-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LPagitp5g9ZqHOY8T8HtgqGVMr1OmUcVtLw3wM12vZMwmoC9C3gg7o8zO8yJxbib E5p3ZfwDxC2uZuvvGChp9w== 0001144204-05-008356.txt : 20050322 0001144204-05-008356.hdr.sgml : 20050322 20050322153641 ACCESSION NUMBER: 0001144204-05-008356 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20050320 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050322 DATE AS OF CHANGE: 20050322 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SECURITY INTELLIGENCE TECHNOLOGIES INC CENTRAL INDEX KEY: 0001117258 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS MANUFACTURING INDUSTRIES [3990] IRS NUMBER: 650928369 STATE OF INCORPORATION: FL FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-31779 FILM NUMBER: 05696738 BUSINESS ADDRESS: STREET 1: 145 HUGUENOT STREET CITY: NEW ROCHELLE STATE: NY ZIP: 10801 BUSINESS PHONE: 9146548700 MAIL ADDRESS: STREET 1: 145 HUGUENOT STREET STREET 2: SUITE __ CITY: NEW ROCHELLE STATE: NY ZIP: 10801 FORMER COMPANY: FORMER CONFORMED NAME: HIPSTYLE COM INC DATE OF NAME CHANGE: 20001016 8-K 1 v014727_8k.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) March 20, 2005 SECURITY INTELLIGENCE TECHNOLOGIES, INC. ---------------------------------------- Exact name of Company as specified in its charter) Florida 000-31779 65-0928369 --------------- ------------- ------------------- (State or other (Commission (IRS Employer jurisdiction of File Number) Identification No.) Formation) 145 Huguenot Street, New Rochelle, NY 10801 ------------------------------------- ----- (Address of principal executive offices) (Zip Code) Company's telephone number, including area code (914)-654-8700 -------------- Item 1.01 Material Definitive Agreement. On March 20, 2005, Security Intelligence Technologies, Inc. (the "Company") entered into employment agreements, dated as of March 20, 2005, with its chief executive officer, Ben Jamil, and its chief financial officer, Chris R. Decker. Mr. Jamil's employment agreement provides for Mr. Jamil to serve as the Company's chief executive officer until March 31, 2010, and continuing on a year-to-year basis unless terminated by either party. Mr. Jamil is to receive a base salary of $250,000, which, commencing July 1, 2005, is subject to an increase of at least 10% if the Company's adjusted net income for the fiscal year ending on the most recent June 30th increases by at least $250,000 or, if the prior year's operations generated a loss, the loss decreases by at least $250,000. Adjusted net income is net income before deduction of any non-cash expenses incurred in connection with the issuance of equity securities in connection with the private placement or public offering of the Corporation's debt or equity securities. Mr. Jamil may receive an increase in his base salary greater than 10% or he may receive an increase if the Company does not meet the performance criteria at the discretion of the board of directors. The Company also agreed to include Mr. Jamil as one of the board of director's nominees for election as a director. He is also eligible for a discretionary bonus. In connection with Mr. Jamil's execution of his employment agreement, and as provided in the agreement, the Company (i) granted Mr. Jamil a nonqualified stock option to purchase 10,000,000 shares of common stock at an exercise price of $.20, being the fair market value on the date of grant, and (ii) issued to Mr. Jamil 4,000,000 shares of series C preferred stock, a newly created series of preferred stock. The rights of the holders of the series C preferred stock are described under "Item 5.03. Amendment to Articles of Incorporation or By-laws; Creation of Series C Preferred Stock." Mr. Jamil has the right to terminate his employment at any time. Upon termination of Mr. Jamil's employment, he may continue as a consultant for two years at a salary equal to half of the sum of his salary in effect on the last day of his employment plus any bonus paid or payable with respect to the prior fiscal year. In the event of a termination of Mr. Jamil's employment as a result of his death, the Company will pay his base salary to his estate for the lesser of one year or the balance of the term. In the event of a termination of Mr. Jamil's employment other than as permitted by the Agreement, the Company is to pay Mr. Jamil an amount equal to his base salary plus the bonus paid or payable with respect to the prior fiscal year multiplied by the number of months remaining in the Term divided by twelve. In the event of a termination of his employment following a change of control, as defined in the agreement, all options held by Mr. Jamil which have not vested shall vest and the Company is to pay Mr. Jamil an amount equal to six times the sum of his salary and bonus for the prior fiscal year. Pursuant to the agreement, the Company has guaranteed the obligations to Mr. Jamil of its subsidiary, CCS International, Ltd. ("CCS"), for advances made by Mr. Jamil to CCS, to the maximum amount of $738,000. At December 31, 2004, CCS owed Mr. Jamil $738,644. Payment of the Company's obligations pursuant to this guaranty can only be made from cash flow from operations not required for the Company's business. Mr. Decker's employment agreement provides for Mr. Decker to serve as the Company's chief financial officer until March 31, 2010, and continuing on a year-to-year basis unless terminated by either party. Mr. Decker is to receive a base salary of $120,000, which, commencing July 1, 2005, is subject to an increase of at least 10% if the Company's adjusted net income for the fiscal year ending on the most recent June 30th increases by at least $250,000 or, if the prior year's operations generated a loss, the loss decreases by at least $250,000. Adjusted net income is net income before deduction of any non-cash expenses incurred in connection with the issuance of equity securities in connection with the private placement or public offering of the Corporation's debt or equity securities. Mr. Decker may receive an increase in his base salary greater than 10% or he may receive an increase if the Company does not meet the performance criteria at the discretion of the board of directors. The Company also agreed to include Mr. Decker as one of the board of director's nominees for election as a director. He is also eligible for a discretionary bonus which will not be less than 10% of his base salary. In connection with Mr. Decker's execution of his employment agreement, and as provided in the agreement, the Company (i) granted Mr. Decker a nonqualified stock option to purchase 1,000,000 shares of common stock at an exercise price of $.20, being the fair market value on the date of grant, and (ii) issued to Mr. Decker 1,000,000 shares of series C preferred stock. Mr. Decker has the right to terminate his employment at any time. Upon termination of Mr. Decker's employment, he may continue as a consultant for two years at a salary equal to half of the sum of his salary in effect on the last day of his employment plus any bonus paid or payable with respect to the prior fiscal year. In the event of a termination of Mr. Decker's employment as a result of his death, the Company will pay his base salary to his estate for the lesser of one year or the balance of the term. In the event of a termination of Mr. Decker's employment other than as permitted by the agreement, the Company is to pay Mr. Decker an amount equal to his base salary plus the bonus paid or payable with respect to the prior fiscal year multiplied by the number of months remaining in the Term divided by twelve. In the event of a termination of his employment following a change of control, as defined in the agreement, all options held by Mr. Decker which have not vested shall vest and the Company is to pay Mr. Decker an amount equal to six times the sum of his salary and bonus for the prior fiscal year. Item 5.03. Amendment to Articles of Incorporation or By-laws; Creation of Series C Preferred Stock In connection with the employment agreements with Messrs. Jamil and Decker, the board of directors, acting pursuant to the provisions of the Company's certificate of incorporation, created the series C preferred stock. Each share of series C preferred stock is convertible into common stock on a share for share basis if, prior to July 1, 2010, the Company generates either revenue of $6,000,000 or net income before taxes and before deduction of any non-cash expenses incurred in connection with the issuance of equity securities in connection with the private placement or public offering of the Corporation's debt or equity securities of $250,000. If neither of such targets is met by July 1, 2010, the rights of the holders of the preferred stock terminate and the holders are required to transfer the shares of series C preferred stock to the Company for no consideration. The holders of the series C preferred stock vote with the holder of the common stock on an as-if converted basis, even if the event which triggers the conversion right has not occurred. If dividends are declared on the common stock, the holders of the series C preferred stock receive dividends on an as-if converted basis. The preferred stock has a liquidation preference of $.01 per share, and after payment of the liquidation preference, the holders of the preferred stock share with the holders of the common stock on an as-if converted basis. Item 9.01 Financial Statements and Exhibits. (c) Exhibits 99.1 Employment agreement dated March 20, 2005, between the Company and Ben Jamil. 99.2 Employment agreement dated March 20, 2005, between the Company and Chris R. Decker. 99.3 Articles of Amendment relating to the series C preferred stock. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly authorized and caused the undersigned to sign this Report on the Company's behalf. SECURITY INTELLIGENCE TECHNOLOGIES, INC. By: /s/ BEN JAMIL ----------------------------------------- Ben Jamil, President and Chief Executive Officer Dated: March 22, 2005 EX-99.1 2 v014727_ex99-1.txt Exhibit 99.1 EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT, dated as of March 20, 2005, by and between Security Intelligence Technologies, Inc., a Florida corporation with offices at 145 Huguenot Street, New Rochelle, NY 10801 (the "Corporation"), and Ben Jamil, whose address is 35 Saxonwood Road, White Plains, NY 10605 ("Executive," and, together with the Corporation, the "Parties"). WITNESSETH: WHEREAS, the Corporation and Executive are parties to an employment agreement dated April 17, 2002 (the "Prior Agreement") that expires on April 16, 2005; WHEREAS, the Corporation wishes to continue to employ Executive in the positions set forth herein and Executive wishes to accept such employment on and subject to the terms and conditions of this Agreement; and WHEREAS, this Agreement supersedes the Prior Agreement; NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the parties hereby agree as follows: 1. EMPLOYMENT. The Corporation hereby employs Executive and Executive hereby accepts such employment, as an executive officer of the Corporation, subject to the terms and conditions set forth in this Agreement. 2. DUTIES. (a) Executive shall serve as the Corporation's Chief Executive Officer, and he shall have the duties and responsibilities associated with the chief executive officer of a public corporation. Additionally, during the Employment Term, as hereinafter defined, the Corporation shall include Executive as one of the board of directors' nominees for election as a director. Executive shall report to the Corporation's board of directors (the "Board of Directors"). Executive shall also perform such other duties and responsibilities as may be determined by the Board, as long as such duties and responsibilities are consistent with those of the Chief Executive Officer. (b) Executive shall serve as a director of the Corporation and any of its subsidiaries, if elected, and in such executive capacity or capacities with respect to any affiliate of the Corporation to which he may be elected or appointed, provided that such duties are consistent with those of the Corporation's Chief Executive Officer. Executive shall receive no additional compensation for services rendered pursuant to this Section 2.2. (c) During the Employment Term, Executive shall devote substantially all of his business time and efforts to the performance of his duties hereunder unless otherwise authorized by the Board of Directors. Executive shall not be precluded from engaging in charitable and community activities, managing his personal and financial affairs and engaging in other non-competitive activities, provided that such activities shall not interfere in any material way with Executive's duties pursuant to this Agreement. 3. TERM. (a) The term of Executive's employment, unless sooner terminated as provided herein, shall be for a period of five (5) years commencing on the date hereof and ending on March 31, 2010 (the "Initial Term") and shall continue on a year-to-year basis thereafter unless terminated by either the Corporation or Executive on not less than three (3) months written notice prior to the expiration of the Initial Term or any one-year extension. The Initial Term and the one-year extensions, if any, are collectively referred to as the "Employment Term." (b) Notwithstanding the provisions of Section 3.1 of this Agreement, as long as this Agreement shall not have been terminated pursuant to Section 5 of this Agreement, Executive, on ninety (90) days written notice to the Board of Directors, shall have the right to terminate the Employment Term, in which event the Employment Term shall end on the date set forth in such notice with the same effect as if such date were the last day of the Employment Term set forth in Section 3.1 of this Agreement. (c) Immediately following the Employment Term, whether the Employment Term shall have expired pursuant to Section 3.1 of this Agreement or terminated by the Executive pursuant to Section 3.2, but excluding any termination of employment pursuant to Section 5 of this Agreement, Executive shall have the right, at his election, to serve as a consultant to the Corporation during the Consulting Term. The Consulting Term shall mean the two (2) year period immediately following the expiration or termination of the Employment Term. The Employment Term and the Consulting Term are collectively referred to as the Term. (d) During the Consulting Term, Executive shall serve as a consultant to the Corporation and shall report to such executive officer as shall be designated by the Corporation's chief executive officer. The nature of Executive's services during the Consulting Term shall be as mutually agreed upon by the Corporation's chief executive officer and Executive, and may include services relating to the Corporation's strategy for marketing its products and developing its business plan. Executive shall be required to devote such time to his services for the Corporation as he may determine, it being understood that the services being rendered during the Consulting Term shall not be the Executive's principal activity and that the Executive may engage in such business, charitable and personal activities as he may determine, subject to the provisions of Sections 7 and 8 of this Agreement. In rendering services during the Consulting Term, the Corporation shall not require the Executive to perform services which would interfere with his other business, charitable and personal activities or which would require him to return from or change his plans for any vacations, and, if he so elects, the Executive may perform such services from his residence. 4. COMPENSATION. (a) (i) During the Employment Term, the Corporation shall pay Executive an annual base salary (the "Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000). On each July 1st during the Term (commencing on July 1, 2005), Executive shall be entitled to receive a 10% increase in his Base Salary if the Corporation's Adjusted Net Income, as hereinafter defined, for the fiscal year ending on the most recent June 30th is at least $250,000 greater than the Adjusted Net Income for the prior fiscal year. If the Adjusted Net Income for the year is a loss, Executive shall be entitled to such increase in Base Salary if the loss for the fiscal year in question is less than the loss for the prior fiscal year by at least $250,000. Executive may receive an increase in his base salary greater than 10% or may receive an increase if the Corporation does not meet the performance criteria at the discretion of the Board of Directors, with Executive not participating in either the determination of the performance criteria or the amount of the increase in Base Salary. (ii) As used in this Agreement, Adjusted Net Income shall mean the Corporation's consolidated net income determined in accordance with generally accepted accounting principles consistently applied, as reported in its Form 10-KSB plus any non-cash expenses ("Security Issuance Expenses") incurred in connection with the issuance of equity securities in connection with the private placement or public offering of the Corporation's debt or equity securities. (b) Executive's Base Salary shall be paid in substantially equal installments on a basis consistent with the Corporation's payroll practices for senior executives. (c) For each fiscal year commencing on June 30, 2005, Executive shall be eligible for a discretionary bonus determined by the Board of Directors, with Executive not participating in either the determination of whether a bonus shall be paid or the amount of the bonus. (d) Effective as of the date of this Agreement, the Corporation has granted Executive a non-qualified stock option to purchase 10,000,000 shares of the Corporation's common stock at an exercise price equal to the last reported sales price of the Corporation's common stock on the OTC Bulletin Board on the date of this Agreement, being the date of grant. The option shall have an exercise period which expires on March 31, 2015, shall vest cumulatively as to 5,000,000 shares immediately and as to the remaining 5,000,000 shares one year from the date of this Agreement; provided, however, that if Executive's employment is terminated in accordance with Section 5.5 or Section 5.6 of this Agreement, all unvested options shall vest immediately. The option is non-transferable, and may be exercisable only by Executive, or, in the event of his death or incompetence, by his legal representative. In the event of Executive's death, the option may be exercised during the period ending on the later of the expiration date of the option or one year from the date of death. (e) The Corporation shall issue to Executive 4,000,000 shares of series C preferred stock of the Corporation ( "Preferred Stock"). The shares of Preferred Stock have a liquidation preference of $.01 per share, and after payment of the liquidation preference, the holders of the Preferred Stock would share on a share-for-share basis with the holders of the Common Stock on an "as if converted" basis. Each share of Preferred Stock is convertible into one share of common stock if the Company has either consolidated annual net revenue, determined in accordance with generally accepted accounting principles, of at least $6,000,000 or consolidated net income before taxes and Security Issuance Expenses, as reported in the Corporations' Form 10-KSB, of at least $250,000 for any fiscal year ending on or prior to July 1, 2010 or if there is a change in control as defined in section 5.5 of this Agreement. In the event that the neither the revenue or the net income before taxes and Security Issuance Expenses set forth in the preceding sentence shall have been met by the Corporation's last fiscal year ending on or prior to July 1, 2010, the holders of the Preferred Stock shall have no rights thereunder, and the holders of the Preferred Stock shall be required to convey all of the shares of Preferred Stock to the Corporation without consideration. The certificates for the shares of Preferred Stock shall bear a legend referred to this obligation on the part of the holder. Executive shall pay or provide for any withholding taxes due in connection with the issuance and/or conversion of the Preferred Stock. (f) During the Term, the Corporation shall promptly reimburse Executive for all reasonable and necessary travel expenses and other disbursements incurred by Executive on behalf of the Corporation in performance of Executive's duties hereunder, assuming Executive has received prior approval for such travel expenses and disbursements by the Corporation to the extent possible, consistent with the Corporation's policies with respect to the reimbursement of expenses; provided, however, that during the Consulting Term, all expenses shall require prior approval by the Corporation. (g) During the Employment Term, Executive shall be entitled to participate in such pension, profit sharing, group insurance, option plans, hospitalization, and group health and benefit plans and all other benefits and plans as the Corporation provides to its senior executives. During the Consulting Term, Executive shall be entitled to participate in such profit sharing, hospitalization and group health plans and benefits are the Corporation provides to its senior executive officers. (h) Notwithstanding anything to the contrary in this Agreement, any remuneration under this Agreement or any other agreements to which the Corporation and Executive are parties in respect of employment that is not deductible for any taxable year of the Corporation because of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") will, at the election of the Corporation, be deferred until the first day that any excess remuneration becomes deductible under Section 162(m) or by virtue of its repeal or amendment. Any such deferred payment will bear interest at the prime rate of JP Morgan Chase Bank, NA plus one percentage point beginning with the date such payment is first deferred. For purposes of determining prime rate, the prime rate in effect on the first day of a calendar quarter shall be the prime rate for the entire quarter. Notwithstanding any provision in this Agreement to the contrary, this Section 4.8 shall survive the termination of this Agreement. (i) During the Consulting Term, Executive shall be entitled to compensation at the annual rate equal to 50% of the sum of (a) Executive's Base Salary in effect on the day prior to the first day of the Consulting Term, and (b) the Bonus, if any, that Executive received for the last fiscal year ending prior to the commencement of the Consulting Term. (j) The Company acknowledges that Executive has advanced money to its subsidiary, CCS International, Inc. ("CCS"). The Corporation hereby unconditionally and irrevocably guarantees the full and prompt payment to Executive of all of the obligations of CCS to Executive in respect of the principal and interest due with respect to such advances, up to a maximum obligation on the part of the Corporation of $738,000. Payments of the Corporation's obligations pursuant to this Section 4(j) can only be made from cash flow from operations not required for the Corporation's business. The liability of the Corporation hereunder shall be direct and immediate and not conditional or contingent upon the pursuance by Executive of any rights or remedies he may have, at law or in equity, against CCS. The Corporation hereby waives presentment for payment, demand, protest and notice of protest and of non-payment of any of CCS' obligations to Executive. 5. TERMINATION. (a) This Agreement shall terminate upon the death of Executive; provided, however, that the Corporation shall continue to pay to the estate of Executive the Base Salary in effect on the date of this death until the earlier of twelve (12) month period following Executive's death or the end of the Employment Term. (b) This Agreement and Executive's employment may be terminated by Executive or the Corporation on not less than thirty (30) days' written notice in the event of Executive's Disability. The term "Disability" shall mean any illness, disability or incapacity of Executive which prevents him from substantially performing his regular duties for a period of ninety (90) consecutive days or one hundred eighty (180) days, even though not consecutive, in any twelve (12) month period. In the event Executive's employment is terminated pursuant to this Section 5.2, the Corporation shall have no further obligations to Executive with respect to this Agreement. (c) (i) In the event Executive is discharged for Cause, as hereinafter defined, or in the event that Executive resigns, other than pursuant to Section 5.5 or 5.6 of this Agreement, then upon such occurrence, this Agreement and Executive's employment shall be deemed terminated, and the Corporation shall have no further obligations to Executive with respect to this Agreement, except obligations accrued prior to such termination and except as provided in Section 3.3 of this Agreement. (ii) Cause shall mean: (A) the conviction of, or pleading guilty or nolo contendere to, any felony; or (B) the conviction, or pleading guilty or nolo contendere to, any crime (other than a felony) involving moral turpitude; or (C) gross negligence or willful misconduct in the conduct of Executive's duties or willful or repeated failure or refusal to perform such duties as may be delegated to Executive by the Board of Directors which are consistent with Executive's position, and that as to any conduct concerning this Section 5.3(b)(iii), such conduct is not corrected by Executive within fourteen (14) days following receipt by Executive of written notice from the Board of Directors, such notice to state with reasonable specificity the nature of the breach, failure or refusal, gross negligence or willful misconduct related to Executive's employment with the Corporation; or (D) violation of the provisions of Section 7 or 8 of this Agreement.. (d) In the event that Executive's employment is terminated other than pursuant to Section 5.1, 5.2 or 5.3 of this Agreement, or in the event of a termination by Executive for Good Reason, as hereinafter defined, then the Corporation shall pay the following amount to Executive the product of (a) Executive's Base Salary on the date of such termination plus the Bonus paid (or payable) to Executive for the fiscal year immediately preceding the date of such termination multiplied by the number of full or partial months remaining in the Employment Term divided by twelve (12). Such amount shall be paid within thirty (30) days of the date of termination. (e) (i) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Executive's employment shall have been terminated by the Corporation (other than pursuant to Section 4.1, 4.2 or 4.3), or by Executive: (A) all unvested options to acquire stock of the Corporation held by Executive shall vest on the date of termination; (B) the Corporation shall make a lump sum cash payment to Executive within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) six (6) times the total compensation received by Executive pursuant to Sections 4.1 and 4.3 of this Agreement for the preceding fiscal year. (ii) In the event that any payment (or portion thereof) to Executive under Section 5.5(a) is determined to constitute an "excess parachute payment," under Sections 280G and 4999 of the Code, the following calculations shall be made: (A) The after-tax value to Executive of the payments under Section 5.5(a) without any reduction; and (B) The after-tax value to Executive of the payments under Section 5.5(a) as reduced to the maximum amount (the "Maximum Amount") which may be paid to Executive without any portion of the payments constituting an "excess parachute payment." (C) If after applying the calculations set forth above, it is determined that the after-tax value determined under clause (ii) above is greater than the after-tax value determined under clause (i) above, the payments to Executive under Section 5.5(a) shall be reduced to the Maximum Amount. (iii) As used herein, the term "Change of Control" shall mean: (A) When any "person" as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as used in Section 13(d) and 14(d) thereof including a "group" as defined in Section 13(d) of the Exchange Act, but excluding the Corporation or any subsidiary or any affiliate of the Corporation or any employee benefit plan sponsored or maintained by the Corporation or any subsidiary of the Corporation (including any trustee of such plan acting as trustee), becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the Corporation representing a majority of the combined voting power of the Corporation's then outstanding securities; or (B) When, during any period of twenty-four (24) consecutive months, the individuals who, at the beginning of such period, constitute the Board of Directors (the "Incumbent Directors") cease for any reason other than death to constitute at least a majority thereof provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or through the operation of this proviso; or (C) The occurrence of a transaction requiring stockholder approval for the acquisition of the Corporation by an entity other than the Corporation or a subsidiary or an affiliated company of the Corporation through purchase of assets, or by merger, or otherwise, except for a merger or other reorganization the principal purpose of which is to changes the state of the Corporation's domicile and which does not otherwise result in a Change of Control. (f) Executive may terminate this Agreement for Good Reason. As used herein, the term "Good Reason" shall mean the occurrence of any of the following: (i) the assignment to Executive, without his consent, of any duties inconsistent in any substantial and negative respect with his positions, duties, responsibilities and status with the Corporation as contemplated hereunder, if not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (ii) the removal of Executive, without his consent, from any positions or offices Executive held as contemplated hereunder (except in connection with the termination of Executive's employment by the Corporation for Cause or on account of Total Disability pursuant to the requirements of this Agreement), if not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (iii) a reduction by the Corporation, without the consent of Executive, of Executive's Base Salary as in effect as contemplated hereunder or a reduction in any formula used in computing Executive's compensation pursuant to Section 4 of this Agreement; (iv) any material breach by the Corporation of the terms of this Agreement that is not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (v) the relocation of Executive's work location, without Executive's consent, to a place more than seventy five (75) miles from the location set forth herein; or 6. VACATION. During the Employment Term, Executive shall be entitled to a vacation of four (4) weeks per year, during which period his Base Salary shall be paid in full. Executive shall take his vacation at such time or times as Executive and the Corporation shall determine is mutually convenient. 7. CONFIDENTIAL INFORMATION; INVENTIONS. (a) Executive recognizes and acknowledges that the Corporation, through the expenditure of considerable time and money, has developed and will continue to develop in the future information concerning customers, clients, marketing, products, services, business, research and development activities and operational methods of the Corporation and its customers or clients, contracts, financial or other data, technical data or any other confidential or proprietary information possessed, owned or used by the Corporation, the disclosure of which could or does have a material adverse effect on the Corporation, its business, any business it proposes to engage in, its operations, financial condition or prospects and that the same are confidential and proprietary and considered "confidential information" of the Corporation for the purposes of this Agreement. In consideration of his employment, Executive agrees that he will not, during or after the Term, without the consent of the Board of Directors, make any disclosure of confidential information now or hereafter possessed by the Corporation, to any person, partnership, corporation or entity either during or after the term here of, except that nothing in this Agreement shall be construed to prohibit Executive from using or disclosing such information (a) during the Term, if such disclosure is necessary in the normal course of the Corporation's business in accordance with Corporation policies or instructions or authorization from the Board, or (b) during or after the Term if such information shall become public knowledge other than by or as a result of disclosure by a person not having a right to make such disclosure, or (c) subsequent to the Term, if such information shall have either (i) been developed by Executive independent of any of the Corporation's confidential or proprietary information or (ii) been disclosed to Executive by a person not subject to a confidentiality agreement with or other obligation of confidentiality to the Corporation. (b) In the event that any trade secrets or other confidential information covered by Section 7.1 of this Agreement is required to be produced by Executive pursuant to legal process, Executive shall give the Corporation notice of such legal process within a reasonable time, but not later than ten (10) business days prior to the date such disclosure is to be made, unless Executive has received less notice, in which event Executive shall immediately notify the Corporation. The Corporation shall have the right to object to any such disclosure, and if the Corporation objects (at the Corporation's cost and expense) in a timely manner so that Executive is not subject to penalties for failure to make such disclosure, Executive shall not make any disclosure until there has been a court determination on the Corporation's objections. If disclosure is required by a court order, final beyond right of review, or if the Corporation does not object to the disclosure, Executive shall make disclosure only to the extent that disclosure is unequivocally required by the court order, and Executive will exercise reasonable efforts at the Corporation's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. (c) Executive agrees promptly to disclose in writing to the Corporation any invention, design, system, process, development or other discovery (collectively, "inventions and discoveries") conceived, created or made by him during the period of time that this Agreement remains in full force and effect, whether during or after working hours, in any business in which the Corporation is then engaged or which otherwise relates to any product or service dealt in by the Corporation and such inventions and discoveries shall be the Corporation's sole property, regardless of whether such inventions and discoveries are otherwise treated as work performed for hire and regardless of whether such inventions and discoveries are or can be patented, registered or copyrighted. Upon the Corporation's request, Executive shall execute and assign to the Corporation all applications for copyrights, trademarks and letters patent of the United States and such foreign countries as the Corporation may designate, and Executive shall execute and deliver to the Corporation such other instruments as the Corporation deems necessary to vest in the Corporation the sole ownership of all rights, title and interest in and to such inventions and discoveries, as well as all copyrights and/or patents. Executive shall also give the Corporation all assistance it may reasonably require, including the giving of testimony in any suit, action, investigation or other proceeding in connection with the foregoing. If services in connection with applications for copyrights and/or patents are performed by Executive at the Corporation's request after the termination of his employment and consultancy hereunder, the Corporation shall pay him reasonable compensation for such services rendered after termination of this Agreement. (d) For the purposes of Sections 7 and 8 of this Agreement, the term "Corporation" shall include the Corporation, its parent, its subsidiaries and affiliates, other than affiliates whose relationship as an affiliate is derived solely from Executive's interest in or position at the affiliate. 8. COVENANT NOT TO COMPETE. (a) Executive recognizes that the services to be performed by him hereunder are special, unique and extraordinary. The parties confirm that it is reasonably necessary for the protection of the Corporation that Executive agree, and accordingly, Executive does hereby agree that, except as provided in Section 8.3 of this Agreement, he shall not, directly or indirectly, at any time during the Restricted Period within the Restricted Area (as such terms are defined in Section 8.4 of this Agreement), engage in any Competitive Business (as defined in said Section 8.4), either on his own behalf or as an officer, director, stockholder, partner, principal, trustee, investor, consultant, associate, employee, owner, agent, creditor, guarantor, independent contractor, co-venturer of any third party or in any other relationship or capacity. (b) Executive hereby agrees that he will not, directly or indirectly, for or on behalf of himself or any third party, at any time during the Restricted Period (i) solicit any customers of the Corporation or (ii) solicit, employ or engage, or cause, encourage or authorize, directly or indirectly, to be employed or engaged, for or on behalf of himself or any third party, any employee or agent of the Corporation. (c) This Section 8 shall not be construed to prevent Executive from owning, directly and indirectly, in the aggregate, an amount not exceeding three percent (3%) of the issued and outstanding voting securities of any class of any corporation whose voting capital stock is traded on a national securities exchange or in the over-the-counter market. (d) The term "Restricted Period," as used in this Section 8, shall mean the period of Executive's employment or consultancy hereunder plus twenty-four (24) months after the date Executive is no longer employed by the Corporation or engaged as a consultant. The term "Restricted Area" as used in this Section 8 shall mean anywhere in the world. The term "Competitive Business" as used in this Agreement shall mean the design, manufacture, sale, marketing or distribution of products in the categories of products sold by, or under license from, or under development by the Corporation or any of its affiliates. 9. INJUNCTIVE RELIEF. Executive agrees that his violation or threatened violation of any of the provisions of Sections 7 or 8 of this Agreement shall cause immediate and irreparable harm to the Corporation. In the event of any breach or threatened breach of any of said provisions, Executive consents to the entry of preliminary and permanent injunctions by a court of competent jurisdiction prohibiting Executive from any violation or threatened violation of such provisions and compelling Executive to comply with such provisions. This Section 9 shall not affect or limit, and the injunctive relief provided in this Section 9 shall be in addition to, any other remedies available to the Corporation at law or in equity or in arbitration for any such violation by Executive. The provisions of Sections 7, 8 and 9 of this Agreement shall survive any termination of this Agreement and Executive's employment and consultancy pursuant to this Agreement. 10. REASONABLENESS OF COVENANTS. Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 7 and 8 hereof. Executive agrees that said restraints are necessary for the reasonable and proper protection of the Corporation and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time, geographic area and otherwise. Executive further acknowledges that, in the event any provision of Sections 7 and 8 hereof shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area, too great a range of activities or otherwise, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. 11. MISCELLANEOUS. (a) The Corporation shall provide Executive with indemnification and payment of legal fees to the maximum extent permitted by the Corporation's Certificate of Incorporation, By-Laws, and the laws of the jurisdiction under which the Corporation is organized. (b) The invalidity or partial invalidity of one or more provisions of this Agreement shall not invalidate any other provision of this Agreement. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (c) Neither Executive nor the Corporation may assign or delegate any of their rights or duties under this Agreement without the express written consent of the other, except the Corporation may transfer its rights and duties in connection with a sale of all or substantially all of its assets or in connection with a merger, consolidation or other business combination. (d) This Agreement constitutes and embodies the full and complete understanding and agreement of the parties with respect to Executive's employment by the Corporation, supersedes all prior understandings and agreements, whether oral or written, between Executive and the Corporation, including the Prior Agreement, and shall not be amended or modified except by an instrument in writing which expressly states that it is an amendment or modification and is executed by both Parties. (e) No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. Any waiver of any provision hereof shall be effective only to the extent specifically set forth in an applicable writing. All remedies afforded to either party under this Agreement, by law or otherwise, shall be cumulative and not alternative and shall not preclude assertion by such party of any other rights or the seeking of any other rights or remedies against any other party. (f) This Agreement shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their respective successors, heirs, beneficiaries and permitted assigns. t 12 (g) The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (h) Any and all notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or by messenger or overnight courier service which provides evidence of delivery to the party at the address set forth at the beginning of this Agreement or to such other address as either party may hereafter give notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the date of attempted delivery if delivery is refused. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to such State's principles of conflicts of laws and each of the Parties irrevocably consents to the jurisdiction and venue of the federal and state courts located in the State of New York, County of New York or Westchester, and (ii) waives any claim that the jurisdiction of any such court is not a convenient forum for any such action and any defense of lack of in personam jurisdiction with respect thereof. (j) This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. SECURITY INTELLIGENCE TECHNOLOGIES, INC. By: /s/ Chris R. Decker -------------------------------------- Name: Chris R. Decker Title: Chief Financial Officer By: /s/ Ben Jamil -------------------------------- Name: Ben Jamil EX-99.2 3 v014727_ex99-2.txt Exhibit 99.2 EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT, dated as of March 20, 2005, by and between Security Intelligence Technologies, Inc., a Florida corporation with offices at 145 Huguenot Street, New Rochelle, NY 10801 (the "Corporation"), and Chris R. Decker, whose address is 17 Esmond Place, Tenafly, NJ 07670 ("Executive," and, together with the Corporation, the "Parties"). WITNESSETH: WHEREAS, the Executive is presently serving as the Corporation's chief financial officer; and WHEREAS, the Corporation wishes to continue to employ Executive in such capacity and Executive wishes to accept such employment on and subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the parties hereby agree as follows: 1. EMPLOYMENT. The Corporation hereby employs Executive and Executive hereby accepts such employment, as an executive officer of the Corporation, subject to the terms and conditions set forth in this Agreement. 2. DUTIES. (a) Executive shall serve as the Corporation's Chief Financial Officer, and he shall have the duties and responsibilities associated with the chief financial officer of a public corporation. Additionally, during the Employment Term, as hereinafter defined, the Corporation shall include Executive as one of the board of directors' nominees for election as a director. Executive shall report to the Corporation's board of directors (the "Board of Directors"). Executive shall also perform such other duties and responsibilities as may be determined by the Board, as long as such duties and responsibilities are consistent with those of the Chief Financial Officer. (b) Executive shall serve as a director of the Corporation and any of its subsidiaries, if elected, and in such executive capacity or capacities with respect to any affiliate of the Corporation to which he may be elected or appointed, provided that such duties are consistent with those of the Corporation's Chief Financial Officer. Executive shall receive no additional compensation for services rendered pursuant to this Section 2.2. (c) During the Employment Term, Executive shall devote substantially all of his business time and efforts to the performance of his duties hereunder unless otherwise authorized by the Board of Directors. Executive shall not be precluded from engaging in charitable and community activities, managing his personal and financial affairs and engaging in other non-competitive activities, provided that such activities shall not interfere in any material way with Executive's duties pursuant to this Agreement. 3. TERM. (a) The term of Executive's employment, unless sooner terminated as provided herein, shall be for a period of five (5) years commencing on the date hereof and ending on March 31, 2010 (the "Initial Term") and shall continue on a year-to-year basis thereafter unless terminated by either the Corporation or Executive on not less than three (3) months written notice prior to the expiration of the Initial Term or any one-year extension. The Initial Term and the one-year extensions, if any, are collectively referred to as the "Employment Term." (b) Notwithstanding the provisions of Section 3.1 of this Agreement, as long as this Agreement shall not have been terminated pursuant to Section 5 of this Agreement, Executive, on ninety (90) days written notice to the Board of Directors, shall have the right to terminate the Employment Term, in which event the Employment Term shall end on the date set forth in such notice with the same effect as if such date were the last day of the Employment Term set forth in Section 3.1 of this Agreement. (c) Immediately following the Employment Term, whether the Employment Term shall have expired pursuant to Section 3.1 of this Agreement or terminated by the Executive pursuant to Section 3.2, but excluding any termination of employment pursuant to Section 5 of this Agreement, Executive shall have the right, at his election, to serve as a consultant to the Corporation during the Consulting Term. The Consulting Term shall mean the two (2) year period immediately following the expiration or termination of the Employment Term. The Employment Term and the Consulting Term are collectively referred to as the Term. (d) During the Consulting Term, Executive shall serve as a consultant to the Corporation and shall report to such executive officer as shall be designated by the Corporation's chief executive officer. The nature of Executive's services during the Consulting Term shall be as mutually agreed upon by the Corporation's chief executive officer and Executive, and may include services relating to the Corporation's strategy for marketing its products and developing its business plan. Executive shall be required to devote such time to his services for the Corporation as he may determine, it being understood that the services being rendered during the Consulting Term shall not be the Executive's principal activity and that the Executive may engage in such business, charitable and personal activities as he may determine, subject to the provisions of Sections 7 and 8 of this Agreement. In rendering services during the Consulting Term, the Corporation shall not require the Executive to perform services which would interfere with his other business, charitable and personal activities or which would require him to return from or change his plans for any vacations, and, if he so elects, the Executive may perform such services from his residence. 4. COMPENSATION. (a) (i) During the Employment Term, the Corporation shall pay Executive an annual base salary (the "Base Salary") of one hundred twenty thousand dollars ($120,000). On each July 1st during the Term (commencing on July 1, 2005), Executive shall be entitled to receive a 10% increase in his Base Salary if the Corporation's Adjusted Net Income, as hereinafter defined, for the fiscal year ending on the most recent June 30th is at least $250,000 greater than the Adjusted Net Income for the prior fiscal year. If the Adjusted Net Income for the year is a loss, Executive shall be entitled to such increase in Base Salary if the loss for the fiscal year in question is less than the loss for the prior fiscal year by at least $250,000. Executive may receive an increase in his base salary greater than 10% or may receive an increase if the Corporation does not meet the performance criteria at the discretion of the Board of Directors, with Executive not participating in either the determination of the performance criteria or the amount of the increase in Base Salary. (ii) As used in this Agreement, Adjusted Net Income shall mean the Corporation's consolidated net income determined in accordance with generally accepted accounting principles consistently applied, as reported in its Form 10-KSB plus any non-cash expenses ("Security Issuance Expenses") incurred in connection with the issuance of equity securities in connection with the private placement or public offering of the Corporation's debt or equity securities. (b) Executive's Base Salary shall be paid in substantially equal installments on a basis consistent with the Corporation's payroll practices for senior executives. (c) For each fiscal year commencing on June 30, 2005, Executive shall be eligible for a cash bonus determined by the Board of Directors, with Executive not participating in the determination of the amount of the bonus, however, the bonus will not be less than 10% of Executive's Base Salary. (d) Effective as of the date of this Agreement, the Corporation has granted Executive a non-qualified stock option to purchase 1,000,000 shares of the Corporation's common stock at an exercise price equal to the last reported sales price of the Corporation's common stock on the OTC Bulletin Board on the date of this Agreement, being the date of grant. The option shall have an exercise period which expires on March 31, 2015, shall vest cumulatively as to 500,000 shares immediately and as to the remaining 500,000 shares one year from the date of this Agreement; provided, however, that if Executive's employment is terminated in accordance with Section 5.5 or Section 5.6 of this Agreement, all unvested options shall vest immediately. The option is non-transferable, and may be exercisable only by Executive, or, in the event of his death or incompetence, by his legal representative. In the event of Executive's death, the option may be exercised during the period ending on the later of the expiration date of the option or one year from the date of death. (e) The Corporation shall issue to Executive 1,000,000 shares of series C preferred stock of the Corporation ( "Preferred Stock"). The shares of Preferred Stock have a liquidation preference of $.01 per share, and after payment of the liquidation preference, the holders of the Preferred Stock would share on a share-for-share basis with the holders of the Common Stock on an "as if converted" basis. Each share of Preferred Stock is convertible into one share of common stock if the Company has either consolidated annual net revenue, determined in accordance with generally accepted accounting principles, of at least $6,000,000 or consolidated net income before taxes and Security Issuance Expenses, as reported in the Corporations' Form 10-KSB, of at least $250,000 for any fiscal year ending on or prior to July 1, 2010 or if there is a change in control as defined in section 5.5 of this Agreement. In the event that the neither the revenue or the net income before taxes and Security Issuance Expenses set forth in the preceding sentence shall have been met by the Corporation's last fiscal year ending on or prior to July 1, 2010, the holders of the Preferred Stock shall have no rights thereunder, and the holders of the Preferred Stock shall be required to convey all of the shares of Preferred Stock to the Corporation without consideration. The certificates for the shares of Preferred Stock shall bear a legend referred to this obligation on the part of the holder. Executive shall pay or provide for any withholding taxes due in connection with the issuance and/or conversion of the Preferred Stock. (f) During the Term, the Corporation shall promptly reimburse Executive for all reasonable and necessary travel expenses and other disbursements incurred by Executive on behalf of the Corporation in performance of Executive's duties hereunder, assuming Executive has received prior approval for such travel expenses and disbursements by the Corporation to the extent possible, consistent with the Corporation's policies with respect to the reimbursement of expenses; provided, however, that during the Consulting Term, all expenses shall require prior approval by the Corporation. (g) During the Employment Term, Executive shall be entitled to participate in such pension, profit sharing, group insurance, option plans, hospitalization, and group health and benefit plans and all other benefits and plans as the Corporation provides to its senior executives. During the Consulting Term, Executive shall be entitled to participate in such profit sharing, hospitalization and group health plans and benefits are the Corporation provides to its senior executive officers. (h) Notwithstanding anything to the contrary in this Agreement, any remuneration under this Agreement or any other agreements to which the Corporation and Executive are parties in respect of employment that is not deductible for any taxable year of the Corporation because of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") will, at the election of the Corporation, be deferred until the first day that any excess remuneration becomes deductible under Section 162(m) or by virtue of its repeal or amendment. Any such deferred payment will bear interest at the prime rate of JP Morgan Chase Bank, NA plus one percentage point beginning with the date such payment is first deferred. For purposes of determining prime rate, the prime rate in effect on the first day of a calendar quarter shall be the prime rate for the entire quarter. Notwithstanding any provision in this Agreement to the contrary, this Section 4.8 shall survive the termination of this Agreement. (i) During the Consulting Term, Executive shall be entitled to compensation at the annual rate equal to 50% of the sum of (a) Executive's Base Salary in effect on the day prior to the first day of the Consulting Term, and (b) the Bonus, if any, that Executive received for the last fiscal year ending prior to the commencement of the Consulting Term. 5. TERMINATION. (a) This Agreement shall terminate upon the death of Executive; provided, however, that the Corporation shall continue to pay to the estate of Executive the Base Salary in effect on the date of this death until the earlier of twelve (12) month period following Executive's death or the end of the Employment Term. (b) This Agreement and Executive's employment may be terminated by Executive or the Corporation on not less than thirty (30) days' written notice in the event of Executive's Disability. The term "Disability" shall mean any illness, disability or incapacity of Executive which prevents him from substantially performing his regular duties for a period of ninety (90) consecutive days or one hundred eighty (180) days, even though not consecutive, in any twelve (12) month period. In the event Executive's employment is terminated pursuant to this Section 5.2, the Corporation shall have no further obligations to Executive with respect to this Agreement. (c) (i) In the event Executive is discharged for Cause, as hereinafter defined, or in the event that Executive resigns, other than pursuant to Section 5.5 or 5.6 of this Agreement, then upon such occurrence, this Agreement and Executive's employment shall be deemed terminated, and the Corporation shall have no further obligations to Executive with respect to this Agreement, except obligations accrued prior to such termination and except as provided in Section 3.3 of this Agreement. (ii) Cause shall mean: (A) the conviction of, or pleading guilty or nolo contendere to, any felony; or (B) the conviction, or pleading guilty or nolo contendere to, any crime (other than a felony) involving moral turpitude; or (C) gross negligence or willful misconduct in the conduct of Executive's duties or willful or repeated failure or refusal to perform such duties as may be delegated to Executive by the Board of Directors which are consistent with Executive's position, and that as to any conduct concerning this Section 5.3(b)(iii), such conduct is not corrected by Executive within fourteen (14) days following receipt by Executive of written notice from the Board of Directors, such notice to state with reasonable specificity the nature of the breach, failure or refusal, gross negligence or willful misconduct related to Executive's employment with the Corporation; or (D) violation of the provisions of Section 7 or 8 of this Agreement.. (d) In the event that Executive's employment is terminated other than pursuant to Section 5.1, 5.2 or 5.3 of this Agreement, or in the event of a termination by Executive for Good Reason, as hereinafter defined, then the Corporation shall pay the following amount to Executive the product of (a) Executive's Base Salary on the date of such termination plus the Bonus paid (or payable) to Executive for the fiscal year immediately preceding the date of such termination multiplied by the number of full or partial months remaining in the Employment Term divided by twelve (12). Such amount shall be paid within thirty (30) days of the date of termination. (e) (i) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Executive's employment shall have been terminated by the Corporation (other than pursuant to Section 4.1, 4.2 or 4.3), or by Executive: (A) all unvested options to acquire stock of the Corporation held by Executive shall vest on the date of termination; (B) the Corporation shall make a lump sum cash payment to Executive within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) six (6) times the total compensation received by Executive pursuant to Sections 4.1 and 4.3 of this Agreement for the preceding fiscal year. (ii) In the event that any payment (or portion thereof) to Executive under Section 5.5(a) is determined to constitute an "excess parachute payment," under Sections 280G and 4999 of the Code, the following calculations shall be made: (A) The after-tax value to Executive of the payments under Section 5.5(a) without any reduction; and (B) The after-tax value to Executive of the payments under Section 5.5(a) as reduced to the maximum amount (the "Maximum Amount") which may be paid to Executive without any portion of the payments constituting an "excess parachute payment." (C) If after applying the calculations set forth above, it is determined that the after-tax value determined under clause (ii) above is greater than the after-tax value determined under clause (i) above, the payments to Executive under Section 5.5(a) shall be reduced to the Maximum Amount. (iii) As used herein, the term "Change of Control" shall mean: (A) When any "person" as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as used in Section 13(d) and 14(d) thereof including a "group" as defined in Section 13(d) of the Exchange Act, but excluding the Corporation or any subsidiary or any affiliate of the Corporation or any employee benefit plan sponsored or maintained by the Corporation or any subsidiary of the Corporation (including any trustee of such plan acting as trustee), becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the Corporation representing a majority of the combined voting power of the Corporation's then outstanding securities; or (B) When, during any period of twenty-four (24) consecutive months, the individuals who, at the beginning of such period, constitute the Board of Directors (the "Incumbent Directors") cease for any reason other than death to constitute at least a majority thereof provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or through the operation of this proviso; or (C) The occurrence of a transaction requiring stockholder approval for the acquisition of the Corporation by an entity other than the Corporation or a subsidiary or an affiliated company of the Corporation through purchase of assets, or by merger, or otherwise, except for a merger or other reorganization the principal purpose of which is to changes the state of the Corporation's domicile and which does not otherwise result in a Change of Control. (f) Executive may terminate this Agreement for Good Reason. As used herein, the term "Good Reason" shall mean the occurrence of any of the following: (i) the assignment to Executive, without his consent, of any duties inconsistent in any substantial and negative respect with his positions, duties, responsibilities and status with the Corporation as contemplated hereunder, if not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (ii) the removal of Executive, without his consent, from any positions or offices Executive held as contemplated hereunder (except in connection with the termination of Executive's employment by the Corporation for Cause or on account of Total Disability pursuant to the requirements of this Agreement), if not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (iii) a reduction by the Corporation, without the consent of Executive, of Executive's Base Salary as in effect as contemplated hereunder or a reduction in any formula used in computing Executive's compensation pursuant to Section 4 of this Agreement; (iv) any material breach by the Corporation of the terms of this Agreement that is not remedied by the Corporation within thirty (30) days after receipt of written notice thereof from Executive; (v) the relocation of Executive's work location, without Executive's consent, to a place more than seventy five (75) miles from the location set forth herein; or 6. VACATION. During the Employment Term, Executive shall be entitled to a vacation of four (4) weeks per year, during which period his Base Salary shall be paid in full. Executive shall take his vacation at such time or times as Executive and the Corporation shall determine is mutually convenient. 7. CONFIDENTIAL INFORMATION; INVENTIONS. (a) Executive recognizes and acknowledges that the Corporation, through the expenditure of considerable time and money, has developed and will continue to develop in the future information concerning customers, clients, marketing, products, services, business, research and development activities and operational methods of the Corporation and its customers or clients, contracts, financial or other data, technical data or any other confidential or proprietary information possessed, owned or used by the Corporation, the disclosure of which could or does have a material adverse effect on the Corporation, its business, any business it proposes to engage in, its operations, financial condition or prospects and that the same are confidential and proprietary and considered "confidential information" of the Corporation for the purposes of this Agreement. In consideration of his employment, Executive agrees that he will not, during or after the Term, without the consent of the Board of Directors, make any disclosure of confidential information now or hereafter possessed by the Corporation, to any person, partnership, corporation or entity either during or after the term here of, except that nothing in this Agreement shall be construed to prohibit Executive from using or disclosing such information (a) during the Term, if such disclosure is necessary in the normal course of the Corporation's business in accordance with Corporation policies or instructions or authorization from the Board, or (b) during or after the Term if such information shall become public knowledge other than by or as a result of disclosure by a person not having a right to make such disclosure, or (c) subsequent to the Term, if such information shall have either (i) been developed by Executive independent of any of the Corporation's confidential or proprietary information or (ii) been disclosed to Executive by a person not subject to a confidentiality agreement with or other obligation of confidentiality to the Corporation. (b) In the event that any trade secrets or other confidential information covered by Section 7.1 of this Agreement is required to be produced by Executive pursuant to legal process, Executive shall give the Corporation notice of such legal process within a reasonable time, but not later than ten (10) business days prior to the date such disclosure is to be made, unless Executive has received less notice, in which event Executive shall immediately notify the Corporation. The Corporation shall have the right to object to any such disclosure, and if the Corporation objects (at the Corporation's cost and expense) in a timely manner so that Executive is not subject to penalties for failure to make such disclosure, Executive shall not make any disclosure until there has been a court determination on the Corporation's objections. If disclosure is required by a court order, final beyond right of review, or if the Corporation does not object to the disclosure, Executive shall make disclosure only to the extent that disclosure is unequivocally required by the court order, and Executive will exercise reasonable efforts at the Corporation's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. (c) Executive agrees promptly to disclose in writing to the Corporation any invention, design, system, process, development or other discovery (collectively, "inventions and discoveries") conceived, created or made by him during the period of time that this Agreement remains in full force and effect, whether during or after working hours, in any business in which the Corporation is then engaged or which otherwise relates to any product or service dealt in by the Corporation and such inventions and discoveries shall be the Corporation's sole property, regardless of whether such inventions and discoveries are otherwise treated as work performed for hire and regardless of whether such inventions and discoveries are or can be patented, registered or copyrighted. Upon the Corporation's request, Executive shall execute and assign to the Corporation all applications for copyrights, trademarks and letters patent of the United States and such foreign countries as the Corporation may designate, and Executive shall execute and deliver to the Corporation such other instruments as the Corporation deems necessary to vest in the Corporation the sole ownership of all rights, title and interest in and to such inventions and discoveries, as well as all copyrights and/or patents. Executive shall also give the Corporation all assistance it may reasonably require, including the giving of testimony in any suit, action, investigation or other proceeding in connection with the foregoing. If services in connection with applications for copyrights and/or patents are performed by Executive at the Corporation's request after the termination of his employment and consultancy hereunder, the Corporation shall pay him reasonable compensation for such services rendered after termination of this Agreement. (d) For the purposes of Sections 7 and 8 of this Agreement, the term "Corporation" shall include the Corporation, its parent, its subsidiaries and affiliates, other than affiliates whose relationship as an affiliate is derived solely from Executive's interest in or position at the affiliate. 8. COVENANT NOT TO COMPETE. (a) Executive recognizes that the services to be performed by him hereunder are special, unique and extraordinary. The parties confirm that it is reasonably necessary for the protection of the Corporation that Executive agree, and accordingly, Executive does hereby agree that, except as provided in Section 8.3 of this Agreement, he shall not, directly or indirectly, at any time during the Restricted Period within the Restricted Area (as such terms are defined in Section 8.4 of this Agreement), engage in any Competitive Business (as defined in said Section 8.4), either on his own behalf or as an officer, director, stockholder, partner, principal, trustee, investor, consultant, associate, employee, owner, agent, creditor, guarantor, independent contractor, co-venturer of any third party or in any other relationship or capacity. (b) Executive hereby agrees that he will not, directly or indirectly, for or on behalf of himself or any third party, at any time during the Restricted Period (i) solicit any customers of the Corporation or (ii) solicit, employ or engage, or cause, encourage or authorize, directly or indirectly, to be employed or engaged, for or on behalf of himself or any third party, any employee or agent of the Corporation. (c) This Section 8 shall not be construed to prevent Executive from owning, directly and indirectly, in the aggregate, an amount not exceeding three percent (3%) of the issued and outstanding voting securities of any class of any corporation whose voting capital stock is traded on a national securities exchange or in the over-the-counter market. (d) The term "Restricted Period," as used in this Section 8, shall mean the period of Executive's employment or consultancy hereunder plus twenty-four (24) months after the date Executive is no longer employed by the Corporation or engaged as a consultant. The term "Restricted Area" as used in this Section 8 shall mean anywhere in the world. The term "Competitive Business" as used in this Agreement shall mean the design, manufacture, sale, marketing or distribution of products in the categories of products sold by, or under license from, or under development by the Corporation or any of its affiliates. 9. INJUNCTIVE RELIEF. Executive agrees that his violation or threatened violation of any of the provisions of Sections 7 or 8 of this Agreement shall cause immediate and irreparable harm to the Corporation. In the event of any breach or threatened breach of any of said provisions, Executive consents to the entry of preliminary and permanent injunctions by a court of competent jurisdiction prohibiting Executive from any violation or threatened violation of such provisions and compelling Executive to comply with such provisions. This Section 9 shall not affect or limit, and the injunctive relief provided in this Section 9 shall be in addition to, any other remedies available to the Corporation at law or in equity or in arbitration for any such violation by Executive. The provisions of Sections 7, 8 and 9 of this Agreement shall survive any termination of this Agreement and Executive's employment and consultancy pursuant to this Agreement. 10. REASONABLENESS OF COVENANTS. Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 7 and 8 hereof. Executive agrees that said restraints are necessary for the reasonable and proper protection of the Corporation and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time, geographic area and otherwise. Executive further acknowledges that, in the event any provision of Sections 7 and 8 hereof shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area, too great a range of activities or otherwise, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. 11. MISCELLANEOUS. (a) The Corporation shall provide Executive with indemnification and payment of legal fees to the maximum extent permitted by the Corporation's Certificate of Incorporation, By-Laws, and the laws of the jurisdiction under which the Corporation is organized. (b) The invalidity or partial invalidity of one or more provisions of this Agreement shall not invalidate any other provision of this Agreement. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (c) Neither Executive nor the Corporation may assign or delegate any of their rights or duties under this Agreement without the express written consent of the other, except the Corporation may transfer its rights and duties in connection with a sale of all or substantially all of its assets or in connection with a merger, consolidation or other business combination. (d) This Agreement constitutes and embodies the full and complete understanding and agreement of the parties with respect to Executive's employment by the Corporation, supersedes all prior understandings and agreements, whether oral or written, between Executive and the Corporation, including the Prior Agreement, and shall not be amended or modified except by an instrument in writing which expressly states that it is an amendment or modification and is executed by both Parties. (e) No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. Any waiver of any provision hereof shall be effective only to the extent specifically set forth in an applicable writing. All remedies afforded to either party under this Agreement, by law or otherwise, shall be cumulative and not alternative and shall not preclude assertion by such party of any other rights or the seeking of any other rights or remedies against any other party. (f) This Agreement shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their respective successors, heirs, beneficiaries and permitted assigns. (g) The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (h) Any and all notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or by messenger or overnight courier service which provides evidence of delivery to the party at the address set forth at the beginning of this Agreement or to such other address as either party may hereafter give notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the date of attempted delivery if delivery is refused. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to such State's principles of conflicts of laws and each of the Parties irrevocably consents to the jurisdiction and venue of the federal and state courts located in the State of New York, County of New York or Westchester, and (ii) waives any claim that the jurisdiction of any such court is not a convenient forum for any such action and any defense of lack of in personam jurisdiction with respect thereof. (j) This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. SECURITY INTELLIGENCE TECHNOLOGIES, INC. By: /s/ Ben Jamil ------------------------------- Name: Ben Jamil Title: Chief Executive Officer By: /s/ Chris R. Decker ------------------------------ Name: Chris R. Decker EX-99.3 4 v014727_ex99-3.txt Exhibit 99.3 ARTICLES OF AMENDMENT OF THE ARTICLES OF INCORPORATION OF SECURITY INTELLIGENCE TECHNOLOGIES, INC. Pursuant to the provisions of section 607.0602, Florida Statutes Ben Jamil, chief executive officer of Security Intelligence Technologies, Inc., a Florida corporation, does hereby certify as follows: 1. The name of the corporation (the "Corporation") is Security Intelligence Technologies, Inc. 2. Exhibit A to these Articles of Amendment sets forth the text of the amendment determining the terms of a newly created series of preferred stock of the Corporation which is designated as the Series C Preferred Stock. 3. The amendment was duly adopted by the board of directors of the Corporation on March 18, 2005. IN WITNESS WHEREOF, the undersigned has executed these Articles of Amendment on March 18, 2005. /s/ Ben Jamil ---------------------------------- Ben Jamil, Chief Executive Officer Exhibit A Statement of Designations of the Series C Preferred Stock The designation of, the number of shares constituting, and the rights, preferences, privileges and restrictions relating to, the Series C Convertible Preferred Stock are as follows: 1. Designation and Number of Shares. (a) The designation of this series of five million (5,000,000) shares of preferred stock, par value $.0001 per share, created by the Board of Directors of the Corporation pursuant to the authority granted to it by the articles of incorporation of the Corporation is Series C Preferred Stock. (b) In the event of the conversion of shares of Series C Preferred Stock into this Corporation's common stock, par value $.0001 per share ("Common Stock"), pursuant to Section 4 of this Statement of Designation, or in the event that the Corporation shall otherwise acquire and cancel any shares of Series C Preferred Stock, or in the event that a Conversion Event, as hereinafter defined, shall not have occurred by July 1, 2010, the shares of Series C Preferred Stock so converted or otherwise acquired and canceled or cancelled as a result of the failure of a Conversion Event to occur shall have the status of authorized but unissued shares of preferred stock, without designation as to series until such stock is once more designated as part of a particular series by the Corporation's Board of Directors. In addition, if the Corporation shall not issue the maximum number of shares of Series C Preferred Stock, the Corporation may, from time to time, by resolution of the Board of Directors, reduce the number of shares of Series C Preferred Stock authorized, provided, that no such reduction shall reduce the number of authorized shares to a number which is less than the number of shares of Series C Preferred Stock then issued or reserved for issuance. The number of shares by which the Series C Preferred Stock is reduced shall have the status of authorized but unissued shares of Preferred Stock, without designation as to series, until such stock is once more designated as part of a particular Series C by the Corporation's Board of Directors. The Board of Directors shall cause to be filed with the Secretary of State of the State of Florida such certificate as shall be necessary to reflect any reduction in the number of shares constituting the Series C Preferred Stock. The Series C Preferred Stock shall be pari passu with the Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock of this Corporation as to dividends and upon voluntary or involuntary liquidation, dissolution or winding up. 2. Dividend Rights. The holders of the Series C Preferred Stock shall be entitled to receive such dividends, whether payable in cash, property or capital stock of the Corporation, if, when and as declared by the Board of Directors. In the event that the Board of Directors shall declare a dividend on the Common Stock, other than a dividend payable solely in shares of Common Stock, the Corporation shall pay to the holders of Series C Preferred Stock on the record date for the determination of the holders of Common Stock entitled to such dividend, a dividend per share of Series C Preferred Stock equal to the dividend which would have been paid if the Series C Preferred Stock had been converted into Common Stock on and as of such record date, regardless of whether a Conversion Event shall have occurred. Such dividend shall be paid on the same dividend payment date the dividend is paid to the holders of the Common Stock. Any dividends shall be paid only out of funds of this Corporation legally available therefor. 3. Voting Rights. (a) Except as otherwise required by law, the holders of the Series C Preferred Stock shall vote together with the Common Stock (and any other class or series of capital stock which have voting rights) as if the Series C Preferred Stock and such other classes or series of capital stock were a single class, with the holders of the Common Stock having one vote per share and the holders of the Series C Preferred Stock voting on an "as-converted" basis, regardless of whether a Conversion Event shall have occurred. Voting on an "as converted" basis means having such number of votes per share of Series C Preferred Stock as equals the number of shares of Common Stock into which the Series C Preferred Stock was convertible on the record date for determining holders of Common Stock entitled to vote, either at a meeting or by an action in writing in lieu of a meeting. (b) In the case where the holders of the Series C Preferred Stock vote as a single class as required by law, each share of Series C Preferred Stock shall be entitled to one vote. The holders of the Series C Preferred Stock will not be entitled to vote as a class with respect to the increase or decrease in the number of authorized shares of preferred stock. (c) The Corporation may create other series of preferred stock which may be senior or junior to or on a parity with the Series C Preferred Stock as to dividends and/or on voluntary or involuntary dissolution, liquidation or winding up without the consent of the holders of the Series C Preferred Stock. 4. Conversion into Common Stock. (a) Each holder of the Series C Preferred Stock will have the right, at any time and from time to time, after the occurrence of a Conversion Event to convert any shares of Series C Preferred Stock into shares of Common Stock. Conversion of the Series C Preferred Stock shall be effected by surrender of the certificate representing the shares of Series C Preferred Stock being converted to the transfer agent for the Series C Preferred Stock, or, if none shall have been appointed, to the Corporation, together with the form of notice of election to convert as may be provided from time to time by the Corporation. (b) A Conversion Event shall mean the first to occur of: (i) the first day following the end of such fiscal quarter in which the Corporation's consolidated revenue from the beginning of the fiscal year through the last day of quarter shall be at least $6,000,000; or (ii) the first day following the end of the first fiscal year in which the Corporation's consolidated adjusted net income is at least $250,000. Adjusted net income shall mean the Corporation's consolidated income before income taxes, determined in accordance with generally accepted accounting principles consistently applied, plus non-cash expenses incurred by the Corporation in connection with the issuance of equity securities in a private placement or public offering of the Corporation's debt or equity securities, but only to the extent that such expenses were deducted in calculating income before income taxes; or (iii) the date on which a change of control shall have occurred. A change of control" shall occur: (A) When any "person" as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as used in Section 13(d) and 14(d) thereof including a "group" as defined in Section 13(d) of the Exchange Act, but excluding the Corporation or any subsidiary or any affiliate of the Corporation or any employee benefit plan sponsored or maintained by the Corporation or any subsidiary of the Corporation (including any trustee of such plan acting as trustee), becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the Corporation representing a majority of the combined voting power of the Corporation's then outstanding securities; or (B) When, during any period of twenty-four (24) consecutive months, the individuals who, at the beginning of such period, constitute the Board of Directors (the "Incumbent Directors") cease for any reason other than death to constitute at least a majority thereof provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or through the operation of this proviso; or (C) Upon the occurrence of a transaction requiring stockholder approval for the acquisition of the Corporation by an entity other than the Corporation or a subsidiary or an affiliated company of the Corporation through purchase of assets, or by merger, or otherwise, except for a merger or other reorganization the principal purpose of which is to changes the state of the Corporation's domicile and which does not otherwise result in a change of control. (c) If a Conversion Event shall not have occurred by July 1, 2010, the rights of the holders of the Series C Preferred Stock shall terminate, and the holders of such shares shall transfer all of their shares of Series C Preferred Stock to the Corporation for no consideration. Certificates for the Series C Preferred Stock that are outstanding prior to a Conversion Event shall bear a legend referred to the provisions of this Section 4(c). (d) The "Conversion Rate" shall mean the number of shares of Common Stock issuable upon conversion of one (1) share of Series C Preferred Stock. The Conversion Rate shall be one (1) share of Common Stock for each share of Series C Preferred Stock, subject to adjustment in the event of any stock split, stock distribution, stock dividend, reverse split or any other similar recapitalization. (e) In case of any reclassification of the capital stock of the Corporation, consolidation or merger of the Corporation with or into another corporation, sale, lease or transfer of all or substantially all of the property and assets of the Corporation to another corporation, or voluntary or involuntary dissolution, liquidation or winding up of the Corporation shall be effected, then the Corporation shall cause to be mailed by first class mail to the record holders of Series C Preferred Stock at least ten (10) days prior to the effective date of such reclassification, consolidation, merger, conveyance, lease, dissolution, liquidation or winding up, as the case may be, a notice containing a brief description of the proposed action and stating the date on such reclassification, consolidation, merger, conveyance, lease, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which the holders of Common Stock or other securities shall receive cash or other property deliverable upon such reclassification, reorganization, consolidation, merger, conveyance, dissolution, liquidation or winding up. (f) Any consolidation or merger of the Corporation into another corporation in which the Corporation is not the surviving entity, will not be treated as a liquidation pursuant to Section 6(b) of this Statement of Designation if the merger or consolidation is approved by the holders of a majority of the shares of Series C Preferred Stock, in which event the Series C Preferred Stock shall be converted into cash, securities or property in accordance with the plan or merger or consolidation, as the case may be. Otherwise, the merger or consolidated shall be treated as a liquidation, dissolution or winding up of the Corporation under Section 6(b) of this Statement of Designation. (g) No fractional shares shall be issued upon conversion of the Series C Preferred Stock into Common Stock. The number of shares of Common Stock to be issued upon such conversion shall be rounded to the nearest whole share, with fractional shares of one-half or greater being rounded up, and fractional shares of less than one-half being rounded down. (h) The Corporation shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock the full number of shares of Common Stock then issuable upon the conversion of all shares of Series C Preferred Stock then outstanding. (i) The Common Stock issuable upon conversion of the Series C Preferred Stock shall, when so issued, be duly and validly authorized and issued, fully paid and non-assessable. 5. Redemption. The Corporation shall have no right to redeem any shares of Series C Preferred Stock. 6. Liquidation Rights. (a) (i) In the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Series C Preferred Stock shall be entitled to receive out of the assets of the Corporation an amount per share equal to one cent ($.01), plus a sum equal to all declared but unpaid dividends on the Series C Preferred Stock before any payment or distribution upon dissolution, liquidation or winding up shall be made on any class or series of capital stock ranking junior to Series C Preferred Stock as to such payment or distribution, and after all such payments or distributions have been made on any class or series of capital stock ranking senior to the Series C Preferred Stock as to such payment or distribution. (ii) After payment of the preference set forth in Section 6(a)(i) of this Statement of Designation and after payment of all preferences payable to holders of any other class or series of capital stock which is senior to the common stock on liquidation, dissolution or winding up, the holders of the Series C Preferred Stock shall share with the holders of the Common Stock and the holders of any other class or series of capital stock which has such or similar rights as if the Series C Preferred Stock and the Common Stock and such other classes and series of capital stock, which each holder of Series C Preferred Stock to be deemed to own such number of shares of Common Stock as would be issuable upon conversion of the Series C Preferred Stock, regardless of whether a Conversion Event shall have occurred, immediately prior to the effective date of the liquidation, dissolution and winding up. (b) The sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation shall be deemed a voluntary dissolution, liquidation or winding up of the Corporation for purposes of this Section 6. (c) The consolidation or merger of the Corporation into another corporation in which the Corporation is not the surviving corporation shall be governed by Section 4(h) of this Certificate of Designation. (d) In the event the assets of the Corporation available for distribution to the holders of shares of Series C Preferred Stock upon dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to Section 6(a)(i) of this Statement of Designation, no such distribution shall be made on account of any shares of any other class or series of capital stock of the Corporation ranking on a parity with the shares of Series C Preferred Stock upon such dissolution, liquidation or winding up unless proportionate distributive amounts shall be paid on account of the shares of Series C Preferred Stock, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. 7. Notice. Unless otherwise provided in this Statement of Designation, each notice or other communication pursuant to this Statement of Designation shall be in writing signed by the party giving such notice, and delivered personally or sent by overnight courier, mail or messenger against receipt thereof or sent by registered or certified, return receipt requested, or first class mail to the Corporation at its executive offices, presently 145 Huguenot Street, New Rochelle, New York 10801, Attention: Chief Executive Officer, or to such other address or person as the Corporation may advise the holders of the Series C Preferred Stock by like notice, or to any holder at his address set forth on the Corporation's records. Notices shall be deemed to have been received on the date of personal delivery or, if sent by mail, shall be deemed to be delivered on the fifth (5th) business day after the date of mailing, except that notice of change in the person or address shall be effective on actual receipt. Notwithstanding the foregoing, any notice for a meeting of stockholders or communication which otherwise solicits a vote or consent shall be given in the manner provided in the Corporation's bylaws. 8. Rank of Series. For purposes of this Certificate of Designation, any stock of any series or class of the Corporation shall be deemed to rank: (a) prior to the shares of Series C Preferred Stock, as to dividends or upon liquidation, dissolution or winding up, as the case may be, if the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of Series C Preferred Stock; (b) on a parity with shares of Series C Preferred Stock, as to dividends or upon liquidation, dissolution or winding up, as the case may be, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share or sinking fund provisions, if any, be different from those of Series C Preferred Stock, if the holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority, one over the other, as between the holders of such stock and the holders of shares of Series C Preferred Stock; and (c) junior to shares of Series C Preferred Stock as to dividends or upon liquidation, dissolution or winding up, as the case may be, if such class shall be Common Stock or if the holders of shares of Series C Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of such class or classes. 9. No Preemptive Rights. No holder of the Series C Preferred Stock shall, as such holder, be entitled as of right to purchase or subscribe for any shares of stock of the Corporation of any class or any series now or hereafter authorized or any securities convertible into or exchangeable for any shares, or any warrants, options, rights or other instruments evidencing rights to subscribe for or purchase any such shares, whether such shares, securities, warrants, options, rights or other instruments be unissued or issued and thereafter acquired by the Corporation. 10. Transfer Agent and Registrar. The Corporation may appoint a transfer agent and registrar for the issuance, transfer and conversion of the Series C Preferred Stock and for the payment of dividends to the holders of the Series C Preferred Stock. -----END PRIVACY-ENHANCED MESSAGE-----