EXHIBIT 6
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the ______ day of June, 2002.
BETWEEN:
LT ACQUISITION CORP.,
a company incorporated under the laws of the State of New York
and having a place of business at #0-0 Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, X.X. 00000
(hereinafter called the "CORPORATION")
PARTY OF THE FIRST PART AND:
XXXXXXX X. XXXXXXX,
Businessman of #0-0 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxx Xxxx,
00000 (hereinafter called the "CO-MANAGER")
PARTY OF THE SECOND PART
WHEREAS the Corporation and the Co-Manager have agreed to enter into this
Agreement for purposes of setting forth the terms and conditions governing the
employment of the Co-Manager by the Corporation.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the covenants,
agreements and payments herein set out and provided for and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged and agreed to by the parties), the parties hereto covenant and
agree as follows;
ARTICLE I
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 In this Agreement (including any Schedules attached hereto), the following
expressions shall have the following meanings:
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a) "AFFILIATE" means any entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is
under common control with, the Corporation.
b) "BUSINESS DAY" means any day, other than a Saturday, Sunday or any
other day on which the principle chartered banks located in the City
of New York are not opened for business during normal banking hours;
c) "COMPANIES" means Security Biometrics, Inc., the Corporation and
their Affiliates;
d) "CONFIDENTIAL INFORMATION" means all information, know-how, data,
techniques, knowledge and other confidential information of every
kind or character relating to or connected with the business,
corporate affairs and operations of the Companies (including the
Corporation) and includes, without limitation, all technical data
and know how, shareholder data, compensation rates and methods,
personnel information and customer information including customer
lists stating names of contacts, telephone numbers and other
customer information;
e) "DATE OF DEATH" means the date of the death of the Co-Manager;
f) "DATE OF DISABILITY" means the date on any letter from the qualified
medical professional referred to in the definition of "Disability";
g) "DATE OF TERMINATION" means the date specified in the Termination
Notice given by the Corporation or the Co-Manager (as the case may
be) to the Corporation or the Co-Manager (as the case may be) in
accordance with paragraphs 5.1, 5.2 or 5.3 hereof and for the
purposes of paragraph 5.4 hereof, means the Date of Death or the
Date of Disability as specified in paragraph 5.4 hereof;
h) "DISABILITY" means ill health, physical or mental disability, or
other causes beyond the control of the Co-Manager confirmed in
writing by a qualified professional (medical doctor or
psychologist/psychiatrist), preventing the Co-
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Manager from carrying out the Co-Manager Duties for ninety (90)
consecutive days;
i) "EBITDA" means Earnings of the Corporation before Interest, Tax,
Depreciation and Amortization;
j) "EXECUTIVE BONUS" means the bonus to be paid to the Co-Manager as
set out in Schedule "A" attached hereto and forming part hereof;
k) "FISCAL YEAR" means the fiscal year of the Corporation which is a
twelve (12) month period commencing January 1 and ending on December
31;
l) "GOOD REASON" has the meaning set forth in paragraph 5.3 hereof;
m) "GROSS SALARY" means the gross salary defined and described in
Schedule "A" attached hereto and forming part hereof;
n) "JUST CAUSE" has the meaning set forth in paragraph 5.1 hereof;
o) "CO-MANAGER DUTIES" means the material duties and responsibilities
customarily assigned by the Board of Directors of a corporation to
the position of President of a corporation of similar size
conducting similar business to the Corporation, which material
duties may not be changed without the Co-Manager's written consent,
and which duties shall include, but shall not be limited to, those
particular duties detailed and described in Schedule "B" attached
hereto and forming part hereof. It is understood and agreed that
Co-Manager shall discharge and carry out his Co-Manager Duties
jointly with, and subject to the approval of, Xx. Xxxxxx Xxxxxx who
is being appointed a Co-Manager of the Corporation concurrently
herewith.
p) "NON-COMPETITION PERIOD" means the period of time determined as
follows:
i) if the Corporation terminates this Agreement in accordance
with paragraph 5.1 hereof, then the Non-Competition Period
shall be for seven hundred thirty (730) consecutive days
commencing the Date of Termination; OR
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ii) if the Corporation terminates this Agreement in accordance
with paragraph 5.2 hereof, or if the Co-Manager terminates
this Agreement for Good Reason in accordance with paragraph
5.3 hereof, then there shall be no Non-Competition Period
whatsoever and paragraph 6.3 shall be of no effect; OR
iii) if the Co-Manager terminates this Agreement without Good
Reason as contemplated in paragraph 5.3 hereof, then the
Non-Competition Period shall be for seven hundred thirty (730)
consecutive days commencing the Date of Termination; OR
iv) if the Term expires in the ordinary course of business, and, a
Date of Termination did not occur before the expire of the
Term, then the Non-Competition Period shall be for three
hundred sixty five (365) consecutive days commencing on the
expiry of the Term; OR
v) if the Term is extended in writing, and the Corporation and
the Co-Manager do not agree in writing to the contrary, then
the Non-Competition Period shall be for three hundred sixty
five (365) consecutive days commencing on the expiry of the
extended Term; provided however, if the Corporation terminates
this Agreement during the extended Term in accordance with
paragraph 5.2 hereof, or the Co-Manager terminates this
Agreement for Good Reason in accordance with paragraph 5.3
hereof, then there shall be no Non-Competition Period
whatsoever and paragraph 6.3 shall be of no effect;
q) "SEVERANCE ALLOWANCE" means the severance allowance described and
specified in paragraph 5.2(b) hereof;
r) "TERM" means the term specified in paragraph 2.3 hereof;
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s) "TERMINATION NOTICE" means the notice in writing given by the
Corporation to the Co-Manager in accordance with paragraphs 5.1 or
5.2 hereof, and, the notice in writing given by the Co-Manager to
the Corporation in accordance with paragraph 5.3 hereof.
HEADINGS
1.2 The headings of the Articles, clauses and paragraphs herein are inserted for
convenience of reference only and shall not affect the meaning of construction
hereof.
PREAMBLE
1.3 The preamble hereto shall form an integral part of this Agreement.
SCHEDULES
1.4 All Schedules referred to in this Agreement shall be deemed to be
incorporated in and shall form part of this Agreement.
GOVERNING LAWS
1.5 This Agreement shall be construed and interpreted in accordance with the
laws of the State of New York, without regard to its principles of conflicts of
laws.
CURRENCY
1.6 All dollar amounts referred to in this Agreement are US dollars and all
dollar amount calculations to be made or paid (as the case may be) in accordance
with this Agreement are to be made or paid (as the case may be) in US dollars.
NUMBER AND GENDER
1.7 All words importing the singular number include the plural and vice versa,
and all words importing gender include the masculine, feminine and neutral
genders.
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ARTICLE 2
EMPLOYMENT/TERM
EMPLOYMENT
2.1 The Corporation hereby agrees to employ the Co-Manager to perform the
Co-Manager Duties and the Co-Manager agrees to accept such employment and to
perform the Co-Manager Duties, all in accordance with the express terms, duties
and obligations hereinafter set forth.
RELATIONSHIP
2.2 The parties hereto agree that the relationship between the Corporation and
the Co-Manager created by this Agreement is that of employer-employee.
TERM
2.3 Unless sooner terminated pursuant to the terms hereof, this Agreement shall
continue in full force and affect until December 31, 2004, and thereafter shall
be subject to renegotiation or renewal at the discretion of the Board of
Directors of the Corporation.
ARTICLE 3
DUTIES, REPORTING AND LOCATION
DUTIES
3.1 The Co-Manager shall, during the Term, perform the Co-Manager Duties.
POWERS
3.2 During the Term the Co-Manager shall have the power to do all acts and
things as are customarily done by a person holding the same or equivalent
positions in corporations of similar size conducting similar business to the
Corporation.
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EXCLUSIVITY
3.3 During the Term the Co-Manager shall devote his full time efforts to
performing the Co-Manager Duties and the Co-Manager shall not engage, for his
own account, in any consulting work, trade or business which will or may
interfere with his abilities to perform the Co-Manager Duties or result in
conflict with the business carried out by the Companies (including the
Corporation).
REPORTING
3.4 In carrying out the Co-Manager Duties, the Co-Manager shall report to the
Chief Executive Officer of Security Biometrics, Inc. or, if requested by the
said Chief Executive Officer, to such other executive officer of Security
Biometrics, Inc. as may be designated by the Chief Executive Officer of
Securities Biometrics, Inc. from time to time, and the Co-Manager shall act
consistently with the directions and policies established, from time to time, by
the Board of Directors of the Corporation.
LOCATION
3.5 During the Term the Co-Manager shall be based at the Corporation's offices
located in 0 Xxxxxxx Xxxxxx, Xxxxx #0, Xxxxxxxx Xxxxxx, X.X. 00000, or at such
other location within the State of New York as the Corporation's offices may be
located, and at no time during the Term shall the Corporation require or
obligate the Co-Manager to move out of the State of New York unless the
Co-Manager consents, in writing, to such move.
ARTICLE 4
COMPENSATION
GROSS SALARY
4.1 In consideration of the Co-Manager performing the Co-Manager Duties, the
Co-Manager shall, subject to Article 5 hereof, receive from the Corporation the
Gross Salary.
EXECUTIVE BONUS
4.2 In consideration of the Co-Manager performing the Co-Manager Duties, the
Co-Manager shall, subject to Article 5 hereof, receive from the Corporation the
Executive Bonus (if any) calculated in accordance with this Agreement
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including, but without limitation, Schedule "A". If there is any dispute between
the Co-Manager and the Corporation with respect to the calculation of EBITDA,
then, a determination of the auditors of the Corporation as to the amount of
EBITDA shall be final and binding upon the Corporation and the Co-Manager.
VACATIONS/VEHICLE
4.3 The Co-Manager shall be entitled to the following additional benefits:
a) three (3) weeks paid annual vacation during the first year of the
Term and four (4) weeks paid annual vacation during each of the
remaining two (2) of the Term and any extensions thereof; and
b) a vehicle allowance in the amount set out in Schedule "A".
REIMBURSEMENT
4.4 The Corporation shall pay or reimburse the Co-Manager, for all reasonable
business expenses, including, without limitation, all travel and promotional
expenses payable or incurred by the Co-Manager in connection with the proper
discharge of the Co-Manager Duties. All payments or reimbursements shall be made
upon submission by the Co-Manager of vouchers, bills or receipts for all such
reasonable expenses.
4.5 Without restricting the generality of paragraph 4.4 hereof, it is agreed
that in order for the Co-Manager to carry out the Co-Manager Duties the
Co-Manager will require a cellular phone, a fax line to his home and a
high-speed internet connection to his home in order to facilitate e-mails, each
of which is deemed to be a reasonable business expense. The Co-Manager will be
reimbursed for these items, in total or in part, as may be agreed upon by the
Co-Manager and the Corporation, both acting reasonably.
BENEFITS
4.6 The Co-Manager shall be entitled to participate in and to receive all rights
and benefits which the Corporation and its Affiliates accords to its executive
officers or its
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employees generally and for which Employee qualifies, including but not limited
to rights and benefits under any life insurance, long and short term disability,
medical, dental, health and accident plans maintained by the Corporation and its
Affiliates for their executive officers or employees generally, subject to his
ability to qualify for participation in such plans. The Co-Manager's rights
under such plans, if any, existing at the Date of Termination, shall not be
affected by the termination of the Co-Manager if such termination is due to the
Co-Manager becoming incapacitated or Disabled, to the extent that the then
existing plans, if any, allow the Corporation to continue coverage for the
Co-Manager upon his becoming incapacitated or Disabled and, provided always that
the Corporation shall not be required to obtain alternative or additional
coverage under the same or similar plans, in which case the Corporation shall
have no obligations pursuant to this section. Notwithstanding the foregoing, the
Corporation shall obtain and keep in effect during the Term long term and short
term disability income insurance with respect to the Co-Manager with a highly
rated insurance company providing for the maximum rate of payment in the event
of partial or total disability that can be obtained based on the Co-Manager's
Gross Salary.
ARTICLE 5
TERMINATION AND DEATH/DISABILITY
JUST CAUSE
5.1 The Corporation shall be entitled, upon written notice to the Co-Manager, to
terminate this Agreement and the Co-Manager's employment with the Corporation at
any time for Just Cause. "Just Cause" shall mean (i) the willful failure by the
Co-Manager to perform his duties with the Corporation (other than any such
failure resulting from his incapacity due to physical or mental illness) after a
written demand for performance is delivered to the Co-Manager by the Company's
Board of Directors, which demand specifically identifies the manner in which the
Board believes that the Co-Manager has not performed his duties, and which
demands Co-Manager does not satisfy within thirty (30) days of such written
demand for performance; or (ii) the engaging by the Co-Manager in conduct which
is demonstrably and materially injurious to the Corporation, monetarily or
otherwise, which is not
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cured within thirty (30) days of any such injury. Notwithstanding the foregoing,
the Co-Manager shall not be deemed to have been terminated for Just Cause unless
and until there shall have been delivered to the Co-Manager a copy of a
resolution duly adopted by the Board of Directors of the Corporation at a
meeting of the Board called and held for such purpose (after reasonable notice
to the Manager and an opportunity for the Co-Manager, together with the
Co-Manager's counsel, to be heard before the Board), finding that in the good
faith opinion of the Board the Co-Manager was guilty of conduct set forth above
in clauses (i) or (ii) of the first sentence of this paragraph. If the
Co-Manager's employment is so terminated for Just Cause, then, the Corporation
shall pay to the Co-Manager the sum of the following:
a) the Gross Salary to the Date of Termination; and
b) the portion of the Executive Bonus applicable to the Fiscal Year in
which the Date of Termination occurs, pro rata to the Date of
Termination;
less withholding taxes and deductions that may be required under any applicable
law and following such payment the Corporation shall have no further obligation
to the Co-Manager under this Agreement and the Co-Manager shall have no further
obligation to the Corporation under this Agreement, save and except for the
Co-Manager's obligations under Article 6.
WITHOUT JUST CAUSE
5.2 The Corporation shall also be entitled to terminate the Co-Manager for
reasons other than Just Cause or Disability; provided that if the Co-Manager is
terminated by the Corporation for reasons other than for Just Cause or
Disability, then the Corporation shall continue to pay to the Co-Manager the
Gross Salary due for the period from the Date of Termination through and
including the expiry of the Term as if this Agreement had not been terminated.
Further, if the Co-Manager's employment is terminated pursuant to this paragraph
5.2, the Co-Manager's participation and entitlement to benefits in the plans
mentioned in paragraph 4.6 above, shall not automatically terminate unless such
termination normally occurs pursuant to the terms and conditions of such plans.
The Co-Manager shall have the duty to use his reasonable
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efforts to mitigate his damages by seeking other employment.
TERMINATION BY CO-MANAGER
5.3 The Co-Manager shall be entitled to terminate his employment only for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence,
without the express written consent of the Co-Manager, of any of the following
circumstances unless, in the case of Paragraphs (A), (E), (F), (G), (H) or (I),
such circumstances are fully corrected prior to the Date of Termination, given
in respect thereof:
(A) the assignment to the Co-Manager of any duties inconsistent with his status
as President of the Corporation or a substantial and adverse alteration in the
nature or status of his responsibilities from those in effect immediately prior
to such alteration unless due to a change in the nature or scope for business of
the Corporation; (B) a reduction by the Corporation in the Co-Manager's Gross
Salary as in effect on the date hereof without Just Cause; (C) the Corporation's
requiring the Co-Manager to report on a regular basis to a location other than
the location identified in paragraph 3.5 of this Agreement except for required
travel on the Corporation's business; (D) the failure by the Company, without
Just Cause, to pay to the Co-Manager any portion of his Gross Salary, or to pay
to the Co-Manager any portion of his Executive Bonus within thirty days of the
date such compensation is due; (E) the failure by the Corporation to continue in
effect any compensation plan identified in this Agreement, including, but not
limited to, any retirement plan, employee stock ownership plan, or any
substitute plan, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or the
failure by the Corporation to continue the Co-Manager's participation therein
(or in such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level of the
Co-Manager's participation relative to other participants; (F) the failure by
the Corporation to continue to provide the Co-Manager with benefits
substantially similar to those enjoyed by him under any of the Corporation's
pension, life insurance, medical, health and accident, or disability plans
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contemplated in paragraph 4.6 of this Agreement or the taking of any action by
the Corporation which would directly or indirectly materially reduce or deprive
the Co-Manager of any of such benefits or the failure by the Corporation to
provide the Co-Manager with the number of paid vacation or sick days to which he
is entitled; provided, however, that such benefit can be continued without
disproportionate increase in expense to the Corporation; (G) the failure of the
Corporation to obtain a satisfactory agreement from any successor to assume and
agree to perform this Agreement; (H) any purported termination of the
Co-Manager's employment which is not effected pursuant to a Termination Notice
satisfying the requirements of paragraph 5.1 above; for purposes of this
Agreement, no such purported termination shall be effective; or (I) the failure
to elect the Co-Manager as a director of the Board of Directors of the
Corporation or to nominate the Co-Manager as a member of the Board of Directors
of Security Biometrics Inc.
If the Co-Manager resigns for Good Reason, then the Corporation shall continue
to pay to the Co-Manager the Gross Salary due him from the Date of Termination
through and including the expiry of the Term as if this Agreement had not been
terminated. The Co-Manager's right to terminate his employment pursuant to this
subparagraph shall not be affected by his Disability or incapacity due to
physical or mental illness. The continued employment of the Co-Manager shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
Further, if the Co-Manager's employment is terminated pursuant to this paragraph
5.2, the Co-Manager's participation and entitlement to benefits in the plans
mentioned in paragraph 4.6 above, shall not automatically terminate unless such
termination normally occurs pursuant to the terms and conditions of such plans.
DEATH/DISABILITY
5.4 (a) If the Co-Manager dies or becomes disabled at any time during the Term,
then the Date of Death or the Date of Disability shall be deemed to be the Date
of Termination
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and the Corporation shall pay to the Co-Manager (in the case of Disability) or
to the Co-Manager's estate (in the case of death) the monies required to be paid
to the Co-Manager in accordance with paragraph 5.1 hereof as if this Agreement
and the Co-Manager's employment with the Corporation had been terminated for
Just Cause.
(b) Nothing in this Section shall reduce the amount that may be due to the
Co-Manager from any Employer sponsored disability income insurance plan.
ARTICLE 6
NON-COMPETITION/CONFIDENTIALITY
NON-COMPETITION DURING THE TERM
6.1 The Co-Manager recognizes and understands that in performing the duties and
responsibilities of his employment as outlined in this Agreement, he will occupy
a position of high fiduciary trust and confidence, pursuant to which he has
developed and will develop and acquire wide experience and knowledge with
respect to all aspects of the business of the Companies (including the
Corporation). It is the expressed intent and agreement of the Co-Manager and the
Corporation that such knowledge and experience shall be used solely and
exclusively in the furtherance of the business interests of the Companies
(including the Corporation) and not in any manner detrimental to them. The
Co-Manager therefore agrees that so long as he is employed by the Corporation
pursuant to this Agreement the Co-Manager shall not engage in any practice or
business in competition with the business of the Companies (including the
Corporation).
CONFIDENTIALITY
6.2 The Co-Manager further recognizes and understands that in the performance of
his employment duties and responsibilities as outlined in this Agreement he will
become knowledgeable, aware and possess Confidential Information. The Co-Manager
therefore agrees that except with the consent of the Chief Executive Officer of
Security Biometrics Inc., the Co-Manager shall not disclose such Confidential
Information to any persons not employed by the Companies so long as the
Co-Manager is employed by the Corporation pursuant to this Agreement and
thereafter for
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and during the Non-Competition Period, if any, except in furtherance of his
Co-Manager Duties; provided that the foregoing shall not apply to any
Confidential Information that becomes generally known to the public other than
by a breach of this Agreement. On or before the Date of Termination the
Co-Manager shall return any and all items of property belonging to the
Corporation and shall not remove any of the Corporations files, information,
computer data, customer lists, market or sales records.
For a period of three hundred sixty five (365) days after the expiration of the
Term, or the extended Term, or after the Date of Termination for Just Cause, the
Co-Manager, subject to the terms hereof,
a) shall not divulge to anyone Confidential Information;
b) shall not call upon to serve or endeavor to serve any of the
customers and/or patronage of the Corporation with any products or
services in competition with the Corporation or its Affiliates;
c) shall not directly or indirectly solicit, take away or endeavor to
take away any of the customers and/or patronage of the Corporation
or its Affiliates; and
d) shall not directly or indirectly solicit, take away, hire, employ or
endeavor to employ any of the employees of the Corporation or its
Affiliates.
NON-COMPETITION AFTER TERMINATION
6.3 The Co-Manager agrees that he will not either directly or indirectly as
principal, agent, owner, partner, shareholder, director, officer or otherwise,
own, operate, be engaged in the operation of or have any financial interest in
any business operation whether a proprietorship, partnership, joint venture or
private company, or otherwise carrying on or engaged in any business competing
with the Companies (including the Corporation) on the Date of Termination during
the Non-Competition Period unless such activity is consented to in writing by
the Chief Executive Officer of Security Biometrics Inc. (it being understood
hereby, that the
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ownership by the Co-Manager of 5% or less of the stock of any company listed on
a national securities exchange shall not be deemed a violation of this paragraph
6.3).
ACKNOWLEDGMENT
6.4 The Co-Manager and the Corporation acknowledge and agree that the time
period comprising the Non-Competition Period is reasonable and fair to the
Co-Manager.
PROPRIETARY RIGHTS
6.5 Notwithstanding anything to the contrary contained in this Agreement, it is
expressly acknowledged and understood by the Co-Manager that all of the
Co-Manager Duties performed by the Co-Manager or work product generated by the
Co-Manager during the Term shall vest in the Corporation absolutely and the
Co-Manager shall have no proprietary rights of any nature and kind in and to
same.
ARTICLE 7
GENERAL
ENTIRE AGREEMENT
7.1 This Agreement constitutes the entire agreement between the parties hereto
relating to the employment of the Co-Manager by the Corporation to perform the
Co-Manager Duties. There are not and shall not be any verbal statements or
representations, warranties, undertakings or agreements among the parties and
this Agreement may not be amended or modified in any respect except by written
instrument signed by the parties hereto.
RESIGNATIONS
7.2 The Co-Manager agrees that in the event of a termination of this Agreement,
or upon the expiration of this Agreement, as it may be amended or extended from
time to time, he will tender his resignation from any position he may hold with
the Corporation.
AMENDMENTS/MODIFICATIONS
7.3 No amendment or modification of this Agreement shall be binding unless in
writing, signed by each of the parties hereto. No waiver by either party hereto
of any breach of any of the provisions of this Agreement shall take effect
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or be binding upon the party unless in writing and signed by such party. Unless
otherwise provided therein, such waiver shall not limit or affect the rights of
such party with respect to any other breach.
FURTHER DOCUMENTS
7.4 The parties hereto agree to execute and deliver such further and other
documents and perform and cause to be performed such further and other acts and
things as may be necessary or desirable in order to give full effect to this
agreement and every part thereof.
SEVERABILITY
7.5 If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; provide that the objective and intent of the parties can be achieved
absent the invalid, illegal or unenforceable provisions.
PERSONAL SERVICES
7.6 This Agreement is a personal services agreement and may not be assigned by
any party.
CONTINUATION
7.7 For greater certainty it is agreed that a Date of Termination shall not
relieve the parties to this Agreement from complying with their respective
obligations as set out in this Agreement, to the extent such obligations are to
be performed or observed after the termination of this Agreement.
SUCCESSORS AND ASSIGNS
7.8 This Agreement shall ensure to the benefit of and be binding upon the
parties hereto and their respective heirs, legal personal representatives,
successors and permitted assigns.
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NOTICES
7.9 Any notice, direction or other instrument required or permitted to be given
to the Corporation or the Co-Manager hereunder shall be in writing and may be
given by mailing the same postage prepaid or delivering or telecopying the same
addressed to the Co-Manager (and his counsel) or the Corporation at the
addresses hereinafter set forth.
(a) If to the Co-Manager:
0000 Xxxx Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which alone shall not constitute notice) to:
Xxxxxxx X. Xxxx, Esq.
Xxxxxx & Galt, LLP
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) If to Biometrics:
Security Biometrics, Inc.
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx XX X0X 0X0
Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx, Chief Financial Officer
with a copy (which alone shall not constitute notice) to:
Xxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If any notice, direction or other instrument is given by telecopier, then, such
notice, direction or other instrument shall be deemed to have been given or made
on the day of sending the telecopy if sent during the recipient's normal
business hours on a business day, or otherwise on the next business day, with
confirmation of receipt thereof. If there
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is a disruption in postal service, then, any notice to be given in accordance
with this Agreement shall be delivered or sent by telecopy, with confirmation of
receipt thereof and shall not be mailed. Notwithstanding anything to the
contrary contained in this Agreement or this paragraph 7.10, any Termination
Notice given by the Co-Manager or Corporation (as the case may be) pursuant to
this Agreement, shall be delivered by a nationally recognized overnight carrier
with confirmation of receipt thereof and shall not be mailed or sent by postage
pre-paid or sent by telecopier. The Co-Manager or Corporation may change his or
their address for service from time to time by notice given in accordance with
this paragraph 7.10.
COUNTERPARTS/FACSIMILE EXECUTION
7.10 This Agreement may be executed in one or more counterparts and, when so
executed shall form one Agreement and shall be as valid and binding on all
parties hereto as any other counterpart. Facsimile signatures are tantamount to
inked signatures.
DISPUTES
7.11 The parties shall attempt in good faith to resolve any dispute arising out
of or relating to this Agreement promptly by negotiations between executives or
other persons who have authority to settle the controversy. If they are unable
to resolve their dispute through negotiations, the parties agree that any legal
action or proceeding with respect to this Agreement must be brought in the New
York Supreme Court, New York County, New York or in the United States District
Court for the Southern District of New York, and by execution and delivery of
this Agreement, the Co-Manager and the Corporation irrevocably submit to the
exclusive jurisdiction of such courts, and to appellate courts therefrom, for
purposes of legal actions and proceedings hereunder and, in the case of any such
legal action or proceeding brought in the above-named New York courts, hereby
irrevocably consent, during such time, to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered mail, postage prepaid, to the parties at their
respective addresses as provided herein, or by any other means permitted by
applicable law. If it becomes necessary for the purpose of service of process
out of any such courts, the Co-Manager or the Corporation, as the case may be,
shall take all such action as may be required to authorize a special agent to
receive, for and on behalf of it, service of process in any such legal action or
proceeding, and shall take all such action as may be necessary to continue said
appointment in full force and effect so that the Co-Manager and the Corporation
will at all times have an agent for service of process for the above purposes in
the State of New York. To the extent permitted by law, final judgment against
the Co-Manager or the Corporation in any such legal action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on an
unsatisfied judgment. TO THE EXTENT THAT THE CO-MANAGER OR CORPORATION HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY OF THE ABOVE-
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NAMED COURTS OR FROM ANY LEGAL PROCESS THEREIN, THE CO-MANAGER AND THE
CORPORATION HEREBY IRREVOCABLY WAIVE SUCH IMMUNITY, AND HEREBY IRREVOCABLY WAIVE
AND AGREE NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY
LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN ANY OF THE ABOVE-NAMED COURTS
(I) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, (II) THAT IT OR ANY OF ITS PROPERTY IS IMMUNE FROM THE ABOVE
DESCRIBED LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION, OR OTHERWISE), (III) THAT SUCH ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OF
PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT
MAY NOT BE ENFORCED IN OR BY SUCH COURTS, OR (IV) ANY DEFENSE THAT WOULD HINDER
OR DELAY THE LEVY, EXECUTION OR COLLECTION OF ANY AMOUNT TO WHICH EITHER PARTY
HERETO IS ENTITLED PURSUANT TO A FINAL JUDGMENT OF ANY COURT HAVING
JURISDICTION. THE CO-MANAGER AND THE CORPORATION EXPRESSLY ACKNOWLEDGE THAT THE
FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE AND HEREBY WAIVE ANY RIGHT WHICH
IT MAY HAVE TO REQUEST A TRIAL BY JURY IN ANY ACTION RELATING TO THIS AGREEMENT.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
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LT ACQUISITION CORP.
________________________________________
Authorized Signatory
________________________________________
XXXXXXX X. XXXXXXX
Signed, Sealed and Delivered
by XXXXXXX X. XXXXXXX in the presence of:
___________________________________
Name
___________________________________
Address:
___________________________________
___________________________________
Occupation
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SCHEDULE A
GROSS SALARY
1. During the Term the annual Gross Salary to be paid by the Corporation to
the Co-Manager shall be One Hundred Fifty Thousand Dollars ($150,000.00)
(US) subject to such withholdings and deductions as may be required under
applicable law which Gross Salary shall be paid bi-weekly, or at such
other times as the parties may agree upon.
EXECUTIVE BONUS
2. During the Term, the Corporation shall pay to the Co-Manager a bonus
("Executive Bonus") calculated as follows:
a) during Fiscal Year 2002, 5% percent of EBITDA from $0.00 to
$2,900,000.00 and 7% of the EBITDA for amounts greater than
$2,900,000.00 to $3,900,000.00 and 15% percent of EBITDA from
$3,900,000.00 to $6,000,000.00 and 20% of the EBITDA for amounts
greater than $6,000,000.00;
b) during Fiscal year 2003, 5% percent of EBITDA from $0.00 to
$2,900,000.00 and 7% percent of the EBITDA for amounts greater than
$2,900,000.00 to $3,900,000.00 and 15% percent of EBITDA from
$3,900,000 to $6,000,000.00 and 20% of the EBITDA for amounts
greater than $6,000,000.00; and
c) during Fiscal Year 2004, 5% percent of EBITDA from $0.00 to
$2,900,000.00 and 7% of the EBITDA for amounts greater than
$2,900,000.00 to $3,900,000.00 and 15% of EBITDA from $3,900,000.00
to $6,000,000.00 and 20% of the EBITDA for amounts greater than
$6,000,000.00.
CAR ALLOWANCE
3. During the Term the Corporation shall pay to the Co-Manager a car
allowance of $500.00 per month.
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SCHEDULE B
Manager's Duties
A. Opportunities
a. Work with company staff, senior management, Board of Directors and
other colleagues to look for opportunities in:
i. increased sales,
ii. new products,
iii. improved customer satisfaction delivery methods,
iv. recruiting new personnel,
v. acquiring target companies, and
vi. other opportunities to benefit the Company.
b. Work with company staff, senior management, Board of Directors and
other colleagues to determine impact of new opportunities on the
business plan of the Company and make, depending on the material
impact of the opportunity, decisions to be acted upon, or make
recommendations to the Board of Directors for permission to act.
B. Leadership
a. To recruit requisite corporate staff and senior management required
to implement ever-changing business plan.
b. Develop and maintain a corporate culture of excellence by developing
a Mission Statement with the Board of Directors, and designing
policies and procedures required to accomplish stated goals and
objectives.
c. Ensuring that corporate staff and senior management are compliant
with corporate goals and objectives and making requisite changes,
replacements, training where not compliant.
C. Planning
a. Develop Business Plan by working with staff for review and approval
by Board of Directors.
b. Ensure senior management reporting to you is capable of carrying out
the Business Plan.
c. Assist in periodic amendment of Business Plan for approval by Board
of Directors as required.
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D. Financing
a. Ensure adequate financing available prior to implementation of
certain stages of the Business Plan.
b. Assist in raising adequate capital by working with senior management
and capital finance representatives.
E. Policies and Procedures
a. Work with senior management to establish sound policies and
procedures to assist in the implementation of the Business Plan,
meet all human resource concerns, meet Board of Director guidelines,
meet compliance concerns, enhance monitoring effectiveness, and
subsequent liaison and reporting issues.
b. Work with senior management to amend policies and procedures as
required.
F. Monitoring
a. Meet with senior management on a periodic base to discuss progress
in meeting Business Plan guidelines including sales, customer
satisfaction, implementation, and human resource issues and ensure
that all important issues are being addressed.
b. Ensure proper systems of reporting sales, customer satisfaction
issues, systems implantation concerns, and human resources issues
are in place to assist in monitoring progress of issues.
c. Ensure that company stays compliant with corporate governance,
compensation and periodic reporting including regulatory compliance.
G. Liaison
a. Lawyers and auditors
b. Board of Directors and Senior Management
c. Human Resources
d. Regulatory authorities
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