EXHIBIT 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of ___________________
(the "EFFECTIVE DATE"), between Genex Technologies, Inc. (the "COMPANY"), a
Maryland Corporation, and Xxxxx Xxxx (the "EMPLOYEE"), an individual residing at
________________________.
WITNESSETH THAT
WHEREAS, the Company wishes to employ the Employee to render services
for the Company on the terms and conditions set forth in the Agreement; and
WHEREAS, the Employee wishes to be retained and employed by the Company
on such terms and conditions;
THEREFORE, in consideration of the premises, the mutual agreements set
forth below and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT The Company hereby employs the Employee, and the
Employee accepts such employment and agrees to perform
services for the Company as described herein, for the period
of time and upon the other terms and conditions set forth in
this Agreement.
2. TERM Unless terminated at an earlier date in accordance
with Section 8 of this Agreement or otherwise extended by
agreement of the parties, the term of the Employee's
engagement hereunder shall be for a period of three (3) years,
commencing on the Effective Date. The period of engagement may
be extended by written agreement between the parties, provided
that certain provisions relating to compensation may change
upon commencement of any extension hereto.
3. POSITION AND DUTIES
(a) SERVICE WITH THE COMPANY During the term of the
Employee's engagement, the Employee shall be employed
in the position of Executive Vice President and Chief
Scientist and shall perform such reasonable services
as the Company shall assign. Unless and until
modified by the Company, Employee shall report to,
and be under the supervision of, the President of the
Company (the "SUPERVISOR")
(b) PERFORMANCE OF DUTIES The Employee agrees to
serve the Company faithfully and to the best of
Employee's ability and to devote his full working
time, attention and efforts exclusively to the
business and affairs of the Company during Employee's
engagement by the Company. The Employee hereby
confirms that Employee is under no contractual
commitments inconsistent with Employee's obligations
set forth in this Agreement and that, during the term
of this Agreement, Employee will not render or
perform services to or for any other corporation,
firm, entity or person which are inconsistent with
the provisions of this Agreement. While Employee
remains employed by the Company, the Employee may
participate in reasonable professional, charitable
and/or personal investment and other activities so
long as such activities do not interfere with the
performance of Employee's obligations under this
Agreement.
4. COMPENSATION
(a) BASE COMPENSATION As compensation for services to
be rendered by the Employee under this Agreement, the
Company shall pay to the Employee, during the term of
the Employee's engagement and subject to the
termination provisions of Section 8 of the Agreement,
a base payment of $300,000 per year (the "ANNUAL
SALARY"), which payment shall be paid in arrears in
accordance with the Company's normal procedure and
policies.
(b) INCENTIVE COMPENSATION In addition to the Annual
Salary, the Employee shall be eligible to participate
in any bonus or incentive compensation plans that may
be established by the Board of the Directors of the
Company (the "Board") or the Board of Directors of
Xxxxxxxx (as defined in Section 6 below) or Technest
(as defined in Section 6 below) from time to time
applicable to the Employee's services.
(c) EXPENSES The Company shall pay or reimburse the
Employee for all reasonable and necessary
out-of-pocket expenses incurred by the Employee in
the performance of Employee's duties under the
Agreement, subject to the Company's normal policies
for expense authorization and verification. The
Company shall, furnish the Employee with such
reasonable office, equipment and facilities
(including computers and technical facilities,
equipment and supplies), and executive,
administrative and technical support personnel, as
are appropriate to his position and for the effective
carrying out of his duties under this Agreement.
5. CONFIDENTIAL INFORMATION Except as permitted or directed by
Employee's supervisor in writing or as required by operation
of law, during the term of the Agreement or at any time
thereafter, the Employee shall not divulge, furnish or make
accessible to anyone or use in any way (other than in the
ordinary course of business of the Company) any Confidential
Information. "Confidential Information" shall include any
confidential or secret knowledge or information of the Company
or any affiliate or any customer, supplier, or other business
associate of the Customer or affiliate (including but not
limited to any trade secrets or other private matters) that
the Employee has acquired or become acquainted with or will
acquire or become acquainted with prior to the termination of
the period of the Employee's engagement by the Company
(including engagement by the Company or any affiliated
companies prior to the Effective Date) whether developed by
the Employee or by others, concerning any trade secrets,
confidential or secret designs, processes, formulae, plans,
devices or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of
the Company, any customer or supplier lists of the Company,
any confidential or secret development or research work of the
Company, or any other confidential or secret aspects of the
business of the Company. The Employee acknowledges that the
Confidential Information constitutes a unique and valuable
asset of the Company and represents a substantial investment
of time and expense by the Company, and that any disclosure or
other use of such Confidential Information other than for the
sole benefit of the Company would be wrongful and would cause
irreparable harm to the Company. Both during and after the
term of the Employee's engagement, the Employee will refrain
from any acts or omissions that would reduce the value of such
Confidential Information to the Company. The foregoing
obligations of confidentiality shall not apply to any
knowledge or information that is published and publicly
available or which subsequently becomes generally publicly
known in the form in which it was obtained from the Company,
other than as a direct or indirect result of the breach of
this Agreement by the Employee.
Employee acknowledges that money damages alone will
not adequately compensate the Company for breach of the terms
of this Section 5 and therefore agrees that in the event of
the breach or threatened breach of any such terms, in addition
to all other remedies available to the Company at law, in
equity or otherwise, the Company shall be entitled to
equitable relief compelling specific performance of the terms
of this Section 5.
6. VENTURES If, during the term of the Employee's engagement,
the Employee is engaged in or associated with the planning or
implementing of any project, program or venture involving the
Company and a third party or parties, all right in such
project, program or venture shall belong to the Company,
unless prior written consent from the Company is obtained.
Except as approved by the Board, or its designee, or as
explicitly set forth in the Agreement and Plan of Merger by
and among Xxxxxxxx Technologies, Inc., a Florida corporation
("Xxxxxxxx"), Technest Holdings, Inc., a Nevada corporation
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("Technest"), the Company and the Employee dated of even date
herewith, the Employee shall not be entitled to any interest
in such project, program or venture or to any commission,
finder's fee or other compensation in connection therewith
other than the compensation to be paid to the Employee as
provided in this Agreement. The Employee shall not enter into
any arrangement through which the Employee acquires or may
acquire any interest, direct or indirect, in any vendor or
customer of the Company.
7. INTELLECTUAL PROPERTY RIGHTS
(a) DISCLOSURE AND ASSIGNMENT The Employee will
promptly disclose in writing to the Company complete
information concerning each and every invention,
discovery, improvement, device, design, apparatus,
practice, process, method or product, whether
patentable or not, made, developed, perfected,
devised, conceived or first reduced to practice by
the Employee, either solely or in collaboration with
others, during the term of the Agreement whether or
not during regular working hours, relating either
directly or indirectly to the business, products,
practices or techniques of the Company or arising out
of or relating to the services provided hereunder
(the "DEVELOPMENTS"). The Employee, to the extent
that Employee has the legal right so to do, hereby
acknowledges that any and all of the Developments and
all originals and copies of all notebooks, disks,
tapes, computer programs, reports, proposals and
materials evidencing, incorporating, constituting,
representing or recording any Development or
Confidential Information are the sole property of the
Company. The Employee agrees to assign and hereby
does assign to the Company any and all of the
Employee's right title and interest throughout the
world in and to any and all of the Developments and
anything tangible which evidences, constitutes,
represents or records any Development (the
"ASSIGNMENT"). During the period commencing the day
after the Employee's last day performing services for
the Company and ending one year after termination of
the Employee's engagement with the Company, at the
request of the Company, the Employee will confer with
the Company and its representatives for the purpose
of disclosing all Developments to the Company,
provided that such conference is at the Company's
expense and the Employee is compensated at an hourly
rate equal to the Employee's final Annual Salary
divided by two-thousand eighty (2080).
(b) LIMITATION ON SECTION 7(A) The provisions of
Section 7(a) shall not apply to any Development
meeting the following conditions: (i) such
Development was developed entirely on the Employee's
own time without the use of any Company equipment,
supplies, facility or trade secret information; and
(ii) such Development does not relate directly or
indirectly to the business of the Company, to the
Company's actual or demonstrably anticipated research
or development or result from any work performed by
the Employee for the Company.
(c) COPYRIGHTABLE MATERIAL All right, title and
interest in all copyrightable material that the
Employee shall conceive or originate, either
individually or jointly with others, and which arises
out of the performance of this Agreement, will be the
property of the company and are by the Agreement
assigned to the Company along with ownership of any
and all copyrights in the copyrightable material.
Upon request and without further compensation
therefore, but at no expense to the Employee, the
Employee shall execute all papers and perform all
other acts necessary to assist the Company to obtain
and register copyrights on such material in any and
all countries, except that the Employee shall be
compensated at an hourly rate equal to the Employee's
final Annual Salary divided by two-thousand eighty
(2080) for compliance with this provision following
termination or expiration of this Agreement. Employee
agrees that to the extent the copyright laws of the
United States apply to the Developments, the
Developments constitute "works made for hire" as
defined in the United States Copyright Act. To the
extent not considered as works made for hire, such
works are hereby assigned to the Company under the
Assignment provision of this Section 7.
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(d) With respect to any Development, Employee hereby
agrees, without payment of any additional
consideration to Employee to: (i) assist the Company
in every reasonable manner to obtain patents,
trademarks or copyrights thereon in any and all
countries for the Company's benefit; and (ii) to
execute all such patent applications, trademark
applications, copyright applications, patent,
trademark or copyright assignments and other lawful
documents, and to take all such other actions, as the
Company may request to otherwise carryout the
purposes of the Agreement. In connection with this
Section 7, Employee hereby irrevocably grants power
of attorney to the Company to act for and on
Employee's behalf to execute, register and file any
such applications to further the registration,
prosecution and issuance of patents, trademarks,
copyrights or similar protections with the same legal
force and effect as if executed by Employee. The
out-of-pocket cost of filing and prosecuting patent
applications and obtaining copyright registration for
the Developments shall be borne by the Company.
8. TERMINATION OF ENGAGEMENT
(a) GROUNDS FOR TERMINATION The Employees engagement
shall terminate prior to the expiration of the
initial term set forth in Section 2 or any extension
thereof in the event that at any time: (i) the
Employee dies; (ii) the Company elects to terminate
this Agreement for Cause, as defined in Section 8(b)
below, and notifies the Employee in writing of such
election; (iii) the Company elects to terminate this
agreement without Cause, as defined in Section 8(b)
below, and notifies the Employee in writing of such
election; (iv) the Employee elects to terminate this
Agreement and notifies the Company in writing of such
election; (v) the Employee elects to terminate this
Agreement for Good Reason, as defined below in
Section 8(c) and notifies the Company in writing of
such election; or (vi) the Employee becomes
"Permanently disabled" (as defined below).
"PERMANENTLY DISABLED" means that the Employee has
been unable, by reason of physical or mental illness
or disability (regardless of its cause), to perform,
in all material respects, his duties under this
Agreement for a period of 90 consecutive days or a
period aggregating at least six months in any
consecutive 12-month period, in each case as
determined by a physician selected by the Company
reasonably acceptable to the Employee.
(b) CAUSE DEFINED "Cause" means that (i) the Employee
has breached the provisions of Section 5, 6 or 7 this
Agreement in any material respect; (ii) the Employee
has engaged in willful and material misconduct,
including willful and material failure to perform the
Employee's duties as provided in Section 3(a) of this
Agreement; (iii) the Employee has committed fraud,
misappropriation or embezzlement in connection with
the Company's business; or (iv) the Employee has been
convicted or has pleaded NOLO CONTENDERE to a felony
charge (except for parking violations, occasional
traffic violations or other similar isolated minor
violations).
(c) GOOD REASON DEFINED "Good Reason" shall mean (i)
the assignment of the Employee to any duties
materially inconsistent in any respect with the
Employee's position (including status, offices,
titles and reporting requirements), authority, duties
or responsibilities as contemplated by Section 3(a)
of this Agreement or any other action by the company
which results in a material diminution in such
position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after
receipt of notice thereof given by the Employee; (ii)
any termination or reduction of a material benefit
under any benefits plan in which the Employee
participates unless (1) there is substituted a
comparable benefit prior to such termination or
reduction or (2) benefits under such plan are
terminated or reduced with respect to all Employees
previously granted benefits thereunder; or (iii)
without limiting the generality of the foregoing, any
material breach of the Agreement by the Company or
any successor thereto. In addition, Good Reason shall
include any requirement by the Company that the
Employee relocate to a principal place of business
outside of the Washington, D.C. metropolitan area.
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(d) EFFECT OF TERMINATION Notwithstanding any
termination of this Agreement, the Employee, in
consideration of Employee's engagement hereunder,
shall remain bound by the provisions of this
Agreement which specifically relate to periods,
activities or obligations upon or subsequent to the
termination of the Employee's engagement including,
without limitation, Sections 5 and 7.
(e) SURRENDER OF RECORDS AND PROPERTY Upon
termination of Employee's engagement with the
Company, the Employee shall deliver promptly to the
Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks,
reports, data, tables, calculations or copies thereof
that relate in any way to the business, products,
practices or techniques of the Company, an all other
property, trade secrets and confidential information
of the Company, including, but not limited to, all
documents that, in whole or in part, contain any
trade secrets or confidential information of the
Company, which in any of these cases are in
Employee's possession or under Employee's control.
(f) PAYMENT CONTINUATION If the Employee's engagement
by the Company is terminated by the Company pursuant
to clause (iii) of Section 8(a) of this Agreement or
by the Employee pursuant to clause (v) of Section
8(a) of this Agreement, then the Company shall
continue to pay to the Employee Employee's Annual
Salary payments (less any payments received by the
Employee from any disability income insurance policy
provided to Employee by the Company) and shall
continue to provide health insurance benefits for the
Employee through the earlier of (a) the date that the
Employee has obtained other full-time engagement; or
(b) twelve (12) months from the date of termination
of the engagement. If the Employee's engagement is
terminated pursuant to clause (ii) or (iv) of Section
8(a) of this Agreement, the Employee's right to
Annual Salary payments and benefits shall immediately
terminate, except as may otherwise be required by
applicable law. If the Employee's engagement is
terminated pursuant to clause (i), then the Company
shall continue to pay to the Employee Employee's
Annual Salary payments (less any proceeds payable
from any life insurance policy provided to Employee
by the Company) for three (3) months from the date of
termination of the engagement. If the Employee
becomes Permanently Disabled during the Term, (x) the
Employee's employment shall, at the option of the
Board of Directors on notice to the Employee, be
deemed terminated as of the date of determination
that he is Permanently Disabled, and (y) the Company
shall continue to pay the Employee the base salary
for the period ending on the earlier of (A) six
months after he becomes Permanently Disabled and (B)
the end of the Term. If the Employee's employment is
so terminated, the Company shall, at its expense and
only to the extent available to the Company at
reasonable cost, continue to provide him and his
family with his Company medical insurance and other
benefits under this Agreement for the period ending
on the earlier of (A) six months after he becomes
Permanently Disabled AND (B) the end of the Term.
9. INDEMNIFICATION - In the event that the Employee is made,
or threatened to be made, a party to any action or proceeding,
whether civil or criminal, by reason of the fact that the
Employee is or was a director, officer, or member of a
committee of the Board or serves or served any other
corporation, partnership, joint venture, trust, the Employee
benefit plan or other enterprise in any capacity at the
request of the Company, or resulting from any of the
Employee's actions in any of the foregoing roles the Employee
shall be indemnified by the Company and the Company shall
advance the Employee's related expenses to the fullest extent
permitted by law (including without limitation, damages, costs
and reasonable attorney fees), as may otherwise be provided in
the Company's Certificate of Incorporation and By Laws as
incurred and will start prior to any judicial preceding. The
Company further covenants not to amend or repeal any
provisions of the Certificate of Incorporation or Bylaws of
the Company in any manner which would adversely affect the
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indemnification or exculpatory provisions contained therein as
they pertain to acts of the Employee. The provisions of this
Section are intended to be for the benefit of, and shall be
enforceable by, each indemnified party and the Employee's
heirs and representatives. If the Company or any of its
successors or assigns (i) shall consolidate with or merge into
any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such
consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to such Person,
then and in each such case, proper provisions shall be made so
that the successors and assigns of the Company shall assume
all of the obligations set forth in this SECTION 9.
10. NONCOMPETITION/NONSOLICITATION. During the period
commencing on the date hereof and ending on the third
anniversary of the date hereof, whether or not Employee is
then employed by the Company, (a) Employee will not either
directly or indirectly, own (except for diminimus ownership of
a public company) , manage, operate, control, be an officer or
director or be employed by any Competitor. For purposes of
this Agreement, a "Competitor" is defined as any entity which
during Employee's employment with the Company, provides the
same or similar services to customers or potential customers
of the Company and (b) Employee will not hire any then current
employee of the Company or induce, solicit, or cause to be
solicited any employee of the Company to leave his/her
employment with the Company.
11. MISCELLANEOUS
(a) COUNTERPARTS This Agreement may be executed in
separate counterparts, each of which will be an
original and all of which taken together shall
constitute one and the same agreement, and any party
hereto may execute this Agreement by signing any such
counterpart.
(b) SEVERABILITY Whenever possible, each provision of
this Agreement shall be interpreted in such a manner
as to be effective and valid under the applicable
law, but if any provision of the Agreement is held to
be invalid, illegal or unenforceable under any
applicable law or rule, the validity, legality and
enforceability of the other provisions of this
Agreement will not be affected or impaired thereby.
In furtherance and not in limitation of the
foregoing, should the duration or geographical extent
of, or business activities covered by, any provision
of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such
provision shall be construed to cover only that
duration, extent or activities which may validly and
enforceably be covered.
(c) SUCCESSORS AND ASSIGNS This Agreement shall be
binding on and inure to the benefit of the parties
hereto and their respective heirs, personal
representatives and, to the extent permissible by
subsection (d), successors and assigns.
(d) ASSIGNABILITY Neither this Agreement nor any
right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable
(including by operation of law) by either party
without the prior written consent of the other party
to this Agreement, except that the Company may,
without the consent of the Employee assign its rights
and obligations under this Agreement to any
corporation, firm or other business entity with or
into which the Company may merge or consolidate, or
to which the Company may sell or transfer all or
substantially all of its assets, or of which fifty
(50) percent or more of the equity investment and of
the voting control is owned, directly or indirectly,
by, or is under common ownership with, the Company.
Provided such assignee explicitly assumes such
responsibilities, after any such assignment by the
Company, the Company shall be discharged from all
further liability hereunder and such assignee shall
thereafter by deemed to be the Company for the
purposes of all provisions of this Agreement
including this SECTION 9.
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(e) MODIFICATION, AMENDMENT, WAIVER OR TERMINATION No
provision of this Agreement may be modified, amended,
waived or terminated except by an instrument in
writing signed by the parties to this Agreement. No
course of dealing between the parties will modify,
amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party
under or by reason of this Agreement. No delay on the
part of the Company or Employee in exercising any
right hereunder shall operate as a waiver of such
right. No waiver, express or implied, by the Company
of any right or breach by the Employee shall
constitute a waiver of any other right or breach by
the Employee.
(f) NOTICES All notices, consents, requests,
instructions, approvals or other communications
provided for herein shall be in writing and delivered
by personal delivery, overnight courier, mail,
electronic facsimile or e-mail addressed to the
receiving part at the address set forth herein. All
such communications shall be effective when received.
If to the Company:
Genex Technologies, Inc.
[ ]
Attn: Xxxxxx Xxxxxx, Chief Executive Officer
If to the Employee:
Xxxxx Xxxx
[ ]
Any party may change the address set forth above by
notice to the other party given as provided herein.
(g) HEADINGS The headings contained in the Agreement
are for reference purposes only and shall not in any
way affect the meaning or interpretation of the
Agreement.
(h) GOVERNING LAW ALL MATTERS RELATING TO THE
INTERPREATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT
OF THE AGREEMENT SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW PROVISIONS THEREIN.
(i) VENUE; FEES AND EXPENSES Any action at law, suit
in equity or judicial proceeding arising directly,
indirectly, or otherwise in connection with, out of,
related to or from this Agreement, or any provision
hereof, shall be litigated only in the state or
federal courts located in the District of Columbia.
The Employee and the Company consent to the
jurisdiction of such courts. The prevailing party
shall be entitled to recover its reasonable
attorneys' fees and costs in any such action.
(j) THIRD-PARTY BENEFIT Nothing in this Agreement,
express or implied, is intended to confer upon any
other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(k) WITHHOLDING TAXES The Company may withhold from
any benefits payable under this Agreement all
federal, state, city or other taxes as shall be
required pursuant to any law or governmental
regulation or ruling.
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THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THIS AGREEMENT AND ANY EXHIBITS HERETO ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS AND ALL
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATION TO THE SUBJECT MATTER HEREOF.
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ACCEPTED AND AGREED:
GENEX TECHNOLOGIES, INC. Employee
By:
Office
_________________________________ __________________________________
Date:____________________________ Date:_____________________________
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