Exhibit 99.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 20, 2005, by and between Security
Intelligence Technologies, Inc., a Florida corporation with offices at 000
Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx, XX 00000 (the "Corporation"), and Xxx Xxxxx,
whose address is 00 Xxxxxxxxx Xxxx, Xxxxx Xxxxxx, XX 00000 ("Executive," and,
together with the Corporation, the "Parties").
WITNESSETH:
WHEREAS, the Corporation and Executive are parties to an employment
agreement dated April 17, 2002 (the "Prior Agreement") that expires on April 16,
2005;
WHEREAS, the Corporation wishes to continue to employ Executive in the
positions set forth herein and Executive wishes to accept such employment on and
subject to the terms and conditions of this Agreement; and
WHEREAS, this Agreement supersedes the Prior Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth in this
Agreement, the parties hereby agree as follows:
1. EMPLOYMENT. The Corporation hereby employs Executive and Executive
hereby accepts such employment, as an executive officer of the Corporation,
subject to the terms and conditions set forth in this Agreement.
2. DUTIES.
(a) Executive shall serve as the Corporation's Chief Executive
Officer, and he shall have the duties and responsibilities associated with the
chief executive officer of a public corporation. Additionally, during the
Employment Term, as hereinafter defined, the Corporation shall include Executive
as one of the board of directors' nominees for election as a director. Executive
shall report to the Corporation's board of directors (the "Board of Directors").
Executive shall also perform such other duties and responsibilities as may be
determined by the Board, as long as such duties and responsibilities are
consistent with those of the Chief Executive Officer.
(b) Executive shall serve as a director of the Corporation and any
of its subsidiaries, if elected, and in such executive capacity or capacities
with respect to any affiliate of the Corporation to which he may be elected or
appointed, provided that such duties are consistent with those of the
Corporation's Chief Executive Officer. Executive shall receive no additional
compensation for services rendered pursuant to this Section 2.2.
(c) During the Employment Term, Executive shall devote substantially
all of his business time and efforts to the performance of his duties hereunder
unless otherwise authorized by the Board of Directors. Executive shall not be
precluded from engaging in charitable and community activities, managing his
personal and financial affairs and engaging in other non-competitive activities,
provided that such activities shall not interfere in any material way with
Executive's duties pursuant to this Agreement.
3. TERM.
(a) The term of Executive's employment, unless sooner terminated as
provided herein, shall be for a period of five (5) years commencing on the date
hereof and ending on March 31, 2010 (the "Initial Term") and shall continue on a
year-to-year basis thereafter unless terminated by either the Corporation or
Executive on not less than three (3) months written notice prior to the
expiration of the Initial Term or any one-year extension. The Initial Term and
the one-year extensions, if any, are collectively referred to as the "Employment
Term."
(b) Notwithstanding the provisions of Section 3.1 of this Agreement,
as long as this Agreement shall not have been terminated pursuant to Section 5
of this Agreement, Executive, on ninety (90) days written notice to the Board of
Directors, shall have the right to terminate the Employment Term, in which event
the Employment Term shall end on the date set forth in such notice with the same
effect as if such date were the last day of the Employment Term set forth in
Section 3.1 of this Agreement.
(c) Immediately following the Employment Term, whether the
Employment Term shall have expired pursuant to Section 3.1 of this Agreement or
terminated by the Executive pursuant to Section 3.2, but excluding any
termination of employment pursuant to Section 5 of this Agreement, Executive
shall have the right, at his election, to serve as a consultant to the
Corporation during the Consulting Term. The Consulting Term shall mean the two
(2) year period immediately following the expiration or termination of the
Employment Term. The Employment Term and the Consulting Term are collectively
referred to as the Term.
(d) During the Consulting Term, Executive shall serve as a
consultant to the Corporation and shall report to such executive officer as
shall be designated by the Corporation's chief executive officer. The nature of
Executive's services during the Consulting Term shall be as mutually agreed upon
by the Corporation's chief executive officer and Executive, and may include
services relating to the Corporation's strategy for marketing its products and
developing its business plan. Executive shall be required to devote such time to
his services for the Corporation as he may determine, it being understood that
the services being rendered during the Consulting Term shall not be the
Executive's principal activity and that the Executive may engage in such
business, charitable and personal activities as he may determine, subject to the
provisions of Sections 7 and 8 of this Agreement. In rendering services during
the Consulting Term, the Corporation shall not require the Executive to perform
services which would interfere with his other business, charitable and personal
activities or which would require him to return from or change his plans for any
vacations, and, if he so elects, the Executive may perform such services from
his residence.
4. COMPENSATION.
(a) (i) During the Employment Term, the Corporation shall pay
Executive an annual base salary (the "Base Salary") of Two Hundred Fifty
Thousand Dollars ($250,000). On each July 1st during the Term (commencing on
July 1, 2005), Executive shall be entitled to receive a 10% increase in his Base
Salary if the Corporation's Adjusted Net Income, as hereinafter defined, for the
fiscal year ending on the most recent June 30th is at least $250,000 greater
than the Adjusted Net Income for the prior fiscal year. If the Adjusted Net
Income for the year is a loss, Executive shall be entitled to such increase in
Base Salary if the loss for the fiscal year in question is less than the loss
for the prior fiscal year by at least $250,000. Executive may receive an
increase in his base salary greater than 10% or may receive an increase if the
Corporation does not meet the performance criteria at the discretion of the
Board of Directors, with Executive not participating in either the determination
of the performance criteria or the amount of the increase in Base Salary.
(ii) As used in this Agreement, Adjusted Net Income shall mean
the Corporation's consolidated net income determined in accordance with
generally accepted accounting principles consistently applied, as reported in
its Form 10-KSB plus any non-cash expenses ("Security Issuance Expenses")
incurred in connection with the issuance of equity securities in connection with
the private placement or public offering of the Corporation's debt or equity
securities.
(b) Executive's Base Salary shall be paid in substantially equal
installments on a basis consistent with the Corporation's payroll practices for
senior executives.
(c) For each fiscal year commencing on June 30, 2005, Executive
shall be eligible for a discretionary bonus determined by the Board of
Directors, with Executive not participating in either the determination of
whether a bonus shall be paid or the amount of the bonus.
(d) Effective as of the date of this Agreement, the Corporation has
granted Executive a non-qualified stock option to purchase 10,000,000 shares of
the Corporation's common stock at an exercise price equal to the last reported
sales price of the Corporation's common stock on the OTC Bulletin Board on the
date of this Agreement, being the date of grant. The option shall have an
exercise period which expires on March 31, 2015, shall vest cumulatively as to
5,000,000 shares immediately and as to the remaining 5,000,000 shares one year
from the date of this Agreement; provided, however, that if Executive's
employment is terminated in accordance with Section 5.5 or Section 5.6 of this
Agreement, all unvested options shall vest immediately. The option is
non-transferable, and may be exercisable only by Executive, or, in the event of
his death or incompetence, by his legal representative. In the event of
Executive's death, the option may be exercised during the period ending on the
later of the expiration date of the option or one year from the date of death.
(e) The Corporation shall issue to Executive 4,000,000 shares of
series C preferred stock of the Corporation ( "Preferred Stock"). The shares of
Preferred Stock have a liquidation preference of $.01 per share, and after
payment of the liquidation preference, the holders of the Preferred Stock would
share on a share-for-share basis with the holders of the Common Stock on an "as
if converted" basis. Each share of Preferred Stock is convertible into one share
of common stock if the Company has either consolidated annual net revenue,
determined in accordance with generally accepted accounting principles, of at
least $6,000,000 or consolidated net income before taxes and Security Issuance
Expenses, as reported in the Corporations' Form 10-KSB, of at least $250,000 for
any fiscal year ending on or prior to July 1, 2010 or if there is a change in
control as defined in section 5.5 of this Agreement. In the event that the
neither the revenue or the net income before taxes and Security Issuance
Expenses set forth in the preceding sentence shall have been met by the
Corporation's last fiscal year ending on or prior to July 1, 2010, the holders
of the Preferred Stock shall have no rights thereunder, and the holders of the
Preferred Stock shall be required to convey all of the shares of Preferred Stock
to the Corporation without consideration. The certificates for the shares of
Preferred Stock shall bear a legend referred to this obligation on the part of
the holder. Executive shall pay or provide for any withholding taxes due in
connection with the issuance and/or conversion of the Preferred Stock.
(f) During the Term, the Corporation shall promptly reimburse
Executive for all reasonable and necessary travel expenses and other
disbursements incurred by Executive on behalf of the Corporation in performance
of Executive's duties hereunder, assuming Executive has received prior approval
for such travel expenses and disbursements by the Corporation to the extent
possible, consistent with the Corporation's policies with respect to the
reimbursement of expenses; provided, however, that during the Consulting Term,
all expenses shall require prior approval by the Corporation.
(g) During the Employment Term, Executive shall be entitled to
participate in such pension, profit sharing, group insurance, option plans,
hospitalization, and group health and benefit plans and all other benefits and
plans as the Corporation provides to its senior executives. During the
Consulting Term, Executive shall be entitled to participate in such profit
sharing, hospitalization and group health plans and benefits are the Corporation
provides to its senior executive officers.
(h) Notwithstanding anything to the contrary in this Agreement, any
remuneration under this Agreement or any other agreements to which the
Corporation and Executive are parties in respect of employment that is not
deductible for any taxable year of the Corporation because of Section 162(m) of
the Internal Revenue Code of 1986, as amended (the "Code") will, at the election
of the Corporation, be deferred until the first day that any excess remuneration
becomes deductible under Section 162(m) or by virtue of its repeal or amendment.
Any such deferred payment will bear interest at the prime rate of XX Xxxxxx
Xxxxx Bank, NA plus one percentage point beginning with the date such payment is
first deferred. For purposes of determining prime rate, the prime rate in effect
on the first day of a calendar quarter shall be the prime rate for the entire
quarter. Notwithstanding any provision in this Agreement to the contrary, this
Section 4.8 shall survive the termination of this Agreement.
(i) During the Consulting Term, Executive shall be entitled to
compensation at the annual rate equal to 50% of the sum of (a) Executive's Base
Salary in effect on the day prior to the first day of the Consulting Term, and
(b) the Bonus, if any, that Executive received for the last fiscal year ending
prior to the commencement of the Consulting Term.
(j) The Company acknowledges that Executive has advanced money to
its subsidiary, CCS International, Inc. ("CCS"). The Corporation hereby
unconditionally and irrevocably guarantees the full and prompt payment to
Executive of all of the obligations of CCS to Executive in respect of the
principal and interest due with respect to such advances, up to a maximum
obligation on the part of the Corporation of $738,000. Payments of the
Corporation's obligations pursuant to this Section 4(j) can only be made from
cash flow from operations not required for the Corporation's business. The
liability of the Corporation hereunder shall be direct and immediate and not
conditional or contingent upon the pursuance by Executive of any rights or
remedies he may have, at law or in equity, against CCS. The Corporation hereby
waives presentment for payment, demand, protest and notice of protest and of
non-payment of any of CCS' obligations to Executive.
5. TERMINATION.
(a) This Agreement shall terminate upon the death of Executive;
provided, however, that the Corporation shall continue to pay to the estate of
Executive the Base Salary in effect on the date of this death until the earlier
of twelve (12) month period following Executive's death or the end of the
Employment Term.
(b) This Agreement and Executive's employment may be terminated by
Executive or the Corporation on not less than thirty (30) days' written notice
in the event of Executive's Disability. The term "Disability" shall mean any
illness, disability or incapacity of Executive which prevents him from
substantially performing his regular duties for a period of ninety (90)
consecutive days or one hundred eighty (180) days, even though not consecutive,
in any twelve (12) month period. In the event Executive's employment is
terminated pursuant to this Section 5.2, the Corporation shall have no further
obligations to Executive with respect to this Agreement.
(c) (i) In the event Executive is discharged for Cause, as
hereinafter defined, or in the event that Executive resigns, other than pursuant
to Section 5.5 or 5.6 of this Agreement, then upon such occurrence, this
Agreement and Executive's employment shall be deemed terminated, and the
Corporation shall have no further obligations to Executive with respect to this
Agreement, except obligations accrued prior to such termination and except as
provided in Section 3.3 of this Agreement.
(ii) Cause shall mean:
(A) the conviction of, or pleading guilty or nolo
contendere to, any felony; or
(B) the conviction, or pleading guilty or nolo
contendere to, any crime (other than a felony) involving moral turpitude; or
(C) gross negligence or willful misconduct in the
conduct of Executive's duties or willful or repeated failure or refusal to
perform such duties as may be delegated to Executive by the Board of Directors
which are consistent with Executive's position, and that as to any conduct
concerning this Section 5.3(b)(iii), such conduct is not corrected by Executive
within fourteen (14) days following receipt by Executive of written notice from
the Board of Directors, such notice to state with reasonable specificity the
nature of the breach, failure or refusal, gross negligence or willful misconduct
related to Executive's employment with the Corporation; or
(D) violation of the provisions of Section 7 or 8 of
this Agreement..
(d) In the event that Executive's employment is terminated other
than pursuant to Section 5.1, 5.2 or 5.3 of this Agreement, or in the event of a
termination by Executive for Good Reason, as hereinafter defined, then the
Corporation shall pay the following amount to Executive the product of (a)
Executive's Base Salary on the date of such termination plus the Bonus paid (or
payable) to Executive for the fiscal year immediately preceding the date of such
termination multiplied by the number of full or partial months remaining in the
Employment Term divided by twelve (12). Such amount shall be paid within thirty
(30) days of the date of termination.
(e) (i) If, during the period commencing 120 days prior to a Change
of Control and ending on the first anniversary of a Change of Control,
Executive's employment shall have been terminated by the Corporation (other than
pursuant to Section 4.1, 4.2 or 4.3), or by Executive:
(A) all unvested options to acquire stock of the
Corporation held by Executive shall vest on the date of termination;
(B) the Corporation shall make a lump sum cash payment
to Executive within ten (10) days of the date of termination in an amount equal
to (i) the amount of compensation that is accrued and unpaid through the date of
termination pursuant to Section 4 of this Agreement and (ii) six (6) times the
total compensation received by Executive pursuant to Sections 4.1 and 4.3 of
this Agreement for the preceding fiscal year.
(ii) In the event that any payment (or portion thereof) to Executive
under Section 5.5(a) is determined to constitute an "excess parachute payment,"
under Sections 280G and 4999 of the Code, the following calculations shall be
made:
(A) The after-tax value to Executive of the payments
under Section 5.5(a) without any reduction; and
(B) The after-tax value to Executive of the payments
under Section 5.5(a) as reduced to the maximum amount (the "Maximum Amount")
which may be paid to Executive without any portion of the payments constituting
an "excess parachute payment."
(C) If after applying the calculations set forth above,
it is determined that the after-tax value determined under clause (ii) above is
greater than the after-tax value determined under clause (i) above, the payments
to Executive under Section 5.5(a) shall be reduced to the Maximum Amount.
(iii) As used herein, the term "Change of Control" shall mean:
(A) When any "person" as defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as
used in Section 13(d) and 14(d) thereof including a "group" as defined in
Section 13(d) of the Exchange Act, but excluding the Corporation or any
subsidiary or any affiliate of the Corporation or any employee benefit plan
sponsored or maintained by the Corporation or any subsidiary of the Corporation
(including any trustee of such plan acting as trustee), becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the
Corporation representing a majority of the combined voting power of the
Corporation's then outstanding securities; or
(B) When, during any period of twenty-four (24)
consecutive months, the individuals who, at the beginning of such period,
constitute the Board of Directors (the "Incumbent Directors") cease for any
reason other than death to constitute at least a majority thereof provided,
however, that a director who was not a director at the beginning of such
24-month period shall be deemed to have satisfied such 24-month requirement (and
be an Incumbent Director) if such director was elected by, or on the
recommendation of or with the approval of, at least two-thirds of the directors
who then qualified as Incumbent Directors either actually (because they were
directors at the beginning of such 24-month period) or through the operation of
this proviso; or
(C) The occurrence of a transaction requiring
stockholder approval for the acquisition of the Corporation by an entity other
than the Corporation or a subsidiary or an affiliated company of the Corporation
through purchase of assets, or by merger, or otherwise, except for a merger or
other reorganization the principal purpose of which is to changes the state of
the Corporation's domicile and which does not otherwise result in a Change of
Control.
(f) Executive may terminate this Agreement for Good Reason. As used
herein, the term "Good Reason" shall mean the occurrence of any of the
following:
(i) the assignment to Executive, without his consent, of
any duties inconsistent in any substantial and negative respect with his
positions, duties, responsibilities and status with the Corporation as
contemplated hereunder, if not remedied by the Corporation within thirty (30)
days after receipt of written notice thereof from Executive;
(ii) the removal of Executive, without his consent, from
any positions or offices Executive held as contemplated hereunder (except in
connection with the termination of Executive's employment by the Corporation for
Cause or on account of Total Disability pursuant to the requirements of this
Agreement), if not remedied by the Corporation within thirty (30) days after
receipt of written notice thereof from Executive;
(iii) a reduction by the Corporation, without the
consent of Executive, of Executive's Base Salary as in effect as contemplated
hereunder or a reduction in any formula used in computing Executive's
compensation pursuant to Section 4 of this Agreement;
(iv) any material breach by the Corporation of the terms
of this Agreement that is not remedied by the Corporation within thirty (30)
days after receipt of written notice thereof from Executive;
(v) the relocation of Executive's work location, without
Executive's consent, to a place more than seventy five (75) miles from the
location set forth herein; or
6. VACATION. During the Employment Term, Executive shall be entitled to a
vacation of four (4) weeks per year, during which period his Base Salary shall
be paid in full. Executive shall take his vacation at such time or times as
Executive and the Corporation shall determine is mutually convenient.
7. CONFIDENTIAL INFORMATION; INVENTIONS.
(a) Executive recognizes and acknowledges that the Corporation,
through the expenditure of considerable time and money, has developed and will
continue to develop in the future information concerning customers, clients,
marketing, products, services, business, research and development activities and
operational methods of the Corporation and its customers or clients, contracts,
financial or other data, technical data or any other confidential or proprietary
information possessed, owned or used by the Corporation, the disclosure of which
could or does have a material adverse effect on the Corporation, its business,
any business it proposes to engage in, its operations, financial condition or
prospects and that the same are confidential and proprietary and considered
"confidential information" of the Corporation for the purposes of this
Agreement. In consideration of his employment, Executive agrees that he will
not, during or after the Term, without the consent of the Board of Directors,
make any disclosure of confidential information now or hereafter possessed by
the Corporation, to any person, partnership, corporation or entity either during
or after the term here of, except that nothing in this Agreement shall be
construed to prohibit Executive from using or disclosing such information (a)
during the Term, if such disclosure is necessary in the normal course of the
Corporation's business in accordance with Corporation policies or instructions
or authorization from the Board, or (b) during or after the Term if such
information shall become public knowledge other than by or as a result of
disclosure by a person not having a right to make such disclosure, or (c)
subsequent to the Term, if such information shall have either (i) been developed
by Executive independent of any of the Corporation's confidential or proprietary
information or (ii) been disclosed to Executive by a person not subject to a
confidentiality agreement with or other obligation of confidentiality to the
Corporation.
(b) In the event that any trade secrets or other confidential
information covered by Section 7.1 of this Agreement is required to be produced
by Executive pursuant to legal process, Executive shall give the Corporation
notice of such legal process within a reasonable time, but not later than ten
(10) business days prior to the date such disclosure is to be made, unless
Executive has received less notice, in which event Executive shall immediately
notify the Corporation. The Corporation shall have the right to object to any
such disclosure, and if the Corporation objects (at the Corporation's cost and
expense) in a timely manner so that Executive is not subject to penalties for
failure to make such disclosure, Executive shall not make any disclosure until
there has been a court determination on the Corporation's objections. If
disclosure is required by a court order, final beyond right of review, or if the
Corporation does not object to the disclosure, Executive shall make disclosure
only to the extent that disclosure is unequivocally required by the court order,
and Executive will exercise reasonable efforts at the Corporation's expense, to
obtain reliable assurance that confidential treatment will be accorded the
Confidential Information.
(c) Executive agrees promptly to disclose in writing to the
Corporation any invention, design, system, process, development or other
discovery (collectively, "inventions and discoveries") conceived, created or
made by him during the period of time that this Agreement remains in full force
and effect, whether during or after working hours, in any business in which the
Corporation is then engaged or which otherwise relates to any product or service
dealt in by the Corporation and such inventions and discoveries shall be the
Corporation's sole property, regardless of whether such inventions and
discoveries are otherwise treated as work performed for hire and regardless of
whether such inventions and discoveries are or can be patented, registered or
copyrighted. Upon the Corporation's request, Executive shall execute and assign
to the Corporation all applications for copyrights, trademarks and letters
patent of the United States and such foreign countries as the Corporation may
designate, and Executive shall execute and deliver to the Corporation such other
instruments as the Corporation deems necessary to vest in the Corporation the
sole ownership of all rights, title and interest in and to such inventions and
discoveries, as well as all copyrights and/or patents. Executive shall also give
the Corporation all assistance it may reasonably require, including the giving
of testimony in any suit, action, investigation or other proceeding in
connection with the foregoing. If services in connection with applications for
copyrights and/or patents are performed by Executive at the Corporation's
request after the termination of his employment and consultancy hereunder, the
Corporation shall pay him reasonable compensation for such services rendered
after termination of this Agreement.
(d) For the purposes of Sections 7 and 8 of this Agreement, the term
"Corporation" shall include the Corporation, its parent, its subsidiaries and
affiliates, other than affiliates whose relationship as an affiliate is derived
solely from Executive's interest in or position at the affiliate.
8. COVENANT NOT TO COMPETE.
(a) Executive recognizes that the services to be performed by him
hereunder are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of the Corporation that Executive agree,
and accordingly, Executive does hereby agree that, except as provided in Section
8.3 of this Agreement, he shall not, directly or indirectly, at any time during
the Restricted Period within the Restricted Area (as such terms are defined in
Section 8.4 of this Agreement), engage in any Competitive Business (as defined
in said Section 8.4), either on his own behalf or as an officer, director,
stockholder, partner, principal, trustee, investor, consultant, associate,
employee, owner, agent, creditor, guarantor, independent contractor, co-venturer
of any third party or in any other relationship or capacity.
(b) Executive hereby agrees that he will not, directly or
indirectly, for or on behalf of himself or any third party, at any time during
the Restricted Period (i) solicit any customers of the Corporation or (ii)
solicit, employ or engage, or cause, encourage or authorize, directly or
indirectly, to be employed or engaged, for or on behalf of himself or any third
party, any employee or agent of the Corporation.
(c) This Section 8 shall not be construed to prevent Executive from
owning, directly and indirectly, in the aggregate, an amount not exceeding three
percent (3%) of the issued and outstanding voting securities of any class of any
corporation whose voting capital stock is traded on a national securities
exchange or in the over-the-counter market.
(d) The term "Restricted Period," as used in this Section 8, shall
mean the period of Executive's employment or consultancy hereunder plus
twenty-four (24) months after the date Executive is no longer employed by the
Corporation or engaged as a consultant. The term "Restricted Area" as used in
this Section 8 shall mean anywhere in the world. The term "Competitive Business"
as used in this Agreement shall mean the design, manufacture, sale, marketing or
distribution of products in the categories of products sold by, or under license
from, or under development by the Corporation or any of its affiliates.
9. INJUNCTIVE RELIEF. Executive agrees that his violation or threatened
violation of any of the provisions of Sections 7 or 8 of this Agreement shall
cause immediate and irreparable harm to the Corporation. In the event of any
breach or threatened breach of any of said provisions, Executive consents to the
entry of preliminary and permanent injunctions by a court of competent
jurisdiction prohibiting Executive from any violation or threatened violation of
such provisions and compelling Executive to comply with such provisions. This
Section 9 shall not affect or limit, and the injunctive relief provided in this
Section 9 shall be in addition to, any other remedies available to the
Corporation at law or in equity or in arbitration for any such violation by
Executive. The provisions of Sections 7, 8 and 9 of this Agreement shall survive
any termination of this Agreement and Executive's employment and consultancy
pursuant to this Agreement.
10. REASONABLENESS OF COVENANTS. Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
Executive agrees that said restraints are necessary for the reasonable and
proper protection of the Corporation and its subsidiaries and affiliates, and
that each and every one of the restraints is reasonable in respect to subject
matter, length of time, geographic area and otherwise. Executive further
acknowledges that, in the event any provision of Sections 7 and 8 hereof shall
be determined by any court of competent jurisdiction to be unenforceable by
reason of its being extended over too great a time, too large a geographic area,
too great a range of activities or otherwise, such provision shall be deemed to
be modified to permit its enforcement to the maximum extent permitted by law.
11. MISCELLANEOUS.
(a) The Corporation shall provide Executive with indemnification and
payment of legal fees to the maximum extent permitted by the Corporation's
Certificate of Incorporation, By-Laws, and the laws of the jurisdiction under
which the Corporation is organized.
(b) The invalidity or partial invalidity of one or more provisions
of this Agreement shall not invalidate any other provision of this Agreement. If
any portion or provision of this Agreement shall to any extent be declared
illegal or unenforceable by a court of competent jurisdiction, the remainder of
this Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
(c) Neither Executive nor the Corporation may assign or delegate any
of their rights or duties under this Agreement without the express written
consent of the other, except the Corporation may transfer its rights and duties
in connection with a sale of all or substantially all of its assets or in
connection with a merger, consolidation or other business combination.
(d) This Agreement constitutes and embodies the full and complete
understanding and agreement of the parties with respect to Executive's
employment by the Corporation, supersedes all prior understandings and
agreements, whether oral or written, between Executive and the Corporation,
including the Prior Agreement, and shall not be amended or modified except by an
instrument in writing which expressly states that it is an amendment or
modification and is executed by both Parties.
(e) No waiver of any provision hereof shall be effective unless made
in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach. Any waiver of any provision hereof shall be effective only to
the extent specifically set forth in an applicable writing. All remedies
afforded to either party under this Agreement, by law or otherwise, shall be
cumulative and not alternative and shall not preclude assertion by such party of
any other rights or the seeking of any other rights or remedies against any
other party.
(f) This Agreement shall inure to the benefit of, be binding upon
and enforceable against, the parties hereto and their respective successors,
heirs, beneficiaries and permitted assigns.
t 12 (g) The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
(h) Any and all notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered, sent by registered or
certified mail, return receipt requested, postage prepaid, or by messenger or
overnight courier service which provides evidence of delivery to the party at
the address set forth at the beginning of this Agreement or to such other
address as either party may hereafter give notice of in accordance with the
provisions hereof. Notices shall be deemed given on the sooner of the date
actually received or the date of attempted delivery if delivery is refused.
(i) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to such State's
principles of conflicts of laws and each of the Parties irrevocably consents to
the jurisdiction and venue of the federal and state courts located in the State
of New York, County of New York or Westchester, and (ii) waives any claim that
the jurisdiction of any such court is not a convenient forum for any such action
and any defense of lack of in personam jurisdiction with respect thereof.
(j) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
SECURITY INTELLIGENCE TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
By: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
