EXHIBIT 99.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of November 29, 2006
(the "Effective Date"), between XXXXX X. XxXXXXXX ("Executive") and iDNA, INC.,
a Delaware corporation ("Employer").
In consideration of the premises and the mutual covenants hereinafter set
forth and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth.
2. EMPLOYMENT PERIOD; EMPLOYMENT YEAR
2.1 Employment Period. Subject to earlier termination as provided in
Section 5, the term of Executive's employment under this Agreement shall
commence as of the date hereof and shall continue until January 31, 2010 (the
"Initial Employment Period"). Unless either party gives notice of non-renewal at
least ninety (90) days prior to the expiration of the Initial Employment Period
or any extension thereof, the term of this Agreement shall be extended for an
additional one (1) year period beyond the end of the Initial Employment Period,
or the end of any extension thereof, as the case may be (the Initial Employment
Period and any extension thereof is hereafter referred to as the "Employment
Period").
2.2 Employment Year. Each 12-month period ending on January 31 shall be
hereinafter considered an "Employment Year."
3. DUTIES AND RESPONSIBILITIES; PLACE OF PERFORMANCE
3.1 Duties and Responsibilities. During the Employment Period, Executive
shall have the titles of Chief Executive Officer and, if elected to the Board of
Directors by shareholders, Chairman of the Board of the Employer. Executive
shall devote substantially all of his business time to the Employer. Executive
shall be responsible for the affairs of the Employer and its subsidiaries in
pursuit of the Employer's Business. Executive shall perform such duties,
consistent with his status as Chairman of the Board and Chief Executive Officer
of Employer, as he may be assigned from time to time by Employer's Board of
Directors (the "Board").
3.2 Place of Performance. In connection with his employment during the
Employment Period, the Executive shall be based at the Employer's current
principal offices in New York, New York or such other principal offices as may
be established in the future by the Board. Executive shall travel to such
principal office, as necessary, from his home and included in Executive's Base
Salary (defined in 4.1 below) is a travel allowance of $20,000 as reimbursement
by Employer for all
5
expenses thereof. Employer shall maintain an office for the Executive in New
York, New York. Executive may maintain a home office at his primary residence
which is currently located in Palm Beach County, Florida.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive in the first Employment
Year a base salary at the rate of $590,000 per annum, subject to increase at the
discretion of the Board (the initial base salary, including any Board approved
increase thereof, the "Base Salary"), and in each successive Employment Year
during the Initial Employment Period shall increase by fifteen thousand dollars
($15,000) per annum, which shall be paid to Executive in arrears bi-weekly in
accordance with the customary practices of the Employer.
4.2 Incentive Compensation. Prior to the commencement of each Employment
Year, the Board of Directors shall set forth certain performance objectives
(each a "Milestone") for the Employer to achieve during each Measurement Period
(defined below) during the Initial Employment Period. A Measurement Period is
considered the 12-month period commencing February 1st and ending January 31st
to coincide with the Employer's Fiscal Periods with the first Measurement Period
commencing on February 1, 2007. To the extent the relevant Milestone for any
Employment Year is achieved, Executive shall receive a cash bonus based on a
target of $200,000 per year (the "Target Bonus"). Executive's bonus in any
Employment Year may be increased above the Target Bonus if, in the opinion of
the Board, such increase is appropriate to reward Executive's performance for
such year (the Target Bonus, together with any increase, being hereinafter
referred to as the "Bonus"). Except as otherwise set forth in Section 6 hereof,
if any Milestone for the Employment Year in which the Employment Period
terminates has been achieved prior to such termination, Executive shall be
entitled to receive the pro-rata amount of the Target Bonus earned as a result
of achieving the Milestone.
(a) Achievement of multiple Milestones in any Employment Year shall not
entitle Executive to more than 100% of the Target Bonus for such Employment
Year, unless the Board increases the Bonus with respect to such Employment Year.
The maximum aggregate Target Bonus during the Initial Employment Period shall be
three (3) times the Target Bonus, unless the Board increases the Bonus with
respect to one or more Employment Years.
(b) In the event of a Change in Control (as defined below) of Employer,
Executive shall be immediately entitled to the full amount of the Target Bonus
with respect to any Employment Years remaining in the Employment Period. As used
in this Agreement, the term "Change in Control" means, subject to the
limitations noted below, (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Employer; (ii) any sale, lease exchange or other transfer (in
one transaction or a series of related transactions) of shares of capital stock
of the Employer such that any person or group (other than the holders generally
of the Employer's capital stock immediately prior to such transaction or series
of transactions) shall become the owner, directly or indirectly, beneficially or
of record, of shares representing more than thirty-three percent (33%) of the
aggregate ordinary voting power represented by the issued and outstanding voting
securities of the
6
Employer; or (iii) any merger, consolidation, recapitalization, acquisition or
similar transaction (other than any such transaction involving only the Employer
and/or one or more wholly owned subsidiaries of the Employer) in which the
outstanding voting securities of the Employer are converted into or exchanged
for cash, securities or other property, such that immediately after such
transaction any person or group (other than the holders generally of such
capital stock immediately prior to such transaction or series of transactions)
shall become the owner, directly or indirectly , beneficially or of record, of
shares representing more than fifty percent (50%) of the aggregate ordinary
voting power represented by the issued and outstanding voting securities of the
Employer. A Change of Control shall not occur as a consequence of the effect(s)
of (a) public offering approved by the Board of Directors of Employer, (b) the
exercise of any warrants or stock options pursuant the terms of the Employer
equity incentive plans, (c) exercise of warrants or stock options not under a an
equity incentive plan outstanding as of November 29, 2006 or (d) the conversion
of the Employers Convertible Note outstanding at November 29, 2006,
4.3 Annual Bonus. Executive shall receive an annual bonus based upon
increases expressed in terms of the Stock Price of Employer. As used herein,
"Stock Price" shall mean the average of the closing bid prices of the Common
Stock ("Common Stock"), par value $.05 per share, of Employer, as reported by
the principal market where the Common Stock is then traded, over the 20 trading
days preceding January 31st in each Measurement Period in each Employment Year
(as adjusted for stock splits, stock dividends, reclassification or other
similar events). If, at the end of the particular Employment Year, the
Employer's Stock Price exceeds the Employers Stock Price of the previous
Employment Anniversary by 125% and the Board of Directors deems that the
Employer has sufficient working capital, Executive shall be entitled to a cash
bonus of $100,000 per annum. Any Bonus earned as a result of achieving the stock
price target and approved by the Board of Directors, based upon sufficient
working capital of the Employer, shall be paid to Executive within sixty
business days of the end of the Employment Year in which the Milestone is
achieved.
4.4 Life Insurance. Employer shall maintain in effect at all times during
the Employment Period, at Employer's expense, a policy of split dollar life
insurance on the life of Executive with a maximum death benefit no greater than
$2.0 million, naming such person as Executive shall designate from time to time
as the owner and beneficiary thereof; provided, however, that the premium for
such life insurance shall not exceed $50,000 per year.
4.5 Automobile Allowance. Employer shall provide Executive with a monthly
allowance during the Employment Period of $1,500 to cover the costs of a leased
automobile, including maintenance, fuel, and insurance.
4.6 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter generally provided by Employer to Employer's senior management
employees or other employees (other than those provided under or pursuant to
separately negotiated individual employment agreements or arrangements) under
any pension or retirement plan, disability plan or insurance, group life
insurance, medical and dental insurance,
7
accidental death and dismemberment insurance, travel accident insurance or other
similar plan or program of Employer. To the degree that Employer's medical
insurance does not fully cover the cost of an annual physical examination for
Executive, Employer shall reimburse Executive for such expense promptly after
such expense is incurred. Executive's Base Salary shall (where applicable)
constitute the compensation on the basis of which the amount of Executive's
benefits under any such plan or program shall be fixed and determined.
4.7 Expense Reimbursement. Employer shall reimburse Executive for all
business expenses reasonably incurred by him in the performance of his duties
under this Agreement upon his presentation of signed, itemized accounts of such
expenditures, all in accordance with Employer's procedures and policies as
adopted and in effect from time to time and applicable to its senior management
employees.
4.8 Vacations. Executive shall be entitled to 20 days paid vacation for
each Employment Year during the Employment Period, in accordance with the
Employer's vacation policy as in effect from time to time. The Executive shall
also be entitled to paid holidays and personal days in accordance with the
Employer's practice with respect to same as in effect from time to time.
4.9 Equity Incentives. In order to provide further incentive to Executive
and align the interests of Executive with those of the stockholders of Employer,
Employer shall grant to Executive equity incentives consisting of shares of
Common Stock and options to purchase shares of Common Stock ("Options").
(a) Share Grant. As a signing bonus, Executive shall be granted 500,000
shares of Common Stock provided however that the Executive agrees in the event
of the resignation or termination of the Executive for any reason prior to the
expiration of the Initial Term, the Employer may redeem and repurchase at the
rate of $0.01 per share (i) 375,000 shares of Common Stock prior to the
Employee's First Anniversary, (ii) 250,000 shares of Common Stock after the
First Anniversary but prior to the Second Anniversary or (iii) 125,000 shares of
Common Stock after the Second Anniversary but prior to the Third Anniversary.
The Common Stock granted pursuant to Section 4.9 of this Agreement will bear an
appropriate legend concerning the Employers redemption and repurchase rights.
(b) Option Awards. As of the date that this Agreement is approved by the
Board and executed by the Executive, Employer shall grant to Executive stock
options to purchase 500,000 shares of Common Stock at the following exercise
prices per share (i) 125,000 shares at $0.61, (ii) 125,000 shares at $0.73,
(iii) 125,000 shares at $0.88 and (iv) 125,000 shares at $1.05.
(c) Option Awards Terms. The stock options awarded in Section 4.9(b) of
this Agreement shall be subject to the following additional terms:
(i) be subject to an option agreement containing terms substantially
similar to the terms generally provided in the option agreements of the
Employer's other senior managers (except as otherwise modified herein);
8
(ii) have a term of 7 years from the date of grant;
(iii) shall be fully vest and be exerciseable, as follows:
a. Options with respect to 125,000 shares shall vest and be
exerciseable immediately;
b. Options with respect to 125,000 shares shall vest and be
exercisable provided that the Executive remains employed by
the Employer by such date, on and after November 29, 2007;
c. Options with respect to 125,000 shares shall vest and be
exerciseable provided that the Executive remains employed by
the Employer by such date, on and after November 29, 2008;
and
d. Options with respect to 125,000 shares shall vest and be
exerciseable provided that the Executive remains employed by
the Employer by such date, on and after November 29, 2009;
provided, however, that upon a Change of Control, all Options
that have not yet vested and become exerciseable shall be deemed
to have vested and have become exerciseable as of the time
immediately preceding such Change of Control;
(iv) shall provide for cashless exercise of such Options;
(v) be issued under a qualified omnibus long-term incentive plan (a
"Plan") that will provide for Incentive Stock Options pursuant to Internal
Revenue Code ("Code") Section 422, non-qualified stock options and other forms
of long-term incentives. If the Employer does not have a Plan applicable to the
Executive or if an existing Plan does not provide for the foregoing terms or if
sufficient shares are not available for grant under an existing Plan, Employer
undertakes to implement a Plan to provide for the issuance of Executive's
Options. Failure of the Employer to implement such a Plan shall not prevent
Executive's right to receive his Options and he may elect, in his sole
discretion, to receive Options not subject to a Plan.
(d) From time to time, the Board may, in its discretion, grant additional
Options to Executive, on such terms as the Board determines.
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause; Voluntary Termination by Executive. Employer
may, by written notice to Executive at any time during the Employment Period,
terminate the Employment Period without Cause (as defined below). Executive may,
by written notice to
9
Employer at any time during the Employment Period, voluntarily resign from the
Employer and terminate the Employment Period. A termination under this section
shall be effective immediately.
5.2 By Employer for Cause. Employer may, at any time during the Employment
Period, by written notice to Executive, terminate the Employment Period and this
Agreement for "Cause" (as defined below) effective immediately, except as
otherwise provided below. The notice shall set forth in reasonable detail the
basis for such termination. In the event that it is possible for the Executive
to cure or correct the circumstances set forth in the notice, the termination
shall not be effective until the date that is thirty (30) days following the
date on which such notice is given and the circumstances set forth in the notice
shall not constitute "Cause" if within thirty (30) days of such notice,
Executive cures or corrects such circumstances. The Employer shall have "Cause"
to terminate the Executive's employment hereunder upon the Executive's:
(a) fraud, embezzlement, or any other illegal act committed intentionally
by the Executive in connection with the Executive's duties as an executive of
the Employer or any subsidiary or affiliate of the Employer that causes or may
reasonably be expected to cause substantial economic injury to the Employer or
any subsidiary or affiliate of the Employer,
(b) conviction of any felony which causes or may reasonably be expected to
cause substantial economic injury to the Employer or any subsidiary or affiliate
of the Employer, or
(c) willful or grossly negligent commission of any other act or failure to
act which causes or may reasonably be expected (as of the time of such
occurrence) to cause substantial economic injury to or substantial injury to the
reputation of the Employer or any subsidiary or affiliate of the Employer,
including, without limitation, any material violation of the Foreign Corrupt
Practices Act, as described herein below. An act or failure to act on the part
of Executive shall be considered "willful" if done, or omitted to be done, by
Executive in bad faith or without a reasonable belief that the act or omission
was in the best interest of Employer.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by written notice to Employer, terminate the Employment Period
under this Agreement for "Good Reason" (as defined below) effective immediately,
subject to the notice and cure period provided for below. For the purposes
hereof, "Good Reason" means any of the following without Executive's consent:
(A) subject to Section 3 above, a material and adverse change in the nature and
scope of Executive's authority and duties from those exercised or performed by
Executive immediately after the Effective Date; (B) a material breach of this
Agreement by Employer (including, but not limited to, failure to pay any amount
due to Executive when due, diminution of Executive's duties and responsibilities
or a change in Executive's place of performance); provided, however, that the
circumstances set forth in this Section 5.3(A) and (B) will not be Good Reason
if within 30 days of notice by the Executive to the Employer, Employer cures
such circumstances.
5.4 Disability. During the Employment Period, if, as a result of physical
or mental incapacity or infirmity, Executive shall be unable to perform his
duties under this Agreement for (i)
10
a continuous period of at least 120 days, or (ii) periods aggregating at least
180 days during any period of 12 consecutive months (each a "Disability
Period"), and at the end of the Disability Period there is no reasonable
probability that Executive can promptly resume his duties hereunder, Executive
shall be deemed disabled (the "Disability") and Employer, by notice to
Executive, shall have the right to terminate the Employment Period for
Disability at, as of or after the end of the Disability Period. The existence of
the Disability shall be determined by a reputable, licensed physician. The
parties shall attempt to agree on such a physician. In the event that the
parties are unable to so agree, such physician shall be selected by an
arbitrator provided by the American Arbitration Association in New York, New
York. Executive shall cooperate in all reasonable respects to enable an
examination to be made by such physician.
5.5 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION
6.1 Termination With or Without Cause by Employer or With or Without Good
Reason by Executive. If the Employment Period is:
(a) terminated by Employer with Cause or by Executive without Good Reason,
or the Agreement is not renewed after the Initial Employment Period, Employer
will pay to Executive eighteen (18) months of salary and benefit continuation
based upon the Executive's then Base Salary and other benefits set forth in
Sections 4.1, 4.4, 4.5 and health insurance, subject to the qualifications of
the respective benefit programs of the Employer (collectively, "Benefits").
Employer shall have the right, exercisable in its sole discretion, to make such
payment in (i) installments over such eighteen (18) month period, commencing on
Employer's first regular payroll date following the effective date of
termination, or (ii) a lump sum, equal to eighteen (18) months of Base Salary
and Benefits, discounted to twelve (12) months of such payments, payable to
Executive within ten (10) days of the effective date of termination.
(b) terminated by Employer without Cause or by Executive for Good Reason,
Employer will pay Executive thirty (30) months of salary and Benefits
continuation, based on Executive's then Base Salary and Benefits. Employer shall
have the right, exercisable in its sole discretion, to make such payment in (i)
installments over such thirty (30) month period, commencing on Employer's first
regular payroll date following the effective date of termination, or (ii) a lump
sum equal to thirty (30) months of Base Salary and Benefits, discounted to
eighteen (18) months of such payments, payable within ten (10) days of the
effective date of termination. The salary continuation payments shall be subject
to Employer's standard payroll practices. If such Benefits cannot be provided
under the Employer's programs, such benefits will be provided on a tax effective
basis on an individual basis to the Executive.
6.2 Termination by Reason of Death. If the Employment Period is terminated
by death, pursuant to the provisions of Section 5.5, Employer shall pay to
Executive's estate, within thirty (30) days of the effective date of
termination, Executive's Base Salary through the date of termination plus
Executive's Base Salary for an additional ninety (90) days.
11
6.3 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Sections 5.2 or 5.4, Employer shall pay
to Executive, within thirty (30) days of the effective date of termination,
Executive's Base Salary through the effective date of termination. If the
effective date of termination occurs after a Milestone has been achieved,
Employer shall also pay to Executive, when due, subject to the provisions of
Sections 4.2 and 4.3 hereof, the Bonus for such Employment Year. Employer shall
have no obligation to continue any other benefits provided for in Section 4 past
the effective date of termination, except as otherwise expressly provided in
Section 6.1 above.
6.4 No Other Termination Compensation. Executive shall not, except as set
forth in this Section 6, be entitled to any compensation following termination
of the Employment Period.
6.5 Mitigation of Damages. In the event of any termination of the
Executive's employment by the Employer, the Executive shall not be required to
seek other employment to mitigate damages, and any income earned by the
Executive from other employment or self-employment shall not be offset against
any obligations of the company to the Executive under this Agreement. The
Employer's obligations hereunder and the Executive's rights to payment shall not
be subject to any right of set-off, counterclaim or other deduction by the
Employer not in the nature of customary withholding, other than in any judicial
proceeding or arbitration.
7. PARACHUTE PAYMENTS
(a) If it is determined (as hereafter provided) that by reason of any
payment or Option vesting occurring pursuant to the terms of this Agreement (or
otherwise under any other agreement, plan or program) upon a Change in Control
(collectively, a "Payment"), the Executive would be subject to the excise tax
imposed by Code Section 4999 (the "Parachute Tax"), then the Executive shall be
entitled to receive an additional payment or payments (a "Gross-Up Payment") in
an amount such that, after payment by the Executive of all taxes (including any
Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Parachute Tax imposed upon the
Payment.
(b) Subject to the provisions of Section 7(a) hereof, all determinations
required to be made under this Section 7, including whether a Parachute Tax is
payable by the Executive and the amount of such Parachute Tax and whether a
Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be
made by the nationally recognized firm of certified public accountants (the
"Accounting Firm") used by the Employer prior to the Change in Control (or, if
such Accounting Firm declines to serve, the Accounting Firms hall be a
nationally recognized firm of certified public accountants selected by the
Executive). The Accounting Firm shall be directed by the Employer or the
Executive to submit its preliminary determination and detailed supporting
calculations to both the Employer and the Executive within 15 calendar days
after the determination date, if applicable, and any other such time or times as
may be requested by the Employer or the Executive. If the Accounting Firm
determines that any Parachute Tax is payable by the Executive, the Employer
shall pay the required Gross-Up Payment to, or for the benefit of, the Executive
within five business days after receipt of such determination and calculations.
If the Accounting Firm determines that no Parachute Tax is payable by the
Executive, it shall, at the same time as it makes such determination, furnish
the Executive with
12
an opinion that he has substantial authority not to report any Parachute Tax on
his federal tax return. Any good faith determination by the Accounting Firm as
to the amount of the Gross-Up Payment shall be binding upon the Employer and the
Executive absent a contrary determination by the Internal Revenue Service or a
court of competent jurisdiction; provided, however, that no such determination
shall eliminate or reduce the Employer's obligation to provide any Gross-Up
Payments that shall be due as a result of such contrary determination. As a
result of the uncertainty in the application of Code Section 4999 at the time of
any determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by the Employer should have been made (an
"Underpayment"), consistent with the calculations required to be made hereunder.
In the event that the Employer exhausts or fails to pursue its remedies pursuant
to Section 7(f) hereof and the Executive thereafter is required to make a
payment of any Parachute Tax, the Executive shall direct the Accounting Firm to
determine the amount of the Underpayment that has occurred and to submit its
determination and detailed supporting calculations to both the Employer and the
Executive as promptly as possible. Any such Underpayment shall be promptly paid
by the Employer to, or for the benefit of, the Executive within five business
days after receipt of such determination and calculations.
(c) The Employer and the Executive shall provide the Accounting Firm access
to and copies of any books, records and documents in the possession of the
Employer or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determination contemplated by Section
7(b) hereof.
(d) The federal tax returns filed by the Executive (or any filing made by a
consolidated tax group which includes the Employer) shall be prepared and filed
on a basis consistent with the determination of the Accounting Firm with respect
to the Parachute Tax payable by the Executive. The Executive shall make proper
payment of the amount of any Parachute Tax, and at the request of the Employer,
provide to the Employer true and correct copies (with any amendments) of his
federal income tax return as filed with the Internal Revenue Service, and such
other documents reasonably requested by the Employer, evidencing such payment.
If prior to the filing of the Executive's federal income tax return, the
Accounting Firm determines in good faith that the amount of the Gross-Up Payment
should be reduced, the Executive shall within five business days pay to the
Employer the amount of such reduction.
(e) The fees and expenses of the Accounting Firm for its services in
connection with the determination and calculations contemplated by Sections 7(b)
and (d) hereof shall be borne by the Employer. If such fees and expenses are
initially advanced by the Executive, the Employer shall reimburse the Executive
the full amount of such fees and expenses within five business days after
receipt from the Executive of a statement therefor and reasonable evidence of
his payment thereof.
(f) In the event that the Internal Revenue Service claims that any payment
or benefit received under this Agreement constitutes an "excess parachute
payment" within the meaning of Code Section 280G(b)(1), the Executive shall
notify the Employer in writing of such claim. Such notification shall be given
as soon as practicable but not later than 10 business days after
13
the Executive is informed in writing of such claim and shall apprise the
Employer of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to the
expiration of the 30 day period following the date on which the Executive gives
such notice to the Employer (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Employer notifies
the Executive in writing prior to the expiration of such period that it desires
to contest such claim, the Executive shall (i) give the Employer any information
reasonably requested by the Employer relating to such claim; (ii) take such
action in connection with contesting such claim as the Employer shall reasonably
request in writing from time to time, including without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Employer and reasonably satisfactory to the Executive; (iii)
cooperate with the Employer in good faith in order to effectively contest such
claim; and (iv) permit the Employer to participate in any proceedings relating
to such claim; provided, however, that the Employer shall bear and pay directly
all costs and expenses (including, but not limited to, additional interest and
penalties and related legal, consulting or other similar fees) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for and against for any Parachute Tax or income
tax or other tax (including interest and penalties with respect thereto) imposed
as a result of such representation and payment of costs and expenses.
(g) The Employer shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Employer shall
determine; provided, however, that if the Employer directs the Executive to pay
such claim and xxx for a refund, the Employer shall advance the amount of such
payment to the Executive on an interest-free basis, and shall indemnify and hold
the Executive harmless, on an after tax basis, from any Parachute Tax (or other
tax, including interest and penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and provided, further, that if the Executive is required to extend the
statute of limitations to enable the Employer to contest such claim, the
Executive may limit this extension solely to such contested amount. The
Employer's control of the contest shall be limited to issues with respect to
which a corporate deduction would be disallowed pursuant to Code Section 280G
and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority. In addition, no position may be taken nor any final resolution be
agreed to by the Employer without the Executive's consent if such position or
resolution could reasonably be expected to adversely affect the Executive
unrelated to matters covered hereto.
(h) If, after the receipt by Executive of an amount advanced by the
Employer in connection with the contest of the Parachute Tax claim, the
Executive receives any refund with respect to such claim, the Executive shall
promptly pay to the Employer the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto); provided,
however, if the amount of that refund exceeds the amount advanced by the
Employer,
14
the Executive may retain such excess. If, after the receipt by the Executive of
an amount advanced by the Employer in connection with a Parachute Tax claim, a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Employer does not notify the Executive in
writing of its intent to contest the denial of such refund prior to the
expiration of 30 days after such determination, such advance shall be deemed to
be in consideration for services rendered after the Date of Termination.
8. PROFESSIONAL LIABILITY INSURANCE; INDEMNIFICATION
8.1 Insurance. The Employer will provide coverage for Executive under the
Employer's director and officer professional liability insurance policy to the
extent that such insurance is available at commercially reasonable prices.
8.2 Indemnification. In accordance with the Employers By-Laws and Charter,
Employer shall indemnify the Executive to the fullest extent permitted by law in
effect as of the date hereof, or as hereafter amended, against all costs,
expenses, liabilities and losses (including, without limitation, attorneys'
fees, judgments, fines, penalties, ERISA excise taxes, penalties and amounts
paid in settlement) reasonably incurred by the Executive in connection with a
Proceeding. For the purposes of this section, a "Proceeding" shall mean any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which the Executive is made, or is threatened to be made, a
party to, or a witness in, such action, suit or proceeding by reason of the fact
that he is or was an officer, director or employee of the Employer or is or was
serving as an officer, director, member, employee, trustee or agent of any other
entity at the request of the Employer.
(a) Notification and Defense of Claim. Promptly after receipt by the
Executive of notice of the commencement of any Proceeding, the Executive will,
if a claim in respect thereof is to be made against the Employer under this
Agreement, notify the Employer in writing of the commencement thereof; but the
omission to so notify the Employer will not relieve the Employer from any
liability that it may have to the Executive otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
Proceeding as to which the Executive gives notice to the Employer of the
commencement thereof:
(i) The Employer will be entitled to participate therein at its own
expense; and
(ii) Except as otherwise provided in this Section 8.2(a)(ii) to the
extent that it may wish, the Employer, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof, with
counsel satisfactory to the Executive. After notice from the Employer to the
Executive of its election to so assume the defense thereof, the Employer shall
not be liable to the Executive under this Agreement for any legal or other
expenses subsequently incurred by the Executive in connection with the defense
thereof other than reasonable costs of investigation or as otherwise provided
below. The Executive shall have the right to employ the Executive's own counsel
in such Proceeding, but the fees and expenses of such counsel incurred after
notice from the Employer of its assumption of the defense thereof shall be at
the expense of the Executive unless (a) the employment of counsel by the
Executive
15
has been authorized by the Employer, (b) the Executive shall have reasonably
concluded that there may be a conflict of interest between the Employer and the
Executive in the conduct of the defense of such Proceeding (which conclusion
shall be deemed reasonable if, without limitation, such action shall seek any
remedy other than money damages and the Executive would be personally affected
by such remedy or the carrying out thereof), or (c) the Employer shall not in
fact have employed counsel to assume the defense of the Proceeding, in each of
which cases the fees and expenses of counsel shall be at the expense of the
Employer. The Employer shall not be entitled to assume the defense of any
Proceeding brought against the Executive by or on behalf of the Employer or as
to which the Executive shall have reached the conclusion provided for in clause
(b) above.
9. CONFIDENTIALITY
Unless otherwise required by law or judicial process, Executive shall
retain in confidence during the Employment Period and after termination of
Executive's employment with Employer pursuant to this Agreement all confidential
information known to the Executive concerning Employer and its businesses. The
obligations of Executive pursuant to this Section 9 shall survive the expiration
or termination of this Agreement.
10. NONCOMPETITION.
10.1 General. For the duration of the Employment Period and the applicable
Non-Compete Period (as defined below), the Executive shall not directly or
indirectly, engage in any Competitive Activity (as defined below) in competition
with the Employer. "Competitive Activity" shall mean: (A) the development,
providing, marketing, administration, management, or acting as a consultant in
the providing of, the principal operating business(es) of the Employer at the
time of termination, (B) the participation, directly or indirectly, in any
business which is the same as or substantially similar to or is or would be
competitive with strategic communication or theatre exhibition businesses of the
Employer at the time; and (C) becoming an employee, director, officer,
consultant, independent contractor, lecturer or advisor of or to, or otherwise
providing services to, any business, individual, partnership, firm, association
or corporation, if the Executive's duties relate in any manner to the business
of developing, providing, marketing, administering, managing, or acting as a
consultant in the providing of, the principal operating business(es) of the
Employer at the time of termination. Nothing herein, however, shall prohibit
Executive from acquiring or holding any issue of stock or securities of any
business, individual, partnership, firm, or corporation (collectively "Entity")
which has any securities listed on a national securities exchange or quoted in
the daily listing of over-the-counter market securities, provided that at any
one time he and members of his immediate family do not own more than five
percent of the voting securities of any such Entity. The obligations of
Executive pursuant to this Section 10 shall survive the expiration or
termination of this Agreement.
10.2 Non-Compete Period. Upon termination of Executive's employment for any
reason hereunder, the prohibition against Executive engaging in a Competitive
Activity shall remain in effect for a period of eighteen (18) months following
Termination or expiration of this
16
Agreement ("Non-Compete Period"). The Executive may be released from the
Non-Compete Period in the event that the Employer does not make payments
pursuant to Section 6.1 above provided that (i) Employer is not in dispute of
the amount due and (ii) Executive has provided a written statement of default
and the Employer has not cured the default within 30 days of receipt of the
default notice.
11. NONSOLICITATION.
During the Non-Compete Period, Executive shall not directly or indirectly
solicit to enter into the employ of any other Entity, or hire, any of the
employees of the Employer (or individuals who were employees of the Employer
within twelve months of termination of the Non-Compete Period). During the
Non-Compete Period, Executive shall not, directly or indirectly, solicit, hire
or take away or attempt to solicit, hire or take away (i) any customer or client
of the Employer or (ii) any former customer or client (that is, any customer or
client who ceased to do business with the Employer during the one (1) year
immediately preceding such date) of the Employer or encourage any customer or
client of the Employer to terminate its relationship with the Employer without
the Employer's prior written consent. The obligations of Executive pursuant to
this Section 11 shall survive the expiration or termination of this Agreement.
12. NON-DISPARAGEMENT OF THE EXECUTIVE
The Employer shall not make any oral or written statement about the
Executive which is intended or reasonably likely to disparage the
Executive or otherwise degrade his reputation in the business or legal
community.
13. FOREIGN CORRUPT PRACTICES ACT
The Executive agrees to comply in all material respects with the applicable
provisions of the U.S. Foreign Corrupt Practices Act of 1977 ("FCPA"), as
amended, which provides generally that: under no circumstances will foreign
officials, representatives, political parties or holders or public offices
be offered, promised or paid any money, remuneration, things of value, or
provided any other benefit, direct or indirect, in connection with
obtaining or maintaining contracts or others hereunder. When any
representative, employee, agent, or other individual or organization
associated with the Executive is required to perform any obligation related
to or in connection with this Agreement, the substance of this section
shall be imposed upon such person and included in any agreement between the
Executive and any such person. Failure by the Executive to comply in all
material respects with the provisions of the FCPA (other than an
inadvertent violation on the basis of advice from counsel to the Employer
that the conduct in question is not a violation) shall constitute a
material breach of this Agreement and shall entitle the Employer to
terminate the Executive's employment for Cause.
14. SUCCESSORS; BINDING AGREEMENT
17
This Agreement and all rights of the Executive hereunder shall inure to the
benefit of and be enforceable by Executive and Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee,
legatee, or other beneficiary or, if there be no such beneficiary, to
Executive's estate.
15. SURVIVORSHIP
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
16. MISCELLANEOUS
16.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and sent to the party
for or to whom intended, at the address of such party set forth below, by
registered or certified mail, postage paid (deemed given five days after deposit
in the U.S. mails) or personally or by facsimile transmission (deemed given upon
receipt), or at such other address as either party shall designate by notice
given to the other in the manner provided herein.
If to Employer:
iDNA, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Facsimile: 000-000-0000
With a copy to
ReedSmith LLP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
If to Executive:
Xxxxx X. XxXxxxxx
000 Xxxxx Xxxx
Xxxx Xxxxx. XX 00000
Facsimile: (000) 000-0000
16.2 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security,
18
unemployment compensation and other taxes as shall be necessary or appropriate
in the reasonable judgment of Employer to comply with applicable laws and
regulations.
16.3 Inventions; Work for Hire. Executive hereby agrees to assign and does
hereby assign all of Executive's right, title and interest in or to any and all
ideas, concepts, know-how, techniques, processes, inventions, discoveries,
developments, works of authorship, innovations and improvements (collectively
"Inventions") conceived or made by Executive, whether alone or in concert with
others whether patentable or subject to potential copyrights or not, except
those that the Executive developed or develops entirely on Executive's own time
without using the equipment, supplies, facilities, or confidential or
proprietary information of the Employer and provided that such Inventions are
unrelated to the business of the Employer. Executive agrees to promptly inform
and disclose all Inventions to the Employer in writing and with respect to those
Inventions that Executive is required to assign to the Employer hereunder to
provide all assistance reasonably requested by the Employer in the preservation
of its interests in the Inventions (such as by executing documents, testifying,
etc.), such assistance to be provided at the Employer's expense but without
additional compensation to the Executive. Executive agrees that any work
prepared by the Executive during the Employment Period which work is subject to
assignment under this paragraph and which is eligible for United States
copyright protection or protection under the Universal Copyright Convention the
Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall
be a "work made for hire". In the event that any such work is deemed not to be a
"work made for hire". Executive hereby assigns all right, title and interest in
and to the copyright in such work to the Employer, and agrees to provide all
assistance reasonably requested in the establishment, preservation and
enforcement of the Employer's copyright in such work, such assistance to be
provided at the Employer's expense but without any additional compensation to
Executive.
16.4 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without reference
to the principles of conflicts of laws therein.
16.5 Dispute Resolution and Arbitration. In the event that any dispute
arises between the Employer and the Executive regarding or relating to this
Agreement and/or any aspect of the Executive's employment relationship with the
Employer, AND IN LIEU OF LITIGATION AND A TRIAL BY JURY, the parties consent to
resolve such dispute through mandatory arbitration under the Commercial Rules of
the American Arbitration Association, before a single arbitrator in New York,
New York. The parties hereby consent to the entry of judgment upon award
rendered by the arbitrator in any court of competent jurisdiction.
Notwithstanding the foregoing, however, should adequate grounds exist for
seeking immediate injunctive or immediate equitable relief, any party may seek
and obtain such relief; provided that, upon obtaining such relief, such
injunctive or equitable action shall be stayed pending the resolution of the
arbitration proceedings called for herein. The parties hereby consent to the
exclusive jurisdiction in the state and Federal courts located in the City of
New York, County of New York and State of New York for purposes of seeking such
injunctive or equitable relief as set forth above. Each side shall bear its own
costs; however any fees assessed by the American Arbitration Association shall
be allocated by the arbitrator in his/her sole discretion.
19
16.6 Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
16.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
16.8 Severability. If any provision of this Agreement, or any part thereof,
is held to be unenforceable, the remainder of such provision and this Agreement,
as the case may be, shall nevertheless remain in full force and effect.
16.9 Entire Agreement and Representation. This Agreement contains the
entire agreement and understanding between Employer and Executive with respect
to the subject matter hereof. No representations or warranties of any kind or
nature relating to Employer or its several businesses, or relating to Employer's
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
29th day of November, 2006 and as of the date first above written.
iDNA, INC.
By:
-------------------------------------------
Name:
Title:
-----------------------------------------------
Xxxxx X. XxXxxxxx
20
