AGREEMENT Between
Exhibit 10.13
Between
And
XXXX XXXXX
THIS
AGREEMENT is made and entered into as of this 13 day of January, 2010
by and between
Suspect Detection Systems, Inc., a Delaware corporation having an office located
at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000 (the "Company"), and Xxxx Xxxxx, an
individual having an office located at 000 Xxxx 00xx
Xxxxxx, Xxxxxxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Xx. Xxxxx").
W
I T N E S S E T H:
WHEREAS,
the Company desires to engage the services of Xx. Xxxxx as the Chairman of the
Board of Directors of the Company and Xx. Xxxxx t desires to accept such
engagement subject to the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and other
valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the parties agree as follows:
1. Position. Subject to
the provisions of this Agreement, the Company hereby appoints Xx. Xxxxx as the
Chairman of the Board of Directors of the Company and Xx. Xxxxx hereby accepts
such appointment on the terms and conditions hereinafter set forth.
2. Duties. Xx. Xxxxx
shall take such actions and fulfill such duties as are required for him to serve
as the Chairman of the Board of Directors of the Company. Xx. Xxxxx agrees to
perform such services conscientiously and to the best of his abilities and to
use his best efforts to promote the general welfare and interests of the
Company.
3. Standard of Care. The
standard of care owed by Xx. Xxxxx to the Company shall only be to refrain from
engaging in gross neglect, negligent or reckless conduct or intentional
misconduct. In discharging his duties, Xx. Xxxxx shall be fully protected in
relying in good faith upon the records required to be maintained by the Company
and upon such information, opinions, reports or statements by the Company or its
agents, or by any other person, as to matters Xx. Xxxxx reasonably believes are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, and profits or losses of the Company.
4. Term. The term of
this Agreement shall commence as of the date set forth above and shall continue
until either party provides the other with no less than ninety (90) days prior
written notice that such party desires to terminate the Agreement.
Notwithstanding the foregoing and in addition to such rights of termination as
are otherwise set forth in this Agreement, the Company shall have the additional
right to terminate this Agreement for cause in the event of a material breach by
Xx. Xxxxx in the performance of his duties hereunder, as provided in Paragraphs
5 and 6, below.
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5. Events of Default and
Remedies. The repeated failure, refusal or neglect of Xx. Xxxxx, other
than by reason of disability, to report or to render his services when and as
required hereunder, or to perform any covenant or condition of this Agreement on
his part to be kept or performed, shall be an event of material default
hereunder and the Company may terminate this Agreement if any such event of
material default shall occur and continue during the term hereof, as provided in
Paragraph 6, below.
6. Termination. In
addition to such rights of termination as are otherwise set forth in this
Agreement, the Company shall have the additional right to terminate this
Agreement for cause in the event of Mr. Kill's material breach in the
performance of his duties hereunder.
6.1. If
Xx. Xxxxx engages in activities or conduct which the Company contends is a
material breach of Xx. Xxxxx'x obligations under this Agreement, the Company
shall deliver a notice in writing to Xx. Xxxxx to terminate such activities or
conduct. If Xx. Xxxxx fails to take affirmative steps to cure or terminate the
complained of activities or conduct on or before the expiration of ten (10) days
following receipt of said notice, then Xx. Xxxxx shall be deemed in material
breach hereunder. In that event, the Company shall have the right to immediately
thereafter terminate this Agreement. The provisions for notice of default and
time to cure prior to termination shall not apply in the case of any cause
incapable of being cured, in which event the Company may terminate this
Agreement immediately and without prior notice. The right of termination
contained in this Paragraph 6.1 shall not preclude the Company from exercising
any other right it may have either pursuant to the other terms of this Agreement
or by law.
7. Compensation. In
consideration of the services to be performed under this Agreement,
Xx. Xxxxx shall receive an annual Director's Fee in the amount of $25,000 per
annum for the
first twelve (12) month period during which this Agreement remains in force and
effect, Prior to
November 30, 2010 and to each and every November 30 thereafter, the Company and
Xx. Xxxxx
shall agree, in a writing signed by the Company and Xx. Xxxxx, on the amount of
Xx. Xxxxx'x
annual Director's Fee, which amount shall not be less than $25,000 per annum and
shall be
increased, proportionately, with any increase in the Company's paid in capital,
sales revenues or net
profits during the immediately prior calendar year. Xx. Xxxxx'x annual
Director's Fee shall be paid
by the Company by company or bank check or by wire transfer to a bank account
designated
by Xx. Xxxxx on or before the end of each and every calendar year during the
term of this
Agreement. Xx. Xxxxx shall be responsible for payment of any personal income
taxes due or that may
become due as a result of his compensation under this Agreement.
8 Options. The Company
hereby grants to Xx. Xxxxx 1,500,000 options of common stock of the Company,
exercisable at $0.15 per share, from the stock option plan adopted by the
Company. Of the said amount, 250,000 options shall vest simultaneously with the
execution and delivery of this Agreement, and the balance shall vest each
calendar quarter during the
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immediately
subsequent three years (i.e., 104,166 options each calendar quarter), commencing
on March 31, 2010. The said options shall terminate forty-eight (48) months from
the date when the said options vest. Notwithstanding anything contained herein
to the contrary and except as provided for in Paragraph 10, below, if this
Agreement is terminated, any options not previously vested shall become null and
void. The options and the shares of stock issuable upon exercise thereof are
personal to Xx. Xxxxx and shall be subject to the restrictions of applicable
Federal and state securities laws.
9. Business Expenses.
The Company shall reimburse Xx. Xxxxx for all reasonable and necessary business
expenses incurred by him in connection with the performance of his duties under
this Agreement, including reasonable travel and accommodation expenses during
travel required in connection with the performance of his duties
hereunder.
10. Directors' and Officers'
Liability Insurance. The Company shall obtain and shall keep in full
force directors' and officers' insurance covering Xx. Xxxxx'x services as the
Chairman of the Board of Directors of the Company, which insurance shall provide
coverage to the fullest extent permitted by applicable law. Any failure by the
Company to obtain or to keep in force such insurance shall be deemed a material
breach by the Company of this Agreement and shall automatically terminate this
Agreement as of the date when such insurance does not exist, except that Xx.
Xxxxx shall thereafter have the right to receive and to exercise all options
granted or to be granted to him pursuant to Paragraph 8, above, up to a maximum
of 1,500,00o options.
11. No Breaches. Xx.
Xxxxx represents that his execution of this Agreement and the performance of his
duties required hereunder will not be a breach of any other agreement to which
he is a party.
12. Entire Agreement.
This Agreement constitutes the entire understanding between the Company and Xx.
Xxxxx with respect to the subject matter hereof. Neither the Company nor Xx.
Xxxxx shall be bound in any manner by any promises, statements, representations
or information made, given or furnished by any person representing or purporting
to represent the Company or Xx. Xxxxx except to the extent that such promises,
statements, representations or information are expressly set forth in this
Agreement.
13. Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the respective heirs, successors, and assigns of the parties.
14. Notices. All notices
and other communications required or permitted hereunder shall be delivered
personally, sent via facsimile, certified or registered mail, return receipt
requested, or next day express mail or overnight, nationally recognized courier,
postage prepaid with proof of receipt, to the address or telephone number (in
the case of facsimile) set forth above. Such addresses and telephone numbers may
be changed by notice given in the manner provided herein. Any such notice shall
be deemed given (i) when delivered if delivered personally, (ii) the day after
deposit with the express or courier service when sent by next day express mail
or courier, (iii) five (5) days after deposit with the postal service when sent
by certified or registered mail, or (iv) when sent over a facsimile system with
answer back response set forth on the sender's copy of the
document.
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15. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within New York.
16. Amendment and
Modification. This Agreement may be amended, modified or supplemented
only by written agreement executed by the Company and Xx. Xxxxx.
17. Headings. The
headings of the various paragraphs of this Agreement are inserted for
convenience of reference only and are under no circumstances to be a part of, or
construed as a part of, this Employment Agreement.
18. Execution in
Counterparts. This Agreement may be executed in counterparts and by
facsimile, each of which shall be deemed to be an original and all of which,
when taken together, shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the
parties have entered into this Agreement as of the day and year first above
written.
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By:
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/s/ Xxxxx Xxxxxxx |
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Name:
Xxxxx
Xxxxxxx
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Title:
Chief Executive Officer
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/s/
XXXX XXXXX
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XXXX
XXXXX
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