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EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made as
of the 1st day of November, 1997 (the "Agreement Date"), by and between Security
Dynamics Technologies, Inc., a Delaware corporation ("Employer"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. ("Employee").
WHEREAS, Employer and Employee are parties to an Employment Agreement,
dated as of July 9, 1993 (the "1993 Agreement"); and
WHEREAS, Employer and Employee are desirous of continuing Employee's
employment with Employer for the period, and on the terms and conditions, set
forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions herein contained, the parties hereby agree that the
1993 Agreement is amended and restated in its entirety to read as follows:
Section 1. EMPLOYMENT.
Employer hereby agrees to continue to employ Employee, and Employee accepts
such continued employment, according to the terms and conditions set forth in
this Agreement.
Section 2. TERM.
The initial term of this Agreement (the "Initial Term") shall be for a
period commencing on November 1, 1997 and continuing through November 1, 1999.
Thereafter, this Agreement shall be automatically renewed for additional
one-year periods (the "Renewal Term") on the same terms and conditions (except
as may be otherwise mutually agreed to in writing by the parties) unless either
party gives the other written notice of non-renewal at least ninety (90) days
prior to the expiration of the then-current term. Notwithstanding the foregoing,
the Employment Period (as defined below) may be terminated at any time upon the
occurrence of any one of the following events: (i) Employee's decision to resign
pursuant to Section 9 of this Agreement, (ii) Employer's decision to terminate
Employee, either "for cause" or other than "for cause" pursuant to Section 9, or
(iii) the parties' agreement in writing to terminate the Agreement. The period
of time between the commencement and termination of Employee's employment shall
be referred to herein as the "Employment Period."
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Section 3. POSITION AND SERVICES.
(a) Employee will occupy the position of President and Chief Executive
Officer of Employer. Employee will also be a member of the Employer's
Board of Directors (the "Board of Directors"), subject to the terms of
the Employer's Third Restated Certificate of Incorporation as amended
from time to time. Any subsequent substantial diminution in the
position, office or duties of Employee (other than any such diminution
resulting from a Change in Control (as such term is defined in Section
12 hereof)) or material breach by the Employer of its obligations
under this Agreement shall be deemed a termination of this Agreement
other than "for cause" as defined in Section 9 hereof. Employee will
report directly to the Board of Directors and shall have such duties
and responsibilities as are set forth in the Employer's Amended and
Restated By-Laws, as amended from time to time, which duties and
responsibilities shall include, but not be limited to, overall
management responsibility for the operations and administration of
Employer as well as such other duties and responsibilities, consistent
with Employee's position as President and Chief Executive Officer, as
shall be defined by the Board of Directors.
(b) Employee will be expected to be in the full-time employment of
Employer, to devote substantially all of his business time and
attention, and exert his best efforts, to the performance of his
duties hereunder, and to serve Employer diligently and to the best of
his ability. During the Employment Period, the Employee shall devote
his full business time to the business and interests of the Employer;
provided, that, except to the extent set forth in the Prior Agreements
(as such term is defined in Section 8 hereof), nothing set forth
herein shall prohibit the Employee from engaging in other activities
to the extent that such activities do not impair the ability of the
Employee to perform his duties and obligations under this Agreement.
Section 4. COMPENSATION.
The Employer shall pay to the Employee an initial base salary (the "Base
Salary") at an annual rate of not less than $231,000, subject to deductions for
social security, state payroll and unemployment and all other legally required
or authorized deductions and withholding. Employee's salary shall be payable at
the same time and basis as Employer pays its payroll in general. The Board of
Directors shall review Employee's Base Salary during the Employment Period at
least on an annual basis. The Employee shall have the right, by written notice
to the Employer within thirty (30) days following any decrease in Employee's
Base Salary at any time during the Employment Period, to treat such reduction as
a termination of this Agreement other than "for cause" as defined in Section 9
hereof.
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Section 5. INCENTIVE PAYMENTS.
In addition to the Base Salary payable pursuant to Section 4 hereof,
Employee shall be entitled to annual bonuses if Employee satisfies agreed-upon
discrete goals/objectives to be contained in an annual incentive plan for the
Employee to be established by the Board of Directors at its sole and absolute
discretion in consultation with Employee on an annual basis. The incentive plan
for 1997 is attached as EXHIBIT A hereto.
Section 6. DEATH OR DISABILITY DURING EMPLOYMENT.
If Employee is prevented from performing his duties hereunder by reason of
illness or injury for a period of (i) four or more consecutive months or (ii)
six months during any 12-month period as determined by a recognized physician
chosen by Employer and acceptable to Employee (the applicable date when either
of such disabling events shall occur being hereinafter referred to as the
"Effective Date of Disability"), or if Employee dies during the Employment
Period, Employer shall pay to the Employee, if the Employee is disabled, or to
Employee's spouse, the Executors under Employee's Last Will and Testament duly
admitted to probate within one year of his death or the Employee's heir at law,
if the Employee dies, in addition to such amounts (if any) as may be payable
pursuant to any short- or long-term disability or life insurance policies then
in effect and maintained by the Company with respect to the Employee
("Disability Policies"), the compensation which would otherwise be payable to
the Employee under this Agreement through the end of the month in which the
Employee's Effective Date of Disability or death occurs, or, in the case of
disability (and assuming any Disability Policies are currently in effect) such
later date as the Employee would, if eligible, be entitled to receive benefits
under such Disability Policies. In addition, the Employer shall pay, at the time
when such bonus would normally be paid, all bonus payments under Section 5
hereof which the Board of Directors, in good faith, believed that the Employee
was entitled to in respect of the year in which the Effective Date of Disability
or death occurred.
Section 7. BENEFITS; EXPENSES.
(a) The Employee shall be entitled to receive the same standard employment
benefits as other executives of the Employer receive. The Employee
shall be entitled to fully participate in all of the Employer's future
employee benefit programs in accordance with their then-existing
terms. The Employee shall be entitled to reimbursement for all
approved reasonable travel and other business expenses incurred by the
Employee in connection with his services to the Employer pursuant to
the terms of this Agreement. All business expenses for which the
Employee seeks reimbursement from the Employer shall be adequately
documented by the Employee in accordance with the Employer's
procedures covering expense
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reimbursement and in compliance with the regulations of the U.S.
Internal Revenue Service.
(b) The Employee shall be entitled to five weeks of vacation during each
year of the Employment Period. The Employee may accrue and carry
forward vacation time to future years; provided, however, that in no
event may the Employee carry forward into any year in excess of five
weeks of accrued paid vacation time.
Section 8. CONFIDENTIALITY; NON-COMPETITION.
The parties acknowledge that the Employee has previously entered into a
Non-Competition Agreement and a Nondisclosure and Developments Agreement, each
initially dated as of February 13, 1987 and amended and restated as of the
Agreement Date (together, as amended and restated, the "Prior Agreements"), in
connection with the Employee's employment by the Employer. The Prior Agreements
are each incorporated herein by this reference and made a part hereof as if set
forth herein in their entirety. The parties hereby agree that the Non-Disclosure
and Non-Competition Covenant, dated as of February 13, 1987, by and between the
Employer and the Employee be and hereby is terminated and shall be of no further
force and effect as of the Agreement Date.
Section 9. TERMINATION.
This Agreement does not grant the Employee any right or entitlement to be
retained by the Employer, and shall not affect or prejudice the Employer's right
to discharge the Employee in accordance herewith. The Employee may terminate
this Agreement at any time during the Initial Term upon sixty (60) days' prior
written notice to the Employer. The Employer may terminate this Agreement "for
cause" (as defined below) at any time upon thirty (30) days' prior written
notice to the Employee. Employee shall, during such 30-day period, be given an
opportunity to defend the basis or facts giving rise to the notice. The Employer
may terminate this Agreement other than "for cause" at any time during the
Initial Term upon sixty (60) days' prior written notice to the Employee. Either
party may terminate this Agreement at any time during the Renewal Term upon
ninety (90) days' prior written notice to the other party. If Employee is
terminated either "for cause" or for reasons other than "for cause," Employee
shall be entitled to the following severance payments:
(i) If termination occurs by the Employer other than "for cause," then the
following severance payments (less applicable deductions for social
security, payroll and other applicable taxes) and related arrangements
will be made:
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(a) cash payments at the Employee's current monthly Base Salary at
the time of termination (less applicable deductions) for a period
of 24 months commencing with the month immediately succeeding the
month during which the 30-day period after the giving of notice
shall have ended (the "Effective Date of Termination");
(b) in addition to (a) above, normal employee medical and insurance
benefits will be continued on an insured basis for the Employee
and for the Employee's spouse at the Effective Date of
Termination ("Spouse") until the latter to occur of (i)
Employee's death or (ii) the Spouse's death, provided that
medical benefits provided to the Employee and the Spouse pursuant
to this subparagraph (b) may be reduced from time to time to the
extent that medical benefits are provided through Medicare or
through any other employer following the Effective Date of
Termination;
(c) to the extent that all or any stock options granted to Employee
shall not have vested as of the Effective Date of Termination,
then all such stock options shall automatically vest;
(d) the Employer shall pay to the Employee, in a single lump sum
payment within 30 days following the Effective Date of
Termination, an amount equal to a pro rata portion of the
Employee's current monthly Base Salary at the time of termination
(less applicable deductions) with respect to the month in which
the Effective Date of Termination occurs based upon the number of
days elapsed in such month prior to the Effective Date of
Termination;
(e) the Employer shall pay to the Employee, in a single lump sum
payment within 30 days following the Effective Date of
Termination, an amount equal to the greater of (i) a pro rata
portion of the bonus payable to the Employee pursuant to Section
5 of this Agreement with respect to the year in which such
termination shall have occurred, calculated at 100% of the
Employee's target bonus amount, and (ii) a pro rata portion of
the actual bonus payable to the Employee pursuant to Section 5 of
this Agreement with respect to the year in which such termination
shall have occurred (assuming the Employee had been employed by
the Employer the entire year);
(f) the Employer shall reimburse the Employee for any reasonable
legal expenses incurred by the Employee in connection with the
termination of the Agreement (excluding any expenses incurred in
contesting any such termination, but including without limitation
any reasonable legal expenses incurred by the Employee in
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connection with the negotiation, execution and delivery of the
Consulting Agreement referred to in (g) below); and
(g) the Employer shall negotiate in good faith with the Employee
regarding the retention of the Employee by the Employer as a
consultant for the two-year period following the Effective Date
of Termination pursuant to a Consulting Agreement to be entered
into by the Employer and the Employee.
(ii) If Employee is terminated by the Employer "for cause," the Employer
shall (a) provide the Employee with normal employee medical and
insurance benefits for a period of six months following the Effective
Date of Termination, and (b) pay to the Employee an amount equal to a
pro rata portion of any bonus payable to the Employee pursuant to
Section 5 of this Agreement with respect to the year in which such
termination shall have occurred based on the number of days elapsed in
such year prior to the Effective Date of Termination. Except as set
forth in the prior sentence, in the event of a termination for cause,
the Employee shall not be entitled to any salary, severance or other
payments or any benefits of any kind beyond the Effective Date of
Termination. Termination "for cause" as used herein, and as determined
by the Board of Directors, shall include only the following Employee
behavior: (1) any act committed by Employee which shall represent (x)
a breach in any material respect of any of the terms hereof or (y) a
material breach of fiduciary duty to the Employer and/or all of its
stockholders under the laws of the State of Delaware; (2) willful
failure to carry out reasonable assigned duties; (3) gross negligence,
consisting of wanton and reckless acts or omissions in the performance
of Employee's duties to the material detriment of Employer; (4)
addiction to drugs or chronic alcoholism which impairs the Employee's
ability to carry out his obligations under this Agreement; or (5) any
conviction of the Employee of a felony which is subject to a jail
sentence of at least three months; provided, that in the case of a
termination for cause pursuant to clause (1), (2) or (3) of this
paragraph (ii), the Employee shall be provided with not less than 30
days' written notice thereof from the Board of Directors or the
Compensation Committee of the Board of Directors and an opportunity to
cure such event to the reasonable satisfaction of the Board of
Directors.
(iii) If Employee voluntarily resigns then the following severance payments
(less applicable deductions for social security, payroll and other
applicable taxes) and related arrangements will be made:
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(a) normal employee medical and insurance benefits will be continued
on an insured basis for the Employee and for the Spouse until the
latter to occur of (i) Employee's death or (ii) the Spouse's
death, provided that medical benefits provided to the Employee
and the Spouse pursuant to this subparagraph (a) may be reduced
from time to time to the extent that medical benefits are
provided through Medicare or through any other employer following
the Effective Date of Termination;
(b) the Employer shall pay to the Employee, in a single lump sum
payment within 30 days following the Effective Date of
Termination, an amount equal to a pro rata portion of the
Employee's current monthly Base Salary at the time of
termination (less applicable deductions) with respect to the
month in which the Effective Date of Termination occurs
based upon the number of days elapsed in such month prior to
the Effective Date of Termination; and
(c) the Employer shall pay to the Employee, in a single lump sum
payment within 30 days following the Effective Date of
Termination, an amount equal to a pro rata portion of the
actual bonus payable to the Employee pursuant to Section 5
of this Agreement with respect to the year in which such
termination shall have occurred (assuming the Employee had
been employed by the Employer the entire year).
Section 10. BREACH OR VIOLATION OF AGREEMENT.
Any controversy or claim arising out of, or relating to, this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties agree that a breach or
violation of this Agreement will result in immediate and irreparable injury and
harm to the other party, who shall have the right of an injunction, specific
performance or other equitable relief to prevent the violation of the
obligations hereunder. In addition, the prevailing party in any arbitration or
litigation relating to the interpretation or enforcement of this Agreement shall
be entitled to reimbursement of all reasonable costs and expenses (including
without limitation fees and expenses of counsel) incurred in connection
therewith.
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Section 11. NOTICES.
Any notice required to be given pursuant to the provisions of this
Agreement shall be in writing and, if mailed, sent by registered or certified
mail, postage prepaid, with a copy delivered by an overnight courier service of
recognized standing, to the party named at the address set forth below, or at
such other address as each party may hereafter designate in writing to the other
party:
Employer: Security Dynamics Technologies, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Secretary
cc: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Employee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any such notices shall be deemed to have been delivered when served
personally, or 28 hours after being mailed in the manner specified above.
Section 12. CHANGE IN CONTROL EVENT.
If a Change in Control (as such term is defined below) shall have occurred,
Employee shall be entitled, at his election, to receive, if he chooses to leave
Employer's management at any time during the first 18 months after the effective
date of the Change in Control, (a) a lump sum payment in an amount equal to two
times his then-current monthly Base Salary (less applicable deductions) provided
for in Section 4 hereof for a 12-month period, and (b) a pro rata portion of any
bonus otherwise payable to the Employee pursuant to Section 5 of this Agreement
with respect to the year in which such Change in Control shall have occurred,
calculated at 100% of the Employee's target bonus amount, based on the number of
days elapsed in such year prior to the Employee's last day of full time
employment with the Employer. In addition, all of the stock options granted to
Employee which shall not have vested or which shall still remain exercisable as
of the effective date of the Change in Control shall thereupon automatically
vest and be free from repurchase if Employee is terminated other than "for
cause" within one year after the effective date of the Change in Control.
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For purposes of this Agreement, a "Change in Control" shall be deemed to
have taken place if:
(i) there shall be consummated any consolidation or merger of Employer in
which Employer is not the continuing or surviving corporation or
pursuant to which shares of the Employer's capital stock are converted
into cash, securities or other property, other than a consolidation or
merger of Employer in which each holder of the Employer's capital
stock immediately prior to the consolidation or merger has upon
consummation of the consolidation or merger the same proportionate
ownership of each class or series of capital stock of the surviving
corporation as such holder had of each class or series of the
Employer's capital stock immediately prior to the consolidation or
merger, or any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by
any party as a single plan) of all or substantially all of the assets
of Employer; or
(ii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
shall after the Agreement Date become the beneficial owner (as defined
in Rules 13(d)(3) and 13(d)(5) under the Exchange Act), directly or
indirectly, of securities of Employer representing more than 50% of
the voting power of all then outstanding securities of Employer having
the right under ordinary circumstances to vote in an election of the
Board of Directors (for purposes of this clause (ii), any securities
of Employer that any such person has the right to acquire pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed beneficially owned by such
person).
Section 13. EXERCISE OF STOCK OPTIONS.
(a) Subject to the provisions of Section 12 hereof, upon the termination
of the Employment Period, Employee shall have the following periods
during which to exercise all then vested stock options having a grant
date on or before the Agreement Date:
(i) if Employee voluntarily resigns, Employee shall have 60 days from
the date of resignation during which to exercise such vested
options; and
(ii) if there is a termination other than "for cause" and other than
due to the occurrence of any of the events referred to in Section
6 hereof, then Employee shall have six months from such date
during which to exercise such vested options.
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(b) Subject to the provisions of Section 12 hereof, upon the termination
of the Employment Period, Employee shall have the following periods
during which to exercise all then vested stock options having a grant
date after the Agreement Date:
(i) if Employee voluntarily resigns, Employee shall have 12 months
from the date of resignation during which to exercise such vested
options; and
(ii) if there is a termination other than "for cause" and other than
due to the occurrence of any of the events referred to in Section
6 hereof, then Employee shall have twelve months from the date of
such termination during which to exercise such vested options.
(c) Upon a termination of the Employment Period "for cause," all stock
options held by the Employee shall terminate automatically upon the
Effective Date of Termination.
(d) Upon a termination of the Employment Period as a result of any of the
events referred to in Section 6 hereof, the period of exercise of all
or any portion of the Employee's then vested stock options shall be 12
months from the Effective Date of Disability or death.
Section 14. LIMITATIONS ON PARACHUTE PAYMENTS.
(a) In the event that the Company undergoes a "Change in Ownership or
Control" (as defined below), a portion of any "Contingent Compensation
Payments" (as defined below) that the Employee would otherwise be
entitled to receive shall be eliminated to the extent necessary to
eliminate any "excess parachute payments" (as defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended (the
"Code")) for the Employee. For purposes of this Section 14, the
Contingent Compensation Payments so eliminated shall be referred to as
the "Eliminated Payments" and the aggregate amount (determined in
accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30
or successor provision) of the Contingent Compensation Payments so
eliminated shall be referred to as the "Eliminated Amount."
Notwithstanding the foregoing, no such reduction in payments shall
occur if the excess of (A) 110% of the Eliminated Amount (computed
without regard to this sentence) over (B) the aggregate present value
(determined in accordance with Proposed Treasury Regulation Section
1.280G-1, Q/A-31, and Q/A-32 or successor provisions) of the amount of
any additional taxes that would be incurred by the Employee if the
Eliminated Payments (determined without regard to this sentence) were
paid to him (including, state and federal income
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taxes on the Eliminated Payments, the excise tax imposed by Section
4999 of the Code payable with respect to all of the Contingent
Compensation Payments, and any withholding taxes) is greater than
zero. For purpose of the preceding sentence, any federal or state
income tax that would be attributable to the receipt of the Eliminated
Payments shall be computed by multiplying the amount of the Eliminated
Payment by the maximum combined federal and state income tax rate
provided by law; provided, however, that if the Employee so notifies
the Company within 90 days following the timely filing of all relevant
tax returns for the Employee for the year or other taxable period in
which the Eliminated Payments would have been made, the Eliminated
Payments shall be recomputed based upon all of the Employee's actual
tax circumstances. If, as a result of such recomputation, there are no
Eliminated Payments, the Employee shall become entitled to receive
Contingent Compensation Payments previously treated as Eliminated
Payments within 10 days of the delivery of the aforementioned notice
together with interest thereon computed at the prime rate announced
from time to time by the Wall Street Journal compounded monthly from
the date that such payments originally would have been made.
(b) For purposes of this Section 14, the following terms shall have the
meaning given them in this subsection (b):
(i) "Change in Ownership or Control" shall mean a change in the
ownership or effective control of the Company or in the ownership
of a substantial portion of the assets of the Company determined
in accordance with Section 280G(b)(2) of the Code.
(ii) "Contingent Compensation Payment" shall mean any payment (or
benefit) in the nature of compensation that is made or supplied
to a "disqualified individual" (as defined in Section 280G(c) of
the Code) and that is contingent (within the meaning of Section
280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control
of the Company.
(c) The amount of any payments or other benefits otherwise due to the
Employee following a Change in Ownership or Control that could
reasonably be characterized as Contingent Compensation Payments (as
determined by the Company) shall not be made until 30 days after the
date on which they would otherwise have been due (the "Extended Due
Date"). Within 15 days of the date on which such payments or benefits
would have originally been due, the Company shall determine and notify
the Employee (with reasonable detail regarding the basis for its
conclusions)
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(i) whether some or all of such payments and benefits constitute
Contingent Compensation Payments and (ii) the amount of any
Eliminated Amount. On or prior to the Extended Due Date, the
Employee shall notify the Company either (A) that he agrees with
the Company's determination pursuant to the preceding sentence,
in which case he shall indicate, if applicable, the Contingent
Compensation Payments that will be treated as Eliminated Payments
or (B) that he disagrees with such determination, in which case
he shall indicate those payments that should be characterized as
Contingent Compensation Payments, the amount of any Eliminated
Amount and, if applicable, the Contingent Compensation Payments
that will be treated as Eliminated Payments. The amount and
characterization of any item in the notice from the Employee
shall be final; provided, however, that in the event that the
Employee fails to notify the Company pursuant to the preceding
sentence on or before the Extended Due Date, the Company's
initial determination shall be final and the Contingent
Compensation Payments that will be treated as Eliminated Payments
shall be determined by the Company in its absolute discretion. In
no event shall the Company be liable to the Employee as a result
of any factual or legal determination made by it pursuant to this
subsection (c) or for any information supplied by it to the
Employee or his advisors.
(d) The provisions of this Section 14 are intended to apply to any and all
payments or benefits available to the Employee under this Agreement.
Section 15. LEGAL EXPENSES.
The Employer shall reimburse the Employee for any reasonable legal expenses
incurred by the Employee in connection with the preparation and negotiation of
this Agreement and any amendments hereto.
Section 16. ENTIRE AGREEMENT.
(a) CHANGE, MODIFICATION, WAIVER. No change or modification of this
Agreement shall be valid unless it is in writing and signed by each of
the parties hereto. No waiver of any provision of this Agreement shall
be valid unless it is in writing and signed by the party against whom
the waiver is sought to be enforced. The failure of a party to insist
upon strict performance of any provision of this Agreement in any one
or more instances shall not be construed as a waiver or relinquishment
of the right to insist upon strict compliance with such provision in
the future.
(b) INTEGRATION OF ALL AGREEMENTS. This Agreement, together with the Prior
Agreements, constitutes the entire Agreement between the parties and
is intended to be an integration of all agreements between the parties
with
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respect to Employee's service with Employer. Any and all prior
agreements between Employee and Employer with respect to the subject
matter hereof (other than the Prior Agreements) are hereby revoked.
(c) SEVERABILITY OF PROVISIONS. If for any reason any provision of this
Agreement should be declared void or invalid, such declaration shall
not affect the validity of the rest of this Agreement, which shall
remain in force as if executed with the void or invalid provision
eliminated. Each of the Prior Agreements shall survive any termination
of this Agreement in accordance with its terms.
Section 17. BINDING EFFECT.
This Agreement shall be binding upon all parties hereto and their heirs,
successors and assigns. This Agreement shall be binding upon any successor
entity to Employer, including without limitation any successor by merger,
consolidation or sale of assets, and shall be assignable by the Employer to any
entity controlled by or under common control with the Employer.
Section 18. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal laws of The Commonwealth of Massachusetts, without regard to conflicts
of laws principles.
Section 19. MISCELLANEOUS.
(a) FORM. As employed in this Agreement, the singular form shall include,
if appropriate, the plural.
(b) HEADINGS. The headings employed in this Agreement are solely for the
convenience and reference of the parties and are not intended to be
descriptive of the entire contents of any paragraph and shall not
limit or otherwise affect any of terms, provisions or construction
thereof.
(c) COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
EMPLOYER:
SECURITY DYNAMICS
TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Director and Chairman of the
Compensation Committee of the
Board of Directors
EMPLOYEE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.