Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of January 1, 2006. is between
EDENTIFY, INC., (the "Company") a Nevada corporation and Xxxxxxx Xxxxxxx, an
individual with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 (the "Executive"). In consideration of the mutual covenants and
representations herein contained and the mutual benefits derived herefrom, the
parties, intending to be legally bound, covenant and agree as follows:
1. PURPOSE. The Company is engaged in the business of providing
businesses with in formation-based and technology based services used in the
detection and prevention of identity fraud (collectively, the "Business"). The
Company currently employs the Executive, and wishes to continue to employ the
Executive, and the Executive has agreed to continue to be employed by the
Company, on the terms and conditions herein provided.
2. FULL-TIME EMPLOYMENT OF EXECUTIVE - DUTIES AND STATUS.
(a) The Company hereby engages the Executive, on a non-exclusive
basis, to hold the offices of Executive Vice-President of Legal and General
Counsel for the period (the "Employment Period") specified in Section 5(a)
hereof, and the Executive accepts such employment, on the terms and conditions
set forth in this Agreement. Throughout the Employment Period, the Executive
shall faithfully exercise such authority and perform such executive duties as
are commensurate with the authority and duties of such officers of the Company
and such other reasonable duties as may otherwise be assigned to him from time
to time by the Board of Directors of the Company (the "Board").
(b) Throughout the Employment Period, the Executive shall (i)
devote at least thirty-two (32) hours per week to the business of the Company
and (ii) upon mutual agreement of the parties hereto, accept such additional
duties and/or office or offices to which he may be appointed by the Company,
provided that the performance of the duties of such office or offices shall
generally be consistent with the scope of the duties provided for in Section
2(a) hereof.
(c) Throughout the Employment Period, the Executive shall be
entitled to vacation, leave of absence, and leave for illness or temporary
disability in accordance with the policies of the Company in effect from time to
time for its executive officers. Vacation leave and leave of absence, if taken
by the Executive, shall be taken at such times as are reasonably acceptable to
the Company. Any leave on account of illness or temporary disability which is
short of Total Disability (as defined in Section 5(c)(ii) hereof) shall not
constitute a breach by the Executive of his agreements hereunder even though
leave on account of a Total Disability may be deemed to result in a termination
of the Employment Period under the applicable provisions of this Agreement.
3. COMPENSATION AND GENERAL BENEFITS. As full compensation for his
services to the Company, the Executive shall, during the Employment Period, be
compensated as follows:
(a) The Company shall pay to the Executive a salary (the
"Salary") based upon a monthly rate of Nine Thousand Five Hundred Eighty-Three
Dollars and Thirty-Four Cents. The Salary shall be payable in periodic equal
installments not less frequently than monthly, less such sums as may be required
to be deducted or withheld under applicable provisions of federal, state and
local law, plus increases in the Salary, if any, as may be approved from time to
time by the Board. The Company shall pay such annual bonus to the Executive
based upon such performance and other standards as the Board shall from time to
time determine.
(b) Throughout the Employment Period, the Executive shall be
entitled to participate in such pension, 401K, profit sharing, stock incentive,
bonus or incentive compensation, stock option, stock purchase, incentive, group
and individual disability, group and individual life, survivor income, sickness,
accident, dental, medical and health benefits and other plans of the Company or
additional benefit programs, plans or arrangements of the Company which may be
established by the Company for its executive officers, as and to the extent any
such benefit programs, plans and arrangements are or may from time to time be in
effect, as determined by the Company and pursuant to the terms hereof and as and
to the extent that the Company is eligible to participate in such plans under
the terms of such plans.
(c) In addition, the Company shall grant to the Executive on the
date hereof options to purchase Four Hundred Thousand shares of Common Stock at
an exercise price of Seventy Five Cents ($O.75) per share. Four Hundred Thousand
shares of Common Stock at an exercise price of Two Dollars ($2.00) per share,
and Two Hundred Thousand shares of Common Stock at an exercise price of Four
Dollars ($4.00) per share (collectively, the "Stock Options"). The Stock Options
shall vest per month at a rate of l/24th of the amount granted commencing with
the execution date of this Agreement and in each month thereafter and shall be
fully vested on the date which is twenty four (24) months following the
execution of this Agreement, provided however, that, in the event that the
Company consummates a transaction with another entity (which such transaction
shall include, without limitation, a share exchange, merger, reorganization or
sale of substantially all the assets of the Company), and if, at such time,
there are any unvested options that have been granted to Executive, such
unvested options shall become vested as of the day immediately preceding the
closing date of such transaction. In addition, the options granted shall provide
for a cashless exercise. The Stock Options shall be subject to such other terms
and conditions of the Grant Agreement to be executed by the Executive at the
time of such grant, provided that such terms and conditions do not conflict with
any of the provisions of this paragraph.
(c) The Company shall reimburse the Executive on a monthly basis
for all reasonable and customary business expenses incurred by him in the
performance of his duties hereunder, provided that the Executive shall submit
vouchers and other supporting data to substantiate the amount of said expenses
in accordance with Company policy from time to time in effect.
2
(d) If the Company purchases and maintains at any time during the
term of this Agreement one or more life insurance policies on the life of the
Executive, in addition to any policies purchased pursuant to Section 3(b)
hereof, in whatever amount or amounts which the Company deems desirable, the
Company shall be the beneficiary of said policy or policies and the Executive
shall cooperate with the Company and submit to such reasonable medical
examinations as are necessary to enable the Company to purchase and maintain in
full force and effect such additional insurance policy or policies.
(e) Executive shall receive Twelve Thousand (12,000) shares of
Common Stock of the Company as a signing bonus.
4. NON-COMPETITION; CONFIDENTIAL INFORMATION; PUBLIC STATEMENTS.
(a) Non-Competition. The Executive and the Company recognize that
due to the Executive's engagement hereunder and the relationship of the
Executive to the Company, the Executive will have access to and will acquire,
and may assist in developing, confidential and proprietary information relating
to the assets, business and operations of the Company and its affiliates,
including, without limiting the generality of the foregoing, formulations, and
other information with respect to, among other things, the Company's present and
prospective techniques, systems, customers, accounts, sales and marketing
methods. The Executive acknowledges that such information has been and will
continue to be of central importance to the business of the Company and that
disclosure of it to, or its use by, others could cause substantial loss to the
Company. The Executive and the Company also recognize that an important part of
the Executive's duties may be to develop goodwill for the Company through his
personal contact with customers, agents and others having business relationships
with the Company, and that there is a danger that this goodwill, a proprietary
asset of the Company, may follow the Executive if and when his relationship with
the Company is terminated. The Executive accordingly agrees that, at all times
during the Employment Period, the Executive shall not, in any capacity
whatsoever, whether directly or indirectly, on its own behalf, or on behalf of
any other person, firm, partnership, corporation, limited liability company,
association or other entity (collectively, "Person"):
(i) own, manage, invest, participate, engage or become
employed in any activity which comprises or is similar to the Business,
including, but not limited to, any business which constitutes a "identity fraud
detection and protection business," anywhere in the Commonwealth of
Pennsylvania, and the States New Jersey, Delaware and such other States in which
the Company is conducting business as of the date of such termination;
(ii) suggest to, induce or persuade any vendor or customer
of the Company to discontinue doing business, with, or to change the terms or
conditions of such relationship with the Company or otherwise disparage, disrupt
or disturb the relationship of the Company with such vendor or customer;
3
(iii) suggest to, induce or persuade any vendor or customer
of the Company to do business with any other Person which conducts a business
competitive with the Business;
(iv) suggest to, induce, solicit or persuade any employee or
consultant of the Company to leave the employ or engagement of the Company,
whether or not such inducement involves the Executive directly or indirectly
hiring or engaging or attempting to hire or engage such employee or consultant
of the Company at the time of such solicitation, whether on its own behalf or on
behalf of any other Person, whether or not the Executive has a direct or
indirect remunerative or other interest, as a proprietor, partner, coventurer,
creditor, stockholder, director, officer, employee, agent, representative or
otherwise in such Person;
(v) participate in planning for and will not accept any
employment in or associate with any Person which then employs more than two
former employees of the Company who left the Company within the twelve months
next preceding his termination of employment with the Company; and
(vi) without limiting the term of his general obligation to
honor the Confidential Information (as defined below) so long as it remains
protectable, the Executive specifically agrees that he will not plan for, accept
employment from any Person, nor directly or indirectly engage in, any business
wherein the loyal and diligent performance of the duties and responsibilities of
such new employment or business will inherently call upon him to use, to
disclose or to base judgments upon Confidential Information of the Company or to
utilize the goodwill of the Company in making sales for a competitor of the
Company. The foregoing restrictive period is based upon the Executive's and the
Company's good faith belief that:
(A) the Company's investment of time and money in the
Executive, and the nature of the Company's business (which is maintained and
increased through the personal contact of employees such as the Executive with
customers and vendors and potential customers and vendors of the Company) has
rendered and will continue to render the Executive a unique asset to the
Company;
(B) the Company would be placed at a competitive
disadvantage for such period, due to the Executive's knowledge of Confidential
Information and other matters arising out of his employment with the Company;
and
(C) the time required to rebuild the contacts and
patronage that the Executive will develop for the Company and to provide the
necessary training, exposure and education to his replacement would, for such a
period, place the Company at a competitive disadvantage.
4
(b) Confidential Information.
(i) At all times during the Employment Period and at all
times following termination thereof, the Executive shall keep confidential and
not disclose, directly or indirectly, and shall not use for the benefit of
himself or any other Person in connection with and furtherance of the Business
and the affairs of the Company, any Confidential Information relating to any
aspect of the business of the Company which is now known or which may become
known to him. For purposes of this Agreement, "Confidential Information"
includes any trade secrets or confidential or intellectual property or
proprietary information whether in written, oral or other form which is unique,
confidential or proprietary to the Company, its affiliates, customers or other
persons who disclose such information to the Company in confidence.
(ii) The Company's failure to xxxx any Confidential
Information as confidential, proprietary or otherwise shall not affect its
status as Confidential Information hereunder.
(iii) The Executive acknowledges that all Confidential
Information is the property of the Company, its affiliates, customers or other
persons who disclose such information to the Company in confidence, and upon
expiration of the Employment Period or earlier termination of this Agreement or
earlier at the request of the Company, the Executive shall deliver to the
Company all records, notes, reference items, sketches, drawings, memoranda,
records, and other documents or materials, and all copies thereof (including but
not limited to such items stored by computer memory or other media) which relate
to or in any way incorporate the Confidential Information which are in the
Executive's possession or under his control.
(v) The Executive agrees that should third parties request
to submit Confidential Information to them pursuant to subpoena, summons, search
warrant or governmental order, the Executive will notify the Company immediately
upon receipt of such request, and thereafter deliver written notice of the
request to the Company no later than one business day after receipt. If the
Company objects to the release of the Confidential Information, the Executive
will permit counsel chosen by the Company to represent the Executive in order to
resist release of the Confidential Information. The Company will pay the
Executive for any expenses incurred by him in connection with resisting the
release of the Confidential Information.
(c) Ownership of Developed Information.
(i) The Executive covenants and agrees that all right, title
and interest in any Developed Information, as defined below, shall be and remain
the exclusive property of the Company. The Executive agrees to make prompt and
complete disclosure from time to time to the Company of all Developed
Information. The Executive agrees to immediately disclose to the Company all
Developed Information, and to assign to the Company any right, title and
interest which he may have in the Developed Information. The Executive agrees to
execute any instruments and to do all things reasonably requested by the
5
Company, both during and after the Employment Period, to vest the Company with
all ownership rights in the Developed Information. If any Developed Information
can be protected by federal copyright registration, patent registration or
trademark registration shall be owned solely, completely and exclusively by the
Company, and any rights the Executive may have in any such Developed Information
shall be deemed to be irrevocably assigned and transferred completely and
exclusively to the Company by the Executive.
(ii) For purposes of this Agreement, "Developed Information"
shall mean all trade secrets, confidential or other proprietary information
conceived, developed, designed, devised or otherwise created, modified or
improved by the Executive or with respect to which he receives or receives
access to, in whole or in part, in connection with the performance of his
services for the Company, its customers or other persons who disclose such
information to the Company in confidence hereunder during the Employment Period
or resulting from the Executive's use of or access to the Company's facilities
or resources, including its Confidential Information. The "Developed
Information" shall also include, without limitation, the following materials and
information, whether or not reduced to writing, whether now or hereafter
existing, whether or not patentable or protectable by copyright or trademark:
(A) Marketing techniques and arrangements, purchasing
information, pricing policies, quoting procedures, information processes,
financial information, customer and prospect names and requirements, employee,
customer, supplier and distributor data and other materials or information
relating to the Business and/or the manner in which the Company does business;
(B) Discoveries, concepts, and ideas, including without
limitation, processes, formulas, techniques, know how, designs, drawings, and
specifications relating to the Business and/or the manner in which the Company
does business;
(C) Formulations for any products of the Company,
including, but not limited to, software, databases, technology infrastructures
and similar information;
(D) Any other materials or information related to the
business or activities of the Company which are not generally known to others
engaged in similar businesses or activities; and
(E) All ideas which are derived from or related to the
Executive's access to or knowledge of any of the materials or information
described in this Section 3(b)(ii).
(d) Acknowledgment. The Executive acknowledges that he has
carefully read and reviewed the restrictions set forth in Sections 4(a). (b) and
(c) hereof, and having done so he agrees that those restrictions, including but
not limited to the time period and geographical areas of restriction, are fair
and reasonable and are reasonably required for the protection of the legitimate
business interests of the Company.
6
(e) Invalidity, Etc. If any covenant, provision, or agreement
contained in any part of Section 4(a), (b) or (c) hereof is found by a court
having jurisdiction to be unreasonable in duration, geographic scope or
character of restrictions, the covenant, provision or agreement shall not be
rendered unenforceable thereby, but rather the duration, geographical scope or
character of restrictions of such covenant, provision or agreement shall be
deemed reduced or modified with retroactive effect to render such covenant or
agreement reasonable and such covenant or agreement shall be enforced as
modified. If the court having jurisdiction will not review the covenant,
provision or agreement, the parties shall mutually agree to a revision having an
effect as close as permitted by law to the provision declared unenforceable. The
Executive agrees that if a court having jurisdiction determines, despite the
express intent of the Executive, that any portion of the restrictive covenants
contained in Section 4(a), (b) or (c) hereof are not enforceable, the remaining
provisions shall be valid and enforceable.
(f) Equitable Relief. The Executive recognizes and acknowledges
that if he breaches the provisions of Section 4(a), (b) or (c) hereof, damages
to the Company may be difficult if not impossible to ascertain, and because of
the immediate and irreparable damage and loss that may be caused to the Company
for which it would have no adequate remedy, it is therefore agreed that the
Company, in addition to and without limiting any other remedy or right it may
have, shall be entitled to have an injunction or other equitable relief in any
court of competent jurisdiction, enjoining any such breach. The existence of
this right shall not preclude the applicability or exercise of any other rights
and remedies at law or in equity that the Company may have.
(g) Public Statements. The Executive and the Company recognize
that, due to the relationship of the Executive and the Company and such
relationship's susceptibility to public comment which may be injurious to the
Executive or the Company, or both, it is necessary for the protection of both
parties that neither party make any disparaging public statements with respect
to each other concerning the terms of this Agreement and the arrangements made
pursuant hereto. The Executive and the Company accordingly agree that neither
the Executive nor the Company will make any disparaging public statements with
respect to each other or concerning the terms of this Agreement and the
arrangements made pursuant hereto at any time following the termination of this
Agreement without the prior written approval of the other party.
5. EMPLOYMENT PERIOD.
(a) Duration. The Employment Period shall commence on the date of
this Agreement and shall continue until the earlier of (i) the close of business
on the day immediately preceding the three (3) year anniversary of this
Agreement (the "Expiration Date"), or (ii) termination of this Agreement by the
Company with "cause" (as defined in Section 5(d)(i) hereof), or (iii)
termination of this Agreement by the Company for any reason other than cause, or
(iv) the death or Total Disability of the Executive.
7
(b) Payments Upon Termination.
(i) If the Executive's employment is terminated by the
Company for any reason other than "cause" (as defined in Section 5(c)(i)
hereof), or due to the "total disability" (as defined in Section 5(c)(ii)
hereof), or death of the Executive, at any time during the Employment Period,
the Company shall pay to, or provide for, as the case may be, the Executive, at
the times otherwise provided in this Agreement as if the Executive had not been
terminated:
(A) his Salary as accrued through the date of
termination and for two (2) months thereafter (the "Severance Period"), which
Salary shall be payable, at the Company's option, as a lump sum or in equal
monthly installments during such period in accordance with existing payroll
policies; and
(B) to the extent applicable, the sickness and health
insurance programs to which he would have been entitled under this Agreement if
he had remained in the employ of the Company for the Severance Period; and
(C) such other benefits to which he is entitled under
applicable laws.
In addition, the Company shall, to the extent applicable,
pay to, or provide for, as the case may be, the employee benefits (including,
but not limited to, coverage under any disability, group life, and accident
insurance programs and split-dollar life insurance arrangements or programs) to
which he would have been entitled under this Agreement if he had remained in the
employ of the Company throughout such Severance Period.
The Executive shall use his best efforts to discharge his
legal obligation to mitigate the amount of payments provided for in this Section
5(b) by actively seeking employment, and the amount of any payment provided for
in this Section 5(b) shall be reduced by any compensation or remuneration earned
as the result of employment by another employer after the date of termination
and during the Severance Period.
(ii) If the Executive's employment is terminated (A) by the
Company for "cause"; (B) by the Executive for any reason, then the Company shall
have no further liability to the Executive, except for the Salary which has
accrued through the date of termination, which amounts shall be paid by the
Company within ten (10) days of such termination.
(iii) Notwithstanding any other provision of this Section
5(b), if the Executive violates any covenant, term or condition of this
Agreement the Company shall be entitled, in addition to any other remedies it
may have hereunder or at law or in equity, to offset the amount of any payment
otherwise due to the Executive pursuant to this Section 5(b) against any loss or
damage incurred by the Company as a result of the Executive's violation of said
covenant, term or condition.
8
(c) Definitions. When used in this Agreement, the words "cause"
and "total disability" shall have the respective meanings set forth below:
(i) The term "cause" means: (A) the Executive's failure to
perform his employment duties hereunder after reasonable notice to the Executive
by the Company specifying such failure and providing the Executive with a
reasonable opportunity to cure such failure given the context of the
circumstances, (B) the Executive's breach of the covenants or agreements
contained in Sections 4(a), (b) or (c) hereof, or of any other material
agreement or undertaking of the Executive, (C) the Executive's conviction of a
felony or any crime involving moral turpitude, fraud or misrepresentation
related to the business or property of the Company, or (D) any willful act or
omission (or any act or omission taken in bad faith) of the Executive having the
effect of injuring the business or business relationships of the Company.
(ii) The term "total disability" ("Total Disability") means
total disability as defined in the Company's group and individual disability
plans, if any. If the Company does not have in existence such plans, then Total
Disability shall have the meaning set forth in paragraph 5(c)(iii) of this
Agreement.
(iii) The inability to perform the duties required hereunder
for a continuous period of six (6) months during the Employment Period due to
"mental incompetence" or "physical disability" as hereinafter defined. The
Executive shall be considered to be mentally incompetent and/or physically
disabled: (A) if he is under a legal decree of incompetency (the date of such
decree being deemed the date on which such mental incompetence occurred for
purposes of this Section 5(c)); or (B) because of a "Medical Determination of
Mental and/or Physical Disability." A Medical Determination of Mental and/or
Physical Disability shall mean the written determination by: (1) the physician
regularly attending the Executive, and (2) a physician selected by the Company,
that because of a medically determinable mental and/or physical disability the
Executive is unable to perform each of the material duties of the Executive, and
such mental and/or physical disability is determined or reasonably expected to
last twelve (12) months or longer after the date of determination, based on
medically available information. If the two physicians do not agree, they shall
jointly choose a third consulting physician and the written opinion of the
majority of these three (3) physicians shall be conclusive as to such mental
and/or physical disability and shall be binding on the parties. The date of any
written opinion which is conclusive as to the mental and/or physical disability
shall be deemed the date on which such mental and/or physical disability
commenced for purposes of this Section 5(c), if the written opinion concludes
that the Executive is mentally and/or physically disabled. In conjunction with
determining mental and/or physical disability for purposes of this Agreement,
the Executive consents to any such examinations which are relevant to a
determination of whether he is mentally and/or physically disabled, and which is
required by any two (2) of the aforesaid physicians, and to furnish such medical
information as may be reasonably requested, and to waive any applicable
physician patient privilege that may arise because of such examination. All
physicians selected hereunder shall be Board-certified in
9
the specialty most closely related to the nature of the mental and/or physical
disability alleged to exist.
(iv) For purposes of determining whether the Executive is
mentally incompetent or physically disabled for the continuous six (6) month
period specified in this Section 5(c), such disability shall be deemed to
continue from the date of any legal decree of incompetency. or written opinion
which is conclusive as to the mental and/or physical disability, through the
date the legal decree expires or is otherwise revoked or removed, or the date on
which the mental and/or physical disability has ceased, as the case may be, as
set forth in a written opinion prepared by the physicians described in this
Section 5(c) pursuant to the procedures provided herein.
6. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Company.
7. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be effective as
of the date hereof and shall be binding upon and inure to the benefit of, the
parties and their respective heirs, successors, assigns, and personal
representatives, as the case may be. The Executive may not assign any rights or
duties under this Agreement. As used herein, the successors of the Company shall
include, but not be limited to, any successor by way of merger, consolidation,
sale of all or substantially all of the assets, or similar reorganization or
change in control.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the Executive and the Company with respect to the subject
matter hereof and supersede any and all prior understandings written or oral.
This Agreement may not be changed, modified or discharged orally, but only by an
instrument in writing signed by the parties,
9. ENFORCE ABILITY. This Agreement has been duly authorized, executed
and delivered and constitutes the valid and binding obligations of the parties
hereto, enforceable in accordance with its terms. The undertakings herein shall
not be construed as any limitation upon the remedies Company might, in the
absence of this Agreement, have at law or in equity for any wrongs of the
Executive.
10. GOVERNING LAW. The validity and construction of this Agreement or
any of its provisions shall be determined under the internal laws of the
Commonwealth of Pennsylvania, without giving effect to its conflicts of laws
provisions, and without regard to its place of execution or its place of
performance. The parties irrevocably consent and agree to the exclusive
jurisdiction of the applicable Federal and State courts located in the
Commonwealth of Pennsylvania and to service of process for it and on its behalf
by certified mail, for resolution of all matters involving this Agreement or the
transactions contemplated hereby. Each party waives all rights to a trial by
jury in any suit, action or proceeding hereunder.
10
IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement as an instrument under seal on the date first above
written.
COMPANY:
EDENTIFY, INC.
By: /s/ Xxxxxxxx XxXxxxxx
------------------------------------
Title: CEO
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
11
