upon or subsequent to the termination of
the
Executive’s engagement, including without limitation Sections 5 and
7.
(e) Surrender
of Records and
Property Upon termination of the Executive’s engagement with
the Company, the Executive shall deliver promptly to the Company all records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, calculations or copies thereof that relate in any way
to
the business, products, practices or techniques of the Company, and all other
property, trade secrets and confidential information of the Company, including,
but not limited to, all documents that, in whole or in part, contain any trade
secrets or confidential information of the Company, which in any of these cases
are in Executive’s possession or under the Executive’s control.
(f) Payment
Continuation If the Executive’s engagement with the Company is
terminated by the Company pursuant to clause (iii) of Section 8(a) of this
Agreement or by the Executive pursuant to clause (v) of Section 8(a) of this
Agreement, then the Company shall continue to pay to the Executive’s Annual
Salary payments and shall continue to provide medical benefits comparable to
those the Executive participated in during his engagement with the Company
for
the Executive and his eligible dependents for a period of one year from the
date
of termination, plus (i) the EBITDA Bonus calculated on the Company’s EBITDA as
of the month immediately prior to the date of termination and (ii)
the Market Cap Bonus Shares calculated by dividing (x) 7% of the increase,
if
any, of the Market Capitalization as of the fiscal year end prior to the date
of
termination compared to the 20 trading days immediately preceding the date
of
termination by (y) the closing price for the trading day immediately preceding
the date of termination. Such share shall be issued as of the date of
termination.
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If
the
Executive’s engagement is terminated pursuant to clauses (i), (ii) or (iv) of
Section 8(a) of this Agreement, the Executive’s right to Annual Salary payments
and benefits shall immediately terminate, except as may otherwise be required
by
applicable law.
(g) Change
of Control
Notwithstanding the foregoing, in the event that a Change of Control (as defined
below) occurs during the Term of this Agreement and the Executive is terminated
by the Company as a result of such Change of Control (other than for Cause)
or
the Executive terminates for Good Reason as a result of the Change of Control,
the Executive shall be entitled to the following benefits:
(i) Cash
Compensation:
The Company shall pay to the Executive, in cash within 30 days after the date
of
termination, (a) the amount equal to two multiplied by the Annual Salary,
together with any earned Annual Salary through the date of termination and
any
accrued vacation pay and (b) (if the Change of Control occurs other than at
the
end of the Company’s fiscal year end) the EBITDA Bonus calculated on the
Company’s EBITDA as of the month immediately prior to the Change of
Control.
(ii) Equity
Compensation: The Market Cap Bonus Shares calculated by
dividing (x) 7% of the increase, if any, of the Market Capitalization as of
the
fiscal year end prior to the Change of Control compared to the 20 trading days
immediately preceding the Change of Control by (y) the closing price of the
Company’s Common Stock on the trading day immediately prior to the issuance of
such shares. Such shares shall be issued no later than 5 days after
the Change of Control.
For
purposes of this Section, any one of the following events shall be considered
a
“Change of Control”:
(a) the
acquisition by any “person” (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934) of any amount of the Company’s Common Stock so
that it holds or controls fifty percent (50%) or more of the Company’s Common
Stock;
(b) a
merger
or consolidation after which fifty percent (50%) or more of the voting stock
of
the surviving corporation is held by persons who were not stockholders of
the
Company immediately prior to such merger or consolidation;
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(c) the
sale
or disposition by the Company of all or substantially all of the Company’s
assets to an entity in which immediately after such sale or disposition,
the
Company’s stockholders hold less than 50% of the combined voting power of such
entity’s outstanding securities; or
(d) approval
by
the stockholders of the Company of a complete liquidation or dissolution
of the
Company.
9. Non-Competition.
(a) The
Executive
acknowledges and recognizes the highly competitive nature of the businesses
of
the Company and accordingly agrees as follows:
(i) During
the
Term of the Executive’s engagement and, for a period of one year following the
date Executive ceases to be employed by the Company (the “Restricted
Period”), the Executive will not, whether on Executive’s own behalf or on
behalf of or in conjunction with any person, company, business entity or
other
organization engaged in a Competitive Business (as defined below), directly
or
indirectly solicit or assist in soliciting on behalf of any entity engaged
in a
Competitive Business, the business of any client or prospective
client:
(A) with
whom
Executive had personal contact or dealings on behalf of the Company during
the
one year period preceding termination of Executive’s engagement with the
Company;
(B) with
whom
Executives reporting to Executive have had personal contact or dealings on
behalf of the Company during the one-year period immediately preceding the
termination of the Executive’s engagement; or
(C) for
whom
Executive had direct or indirect responsibility during the one-year period
immediately preceding Executive’s termination of employment.
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(ii) During
the
Restricted Period, Executive will not directly or indirectly:
(A) engage
in a
Competitive Business;
(B) enter
the
employ of, or render any services to, any person or entity (or any division
of
any person or entity) who or which engages in a Competitive Business; provided
that Executive shall not be prohibited from rendering any services to any
company that derives less than 10% of its revenues from a Competitive Business
(a “Permitted
Company”), if such services or employment relate solely to a business of
the Company that is not in competition with a Competitive Business;
(C) acquire
a
financial interest in, or otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant;
provided, however, a Competitive Business shall not include a Permitted Company,
or
(D) interfere
with, or attempt to interfere with, business relationships (whether formed
before, on or after the date of this Agreement) between the Company and
customers, clients, suppliers partners, members or investors of the Company
of
which it is reasonable to expect that Executive is aware.
(iii) For
purposes
of this Agreement, “Competitive Business” means the development, manufacture,
license, sale or provision of products or services that the Company currently,
or at any time during the Term of this Agreement, sells, manufactures, licenses
or provides.
(iv) Notwithstanding
anything to the contrary in this Agreement, the Executive may, directly or
indirectly own, solely as an investment, securities of any person engaged in
a
Competitive Business which is publicly traded on a national or regional stock
exchange or on the over-the-counter market if the Executive (i) is not a
controlling person of, or a member of a group which controls, such person and
(ii) does not, directly or indirectly, own 5% or more of any class of securities
of such person.
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(v) During
the
Restricted Period, the Executive will not, whether on the Executive’s own behalf
or on behalf of or in conjunction with any person, company, business entity
or
other organization whatsoever, directly or indirectly:
(A) solicit
or
encourage any employee of the Company to leave the employment of the Company;
or
(B) hire
any such
employee who was employed by the Company as of the date of Executive’s
termination of employment with the Company or who left the employment of the
Company coincident with, or within six months prior to or after, the termination
of Executive’s employment with the Company. Notwithstanding the foregoing,
Executive will not be restricted from hiring any employee who is terminated
without Cause by the Company.
(vi) During
the
Restricted Period, Executive will not, directly or indirectly, solicit or
encourage to cease to work with the Company any individual consultant then
under
contract with the Company.
(b) It
is
expressly understood and agreed that although the Executive and the Company
consider the restrictions contained in this Section 9 to be reasonable, if
a final judicial determination is made by a court of competent jurisdiction
that
the time or territory or any other restriction contained in this Agreement
is an
unenforceable restriction against the Executive, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as
to
such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
10. Indemnification
- In
the event that the Executive is made, or threatened to be made, a party to
any
action or proceeding, whether civil or criminal, by reason of the fact that
the
Executive is or was a director, officer, or member of a committee of the Board
or serves or served any other corporation, partnership, joint venture, trust,
the Executive benefit plan or other enterprise in any capacity at the request
of
the Company, or resulting from any of the Executive’s actions in any of the
foregoing roles the Executive shall be indemnified by the Company and the
Company shall advance the Executive’s related expenses to the fullest extent
permitted by law (including without limitation, damages, costs and reasonable
attorney fees), as may otherwise be provided in the Company’s Articles of
Incorporation and By Laws as incurred and will start prior to any judicial
preceding. The Company further covenants not to amend or repeal any provisions
of the Articles of Incorporation or Bylaws of the Company in any manner which
would adversely affect the indemnification or exculpatory provisions contained
therein as they pertain to acts. The provisions of this Section are intended
to
be for the benefit of, and shall be enforceable by, each indemnified party
and
the Executive’s heirs and representatives. If the Company or any of its
successors or assigns (i) shall consolidate with or merge into any other
corporation or entity and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to such person, then and in
each
such case, proper provisions shall be made so that the successors and assigns
of
the Company shall assume all of the obligations set forth in this Section
10.
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11. Miscellaneous
(a) Counterparts This
Agreement may be executed in separate counterparts, each of which will be an
original and all of which taken together shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing any such
counterpart.
(b) Severability Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under the applicable law, but if any provision
of
this Agreement is held to be invalid, illegal or unenforceable under any
applicable law or rule, the validity, legality and enforceability of the other
provisions of this Agreement will not be affected or impaired
thereby. In furtherance and not in limitation of the foregoing,
should the duration or geographical extent of, or business activities covered
by, any provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered.
(c) Assignability Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable (including by operation of law) by
either party without the prior written consent of the other party to this
Agreement.
(d) Modification,
Amendment,
Waiver or Termination No provision of this Agreement may
be modified, amended, waived or terminated except by an instrument in writing
signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company or the Executive in
exercising any right hereunder shall operate as a waiver of such
right. No waiver, express or implied, by the Company of any right or
breach by the Executive shall constitute a waiver of any other right or breach
by the Executive.
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(e)
Notices All
notices, consents, requests, instructions, approvals or other communications
provided for herein shall be in writing and delivered by personal delivery,
overnight courier, mail, electronic facsimile or e-mail addressed to the
receiving part at the address set forth herein. All such
communications shall be effective when received.
If
to the
Company:
Technest
Holdings, Inc.
Attention:
General Counsel
00000
Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
If
to the
Executive
Xxxx
X.
Xxxxxxx
c/o
Technest Holdings, Inc.
00000
Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Any
party
may change the address set forth above by notice to the other party given as
provided herein.
(f) 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.
(g) Governing
XxxXXX MATTERS RELATING
TO THE
INTERPREATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THE AGREEMENT SHALL
BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT
TO
ANY CHOICE OF LAW PROVISIONS THEREIN.
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(h) Venue;
Fees and
Expenses Any action at law, suit in equity or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or
from this Agreement, or any provision hereof, shall be litigated only in the
state courts located in the State of Maryland, County of Xxxxxxxxxx or the
federal courts in the district which covers such county. The
Executive and the Company consent to the jurisdiction of such
courts. The prevailing party shall be entitled to recover its
reasonable attorneys’ fees and costs in any such action.
(i) Waiver
of Right to Jury
Trial Each party hereto hereby waives, except to the extent
otherwise required by applicable law, the right to trial by jury in any legal
action or proceeding between the partied hereto arising out of or in connection
with this Agreement.
(j) Third-Party
Benefit Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations
or
liabilities of any nature whatsoever.
(k) Withholding
Taxes The Company may withhold from any benefits payable under
this Agreement all federal, state, city or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
(l) Prior
Employment
Agreement The Company and the Executive hereby acknowledge
that the Employment Agreement entered into March 13, 2006 between the Company
and the Executive is terminated and of no further force and effect (other than
the provisions set forth in the Agreement between the Company and the Executive
dated December 31, 2007).
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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THE
PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES
AGREE THAT THIS AGREEMENT AND ANY EXHIBITS HERETO ARE THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS
AND ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, INCLUDING THE EMPLOYMENT
AGREEMENT DATED MARCH 13, 2006 (OTHER THAN THE PROVISIONS SET FORTH IN THE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE DATED DECEMBER 31,
2007).
ACCEPTED
AND AGREED:
| Technest Holdings, Inc. | Xxxx Xxxxxx Xxxxxxx |
| /s/ Xxxxx X. Kotak, CFO | /s/ Xxxx X. Xxxxxxx |
| Date: 1/14/08 | Date: 1/14/08 |
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