EXHIBIT 10.6
EXECUTION COPY
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement"), dated as of the 3rd day of
June 2004 ("Effective Date"), by and between Cyber-Test, Inc., a newly formed
Delaware corporation ("Cyber-Test") and Xxxxxx Xxxxxxx, an individual whose
address is 000 Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx ("Executive").
WITNESSETH
WHEREAS, Executive presently serves as Vice-President of Cyber-Test, Inc.,
a Florida corporation ("Cyber-Test Florida");
WHEREAS, Cyber-Test has entered into an Asset Purchase Agreement (the
"Asset Purchase Agreement") with Cyber-Test Florida, pursuant to which
Cyber-Test will buy substantially all of the assets of Cyber-Test Florida (the
"Acquisition"); and
WHEREAS, it is a condition of the Acquisition that Executive accept
employment with Cyber-Test as of the consummation of the Acquisition.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT. Cyber-Test hereby employs Executive, and Executive hereby
accepts employment with Cyber-Test, as Vice-President, or such other senior
executive position as may be determined by the Board of Directors of Cyber-Test
(the "Board") from time to time during the Employment Period (as defined below).
For purposes of this Agreement, "senior executive position" shall mean a
position of Vice President or a more senior position. In addition to his duties
set forth in this Paragraph 1 and Paragraph 3 below, Executive shall at the
request of the Cyber-Test CEO (as defined below) or the Board consider serving
as an officer or director of Cyber-Test, or any of its affiliates, without
additional compensation and subject to any policy of the Compensation Committee
(the "Compensation Committee") of the board of directors of Advanced
Communications Technologies, Inc. ("ACT") with regard to directors' fees.
2. TERM. The initial term of this Agreement shall commence on the
Effective Date and expire on the third anniversary thereof (the "Employment
Period"), unless earlier terminated in accordance with its terms. Unless earlier
terminated in accordance herewith, this Agreement shall be deemed to have been
extended for additional terms of successive one year periods commencing on the
day of the expiration of the then current Employment Period.
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3. EMPLOYMENT AND DUTIES.
3.1 Duties and Responsibilities.
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(a) Executive's area of responsibility during the Employment
Period shall be that of Vice-President of Cyber-Test. Executive shall directly
report to the Chief Executive Officer of Cyber-Test (the "C-T CEO"), or such
other senior executive officer of Cyber-Test or its affiliates, as determined
from time to time by the Board or the Cyber-Test CEO. The services to be
rendered by Executive pursuant to this Agreement shall consist of such services
as defined and directed by the Board or the Cyber-Test CEO.
(b) During the Employment Period, Executive shall serve
Cyber-Test faithfully and to the best of his ability; shall devote his entire
working time, attention, energy and skill to his employment and the benefit and
business of these entities; and shall use his best efforts, skills and ability
to promote their interests and to perform such duties as from time to time may
be reasonably assigned to him and are consistent with his titles and positions
with these entities.
(c) During the Employment Period, in addition to any other
duties or responsibilities Cyber-Test or its affiliates may give to Executive,
Executive shall be required to sign, and shall sign, all certifications and such
other documents or instruments requested by the Board or the Cyber-Test CEO, in
connection with Cyber-Test's or its affiliates obligations under or to (i) the
Securities and Exchange Commission, (ii) any exchange or association on which
Cyber-Test's or its affiliates' shares of capital stock are listed, (iii) any
federal, state or local authority, and/or (iv) any other governmental,
quasi-governmental or non-governmental entity or organization (foreign or
domestic) that regulates or has authority over Cyber-Test or its affiliates. In
addition, in the event Executive, in his current position or in any position
Executive accepts in the future, becomes obligated to sign certifications and
such other documents or instruments as may be required by the rules and
regulations promulgated by any of (i) through (iv) above, Executive shall sign
all such certifications and other documents or instruments as required thereby.
3.2 Observance of Rules and Regulations. Executive agrees to observe
and comply with all applicable laws and regulations, as well as the rules and
regulations of Cyber-Test and its affiliates with respect to the performance of
his duties.
4. COMPENSATION; BENEFITS AND EXPENSES.
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4.1 Base Salary. As compensation for the services to be rendered
hereunder, during the Employment Period, Cyber-Test shall pay to Executive an
annual base salary (the "Base Salary") of $110,000.00. The Base Salary shall be
payable in accordance with usual payroll practices of Cyber-Test. Executive's
Base Salary shall be reviewed annually by the Compensation Committee during the
Employment Period and may be increased, but not decreased, from time to time by
the Compensation Committee in its sole discretion.
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4.2 Bonus.
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(a) Immediately following each fiscal year, Cyber-Test shall set
aside for the payment of Cyber-Test executive bonuses, an amount equal to ten
percent (10%) of net income of Cyber-Test during such fiscal year (the "Bonus
Pool"). For each fiscal year or portion thereof after the Effective Date and
during the Employment Period, Cyber-Test shall pay to Executive an annual
performance bonus, in cash and/or restricted stock of ACT, equal to a portion of
the Bonus Pool, as determined by the Compensation Committee, in its sole
discretion (the "Performance Bonus").
For purposes hereof, "net income" shall mean, with respect to Cyber-Test, for
any fiscal year, the net income (loss) of Cyber-Test for such fiscal year,
determined in accordance with generally accepted accounting principals,
consistently applied; provided, however, that there shall be excluded from net
income (a) the net income (loss) of any person in which Cyber-Test has a joint
interest with a third party, except to the extent such net income is actually
paid to Cyber-Test by dividend or other distribution during such fiscal year,
(b) the net income (or loss) of any person accrued prior to the date it becomes
a subsidiary of Cyber-Test or is merged into or becomes consolidated with
Cyber-Test or its assets are purchased by Cyber-Test, and (c) the net income (if
positive) of any subsidiary of Cyber-Test to the extent that the declaration or
payment of dividends or similar distributions of such net income by such
subsidiary (i) is not at that time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order statute, rule or
governmental regulation or (ii) would be subject to any taxes payable on such
dividends or distributions.
(c) In addition to the Performance Bonus, Cyber-Test may grant
restricted shares of common stock of ACT to Executive, with a vesting schedule
and other terms established by the Compensation Committee, in its sole
discretion (the "Incentive Bonus").
(d) Executive acknowledges that the amount of the Performance
Bonus and the amount of the Incentive Bonus shall at all times be determined by
the Compensation Committee, in its sole discretion. Cyber-Test shall pay each of
the Performance Bonus and the Incentive Bonus to Executive within thirty (30)
days after ACT's audited results for the applicable fiscal year are delivered to
the ACT, but in no event later than September 30 of the immediately following
fiscal year.
4.3 Other Benefits. Executive shall also be eligible to participate
in any life and health insurance programs that Cyber-Test makes available to all
of its executives of similar seniority. Executive shall also be eligible to
receive discretionary performance based bonuses as approved and authorized by
the Compensation Committee, including any incentive stock programs approved by
ACT's shareholders.
4.4 Business Expenses. Executive will be reimbursed, in accordance
with Cyber-Test's expense reimbursement policy, for business expenses that have
been pre-approved by the Board or the Cyber-Test CEO upon presentation of
vouchers or other documents reasonably necessary to verify the expenditures and
sufficient, in form and substance, to satisfy Internal Revenue Service
requirements for such expenses.
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4.5 Vacation. Executive shall be entitled to take up to four (4)
weeks of vacation per calendar year, which shall be taken in accordance with
Cyber-Test's vacation policy in effect from time to time for executives of
comparable seniority.
5. NO COMPETITIVE ACTIVITIES; CONFIDENTIALITY; INVENTION
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5.1 General Restriction. During the Employment Period and for a
period of two (2) years thereafter (the "Restricted Period"), Executive
covenants and agrees that, except on behalf of Cyber-Test, he will not, directly
or indirectly:
(a) Competing Business. Own, manage, operate, control,
participate in the ownership, management, operation or control of, be employed
by, or provide services as a consultant to, any individual or business that is
involved in business activities that are the same as, similar to or in
competition with, directly or indirectly, any business activities conducted, or
actively being planned, by Cyber-Test or its affiliates during the Restricted
Period and anywhere in the United States and Canada (it being acknowledged that
Cyber-Test's and its affiliates' business is national in scope). The ownership
of less than one percent (1%) of the outstanding stock of any public corporation
shall not be deemed a violation of this provision.
(b) Soliciting Customers. Attempt in any manner to contact or
solicit any individual, firm, corporation or other entity (i) that is or has
been, a customer of Cyber-Test or its affiliates at any time during the
Restricted Period, (ii) to which a proposal has been made by Cyber-Test or its
affiliates during the Restricted Period or (iii) appearing on Cyber-Test's or
its affiliates' new business target list on the date of Executive's termination
(as such list has been prepared and maintained in accordance with Cyber-Test's
or its affiliates' past practice), for the purpose of providing services or
products similar to the services and products provided by Cyber-Test or its
affiliates, or engaging in any activity which could be, directly or indirectly,
competitive with the business of Cyber-Test or its affiliates.
(c) Interfering with Other Relations. Persuade or attempt to
persuade any supplier, vendor, licensor or other entity or individual doing
business with Cyber-Test or its affiliates to discontinue or reduce its business
with Cyber-Test or its affiliates or otherwise interfere in any way with the
business relationships and activities of Cyber-Test or its affiliates.
(d) Employees. Attempt in any manner to solicit any individual,
who is at the time of such attempted solicitation, or was at any time during the
one (1) year period preceding the termination of Executive's employment, an
employee or consultant of Cyber-Test or its affiliates, to terminate his or her
employment or relationship with Cyber-Test or its affiliates, or engage such
individual, as an employee or consultant. Cooperate with any other person in
persuading, enticing or aiding, or attempting to persuade, entice or aid, any
employee of or consultant to Cyber-Test or its affiliates to terminate his or
her employment or business relationship with Cyber-Test or its affiliates, or to
become employed as an employee or retained as a consultant by any person other
than Cyber-Test or its affiliates.
5.2 Confidentiality Agreement. Executive shall not, either during the
Employment Period or at any time thereafter, use or disclose to any third person
any Confidential Information (as defined below) of Cyber-Test or its affiliates,
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other than at the direction of Cyber-Test, or pursuant to a court order or
subpoena, provided that Executive will give notice of such court order or
subpoena to Cyber-Test prior to such disclosure. Upon the termination of
Executive's employment with Cyber-Test for any reason, Executive shall return
any notes, records, charts, formulae or other materials (whether in hard copy or
computer readable form) containing Confidential Information, and will not make
or retain any copies of such materials. Without limiting the generality of the
foregoing, the parties acknowledge that Cyber-Test or its affiliates from time
to time may be subject to agreements with its or their customers, suppliers or
licensors to maintain the confidence of such other persons' confidential
information. The terms of such agreements may require that Cyber-Test's or its
affiliates' employees, including Executive, be bound by such agreements, and
Executive shall be deemed so bound upon notice to him of the terms of such
agreements. The term "Confidential Information" as used herein shall mean any
confidential or proprietary information of Cyber-Test or its affiliates whether
of a technical, engineering, operational, financial or economic nature,
including, without limitation, all prices, discounts, terms and conditions of
sale, trade secrets, know-how, customers, inventions, business affairs or
practices, systems, products, product specifications, designs, plans,
manufacturing and other processes, data, ideas, details and other information of
Cyber-Test or its affiliates. Confidential Information shall not include
information which can be proven by Executive to have been developed by his own
work as of the Effective Date completely independent of its disclosure by
Cyber-Test or its affiliates or which is in the public domain, provided such
information did not become available to the general public as a result of
Executive's breach of this Paragraph 5.2.
5.3 Disclosure of Innovations. Executive shall make prompt and full
written disclosure to Cyber-Test and solely Cyber-Test of all writings,
inventions, processes, methods, plans, developments, improvements, procedures,
techniques and other innovations of any kind that Executive may make, develop or
reduce to practice, alone or jointly with others, at any time during the
Employment Period and for a period of one (1) year thereafter, whether during
working hours or at any other time and whether at the request or upon the
suggestion of Cyber-Test or otherwise, and whether or not they are eligible for
patent, copyright, trademark, trade secret or other legal protection
(collectively, "Innovations"). Examples of Innovations shall include, but are
not limited to, discoveries, research, formulas, tools, know-how, marketing
plans, new product plans, production processes, advertising, packaging and
marketing techniques and improvements to computer hardware or software. The
written disclosures provided for herein shall be made to the Cyber-Test CEO or
the Board.
5.4 Assignment of Ownership of Innovations. All Innovations shall be
the sole and exclusive property of Cyber-Test. Executive hereby assigns all
rights, title or interest in and to the Innovations to Cyber-Test. At
Cyber-Test's request and expense, during the Employment Period and at any time
thereafter, Executive will assist and cooperate with Cyber-Test or its
affiliates in all respects and will execute documents and give testimony to
obtain, maintain, perfect and enforce for Cyber-Test and its affiliates any and
all patent, copyright, trademark, trade secret and other legal protections for
the Innovations.
5.5 Remedies. Executive acknowledges that the restrictions contained
in the foregoing paragraphs 5.1 through 5.4, in view of the nature of the
business in which Cyber-Test and its affiliates are engaged, are reasonable and
necessary in order to protect the legitimate interests of Cyber-Test and its
affiliates, and that the legal remedies for a breach of any of the provisions of
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this section 5 will be inadequate and that such provisions may be enforced by
restraining order, injunction, specific performance or other equitable relief.
Such equitable remedies shall be cumulative and in addition to any other
remedies which the injured party or parties may have under applicable law,
equity, this Agreement or otherwise. Executive shall not, in any action or
proceeding to enforce any of the provisions of this Paragraph 5, assert the
claim or defense that an adequate remedy at law exists. The prevailing party
shall be entitled to recover its legal fees and expenses in any action or
proceeding for breach of this section 5.
5.6 Cyber-Test Property. All Confidential Information; all
Innovations; and all correspondence, files, documents, advertising, sales,
manufacturers' and other materials or articles or other information of any kind,
in any media, form or format furnished to Executive by Cyber-Test or its
affiliates, which may not deemed confidential, shall be and remain the sole
property of Cyber-Test or such affiliate ("Cyber-Test Property"). Upon
termination or at Cyber-Test's request, whichever is earlier, Executive shall
immediately deliver to Cyber-Test all such Cyber-Test Property.
5.7 Public Policy/Severability. The parties do not wish to impose any
undue or unnecessary hardship upon Executive following his departure from
Cyber-Test's employment. The parties have attempted to limit the provisions of
this section 5 to achieve such a result, and the parties expressly intend that
all provisions of this section 5 be construed to achieve such result. If,
contrary to the effort and intent of the parties, any covenant or other
obligation contained in this section 5 shall be found not to be reasonably
necessary for the protection of Cyber-Test or its affiliates, to be unreasonable
as to duration, scope or nature of restrictions, or to impose an undue hardship
on Executive, then it is the desire of the parties that such covenant or
obligation not be rendered invalid thereby, but rather that the duration, scope
or nature of the restrictions be deemed reduced or modified, with retroactive
effect, to render such covenant or obligation reasonable, valid and enforceable.
The parties further agree that in the event a court, despite the efforts and
intent of the parties, declares any portion of the covenants or obligations in
this section 5 invalid, the remaining provisions of this section 5 shall
nonetheless remain valid and enforceable.
5.8 Termination Without Cause. Notwithstanding anything contained in
this Section 5 to the contrary, in the event that Cyber-Test terminates
Executive's employment without "cause" (as defined in Section 6.1) prior to the
expiration of the Employment Period, the Restricted Period shall extend for a
period of six (6) months after the Termination Date.
6. TERMINATION.
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6.1 Termination For Cause. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated immediately for "cause," at
which time Cyber-Test shall have no further obligations or liabilities to
Executive whether under this Agreement or otherwise and Executive's right to
further compensation and benefits hereunder (included, but not limited to,
unvested stock) shall immediately cease, other than payment to Executive of Base
Salary accrued, and reimbursement of expenses incurred in accordance with
Paragraph 4.4, prior to the effective date of termination of this Agreement (the
"Termination Date"). As used herein and throughout this Agreement, the term
"cause" shall mean (i) any act or omission by Executive that constitutes
malfeasance or misfeasance in the course of Executive's duties hereunder, or in
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the objectively reasonable judgment of the Board or the Cyber-Test CEO,
Executive has been grossly negligent (including habitual neglect of duties),
incompetent or insubordinate in carrying out his duties hereunder, (ii) a
material breach of this Agreement that is not cured within ten (10) days of
receipt of notice thereof, (iii) Executive's breach of a fiduciary duty owed to
Cyber-Test or its affiliates, or (iv) Executive's conviction of, or pleading
nolo contendere to, a criminal offense or crime constituting a misdemeanor or
felony, or conviction in respect to any act involving fraud, dishonesty or moral
turpitude (other than minor traffic infractions or similar minor offenses).
6.2 Termination without Cause.
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(a) Without Cause. This Agreement may be terminated by
Cyber-Test without cause and for any reason or no reason prior to the expiration
of the Employment Period upon thirty (30) days' prior written notice from
Cyber-Test to the Executive.
(b) Severance. In the event that Cyber-Test terminates
Executive's employment without cause, Cyber-Test shall pay to Executive (i) Base
Salary accrued, and expenses incurred in accordance with Paragraph 4.4, prior to
the Termination Date, (ii) any unpaid bonus owed to Executive for a prior fiscal
year ((i) and (ii) together, the "Accrued Payments"), which Accrued Payments
shall be paid to Executive in accordance with Section 4.1, Section 4.2 and
Section 4.4, as applicable, and (iii) an additional amount of Base Salary which
would have been payable to Executive during the six (6) month period immediately
following the Termination Date (the "Severance Payment"), which Severance
Payment shall be payable in cash to Executive in equal monthly installments on
the first business day of each calendar month during the six (6) month period
immediately following the Termination Date. Except as provided in the preceding
sentence, Cyber-Test shall have no further obligations or liabilities to
Executive whether under this Agreement or otherwise and Executive's right to
further compensation and benefits hereunder (included, but not limited to,
unvested stock) shall immediately cease.
6.3 Termination of Other Positions. Upon the Termination Date,
Executive hereby resigns as Vice-President of Cyber-Test and any and all other
positions as officer or director Executive may then hold with Cyber-Test or its
affiliates, and as fiduciary of any benefit plan of Cyber-Test or its
affiliates. Executive shall promptly execute any further documentation as
requested by Cyber-Test or its affiliates and, if Executive is to receive any
payments from Cyber-Test or its affiliates, execution of such further
documentation shall be a condition thereof.
7. DISABILITY OR DEATH.
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7.1 Disability. If, during the Employment Period, Executive becomes
disabled or incapacitated as determined under Cyber-Test's Long Term Disability
Policy ("Permanently Disabled"), Cyber-Test shall have the right at any time
thereafter (but in no event less than 120 days after the event causing such
disability or incapacity), so long as Executive is then still Permanently
Disabled, to terminate this Agreement upon thirty (30) days' prior written
notice to Executive. In the event Cyber-Test does not have a Long Term
Disability Policy at the time of the event causing the Executive to become
Permanently Disabled, "Permanently Disabled" shall mean Executive's inability to
fully perform his duties and responsibilities hereunder to the full extent
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required by Cyber-Test by reason of illness, injury or incapacity for 120
consecutive days or for more than six (6) months during any twelve (12) month
period. If Cyber-Test elects to terminate this Agreement in the event that
Executive becomes Permanently Disabled, Cyber-Test shall have no further
obligations or liabilities to Executive, whether under this Agreement or
otherwise (included, but not limited to, unvested stock), other than payment to
Executive of the Accrued Payments, which Accrued Payments shall be paid to
Executive in accordance with Section 4.1, Section 4.2 and Section 4.4, as
applicable.
7.2 Death. If Executive dies during the Employment Period, this
Agreement shall automatically terminate as of the date of Executive's death, and
Cyber-Test shall have no further obligations or liabilities to Executive,
whether under this Agreement or otherwise (included, but not limited to,
unvested stock), other than payment to Executive's estate of the Accrued
Payments, which Accrued Payments shall be paid to Executive in accordance with
Section 4.1, Section 4.2 and Section 4.4, as applicable.
8. INDEMNIFICATION. Each of Cyber-Test and Executive shall indemnify the
other for any losses, damages, liabilities, judgments, claims, costs, penalties
and expenses incurred by such other party (including, without limitation, costs
and reasonable attorneys' fees and costs), resulting from the indemnifying
party's failure to perform any of their obligations contained in this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by the internal laws
of the State of Florida. Any action to enforce any term hereof shall be brought
exclusively within the state or federal courts of Florida to which jurisdiction
and venue all parties hereby submit themselves.
10. BINDING EFFECT. Except as otherwise herein expressly provided, this
Agreement shall be binding upon, and shall inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and assigns.
11. ASSIGNMENT. Any assignee of Cyber-Test shall have the right to enforce
the restrictive covenants set forth in this Agreement, and Cyber-Test shall have
the right to assign this Agreement, including the right to enforce such
covenants to any successor or assign of Cyber-Test.
12. NOTICES. All notices, designations, consents, offers, acceptances,
waivers or any other communication provided for herein, or required hereunder,
shall be sufficient if in writing and if sent by registered or certified mail,
return receipt requested, overnight courier, or delivered by hand or confirmed
facsimile transmission to (i) Executive at his last known address on the books
of Cyber-Test or (ii) Cyber-Test at its principal place of business.
13. ADDITIONAL DOCUMENTS. Each of the parties hereto agrees to execute and
deliver, without cost or expense to any other party, any and all such further
instruments or documents and to take any and all such further action reasonably
requested by such other of the parties hereto as may be necessary or convenient
in order to effectuate this Agreement and the intents and purposes thereof.
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14. COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and such counterparts may
be delivered by facsimile transmission, which facsimile copies shall be deemed
originals.
15. ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties and supersedes any and all prior
agreements, discussions, negotiations, commitments and understandings among the
parties hereto with respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among the parties concerning the subject matter hereto, which are not
fully expressed herein or in any supplemental written agreements of even or
subsequent date hereof.
16. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person or circumstances, shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
17. MODIFICATION. This Agreement cannot be changed, modified or discharged
orally, but only if consented to in writing by both parties.
18. CONTRACT HEADINGS. All headings of the Paragraphs of this Agreement
have been inserted for convenience of reference only, are not to be considered a
part of this Agreement, and shall in no way affect the interpretation of any of
the provisions of this Agreement.
19. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
20. REPRESENTATION OF EXECUTIVE. Executive, with the full knowledge that
Cyber-Test is relying thereon, represents and warrants that he has not made any
commitment inconsistent with the provisions hereof and that he is not under any
disability which would prevent him from entering into this Agreement and
performing all of his obligations hereunder.
21. JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement
participated in the drafting of this Agreement. As such, the language used
herein shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party to this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
CYBER-TEST, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
EXECUTIVE:
By: /s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
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