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Exhibit
10.7
AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made
and effective this 16 th day
of March, 2008, by and between ICOP DIGITAL, INC., a
Colorado Corporation (“Company”) and DAVID C.
OWEN (“Executive”).
WITNESSETH:
WHEREAS, Company and Executive are
parties to that certain Executive Employment Agreement dated on or
about August 10, 2006; and
WHEREAS, Company and Executive desire
the amendment of certain provisions of the Executive Employment
Agreement as restated herein.
NOW, THEREFORE, the parties hereto agree
as follows:
1.
Employment . Company hereby agrees to employ
Executive as its Chairman of the Board of Directors and/or Chief
Executive Officer and Executive hereby accepts such employment in
accordance with the terms of this Agreement and the terms of
employment applicable to regular employees of Company. Executive
may elect to relinquish the title and duties of Chief Executive
Officer without the termination or modification of his compensation
and benefits as provided for herein. In the event of any conflict
or ambiguity between the terms of this Agreement and terms of
employment applicable to regular employees, the terms of this
Agreement shall control.
2. Duties of
Executive . Subject to the right of Executive to relinquish
the duties of the Chief Executive Officer, the duties of Executive
while serving as the Chief Executive Officer shall generally
include the performance of all of the duties typical of the
Chairman of the Board of Directors and/or Chief Executive Officer
of a public corporation as further defined in the Bylaws of the
Company and such other duties and projects as may be assigned by
the Board of Directors of the Company. Executive shall devote a
substantial amount of his productive time, ability and attention to
the business of the Company and shall perform all duties in a
professional, ethical and businesslike manner.
a. Job Title :
Chairman of the Board of Directors and/or Chief Executive
Officer
b.
Accountability/Reporting : Executive shall report to the
Board of Directors.
c. Job Description .
During the period of his employment hereunder, Executive agrees to
serve as Chairman of the Board of Directors and/or Chief Executive
Officer of the Company. The Executive shall serve as a full time
employee of the Company to perform such duties as the Company may
from time to time reasonably direct. During such time as Executive
serves as the Chief Executive Officer, the Executive’s
responsibilities will include, among other things,
(i) developing and assisting in the development of new
products and business for the Company, (ii) supervising the
preparation and development of budgets for the Company for approval
by the Board of Directors, (iii) developing and directing the
Company’s finance, marketing, sales and technology areas, and
(iv) oversee, supervise and manage all corporate
activities.
3. Term
. The term of this Agreement shall commence March 16, 2008 and
shall terminate on March 15, 2010 or sooner as provided herein
(such period, as it may be annually extended, the
“Term”). Provided that this Agreement has not
previously been terminated as provided for herein, on each
anniversary of this Agreement, commencing on March 16 2009,
one year shall be added to the Term of Executive’s employment
with the Company under this Agreement, so that as of each
anniversary of this Agreement the Term of Executive’s
employment hereunder shall be two (2) years.
4.
Compensation .
a. Base Salary. During
the Term of his employment by the Company under this Agreement,
Executive shall receive an annual salary of $225,000.00
(“Base Salary”) (less withholding for applicable
taxes), payable in accordance with the Company’s payroll
procedures for its salaried employees, subject to such increases as
may be determined by the Compensation Committee of the Board of
Directors of the Company.
b. Bonus. In addition
to Base Salary, Executive shall be eligible to receive an annual
bonus (the “Bonus”) as determined from time to time by
Company’s Compensation Committee of the Board of Directors of
Company. The Corporation agrees to set aside 10% of the after tax
profit of the Corporation on an ongoing basis for bonuses to be
distributed at the end of each calendar year, 50% to Executive as
long as he serves as Chairman of the Board of Directors and/or
Chief Executive Officer of the Company and 50% to other officers
and employees as recommended by Executive and ratified by the
Compensation Committee.
c. Medical Insurance.
Company agrees to provide Executive with a medical, hospital and
dental plan for Executive in the amount equal to 100% of total
premium, as approved by Company, during this Agreement. Executive
shall be responsible for payment of any federal or state income tax
imposed upon these benefits.
d. Stock Option Plans.
Executive shall be entitled to participate in any Stock Option Plan
adopted by Company.
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e. Automobile. During
the Term of Executive’s employment by the Company under this
Agreement, the Company shall provide Executive with a Company owned
or leased automobile or an equivalent automobile allowance of
$850.00 per month with periodic increases at the mutual agreement
of the Company and Executive.
f. Vacation. The
Executive will be entitled to four (4) weeks paid vacation
annually.
g. Benefits. During
the Term of Executive’s employment by the Company under this
Agreement, Executive also shall be eligible for the benefits
offered by the Company from time to time to the Company’s
other executive officers (such as group insurance, pension plans,
thrift plans, stock purchase plans and the like). Nothing herein
shall be construed so as to prevent the Company from modifying or
terminating any employee benefit plans or programs it may adopt
from time to time, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and
arrangements.
h. Additional Potential
Compensation . Nothing in this Agreement shall prohibit the
Company from awarding additional compensation to Executive if it is
determined that such compensation is warranted based on
Executive’s performance.
5. Expense
Reimbursements . During the Term of Executive’s
employment by the Company under this Agreement, the Company shall
reimburse Executive for business travel and entertainment expenses
reasonably incurred by Executive on behalf of the Company in
accordance with the Company’s procedures, as such may exist
from time to time.
6. Payments To
Executive Upon An Event Of Termination.
a. Event of
Termination. Upon the occurrence of an Event of Termination (as
herein defined) during the Executive’s term of employment
under this Agreement, the provisions of this Section 6 shall
apply. As used in this Agreement, an “Event of
Termination” shall mean and include any one or more of the
following: (i) the termination by the Company of
Executive’s full-time employment hereunder for any reason,
including, without limitation, the company’s failure to renew
this Agreement, other than a Change in Control (as defined in
Section 7.a. hereof), upon Retirement (as defined in
Section 8 hereof), death or disability (as defined in
Section 8 hereof), or for Cause (as defined in Section 9
hereof); (ii) Executive’s resignation from the
company’s employ, upon any (A) failure to elect or
reelect or to appoint or reappoint Executive as Chief Executive
Officer and/or Chairman of the Board of Directors, (B) unless
consented to by the Executive, a material change in
Executive’s function, duties, or responsibilities, which
change would cause Executive’s position to become one of
lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 2, above, (and any
such material change shall be deemed a continuing breach of this
Agreement), (C) a relocation of Executive’s principal
place of employment by more than
3
Thirty (30) miles from
its location at the effective date of this Agreement, or a material
reduction in the benefits and perquisites to the Executive from
those being provided as of the effective date of this Agreement or
(D) material breach of this Agreement by the Company. Upon the
occurrence of any event described in clauses (A), (B), (C) or
(D), above, Executive shall have the right to elect to terminate
his employment under this Agreement by resignation upon not less
than thirty (30) days prior written notice given within a
reasonable period of time not to exceed, except in case of a
continuing breach, six (6) calendar months after the event
giving rise to said right to elect.
b. Severance Payment.
Subject to Section 9 hereof, upon the occurrence of an Event
of Termination, the Company shall be obligated to pay Executive,
or, as severance pay or liquidated damages, or both, an amount
equal to the sum of (i) twenty-four (24) months of the
Executive’s Base Salary at the time of the occurrence of the
Event of Termination plus (ii) the average of the Annual Bonus
amount for the three (3) prior years (or such lesser time
number of years, in the event that the Executive has been employed
by the Company for less than three (3) years). At the election
of the Executive such payment shall be made in a lump sum or in
twelve (12) equal monthly installments during the twelve
(12) months following Executive’s
termination.
c. Continuation of
Benefits. Upon the occurrence of an Event of Termination, the
Company will cause to be continued life, medical, dental and
disability coverage (to the extent available) substantially
identical to the coverage maintained by the Company for Executive
prior to his termination for the longer of (i) twenty-four
(24) months, or (ii) the Executive reaching the age of
necessary to qualify for health insurance benefits under
Medicare.
d. Vested Benefits.
Upon the occurrence of an Event of Termination, the Executive will
be entitled to receive vested benefits due him under or contributed
by the Company on his behalf pursuant to any retirement, incentive,
profit sharing, bonus, performance, disability (if coverage is
available under the company’s current policy) or other
employee benefit plans maintained by the Company on the
Executive’s behalf to the extent that such benefits are not
otherwise paid to Executive under a separate provision of this
Agreement.
e. Stock Options. Upon
the occurrence of an Event of Termination, any unexercised stock
options granted to the Executive shall immediately vest and be
immediately exercisable upon the Executive’s receipt of the
Notice of Termination relating to such Event of Termination for a
period of one hundred twenty (120) days thereafter. These
options will be exercisable through the standard means as outlined
in the Company’s option plan or through a broker exercise
notice at the Executive’s discretion.
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7. Change In
Control.
a. Change of Control.
No benefit shall be payable under this Section 7 unless there
shall have been a Change in Control of the Company as set forth
below. For purposes of this Agreement, a “Change in
Control” of the Company shall mean an event of a nature that:
(i) would be required to be reported in response to
Item 1 (a) of the current report on Form 8-K pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
(the “Exchange Act”) if the Company were (or is)
required to file reports pursuant to the Exchange Act; or
(ii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) individuals who
constitute the Board of Directors on the date hereof (the
“Incumbent Board”) cease for any reason to constitute
at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved
by a vote of at least a majority of the directors comprising the
Incumbent Board, shall be, for purposes of this clause (A),
considered as though he were a member of the Incumbent Board; or
(B) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Company or similar
transaction occurs in which the company is not the resulting
entity; or (C) a proxy statement shall be distributed
soliciting proxies from stockholders of the Company, by someone
other than the current management of the Company, seeking
stockholder approval of a plan of reorganization, merger or
consolidation of the company with one or more corporations as a
result of which the outstanding shares of the class of securities
then subject to such a plan or transaction are exchanged for or
converted into cash or property or securities not issued by the
company shall be distributed; or (D) a tender offer is
completed for 20% or more of the voting securities of the Company
then outstanding.
b. Termination Following
Change of Control. If any of the events described in
Section 7.a. hereof constituting a Change in Control have
occurred or the Board of Directors has determined that a change in
Control has occurred, Executive shall be entitled to the benefits
provided in paragraphs (c) through (f) inclusive of this
Section 7 upon his subsequent termination of employment at any
time during the term of this Agreement (regardless of whether such
termination results from his dismissal or his resignation at any
time during the term of this Agreement following any demotion, loss
of title, office or significant authority or responsibility,
reduction in the annual compensation or benefits or relocation of
his principal place of employment by more than 30 miles from its
location immediately prior to the Change in Control), unless such
termination is because of Termination for Cause.
c. Severance Payment.
Subject to Section 9 hereof, upon the occurrence of a Change
in Control, the Company shall be obligated to pay Executive, or, as
severance pay or liquidated damages, or both, an amount equal to
the sum of (i) twenty-four (24) months of the
Executive’s Base Salary at the time of the occurrence of the
Change in Control plus (ii) the average of the Annual Bonus
amount for the three (3) prior years (or such lesser time
number of years, in the event that the Executive has been employed
by the Company for less than three (3) years). At the election
of the Executive such payment shall be made in a lump sum or in
twelve (12) equal monthly installments during the twelve
(12) months following Executive’s
termination.
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d. Continuation of
Benefits. Upon the occurrence of a Change in Control, the
Company will cause to be continued life, medical, dental and
disability coverage (to the extent available) substantially
identical to the coverage maintained by the Company for Executive
prior to his termination for the longer of (i) twenty-four
(24) months, or (ii) the Executive reaching the age of
necessary to qualify for health insurance benefits under
Medicare.
e. Vested Benefits.
Upon the occurrence of a Change in Control, the Executive will be
entitled to receive vested benefits due him under or contributed by
the Company on his behalf pursuant to any retirement, incentive,
profit sharing, bonus, performance, disability (if coverage is
available under the company’s current policy) or other
employee benefit plans maintained by the Company on the
Executive’s behalf to the extent that such benefits are not
otherwise paid to Executive under a separate provisi
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