Ex 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of the 17th day
of October, 2005, by and among SECURED SERVICES, INC., a Delaware corporation
(the "COMPANY"), having its principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000, on the one hand, and Xxxx Xxxx of 0000 Xxxxxxx
Xxxx Xxxxx, XX (the "EXECUTIVE"), on the other.
W I T N E S S E T H
WHEREAS, the parties desire by this Agreement to set forth the terms
and conditions of the employment relationship between the Company and the
Executive; and
WHEREAS, the terms of this Agreement have been approved by the Board of
Directors of the Company.
NOW, in consideration of the foregoing and the mutual covenants in this
Agreement, the Company and the Executive agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs the Executive on
the terms and conditions provided in this Agreement and Executive agrees to
accept such employment subject to the terms and conditions of this Agreement.
Executive has been employed as [Vice President of Finance] on the date hereof
and shall assume the title and duties of Chief Financial Officer on December 1,
2005. The Executive shall be responsible for the overall management of the
Company's financial operations, shall perform the duties and responsibilities as
are customary for an officer of a corporation in such positions, and shall
perform such other duties and responsibilities as are reasonably determined from
time to time by the Company's CEO. The Executive shall report to and be
supervised by the CEO. The Executive shall be based at the Company's planned new
office in Northern Virginia or such other place which shall be within a 30 mile
radius thereof that shall constitute the Company's headquarters and, except for
business travel incidental to his employment under this Agreement, the Company
agrees the Executive shall not be required to relocate. The Executive agrees to
devote substantially all his attention and time during normal business hours to
the business and affairs of the Company and to use his reasonable best efforts
to perform faithfully and efficiently the duties and responsibilities of his
positions and to accomplish the goals and objectives of the Company as may be
established by the CEO. Notwithstanding the foregoing, the Executive may engage
in the following activities (and shall be entitled to retain all economic
benefits thereof including fees paid in connection therewith) as long as they do
not interfere in any material respect with the performance of the Executive's
duties and responsibilities hereunder and, with respect to service on a
corporate board pursuant to subsection (i) or teaching pursuant to subsection
(ii) below, that such activity is pre-approved by the CEO, (i) serve on
corporate, civic, religious, educational and/or charitable boards or committees,
provided that the Executive shall not serve on any board or committee of any
corporation or other business which competes with
the Business (as defined in Section 10(a) below); (ii) deliver lectures, fulfill
speaking engagements or teach on a part-time basis at educational institutions;
and (iii) make investments in businesses or enterprises and manage his personal
investments; provided that with respect to such activities Executive shall
comply with any business conduct and ethics policy applicable to employees of
the Company, including but not limited to the Company's Black-Out Xxxxxxx
Xxxxxxx Policy and Amendment for Executives and Officers.
2. TERM. The term of this Agreement shall commence on October 17th,
2005 (the "COMMENCEMENT DATE"), and shall terminate on October 31, 2006, unless
extended or earlier terminated in accordance with the terms of this Agreement
(the "TERMINATION DATE"). Such term of employment is herein sometimes referred
to as the "EMPLOYMENT TERM". During the first three months of the initial
"EMPLOYMENT TERM" the Executive will work "part time" spending approximately 50%
of the time on Secured Services responsibilities. During this initial period the
Executive's compensation will be prorated based on the percentage of his time
actually spent on Secured Services responsibilities. The Employment Term shall
be extended for successive one-year periods unless either party notifies the
other in writing at least 90 days before the Termination Date, or any
anniversary of the Termination Date, as the case may be, that he or it chooses
not to extend the Employment Term.
3. COMPENSATION. As compensation for performing the services required
by this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) BASE COMPENSATION. The Company shall pay to the Executive
an annual salary ("BASE COMPENSATION") of ONE HUNDRED AND NINETY THOUSAND
DOLLARS ($190,000.00), payable in equal installments pursuant to the Company's
customary payroll procedures in effect for its executive personnel at the time
of payment, but in no event less frequently than monthly, subject to withholding
for applicable federal, state, and local income and employment related taxes.
The Executive may be entitled to such increases in Base Compensation with
respect to each calendar year during the term of this Agreement, as shall be
determined by the Company's Compensation Committee (the "COMMITTEE"), in its
sole and absolute discretion, based on an annual review of the Executive's
performance.
(b) INCENTIVE COMPENSATION. In addition to Base Compensation,
the Executive may be entitled to receive additional compensation ("INCENTIVE
COMPENSATION") of up to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) based upon
agreed upon milestones as set forth in Attachment A. For purposes of this
Agreement, the Executive's "PRO RATA SHARE" of Incentive Compensation for any
calendar year of the Company shall be a fraction whose numerator shall be equal
to the number of months during which the Executive was actually employed by the
Company during any such calendar year and whose denominator shall be the total
number of months in such calendar year.
(c) STOCK OPTIONS. The Company, simultaneous with the date of
this Agreement, shall grant to the Executive an option to purchase EIGHT HUNDRED
THOUSAND (800,000) shares of Common Stock of the Company pursuant to the Secured
Services, Inc. Incentive Stock Option Plan. The exercise price per share shall
be the fair market value of one
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share on the date of grant. The option term shall be ten years and shall vest
over four years as set forth herein. Such option shall vest at the rate of 25%
after one year from the Commencement Date and 2.08% each month thereafter;
PROVIDED, that in the event of the Executive's termination without Cause or for
Good Reason (as such terms are defined herein) prior to one year from the
Commencement Date, such option shall vest at the rate of 2.08% each month from
the Commencement Date. The option shall vest in full upon the consummation or
effectiveness of a "Change of Control" of the Company (as such term is defined
herein). On the Executive's first anniversary date, the Executive will be
granted an option to purchase ONE HUNDRED AND SIXTY THOUSAND (160,000)
additional shares of Common Stock. The vesting of that option will be the same
as the original grant.
4. EMPLOYEE BENEFITS. During the Employment Term and subject to the
limitations set forth in this Section 4, the Executive and his eligible
dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension, insurance, health, disability or other
benefit plan or program that has been or is hereafter adopted by the Company (or
in which the Company participates), according to the terms of such plan or
program, on terms no less favorable than the most favorable terms granted to
senior executives of the Company.
5. VACATION AND LEAVES OF ABSENCE. The Executive shall be entitled to
the normal and customary amount of paid vacation provided to senior executive
officers of the Company. Vacation days that are not taken in a given calendar
year shall accrue and be carried over to the next Calendar year up to a maximum
of ten days. Upon any termination of this Agreement for any reason whatsoever,
accrued and unused vacation will be paid to the Executive within 10 days of such
termination based on his annual rate of Base Compensation in effect on the date
of such termination. In addition, the Executive may be granted leaves of absence
with or without pay for such valid and legitimate reasons as the Company in its
sole and absolute discretion may determine, and the Executive shall be entitled
to the same sick leave and holidays provided to other senior executives of the
Company.
6. BUSINESS EXPENSES. The Executive shall be promptly reimbursed
against presentation of vouchers or receipts for all reasonable and necessary
expenses incurred by him in connection with the performance of his duties
hereunder.
7. INDEMNIFICATION.
(a) GENERAL. The Company agrees that if the Executive is made
a party or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "PROCEEDING"), by
reason of the fact that he is or was a director or officer of the Company, is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including, without limitation, service with respect
to employee benefit plans, whether or not the basis of such Proceeding is
alleged action in an official capacity as a director, officer, member, employee
or agent while serving as a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the Company to the fullest
extent authorized by applicable law, as the same exists or may hereafter be
amended, against all Expenses (as defined below) incurred or suffered by the
Executive in connection therewith,
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which Expenses shall be paid as incurred, and such indemnification shall
continue as to the Executive even if the Executive has ceased to be an officer,
director or agent, or is no longer employed by the Company and shall inure to
the benefit of his heirs, executors and administrators.
(b) EXPENSES. As used in this Section 7, the term "EXPENSES"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) SUBROGATION. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Executive.
(d) PARTIAL INDEMNIFICATION. If the Executive is entitled
under any provision of this Agreement to indemnification by the Company for some
or a portion of any Expenses, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify the Executive for the portion of such
Expenses to which the Executive is entitled.
(e) NOTICE OF CLAIM. The Executive shall give to the Company
prompt written notice of any claim made against him for which indemnity will or
could be sought under this Agreement. In addition, the Executive shall give the
Company such information and cooperation as it may reasonably require and as
shall be within the Executive's power and at such times and places as are
mutually convenient for the Executive and the Company.
(f) DEFENSE OF CLAIM. With respect to any Proceeding as to
which the Executive notifies the Company of the commencement thereof: (i) the
Company will be entitled to participate therein at its own expense; and (ii)
except as otherwise provided below, to the extent that it may wish, the Company
jointly with any other indemnifying party similarly notified will be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the
Executive. The Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company or as to which
the Executive shall have reasonably concluded that there may be a conflict of
interest between the Company and the Executive in the conduct of the defense of
such action.
The Company shall not be liable to indemnify the
Executive under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent, which shall not be unreasonably
withheld. The Company shall not settle any action or claim in any manner which
would impose any penalty or limitation on the Executive without Executive's
written consent. Neither the Company nor the Executive shall unreasonably
withhold or delay their consent to any proposed settlement.
(g) NON-EXCLUSIVITY. The right to indemnification conferred in
this Section 7 shall not be exclusive of any other right which the Executive may
have or hereafter may acquire
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under any statute, provision of the certificate of incorporation or by-laws of
the Company, agreement, vote of stockholders or disinterested directors or
otherwise.
(h) DIRECTORS AND OFFICERS LIABILITY POLICY. The Company
agrees to use reasonable efforts to maintain directors and officers liability
insurance covering the Executive in a reasonable and adequate amount determined
by the Board.
8. TERMINATION AND TERMINATION BENEFITS.
(a) TERMINATION BY THE COMPANY.
(i) FOR CAUSE. Notwithstanding any provision
contained herein, the Company may terminate this Agreement at any time during
the Employment Term for "Cause". For purposes of this subsection 8(a)(i),
"CAUSE" shall mean (1) A willful breach of any of the material obligations under
this Agreement, which breach shall not have been remedied by the Executive
within thirty (30) days after SSVC shall have given notice to him of such
breach; (2) willful and continued misconduct or gross negligence in performance
of the Executive's duties hereunder, including his refusal to comply in any
material respect with the legal directives of the Board or the authorized
representative of the Board so long as such directives are not inconsistent with
the Executive's position and duties, which breach shall not have been remedied
by the Executive within thirty (30) days after SSVC shall have given him notice
of such breach; (3) dishonest or fraudulent conduct, your theft or other
misappropriation of the Company's proprietary information or material property,
a deliberate attempt to do an injury to SSVC, or conduct that materially
discredits SSVC or is materially detrimental to the reputation of SSVC,
including, but not limited to, conviction of a felony; or (4) habitual
absenteeism, chronic alcoholism or any other form of addiction which materially
impacts Executive's ability to perform his duties under this Agreement.
Termination pursuant to this subsection 8(a)(i) shall be effective immediately
upon giving the Executive written notice thereof stating the reason or reasons
therefor with respect to clauses (3) or (4) above, and thirty days after written
notice thereof from the Company to the Executive specifying the acts or
omissions constituting the failure and requesting that they be remedied with
respect to clauses (1) and (2) above, but only if the Executive has not cured
such failure within such thirty day period. In the event of a termination
pursuant to this subsection 8(a)(i), the Executive shall be entitled to payment
of his Base Compensation and the benefits pursuant to Section 4 hereof up to the
effective date of such termination and it is also the intention and agreement of
the Company that Executive shall not be deprived by reason of termination for
Cause of any payments, options or benefits which have been vested or have been
earned or to which Executive is entitled as of the effective date of such
termination.
(ii) DISABILITY. If due to illness, physical or
mental disability, or other incapacity, the Executive shall fail, for a total of
any six consecutive months ("DISABILITY"), to substantially perform the
principal duties required by this Agreement, the Company may terminate this
Agreement upon 30 days' written notice to the Executive. In such event, the
Executive shall be (1) paid his Base Compensation until the Termination Date and
his Pro Rata Share of any Incentive Compensation to which he would have been
entitled for the year in which such termination occurs, and (2) provided with
employee benefits pursuant to Section 4, to the
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extent available, for the remainder of the Employment Term; PROVIDED, HOWEVER,
that Base Compensation will not be paid to the Executive pursuant to this
subsection 8(a)(ii) for any period where the Executive is receiving any payments
from any policy of disability insurance pursuant to Section 4 hereof.
(b) TERMINATION WITHOUT CAUSE OR TERMINATION FOR GOOD REASON.
The Company may terminate the Executive's employment hereunder without Cause and
the Executive may terminate his employment hereunder for "Good Reason" (as
defined below). If the Company terminates the Executive's employment hereunder
without Cause, other than due to death or Disability, or if the Executive
terminates his employment for Good Reason, the Executive shall be paid: (i) his
Base Compensation at the rate in effect at the time of termination through the
Termination Date; (ii) his Base Compensation at the rate in effect at the time
of termination from the Termination Date to the end of the Severance Period (as
hereinafter defined), payable in (A) one lump sum on the Termination Date if the
Severance Period is six (6) months or less or (B) in two lump sums, each equal
to one-half of such aggregate amount, the first payable on the Termination Date
and the second on the date which is one day after the six month anniversary of
the Termination Date; (iii) his Pro Rata Share of any Incentive Compensation to
which he would have been entitled for the year in which such termination occurs,
payable on the later of (A) the date which is one day after the six month
anniversary of the Termination Date or (B) the date on which such payment would
ordinarily be paid; (iv) any deferred compensation (including, without
limitation, interest or other credits on the deferred amounts) and any accrued
vacation pay; (v) continuation until the expiration of the Severance Period, of
the health and welfare benefits of the Executive (as provided for by Section 4
of this Agreement) (or the Company shall provide the economic equivalent
thereof); provided, however, if the Executive obtains new employment and such
employment makes the Executive eligible for health and welfare or long-term
disability benefits substantially equivalent to those provided by the Company,
then the Company shall no longer be required to provide such benefits to the
Executive; and (vi) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans or programs of
the Company.
As used herein, "GOOD REASON" means and shall be deemed to
exist if, without the prior express written consent of the Executive, (a) any
failure by SSVC to comply with any provision of this Agreement other than an
isolated, insubstantial or inadvertent failure not occurring in bad faith; or
(b) the assignment to the Executive of any duties materially inconsistent with
the Executive's position (including status, title and reporting requirements),
authority, duties or responsibilities or any other action by SSVC which results
in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial or inadvertent action not
taken in bad faith; (c) the Company fails to use its commercially reasonable
efforts to maintain, or cause to be maintained directors and officers liability
insurance coverage for the Executive; (d) the Company purports to terminate the
Executive's employment for Cause and such purported termination of employment is
not effected in accordance with the requirements of this Agreement; (e) a Change
of Control shall have occurred and the Company fails to obtain the full
assumption of this Agreement by a successor; (f) a reduction in the Executive's
Base Salary; or (g) the relocation of Executive's place of employment more than
30 miles from the Company's planned new office in Northern Virginia; provided,
however, that with respect to items (a) through (c), (e) and (f) above, the
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Company has not cured, or commenced to cure, such failure or breach within 30
days of written notice by the Executive, and with respect to item (e) above, the
Executive shall have provided the Company with 30 days written notice of such
termination.
For purposes of this Agreement, a "CHANGE OF CONTROL" shall
mean (1) any merger by the Company with or into another corporation or
corporations which results in the stockholders of the Company immediately prior
to such transaction owning less than 55% of the surviving Corporation; (2) any
acquisition (by purchase, lease or otherwise) of all or substantially all of the
assets of the Company by any person, corporation or other entity; (3) the
acquisition of beneficial ownership, directly or indirectly, of voting
securities of the Company (defined as Common Stock of the Company or any
securities having voting rights) and rights to acquire voting securities of the
Company (defined as including, without limitation, securities that are
convertible into voting securities of the Company (as defined above) and rights,
options warrants and other agreements or arrangements to acquire such voting
securities) by any person, corporation or other entity, in such amount or
amounts as would permit such person, corporation or other entity to elect a
majority of the members of the Board of the Company, as then constituted; or (4)
the acquisition of beneficial ownership, directly or indirectly, of voting
securities and rights to acquire voting securities having voting power equal to
25% or more of the combined voting power of the Company's then outstanding
voting securities by any person, corporation or other entity unless such
acquisition as is described in this part (4) is expressly approved by resolution
of the Board of the Company passed upon affirmative vote of not less than a
majority of the Board and adopted at a meeting of the Board held not later than
the date of the next regularly scheduled or special meeting held following the
date the Company obtains actual knowledge of such acquisition (which approval
may be limited in purpose and effected solely to affect the rights of Employee
under this Agreement). Notwithstanding the preceding sentence, (i) any
transaction that involves a mere change in identity form or place of
organization within the meaning of Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended, or a transaction of similar effect, shall not
constitute a Change in Control.
(c) NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided or maintained by the
Company and for which the Executive may qualify, nor shall anything herein limit
or otherwise prejudice such rights as the Executive may have under any other
existing or future agreements with the Company. Except as otherwise expressly
provided for in this Agreement, amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plans or programs of the
Company at or subsequent to the date of termination shall be payable in
accordance with such plans or programs.
(d) VESTING OF STOCK GRANTS AND STOCK OPTIONS. In the event of
any termination of this Agreement, Executive's rights with regard to any stock
grants, loan agreements or stock options shall be as set forth in the respective
agreement containing the terms and conditions pertaining thereto and Section
3(c) of this Agreement.
(e) DEATH. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's death.
In such event the Company
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shall continue to pay to his estate the Pro Rata Share of any Incentive
Compensation to which Executive would have been entitled for the year in which
such death occurs.
(f) SEVERANCE PERIOD. If the Company terminates the
Executive's employment hereunder without Cause, other than due to death or
Disability, or if the Executive terminates his employment for Good Reason, the
Severance Period shall be as follows: (i) three (3) months, effective on the
date hereof, (ii) six (6) months, effective on April 1, 2006, and (iii) twelve
(12) months, effective upon the receipt by the Company of not less than an
aggregate of $7 million in net proceeds from the sale of its securities.
(g) NO MITIGATION. The Executive shall not be required to
mitigate the amount of any payments provided for by this Agreement by seeking
employment or otherwise, nor shall the amount of any payment or benefit provided
in this Agreement be reduced by any compensation or benefit earned by the
Executive after termination of his employment.
(h) AJCA. Notwithstanding any other provision of this
Agreement, if any payment that would otherwise be made pursuant to this
Agreement would not comply with the American Jobs Creation Act of 2004 (Section
409A of the Internal Revenue Code), or the regulations promulgated thereunder,
because the payment is made to a "key employee" (as determined under that Act)
before the date that is six months after the date of the Employee's separation
from service, such payment shall be made in accordance with the Act.
9. COMPANY PROPERTY. All advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation reports, customer lists, customer sales analyses, invoices, product
lists, price lists or information, samples, or any other materials or data of
any kind furnished to the Executive by the Company or developed by the Executive
on behalf of the Company or at the Company's direction or for the Company's use
or otherwise in connection with the Executive's employment hereunder, are and
shall remain the sole and confidential property of the Company; if the Company
requests the return of such materials at any time during or at or after the
termination of the Executive's employment, the Executive shall immediately
deliver the same to the Company.
10. RESTRICTIVE COVENANTS.
(a) COVENANTS AGAINST COMPETITION. The Executive acknowledges
that as of the execution of this Employment Agreement (i) the Company is engaged
in the business of providing Software for secure identity management
(Identiprise SECUREDUSER) and secure connection management (Identiprise
SECUREDMOBILE) and associated consulting and implementation professional
services (the "BUSINESS"); (ii) the Company's Business is conducted currently
throughout the United States and Canada and may be expanded to other locations;
(iii) his employment with the Company will have given him access to confidential
information concerning the Company; and (iv) the agreements and covenants
contained in this Agreement are essential to protect the business and goodwill
of the Company. Accordingly, the Executive covenants and agrees as follows:
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(i) NON-COMPETE. Without the prior written consent of
the Board, the Executive shall not during the Restricted Period (as defined
below) within the Restricted Area (as defined below) (except in the Executive's
capacity as an officer of the Company or any of its affiliates), (a) engage or
participate in the Business; (b) enter the employ of, or render any services
(whether or not for a fee or other compensation) to, any person, corporation or
other entity engaged in the Business; or (c) acquire an equity interest in any
such person, corporation or other entitiy; provided, that during the Restricted
Period the Executive may own, directly or indirectly, solely as a passive
investment, securities of any company traded on any national securities exchange
or on the National Association of Securities Dealers Automated Quotation System.
As used herein, "RESTRICTED PERIOD" shall mean the
period commencing on the Commencement Date and ending at the end of the
Severance Period.
"RESTRICTED AREA" shall mean any place within the
United States and any other country in which the Company is then actively
considering conducting Business as of the Termination Date.
(b) CONFIDENTIAL INFORMATION; PERSONAL RELATIONSHIPS. The
Executive acknowledges that the Company has a legitimate and continuing
proprietary interest in the protection of its confidential information and has
invested substantial sums and will continue to invest substantial sums to
develop, maintain and protect confidential information. The Executive agrees
that, during and until the second anniversary of the Executive's termination of
employment, without the prior written consent of the Board, the Executive shall
keep secret and retain in strictest confidence, and shall not knowingly use for
the benefit of himself or others all confidential matters relating to the
Company's Business including, without limitation, operational methods, marketing
or development plans or strategies, business acquisition plans, joint venture
proposals or plans, and new personnel acquisition plans, learned by the
Executive heretofore or hereafter (such information shall be referred to herein
collectively as "CONFIDENTIAL INFORMATION"); provided, that nothing in this
Agreement shall prohibit the Executive from disclosing or using any Confidential
Information (i) in the performance of his duties hereunder, (ii) as required by
applicable law, (iii) in connection with the enforcement of his rights under
this Agreement or any other agreement with the Company, or (iv) in connection
with the defense or settlement of any claim, suit or action brought or
threatened against the Executive by or in the right of the Company.
Notwithstanding any provision contained herein to the contrary, the term
Confidential Information shall not be deemed to include any general knowledge,
skills or experience acquired by the Executive or any knowledge or information
known or available to the public in general. Moreover, the Executive shall be
permitted to retain copies of, or have access to, all such Confidential
Information relating to any disagreement, dispute or litigation involving the
Executive.
(c) EMPLOYEES OF THE COMPANY AND ITS AFFILIATES. Without the
prior written consent of the Board, the Executive shall not, during the
Restricted Period, directly or indirectly, hire or solicit, or cause others to
hire or solicit, for employment by any person, corporation or entity other than
the Company or any affiliate or successor thereof, any employee of, or person
employed within the six months preceding the Executive's termination of
employment or encourage any such employee to leave his or her employment. For
this purpose, any person
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whose employment has been terminated involuntarily by the Company shall be
excluded from those persons protected by this Section for the benefit of the
Company.
(d) BUSINESS RELATIONSHIPS. During the Restricted Period, the
Executive shall not, directly or indirectly, request or advise a person,
corporation or entity that has a business relationship with the Company to
curtail or cancel such business relationship with the Company.
(e) RIGHTS AND REMEDIES UPON BREACH. If the Executive
breaches, or threatens to commit a breach of any of the provisions contained in
Section 10 of this Agreement (the "RESTRICTIVE COVENANTS"), the Company shall
have the following rights and remedies, each of which rights and remedies shall
be independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
(i) SPECIFIC PERFORMANCE. The right and remedy to
have the Restrictive Covenants
specifically enforced by any court of competent jurisdiction, it being agreed
that any breach or threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money damages would not provide an
adequate remedy to the Company.
(ii) ACCOUNTING. The right and remedy to require the
Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits derived or received by the Executive as the result of any
action constituting a breach of Restrictive Covenants.
(f) SEVERABILITY OF COVENANTS. The Executive acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in duration and
geographical scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect without regard to the invalid portions. The
provisions set forth in this Section 10 shall be in addition to any other
provisions of the business conduct and ethics policies applicable to employees
of the Company and its subsidiaries during the term of Executive's employment.
(g) SAVING CLAUSE. If the period of time or the area specified
in subsection (a) above should be adjudged unreasonable in any proceeding, then
the period of time shall be reduced by such number of months or the area shall
be reduced by the elimination of such portion thereof or both so that such
restrictions may be enforced in such area and for such time as is adjudged to be
reasonable. If the Executive violates any of the restrictions contained in the
foregoing subsection (a), the restrictive period shall not run in favor of the
Executive from the time of the commencement of any such violation until such
time as such violation shall be cured by the Executive to the satisfaction of
Company.
11. EXECUTIVE'S REPRESENTATION AND WARRANTIES. Executive represents and
warrants that he has the full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with
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the Company, and that his past, present and anticipated future activities have
not and will not infringe on the proprietary rights of others. Executive further
represents and warrants that he is not obligated under any contract (including,
but not limited to, licenses, covenants or commitments of any nature) or other
agreement or subject to any judgment, decree or order of any court or
administrative agency which would conflict with his obligation to use his best
efforts to perform his duties hereunder or which would conflict with the
Company's business and operations as presently conducted or proposed to be
conducted. Neither the execution nor delivery of this Agreement, nor the
carrying on of the Company's business as officer and employee by Executive will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under any contract, covenant or instrument to which
Executive is currently a party.
12. MISCELLANEOUS.
(a) INTEGRATION; AMENDMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters set
forth herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein. No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties.
(b) SEVERABILITY. If any part of this Agreement is contrary
to, prohibited by, or deemed invalid under applicable law or regulation, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the remainder of this Agreement shall not be invalid
and shall be given full force and effect so far as possible.
(c) WAIVERS. The failure or delay of any party at any time to
require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to other or further notice or demand in
similar or other circumstances.
(d) POWER AND AUTHORITY. The Company represents and warrants
to the Executive that it has the requisite corporate power to enter into this
Agreement and perform the terms hereof; that the execution, delivery and
performance of this Agreement by it has been duly authorized by all appropriate
corporate action; and that this Agreement represents the valid and legally
binding obligation of the Company and is enforceable against it in accordance
with its terms.
(e) BURDEN AND BENEFIT; SURVIVAL. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, personal and legal representatives, successors and assigns.
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(f) GOVERNING LAW; HEADINGS. This Agreement and its
construction, performance, and enforceability shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia. Headings
and titles herein are included solely for convenience and shall not affect, or
be used in connection with, the interpretation of this Agreement.
(g) ARBITRATION; REMEDIES. Any dispute or controversy arising
under this Agreement or as a result of or in connection with Executive's
employment (other than disputes arising under Section 10) shall be arbitrated
and settled pursuant to the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association which are then in effect in a
proceeding held in Alexandria, VA. This provision shall also apply to any and
all claims that may be brought under any federal or state anti-discrimination or
employment statute, rule or regulation, including, but not limited to, claims
under: the National Labor Relations Act; Title VII of the Civil Rights Act;
Sections 1981 through 1988 of Title 42 of the United States Code; the Employee
Retirement Income Security Act; the Immigration Reform and Control Act; the
Americans With Disabilities Act; the Age Discrimination in Employment Act; the
Fair Labor Standards Act; the Occupational Safety and Health Act; the Family and
Medical Leave Act; and the Equal Pay Act. The decision of the arbitrator and
award, if any, is final and binding on the parties and the judgment may be
entered in any court having jurisdiction thereof. The parties will agree upon an
arbitrator from the list of labor arbitrators supplied by the American
Arbitration Association. The parties understand and agree, however, that
disputes arising under Section 10 of this Agreement may be brought in a court of
law or equity without submission to arbitration.
(h) JURISDICTION. Except as otherwise provided for herein,
each of the parties (a) submits to the exclusive jurisdiction of any state or
federal court sitting in Alexandria, VA in any action or proceeding arising out
of or relating to this Agreement, (b) agrees that all claims in respect of the
action or proceeding may be heard and determined in any such court, (c) agrees
not to bring any action or proceeding arising out of or relating to this
Agreement in any other court and (d) waives any right such party may have to a
trial by jury with respect to any action or proceeding arising out of or
relating to this Agreement. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that might be required of any other
party with respect thereto. Any party may make service on another party by
sending or delivering a copy of the process to the party to be served at the
address and in the manner provided for giving of notices in Section 12(i).
Nothing in this Section, however, shall affect the right of any party to serve
legal process in any other manner permitted by law.
(i) NOTICES. All notices called for under this Agreement shall
be in writing and shall be deemed given upon receipt if delivered personally or
by confirmed facsimile transmission and followed promptly by mail, or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at their respective addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof) as set forth in the preamble to
this Agreement or to any other address or addressee as any party entitled to
receive notice under this
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Agreement shall designate, from time to time, to others in the manner provided
in this subsection 12(i) for the service of notices.
Any notice delivered to the party hereto to whom it
is addressed shall be deemed to have been given and received on the day it was
received; PROVIDED, HOWEVER, that if such day is not a business day then the
notice shall be deemed to have been given and received on the business day next
following such day. Any notice sent by facsimile transmission shall be deemed to
have been given and received on the business day next following the day of
transmission.
(j) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; PROVIDED, HOWEVER, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
------------------------------------
Xxxx Xxxx
------------------------------------
By: Xxxxxx Xxxxxxx
President & CEO
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APPENDIX A
SECURED SERVICES, INC.
INCENTIVE COMPENSATION
1. PERIOD: January 1st, 2006 through December 31st 2006
2. TARGET PAYOUT (All figures are at 100% achievement)
Total Annual : $ 100,000
Fifty Thousand, ($50,000) Guaranteed bonus payable 12/31/06 or within 30 days of
closing a new financing or financings with an aggregate minimum of $7 Million
Dollars.
Fifty Thousand, ($50,000) Paid for achieving certain revenue, expense and margin
goals to be determined by 12/31/05
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