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Exhibit 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of November 3, 1999, by
PubliCARD, Inc., a Pennsylvania corporation (the "Employer"), and Jan-Xxxx
Xxxxxxxxxxx, an individual (the "Executive").
The parties, intending to be legally bound, hereby agree as
follows:
1. PRE-EMPLOYMENT PAYMENT
The Employer acknowledges that the Executive's termination of
his current employment in order to accept employment with the Employer is
causing him to forfeit valuable unvested stock options and to exercise vested
stock options and sell the stock acquired thereby currently, when market
conditions are unfavorable and when the tax consequences to him under French
legislation will also be unfavorable. In consideration of the economic losses
that the Executive is incurring as a result of these actions which he is
required to take in France and in full satisfaction of a condition set by the
Executive for leaving his present employment position, the Employer and the
Executive have agreed that the Employer shall issue to the Executive 200,000
shares of its common stock, par value $0.10 per share (the "Common Stock").
Delivery of these shares shall be made immediately upon the execution and
delivery of this Agreement or at such later date as shall be specified in
writing by the Executive, and shall be unconditional and not dependent in any
fashion on the Executive's performance of services for the Employer.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT; DUTIES
The Employer hereby employs the Executive, and the Executive
hereby accepts employment by the Employer, as its President and Chief Executive
Officer, with such duties consistent with those positions as are assigned or
delegated to him by the Board of Directors of Employer or any duly authorized
committee thereof (the "Board"). The Employer will nominate the Executive to
serve as a member of the Board of Directors of Employer. The Executive will
devote his entire business time, attention, skill and energy exclusively to the
business of the Employer, will use his best efforts to promote the success of
the Employer's business, and will cooperate fully with the Board in the
advancement of the best interests of the Employer.
2.2 TERM
The term of the Executive's employment under this Agreement
will be three years, beginning on December 6, 1999 and ending on the third
anniversary of such date, subject to Section 6.
3. COMPENSATION
3.1 BASIC COMPENSATION
(a) Salary. The Executive will be paid an annual salary of
$350,000 (the "Salary"), which will be payable in equal periodic installments
according to the Employer's customary payroll practices, but no less frequently
than monthly.
b) Option Grants. Upon the execution of this Agreement, the
Employer will issue to the Executive (i) options to acquire 400,000 shares of
Common Stock at an exercise price of $6.75 per share, in the form of Exhibit A
and (ii) contingent options to acquire 400,000 shares of Common Stock, at an
exercise price of $6.75 per share, in the form of Exhibit B.
(c) Benefits. The Executive will, during the term of his
employment be entitled to participate in such pension, profit sharing, bonus,
life insurance, hospitalization, major medical and other employee benefit plans
of the Employer as may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
"Benefits").
3.2 BONUS COMPENSATION
The Executive shall be paid a bonus (the "Bonus") for each
calendar year during the term of his employment in an amount determined by the
Board, but not less than $100,000, in quarterly installments of $25,000 each,
with the balance, if any, payable by April 15th of the following year.
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4. EXPENSES
4.1 GENERAL
(a) The Employer will reimburse the Executive for reasonable
expenses incurred by the Executive at the request of, or on behalf of, the
Employer in the performance of his duties pursuant to this Agreement, to the
extent incurred and documented in accordance with the Employer's policies.
(b) The Employer will reimburse the Executive for reasonable
moving expenses incurred by the Executive in connection with (i) his move to the
United States from France, and (ii) his return to France from the United States
at the end of the term of his employment.
(c) The Employer will reimburse the Executive for his
reasonable temporary living expenses in the United States until the earlier of
(i) six months from the date of this Agreement, and (ii) the date on which he
establishes and takes occupancy of a residence in the United States.
(d) The Employer will assume the Executive's life insurance
policies (numbers 00-000-000 and 0-000-000) with Northwestern Mutual Life
Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx XX 00000-0000, and shall
pay the premiums due on such policy during the Employment Period.
(e) The Employer will reimburse the Executive for the
reasonable fees of legal counsel retained by the Executive in connection with
the negotiation of this Agreement, to the extent not exceeding $15,000.
4.2 AUTOMOBILE AND GOLF CLUB
The Employer will reimburse the Executive for the reasonable
rental cost of an appropriate automobile and the reasonable expense of parking,
gasoline, maintenance, insurance and other costs ancillary to the operation of
the automobile during the Employment Period, to the extent documented in
accordance with Employer's policies. In addition, the Employer will reimburse
the Executive for the reasonable dues and expenses of an appropriate golf club
membership.
5. VACATIONS, HOLIDAYS AND HOME LEAVE
5.1 The Executive will be entitled to four weeks' paid
vacation each calendar year in accordance with the vacation policies of the
Employer in effect for its executive officers from time to time.
5.2 The Employer will reimburse the Executive for reasonable
expenses, including business class air fare, incurred by the Executive's wife in
traveling to France once per calendar quarter, to the extent documented in
accordance with the Employer's policies.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period, the Executive's Basic Compensation,
Incentive Compensation and Bonus, and any and all other rights of the Executive
under this Agreement or otherwise as an employee of the Employer will terminate
(except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the Disability of the Executive immediately upon
notice from either party to the other;
(c) For Cause, immediately upon notice from the Employer to
the Executive, or at such later time as such notice may specify; or
(d) For Good Reason upon not less than thirty days' prior
notice from the Executive to the Employer.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, the Executive will be deemed to
have a "Disability" if, for physical or mental reasons, the Executive is unable
to perform the Executive's duties under this Agreement for 120 consecutive days,
or 180 days during any twelve month period, as determined by the Board in good
faith. In order to assist the Board in making that determination, the Executive
will submit to a reasonable number of examinations by a medical doctor
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designated by the Board and the Executive hereby authorizes the disclosure and
release to the Employer of the results of such examinations and all supporting
medical records.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "For Cause" means: (a)
the Executive's breach of this Agreement in any material respect; (b) the
Executive's failure to substantially perform his assigned duties hereunder or to
adhere to any written Employer policy if such failure continues uncured for at
least ten days after notice thereof; (c) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer; (d) the misappropriation (or
attempted misappropriation) of any of the Employer's funds or property; or (e)
the conviction of, the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest with respect to, a felony, the
equivalent thereof, or any other crime, involving fraud or falsehood, or with
respect to which imprisonment is a possible punishment; or (f) use of illegal
drugs or controlled substances or excessive and recurring consumption of
alcoholic beverages.
6.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1, the phrase "For Good Reason"
means any of the following: (a) the Employer's breach of this Agreement in any
material respect that continues uncured for at least ten days after notice
thereof from the Executive; (b) the assignment of the Executive without his
consent to a position, responsibilities, or duties inconsistent with Section 2;
(c) the requirement by the Employer that the Executive's principal place of
employment be anywhere more than 75 miles from New York County, without the
Executive's consent; or (d) the assignment of Employer's rights under this
Agreement pursuant to Section 9.6, without the Executive's consent .
6.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer
will be obligated to pay the Executive (or, in the event of his death, his
estate) only such compensation as is provided in this Section 6.5, in lieu of
all other amounts and in settlement and complete release of all claims the
Executive may have against the Employer.
(A) TERMINATION FOR GOOD REASON OR OTHER THAN FOR CAUSE. If
the Executive's employment pursuant to this Agreement is terminated by
the Employer other than For Cause or by the Executive for Good Reason,
(i) the Employer shall continue to pay to the Executive the Executive's
Salary, Bonus and Incentive Compensation for the remainder of the term
of this Agreement, and (during such period or, if earlier, until he
obtains new employment providing health benefits coverage) the Employer
shall provide such continuation of health benefits coverage, including,
without limitation, medical and dental coverage, required to be
provided to employees, former employees and the beneficiaries or
dependents of such employees and former employees under Part 6 of
Subtitle B of Title I of the Employee Retirement Income Security Act of
1974, as amended, or, if applicable, Section 4980B of the Internal
Revenue Code of 1986, as amended, on terms no less favorable to the
Executive than the terms on which such coverage was provided prior to
termination of his employment and (ii) the Executive will be entitled
to the payment provided by Section 4.1(b)(ii).
(B) TERMINATION UPON DISABILITY. If the Executive's employment
pursuant to this Agreement is terminated by either party as a result of
the Executive's Disability, as determined under Section 5.2, (i) the
Employer will pay the Executive his Salary through the remainder of the
calendar month during which such termination is effective, and that
part of the Executive's (i) Incentive Compensation, if any, for the
calendar year during which his disability occurs, and (ii) Bonus for
the calendar year during which his disability occurs, in each case
prorated through the end of the calendar month during which his
disability occurs , and (ii) the Executive will be entitled to the
payment provided by Section 4.1(b)(ii).
(C) TERMINATION UPON DEATH. If the Executive's employment
pursuant to this Agreement is terminated because of the Executive's
death, the Executive will be entitled to receive his Salary through the
end of the calendar month in which his death occurs, and that part of
the Executive's (i) Incentive Compensation, if any, for the calendar
year during which his death occurs, (ii) Bonus for the calendar year
during which his death occurs, in each case prorated through the end of
the calendar month during which his death occurs, and (iii) the payment
provided by Section 4.1(b)(ii).
(D) BENEFITS. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of
the termination of his employment pursuant to this this Agreement, and
the Executive will be entitled to accrued Benefits pursuant to such
plans only as provided in this Agreement or in such plans. The
Executive shall receive upon termination of his employment payment, at
the rate of the Salary, for unused vacation that has accrued pursuant
to Section 5.1 through the date of such termination (pro rated for the
calendar year in which such termination occurs). The Executive will not
receive, as part of his
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termination pay pursuant to this Section 6, any other payment or other
compensation for any vacation, holiday, sick leave, or other leave
unused on the date the notice of termination is given under this
Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the term of and as
a part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; and (d) the provisions of this Section 6 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee Inventions.
"CONFIDENTIAL INFORMATION" shall mean any and all:
(a) trade secrets concerning the business and affairs of the
Employer and its subsidiaries, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code), computer software and database technologies,
systems, structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs and methods and information), and any other information, however
documented, that is a trade secret under applicable law; and
(b) information concerning the business and affairs of the
Employer and its subsidiaries (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel and
personnel training and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Employer or any of its subsidiaries
containing or based, in whole or in part, on any information included in the
foregoing.
"EMPLOYEE INVENTION" shall mean any idea, invention,
technique, modification, process or improvement (whether patentable or not), any
industrial design (whether registerable or not) and any work of authorship
(whether or not copyright protection may be obtained for it) created, conceived,
or developed by the Executive, either solely or in conjunction with others,
during the term of his employment, or a period that includes a portion of the
term of his employment, that relates in any way to, or is useful in any manner
in, the business then being conducted or proposed to be conducted by the
Employer or any of its subsidiaries, and any such item created by the Executive,
either solely or in conjunction with others, following termination of the
Executive's employment with the Employer, that is based upon or uses
Confidential Information.
7.2 COVENANTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(A) Confidentiality.
(i) During and following the term of his employment,
the Executive will hold in confidence the Confidential
Information and will not disclose it to any person except with
the specific prior written consent of the Employer or except
as otherwise expressly permitted by the terms of this
Agreement.
(ii) Any trade secrets of the Employer will be
entitled to all of the protections and benefits under
applicable law. If any information that the Employer deems to
be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this
Agreement, such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer
submit proof of the economic value of any trade secret.
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(iii) None of the foregoing obligations and
restrictions applies to any part of the Confidential
Information that the Executive demonstrates was or became
generally available to the public other than as a result of a
disclosure by the Executive.
(iv) The Executive will not remove from the
Employer's or any of its subsidiaries' premises (except to the
extent such removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any
document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in
any other form (collectively, the "Proprietary Items"). The
Executive ----------------- recognizes that, as between the
Employer and the Executive, all of the Proprietary Items,
whether or not developed by the Executive, are the exclusive
property of the Employer. Upon termination of this Agreement
by either party, or upon the request of the Employer during
the Employment Period, the Executive will return to the
Employer all of the Proprietary Items in the Executive's
possession or subject to the Executive's control, and the
Executive shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary Items.
(B) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writing, works of authorship, specially commissioned works
and other Employee Inventions are works made for hire and the property
of the Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is determined
that any such works are not works made for hire, the Executive hereby
assigns to the Employer all of the Executive's right, title, and
interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Employee Inventions. The
Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated
by the Employer, at the Employer's request and without
additional compensation, all of the Executive's right to the
Employee Invention for the United States and all foreign
jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments and other documents as the Employer
may request in order to apply for and obtain patents or other
registrations with respect to any Employee Invention in the
United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy
arising from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel or other third party, the preservation of the secrecy
of Confidential Information may be jeopardized. All pleadings, documents,
testimony and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be
performed by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character; (b) the Employer's business is
national in scope and its products are marketed throughout the United States;
(c) the Employer competes with other businesses that are or could be located in
any part of the United States; and (d) the provisions of this Section 8 are
reasonable and necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and
in consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly:
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(a) during the term of his employment, except in the course of
his employment hereunder, and during the Post-Employment Period, engage or
invest in, own, manage, operate, finance, control or participate in the
ownership, management, operation, financing or control of, be employed by,
associated with, or in any manner connected with, lend the Executive's name or
any similar name to, lend Executive's credit to or render services or advice to,
any business engaged in any aspect of the Smart Card Business; provided,
however, that the Executive may purchase or otherwise acquire up to (but not
more than) one percent of any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if such securities
are registered under Section 12 of the Securities Exchange Act of 1934, as
amended;
(b) whether for the Executive's own account or for the account
of any other person, at any time during the term of his employment and the
Post-Employment Period, solicit business related to the Smart Card Business from
any person known by the Executive to be a customer of the Employer or any of its
subsidiaries, whether or not the Executive had personal contact with such person
during and by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of
any other person (i) at any time during the term of his employment and the
Post-Employment Period, solicit, employ or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer or any of its subsidiaries at any time during the term of his
employment or in any manner induce or attempt to induce any employee of the
Employer or any of its subsidiaries to terminate his employment with the
Employer or any of its subsidiaries; or (ii) at any time during the term of his
employment and for three years thereafter, interfere with the Employer's or any
of its subsidiaries' relationships with any person, including any person who at
any time during the Employment Period was an employee, contractor, supplier, or
customer of the Employer or any of its subsidiaries; or
(d) at any time during or after the term of his employment,
disparage the Employer or any of its subsidiaries, shareholders, directors,
officers, employees or agents.
For purposes of this Section 8.2, (i) the term
"Post-Employment Period" means the two-year period beginning on the date of
termination of the Executive's employment with the Employer, unless the the
Executive's employment pursuant to this Agreement is terminated by the Employer
other than For Cause or by the Executive for Good Reason, in which event it
shall end on the date of termination of the Executive's employment and (ii) the
term "Smart Card Business" means the creation, development, manufacture, sale,
license or distribution of smart cards or smart card systems.
If any covenant in this Section 8.2 is held to be
unreasonable, arbitrary or against public policy, such covenant will be
considered to be divisible with respect to scope, time and geographic area, and
such lesser scope, time or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding and enforceable against the
Executive.
The period of time applicable to any covenant in this Section
8.2 will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2
is in effect, give notice to the Employer, within ten days after accepting any
other employment, of the identity of the Executive's employer. The Employer may
notify such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be
suffered by the Employer as a result of a breach of the provisions of this
Agreement (including any provision of Sections 7 and 8) would be irreparable and
that an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. In any action to obtain such relief, if the
Executive is the prevailing party he shall be entitled to recover from the
Employer the reasonable costs incurred by him in defending such action,
including, without limitation, reasonable attorneys' fees.
Without limiting the Employer's rights under this Section 9 or
any other remedies of the Employer, if the Executive breaches any of the
provisions of Section 7 or 8, the Employer will have the right to cease making
any payments otherwise due to the Executive under this Agreement. If the
Employer ceases making any such payments to the Executive by reason of the
preceding sentence and it is finally judicially determined that the Executive
had not
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breached any of the provisions of Section 7 or 8 and that the Employer's failure
to make such payments was not authorized by the preceding sentence, the
Executive shall be entitled to recover, in addition to the payments that the
Employer improperly failed to make, interest on each such payment from the date
it was due until it is made at the prime rate of The Chase Manhattan Bank.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
The covenants by the Executive in Sections 7 and 8 are
essential elements of this Agreement, and without the Executive's agreement to
comply with such covenants, the Employer would not have entered into this
Agreement or employed or continued the employment of the Executive. The Employer
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Executive's covenants in Sections 7 and 8 are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise will not excuse the Executive's breach of any
covenant in Section 7 or 8.
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Sections 7 and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Executive is a party or by which the Executive
is or may be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
Except as otherwise specifically provided herein, the
obligations of the Employer hereunder, including its obligation to pay the
compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns, heirs
and legal representatives, including any entity with which the Employer may
merge or consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.7 NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered mail, return receipt requested or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt
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requested), in each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as a party may
designate by notice to the other parties):
If to Employer:
PubliCARD, Inc.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Chairman
Facsimile No.: (000) 000-0000
With a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to the Executive:
c/o PubliCARD, Inc.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
With a copy to:
Xxxxxx & Okoshken
00 Xxxxxx Xxxxxxxxx
00000 Xxxxx, Xxxxxx
Attention: Xxxxxx Okoshken, Esq.
Facsimile 33 1 45 63 24 96
9.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof. This Agreement may not be amended orally,
but only by an agreement in writing signed by the parties hereto.
9.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of
New York without regard to conflicts of laws principles.
9.10 JURISDICTION
Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against
either of the parties in the courts of the State of New York, County of New
York, or, if it has or can acquire jurisdiction, in the United States District
Court for the Southern District of New York, and each of the parties consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on either party anywhere in the world.
9.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
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9.12 SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
PUBLICARD, INC.
By:_________________________
Name: Xxxxx X. Xxxxxx
Title: Chairman
By:
Name: Xxx Xxxxxxxxx
Title: Vice Chairman
EXECUTIVE:
________________________________
Jan-Xxxx Xxxxxxxxxxx
Dated: November 1, 1999
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Exhibit A
OPTION AGREEMENT
AGREEMENT, dated as of November __, 1999, between PubliCARD,
Inc., a Pennsylvania corporation with offices at Xxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Corporation"), and Jan-Xxxx Xxxxxxxxxxx (the
"Optionee").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, do hereby agree as follows:
1. The Optionee is hereby granted an option to purchase from the
Corporation, subject to and under the terms and conditions set forth in
this Agreement, all or any part of 400,000 shares of common stock, par
value $.10 per share of the Corporation (the "Common Stock"), at an
exercise price equal to $6.75 per share (the "Exercise Price"). This
option is not intended to be treated as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. This option shall become exercisable in accordance with the following
schedule:
Number of shares Vesting date
133,333 November __, 2000
133,333 November __, 2001
133,334 November __, 2002
If the Optionee's employment is terminated (i) by the Corporation other
than For Cause (as defined in the employment agreement dated November
__, 1999 (the "Employment Agreement") or (ii) by Optionee For Good
Reason (as defined in the Employment Agreement), this option shall
become exercisable in full.
The Optionee may purchase all or any part of the shares then vested
(but not fractions of a share) to which this option relates, at such
time or times as he may desire, until this option expires. Unless
sooner terminated as provided in this Agreement, the options granted
shall expire at 5:00 P.M. Eastern Time on the five year anniversary of
the date hereof (the "Expiration Time"), and any shares not purchased
on or before such date may not thereafter be purchased hereunder.
3. The Optionee shall exercise the option by delivering to the Corporation
a written notice of exercise in substantially the form attached hereto
as Exhibit I. Common Stock purchased pursuant to this Agreement shall
be paid for in full in cash at the time of purchase or in shares of
Common Stock surrendered to the Corporation or in a combination of cash
and such shares. Shares of Common Stock thus surrendered shall be
valued at their Fair Market Value (as defined in this Section 3 below)
on the date of exercise. Upon receipt of payment and written notice of
exercise, the Corporation shall deliver, without stock transfer tax to
the Optionee or other person entitled to exercise the option, to the
person exercising the option, a certificate or certificates for such
shares. It shall be a condition to the performance of the Corporation's
obligation to issue or transfer Common Stock upon exercise of this
option that the person exercising this option pay, or make provision
satisfactory to the Corporation for the payment of, any taxes (other
than stock transfer taxes) which the Corporation is obligated to
collect with respect to the issue or transfer of Common Stock upon
exercise (including any federal, state or local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a share of Common
Stock shall mean the per share value of the Common Stock as of a given
date, determined as follows:
a. If the Common Stock is listed or admitted for trading on the
New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common
Stock is the average of the closing quotations for such stock
based on composite transactions for the New York Stock
Exchange (or if not listed on it, such other national
securities exchange) for the five Trading Days (as defined
below) ending at the close of business on the day prior to
such given date.
b. If the Common Stock is not traded on any national securities
exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market
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Value of the Common Stock is the average of the last sales
price (if the stock is listed as a national market issue under
the NASDAQ System) or the mean between the closing
representative bid and asked prices (in all other cases) for
the stock as reported by the NASDAQ System (or such similar
quotation system) for the five Trading Days ending at the
close of business on the day prior to such given date.
c. If neither clause (a) nor clause (b) of this definition is
applicable, the Fair Market Value of the Common Stock is the
fair market value per share as of such valuation date, as
determined by the Board of Directors of the Corporation in
good faith and in accordance with uniform principles
consistently applied.
d. "Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading
on any national securities exchange, any business day.
4. The Corporation hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of the option such number of
shares of its Common Stock as shall be required for issuance and
delivery upon the exercise of the option, and that such shares, when
issued in accordance with the terms of this Agreement, shall be validly
issued, fully paid, and non-assessable. The Corporation covenants and
agrees that it will from time to time take all such action as may be
necessary to assure that the par value per share of the Common Stock is
at all times equal to or less than the then effective Exercise Price of
the option.
5. This option is not transferable other than by will or the laws of
descent and distribution. Any other transfer of this option (including
without limitation any purported assignment, whether voluntary or by
operation of law, pledge, hypothecation or other disposition contrary
to the provisions hereof, or levy of execution, attachment, trustee
process or similar process, whether legal or equitable, of the option)
shall be null and void and of no effect. Any shares issued pursuant to
this option shall not be registered under the Securities Act of 1933,
as amended (the "Act"). The Optionee may not sell or otherwise dispose
of such shares in the absence of either a registration statement under
the Act or an exemption from the registration provisions thereunder,
with respect to which the Optionee shall have delivered to the
Corporation an opinion of counsel, in form satisfactory to the
Corporation, that, under the circumstances, registration is not
required. The certificates representing such shares shall bear a legend
as follows:
The shares represented by this certificate have not
been registered under the Securities Act of 1933 and may not
be transferred in the absence of either an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") with respect to such shares, or an
exemption from the registration provisions of the Act, with
respect to which the Corporation shall have received an
opinion of counsel, in form satisfactory to it, that, under
the circumstances, registration under the Act is not required.
6. This option shall be exercisable during the life of the Optionee only
by the Optionee and the Optionee's guardian or legal representative and
after death only by the Optionee's legal representative.
Notwithstanding the following provisions of this Section 6, no option
shall be exercisable after the Expiration Time. If the Optionee's
consulting arrangement or employment with the Corporation terminates
for any reason other than (i) For Cause, (ii) death or (iii)
termination by the Optionee other than For Good Reason, the option may
be exercised (to the extent it was exercisable immediately preceding
such termination) until 90 days after the date of such termination. If
the option was not exercisable immediately preceding such termination
of employment, the option shall terminate upon such termination of
employment.
If the Optionee's consulting arrangement or employment with the
Corporation is terminated For Cause or by the Optionee other than For
Good Reason, the option shall terminate immediately upon such
termination of the consulting arrangement or employment, regardless of
whether the option was exercisable immediately preceding such
termination of employment.
Upon the death of the Optionee while in active service with the
Corporation, the person or persons to whom the Optionee's rights under
the option are transferred by will or the laws of descent and
distribution may exercise the option until the expiration of 12 months
after the date of the Optionee's death, but only to the extent the
option was exercisable immediately preceding the Optionee's death. If
the option was not exercisable immediately preceding the Optionee's
death, the option shall terminate upon the Optionee's death.
7. If dividends payable in Common Stock during any fiscal year of the
Corporation exceed an aggregate of 5% of the Common Stock issued and
outstanding at the beginning of such fiscal year, or if, during any
fiscal year
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of the Corporation, there is one or more splits, subdivisions, or
combinations of shares of Common Stock resulting in an increase or
decrease by more than 5% of the shares outstanding at the beginning of
the year, the number of shares available under this option shall be
increased or decreased proportionately, as the case may be, without
change in the aggregate exercise price. Common Stock dividends, splits,
subdivisions, or combinations during any fiscal year which do not
exceed, in the aggregate, 5% of the Common Stock issued and outstanding
at the beginning of such year shall be ignored for purposes of this
option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with another
corporation, or in case the property or stock of the Corporation is
acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8. The grant and exercise of this option, and the Corporation's obligation
to sell and deliver shares upon the exercise of this option, shall be
subject to the requirement that, if at any time the Board of Directors
of the Corporation shall determine, in its discretion, that the
listing, registration or qualification of the shares issuable or
transferable upon exercise thereof upon any securities exchange or
under any state or Federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the granting of this option, the issue,
transfer, or purchase of shares thereunder may not be exercised in
whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board of Directors of the Corporation.
The Corporation shall not be obligated to sell or issue any shares of
Common Stock in any manner in contravention of the Securities Act of
1933, as amended or any state securities law.
9. This Agreement shall not give the Optionee any right with respect to
continuance as a consultant or an employee of the Corporation, nor
shall it be a limitation in any way on any legal right which the Board
of Directors of the Corporation, the Corporation's stockholders or an
officer of the Corporation may have to terminate the Optionee as an
employee at any time.
10. The Optionee shall have no rights as a stockholder with respect to any
shares issuable or transferable upon exercise of the option until the
date a stock certificate is issued to the Optionee for such shares,
and, except as otherwise expressly provided in this Agreement, no
adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
11. All notices hereunder shall be in writing, and if to the Corporation,
shall be delivered personally to the Secretary of the Corporation or
mailed to the address provided in the preamble of this Agreement,
addressed to the attention of the Secretary, and if to the Optionee,
shall be delivered personally or mailed to the Optionee at the address
provided in the preamble of this Agreement. Such addresses may be
changed at any time by notice from one party to the other.
12. All decisions or interpretations made by the Board of Directors of the
Corporation with regard to any question arising hereunder shall be
binding and conclusive on the Corporation and the Optionee.
13. This Agreement shall bind and inure to the benefit of the parties
hereto and the successors and assigns of the Corporation and, to the
extent provided in Sections 6 and 8, the executors, administrators,
legatees and heirs of the Optionee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PUBLICARD, INC.
By: _______________________________
Name:
_______________________________
Jan-Xxxx Xxxxxxxxxxx
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Exhibit I
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
November __, 1999 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder, _______
shares of the Common Stock (the "Shares") of the Corporation covered by said
Option Agreement and herewith makes payment in full therefor pursuant to Section
3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement under the
Securities Act of 1933, as amended, covering the shares is in effect or, in the
opinion of counsel to the Company, an exemption from such registration is
available, and (ii) hereby acknowledges that the number of shares hereafter
subject to the Option Agreement referred to above is hereafter reduced by the
number of shares which I have hereby elected to purchase.
Very truly yours,
Jan-Xxxx Xxxxxxxxxxx
Social Security Number ______________
Address: ______________________
______________________
Dated: ______________________
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Exhibit B
OPTION AGREEMENT
AGREEMENT, dated as of November __, 1999, between PubliCARD,
Inc., a Pennsylvania corporation with offices at Xxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Corporation"), and Jan-Xxxx Xxxxxxxxxxx (the
"Optionee").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, do hereby agree as follows:
1. The Optionee is hereby granted an option to purchase from the
Corporation, subject to and under the terms and conditions set forth in
this Agreement, all or any part of 400,000 shares of common stock, par
value $.10 per share of the Corporation (the "Common Stock"), at an
exercise price equal to $6.75 per share (the "Exercise Price"). This
option is not intended to be treated as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. This option shall become exercisable in accordance with, in such
installments as may be provide in and upon satisfaction of the
applicable Performance Criteria for the periods specified in the
Performance Criteria. The Performance Criteria shall be established by
mutual agreement of the Corporation and Optionee. The parties will
endeavor to agree upon the Performance Criteria within 90 days after
the date hereof.
If the Optionee's employment is terminated (i) by the Corporation other
than For Cause (as defined in the employment agreement dated November
__, 1999 (the "Employment Agreement") or (ii) by Optionee For Good
Reason (as defined in the Employment Agreement), this option shall
thereafter be exercisable for a number of shares equal to the sum of
(i) the number of shares for which it was exercisable immediately prior
to such termination and (ii) the number of shares for which it could
become exercisable after such termination if all Performance Criteria
applicable to the period after termination were met.
The Optionee may purchase all or any part of the shares then vested
(but not fractions of a share) to which this option relates, at such
time or times as he may desire, until this option expires. Unless
sooner terminated as provided in this Agreement, the options granted
shall expire at 5:00 P.M. Eastern Time on the five year anniversary of
the date hereof (the "Expiration Time"), and any shares not purchased
on or before such date may not thereafter be purchased hereunder.
3. The Optionee shall exercise the option by delivering to the Corporation
a written notice of exercise in substantially the form attached hereto
as Exhibit I. Common Stock purchased pursuant to this Agreement shall
be paid for in full in cash at the time of purchase or in shares of
Common Stock surrendered to the Corporation or in a combination of cash
and such shares. Shares of Common Stock thus surrendered shall be
valued at their Fair Market Value (as defined in this Section 3 below)
on the date of exercise. Upon receipt of payment and written notice of
exercise, the Corporation shall deliver, without stock transfer tax to
the Optionee or other person entitled to exercise the option, to the
person exercising the option, a certificate or certificates for such
shares. It shall be a condition to the performance of the Corporation's
obligation to issue or transfer Common Stock upon exercise of this
option that the person exercising this option pay, or make provision
satisfactory to the Corporation for the payment of, any taxes (other
than stock transfer taxes) which the Corporation is obligated to
collect with respect to the issue or transfer of Common Stock upon
exercise (including any federal, state or local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a share of Common
Stock shall mean the per share value of the Common Stock as of a given
date, determined as follows:
a. If the Common Stock is listed or admitted for trading on the
New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common
Stock is the average of the closing quotations for such stock
based on composite transactions for the New York Stock
Exchange (or if not listed on it, such other national
securities exchange) for the five Trading Days (as defined
below) ending at the close of business on the day prior to
such given date.
b. If the Common Stock is not traded on any national securities
exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market
16
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Value of the Common Stock is the average of the last sales
price (if the stock is listed as a national market issue under
the NASDAQ System) or the mean between the closing
representative bid and asked prices (in all other cases) for
the stock as reported by the NASDAQ System (or such similar
quotation system) for the five Trading Days ending at the
close of business on the day prior to such given date.
c. If neither clause (a) nor clause (b) of this definition is
applicable, the Fair Market Value of the Common Stock is the
fair market value per share as of such valuation date, as
determined by the Board of Directors of the Corporation in
good faith and in accordance with uniform principles
consistently applied.
d. "Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading
on any national securities exchange, any business day.
4. The Corporation hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of the option such number of
shares of its Common Stock as shall be required for issuance and
delivery upon the exercise of the option, and that such shares, when
issued in accordance with the terms of this Agreement, shall be validly
issued, fully paid, and non-assessable. The Corporation covenants and
agrees that it will from time to time take all such action as may be
necessary to assure that the par value per share of the Common Stock is
at all times equal to or less than the then effective Exercise Price of
the option.
5. This option is not transferable other than by will or the laws of
descent and distribution. Any other transfer of this option (including
without limitation any purported assignment, whether voluntary or by
operation of law, pledge, hypothecation or other disposition contrary
to the provisions hereof, or levy of execution, attachment, trustee
process or similar process, whether legal or equitable, of the option)
shall be null and void and of no effect. Any shares issued pursuant to
this option shall not be registered under the Securities Act of 1933,
as amended (the "Act"). The Optionee may not sell or otherwise dispose
of such shares in the absence of either a registration statement under
the Act or an exemption from the registration provisions thereunder,
with respect to which the Optionee shall have delivered to the
Corporation an opinion of counsel, in form satisfactory to the
Corporation, that, under the circumstances, registration is not
required. The certificates representing such shares shall bear a legend
as follows:
The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be
transferred in the absence of either an effective registration
statement under the Securities Act of 1933, as amended (the
"Act") with respect to such shares, or an exemption from the
registration provisions of the Act, with respect to which the
Corporation shall have received an opinion of counsel, in form
satisfactory to it, that, under the circumstances,
registration under the Act is not required.
6. This option shall be exercisable during the life of the Optionee only
by the Optionee and the Optionee's guardian or legal representative and
after death only by the Optionee's legal representative.
Notwithstanding the following provisions of this Section 6, no option
shall be exercisable after the Expiration Time. If the Optionee's
consulting arrangement or employment with the Corporation terminates
for any reason other than (i) For Cause, (ii) death or (iii)
termination by the Optionee other than For Good Reason, the option may
be exercised (to the extent it was exercisable immediately preceding
such termination) until 90 days after the date of such termination. If
the option was not exercisable immediately preceding such termination
of employment, the option shall terminate upon such termination of
employment.
If the Optionee's consulting arrangement or employment with the
Corporation is terminated For Cause or by the Optionee other than For
Good Reason, the option shall terminate immediately upon such
termination of the consulting arrangement or employment, regardless of
whether the option was exercisable immediately preceding such
termination of employment.
Upon the death of the Optionee while in active service with the
Corporation, the person or persons to whom the Optionee's rights under
the option are transferred by will or the laws of descent and
distribution may exercise the option until the expiration of 12 months
after the date of the Optionee's death, but only to the extent the
option was exercisable immediately preceding the Optionee's death. If
the option was not exercisable immediately preceding the Optionee's
death, the option shall terminate upon the Optionee's death.
7. If dividends payable in Common Stock during any fiscal year of the
Corporation exceed an aggregate of 5% of the Common Stock issued and
outstanding at the beginning of such fiscal year, or if, during any
fiscal year
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of the Corporation, there is one or more splits, subdivisions, or
combinations of shares of Common Stock resulting in an increase or
decrease by more than 5% of the shares outstanding at the beginning of
the year, the number of shares available under this option shall be
increased or decreased proportionately, as the case may be, without
change in the aggregate exercise price. Common Stock dividends, splits,
subdivisions, or combinations during any fiscal year which do not
exceed, in the aggregate, 5% of the Common Stock issued and outstanding
at the beginning of such year shall be ignored for purposes of this
option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with another
corporation, or in case the property or stock of the Corporation is
acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8. The grant and exercise of this option, and the Corporation's obligation
to sell and deliver shares upon the exercise of this option, shall be
subject to the requirement that, if at any time the Board of Directors
of the Corporation shall determine, in its discretion, that the
listing, registration or qualification of the shares issuable or
transferable upon exercise thereof upon any securities exchange or
under any state or Federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the granting of this option, the issue,
transfer, or purchase of shares thereunder may not be exercised in
whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board of Directors of the Corporation.
The Corporation shall not be obligated to sell or issue any shares of
Common Stock in any manner in contravention of the Securities Act of
1933, as amended or any state securities law.
9. This Agreement shall not give the Optionee any right with respect to
continuance as a consultant or an employee of the Corporation, nor
shall it be a limitation in any way on any legal right which the Board
of Directors of the Corporation, the Corporation's stockholders or an
officer of the Corporation may have to terminate the Optionee as an
employee at any time.
10. The Optionee shall have no rights as a stockholder with respect to any
shares issuable or transferable upon exercise of the option until the
date a stock certificate is issued to the Optionee for such shares,
and, except as otherwise expressly provided in this Agreement, no
adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
11. All notices hereunder shall be in writing, and if to the Corporation,
shall be delivered personally to the Secretary of the Corporation or
mailed to the address provided in the preamble of this Agreement,
addressed to the attention of the Secretary, and if to the Optionee,
shall be delivered personally or mailed to the Optionee at the address
provided in the preamble of this Agreement. Such addresses may be
changed at any time by notice from one party to the other.
12. All decisions or interpretations made by the Board of Directors of the
Corporation with regard to any question arising hereunder shall be
binding and conclusive on the Corporation and the Optionee.
13. This Agreement shall bind and inure to the benefit of the parties
hereto and the successors and assigns of the Corporation and, to the
extent provided in Sections 6 and 8, the executors, administrators,
legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PUBLICARD, INC.
By: _______________________________
Name:
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________________________________
Jan-Xxxx Xxxxxxxxxxx
19
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Exhibit I
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
November __, 1999 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder, _______
shares of the Common Stock (the "Shares") of the Corporation covered by said
Option Agreement and herewith makes payment in full therefor pursuant to Section
3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement under the
Securities Act of 1933, as amended, covering the shares is in effect or, in the
opinion of counsel to the Company, an exemption from such registration is
available, and (ii) hereby acknowledges that the number of shares hereafter
subject to the Option Agreement referred to above is hereafter reduced by the
number of shares which I have hereby elected to purchase.
Very truly yours,
Jan-Xxxx Xxxxxxxxxxx
Social Security Number _______________
Address: ______________________
____________________
Dated: ____________________
20
