EXHIBIT 10.3
AGREEMENT
DATED: 1999
BETWEEN:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AND:
NESS SECURITY PRODUCTS PTY LIMITED
DIBBS ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Solicitors
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇
Ref: JEC/JPL:990332
AGREEMENT
THIS AGREEMENT dated ▇▇▇▇
▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(in his personal capacity and as agent for Relevant Employees)
("▇▇▇▇▇▇▇▇")
AND: NESS SECURITY PRODUCTS PTY LIMITED ACN 069 984 372 of ▇/▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ("Ness")
RECITALS:
A. Under an employment agreement between ▇▇▇▇▇▇▇▇ and ▇▇▇▇ (previously Lisluck
Pty Limited) dated 3 October 1995 ("Employment Contract"), ▇▇▇▇▇▇▇▇
provided managerial services to Ness.
B. In consideration of ▇▇▇▇▇▇▇▇ agreeing to:
(i) terminate the Employment Contract; and
(ii) enter into a new employment contract with Ness.
Ness has agreed to pay to ▇▇▇▇▇▇▇▇ the sum of AUS$4,672,000.00 on the terms
and conditions of this agreement.
1. OPERATIVE PROVISIONS
1.1 DEFINITIONS
In this agreement, including the recitals, unless contrary to or
inconsistent with the context:
"Completion Date" means the date being the earlier of:
(a) the date of execution by ▇▇▇▇▇▇▇▇ of the new employment
contract with Ness;
(b) the date of completion of the share buy-back by Ness of the
shares in Ness owned by ▇▇▇▇▇▇▇▇ Pty Limited; and
(c) the date of the subscription by ▇▇▇▇▇▇▇▇ for the shares in HSII
referred to in clause 3.1.
"Confidential Information" means all information in relation to the
existence and content of this agreement.
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"HSII" means Home Security International Inc. of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.
"Relevant Employees" means those employees of Ness as agreed by the
parties to this agreement.
1.2 Interpretation
In this deed unless contrary to or inconsistent with the context:
(1) words importing:
(1) the singular include the plural and vice versa; and
(2) any gender includes all genders;
(2) a reference to a party or person includes a reference to that
party or person and its successors, substitutes (including, but
not limited to, any party or person taking by novation),
executors, administrators, assigns and principals;
(3) the word "person" includes a corporation and vice versa;
(4) a reference to any thing or any matter is a reference to the
whole and any part of it;
(5) a reference to a Group of persons or parties is a reference to
any 2 or more of them jointly and to each of them severally;
(6) a covenant, representation or warranty in favour of 2 or more
persons is for the benefit of them jointly and severally;
(7) a covenant, representation or warranty on the part of 2 or more
persons binds them jointly and severally;
(8) a reference to this deed or other document includes any
variation, novation or replacement of or supplement to any of
them from time to time;
(9) a reference to a clause means a reference to a clause of this
deed;
(10) where any clause contains sub-clauses, paragraphs or sub-
paragraphs, each sub-clause, paragraph and sub-
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paragraph however called is to be read and construed separately
and independently of each other;
(11) a reference (whether specific or general) to a statute or to
any other legislation includes any code, ordinance or other
law, and any regulation, rule or by-law or other instrument
made under it, and all official directives (if any) and all
amendments, consolidations, re-enactments or substitutions of
any of them from time to time;
(12) a reference to a document includes, but is not limited to, any
agreement in writing, certificate, notice or other instrument
in writing of any kind;
(13) "writing" and related expressions includes all means of
reproducing words in a tangible and permanently visible form;
and
(14) headings are inserted for guidance only and do not affect the
interpretation of this deed.
2. INCENTIVE
2.1 Subject to clauses 2.2 and 3, in consideration of ▇▇▇▇▇▇▇▇:
(a) terminating the Employment Contract on the Completion Date; and
(b) entering into a new employment contract with Ness on the
Completion Date,
Ness agrees to pay to ▇▇▇▇▇▇▇▇ the sum of Aus$4,672,000.00 within 90
days of the Completion Date.
2.2 ▇▇▇▇▇▇▇▇ acknowledges that the amount which Ness must pay to
▇▇▇▇▇▇▇▇ under clause 2.1 is before tax, in respect of which Ness
will assume liability for group tax of Aus$2,265,920 and all on
costs including, without limitation, workers compensation and
payroll tax on behalf of ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ agrees that after the
deduction of group tax by Ness, the amount payable by Ness to
▇▇▇▇▇▇▇▇ under clause 2.1 is Aus$2,406,080.
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3. COMPLETION
Completion of this Agreement will occur in accordance with clause 2.1 and
upon ▇▇▇▇▇▇▇▇ subscribing for shares in HSII in accordance with a
Subscription Agreement between ▇▇▇▇▇▇▇▇ and HSII made on or about the date
of this Agreement.
4. CONFIDENTIALITY
4.1 ▇▇▇▇▇▇▇▇ covenants and undertakes to keep the Confidential Information
secret and confidential and to refrain from disclosing the
Confidential Information to any person.
4.2 The obligations of confidentiality contained in this clause do not
prevent the disclosure by ▇▇▇▇▇▇▇▇ of the Confidential Information in
circumstances where:
(1) ▇▇▇▇▇▇▇▇ is required by law to make the disclosure; and
(2) the Confidential Information enters the public domain otherwise
than as a result of a breach of this agreement.
5. WARRANTY
5.1 ▇▇▇▇▇▇▇▇ warrants and undertakes to Ness and it is a condition of this
agreement that ▇▇▇▇▇▇▇▇ has the capacity to act as agent for and bind
the Relevant Employees.
5.2 ▇▇▇▇▇▇▇▇ must indemnify and keep indemnified Ness against any loss
incurred or liable to be incurred by reason of any claim, of whatever
nature, arising out of or in relation to the warranty contained in
this clause 5 being incorrect in any way.
6. VARIATION
Any variation of this agreement must be in writing signed by the parties.
7. GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws of New South Wales and both parties
submit to the exclusive jurisdiction of the courts of that State.
8. PROHIBITION AND ENFORCEABILITY
8.1 Any provision, or the application of any provision, of this agreement
which is prohibited in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.
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8.2 Any provision, or the application of any provision, of this agreement
which is void, illegal or unenforceable in any jurisdiction does not
affect the validity, legality or enforceability of that provision in
any other jurisdiction or of the remaining provisions in that or any
other jurisdiction.
9. WAIVERS
9.1 Waiver of a breach or any right of election arising from a breach of
this agreement must be in writing and signed by the party granting the
waiver.
9.2 A breach or a right of election arising from a breach of this
agreement is not waived by any failure to or delay in exercise, or
partial exercise, of that right of election or any other right.
10. NOTICES
A notice or other communication including, but not limited to, a request,
demand, consent or approval to be made or given to or by a party to this
agreement:
(a) must be in writing unless expressly specified otherwise;
(b) must be sent to the address of the addressee or sent by facsimile to
the facsimile number respectively of the addressee given in this
agreement or, if the addressee notifies another address or facsimile
number, then to that address or facsimile number respectively;
(c) must be signed by an authorised officer of the party giving or
making it;
(d) is deemed to be duly given or made;
(i) in the case of a posted letter, on the third (seventh, if
posted to or from a place outside Australia) day after posting;
(ii) in the case of a facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient; and
(iii) in the case of delivery by hand, on delivery,
but, if delivery or receipt is not on a Business Day in that
place to which a notice or communication is sent or is
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later than 4.00 pm (local time) in the place of receipt, it will
be deemed to have been duly given or made at 9.00 am on the next
succeeding Business Day in that place; and
(e) in the case of a facsimile transmission, is regarded as legible
unless the addressee telephones the sender within two hours after
the transmission is deemed to be received and informs the sender
that it is not legible.
11. ENTIRE AGREEMENT
This agreement contains the entire agreement and is in substitution of any
previous sub-contracting or employment agreements between the parties or
related persons which are deemed to have been terminated by mutual consent
from the date of this agreement.
EXECUTED as an Agreement
Signed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in the )
presence of: )
)
)
.................................. )
Signature of witness )
)
.................................. ) ...................................
Name of witness (block letters) Signature of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The common seal of NESS )
SECURITY PRODUCTS PTY LIMITED )
was affixed in accordance with )
its articles of association in )
the presence of: )
)
)
.................................. ) ...................................
Signature of authorised person ) Signature of authorised person
)
.................................. ) ...................................
Office held ) Office held
)
.................................. ) ...................................
Name of authorised person ) Name of authorised person
(block letters) ) (block letters)
