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
June 11, 1999
Date of Report
(Date of earliest event reported)
HIDENET SECURE ARCHITECTURES, INC.
(formerly known as Savin Electronics Inc.)
(Exact name of registrant as specified in its charter)
New Jersey 33-36670 22-3061278
(State or other (Commission File (IRS Employer
Jurisdiction of Number) Identification
Incorporation) No.)
103Medinat Hayehudim Street, POB 837, Herzliya Israel 46733 (Address
of registrant's principal executive offices)
011-972-9-957-9795
(Registrant's telephone number, including area code)
<PAGE>
Item 1. Changes in Control of Registrant
On June 11, 1999, Savin Electronics Inc., a New Jersey corporation (the
ACompany@), executed and delivered an agreement (the AAgreement@) with Uriel
Ginsburg, Jonatan Levin and John Federman (collectively, the AInvestors@) and
Royce Investment Group (ARIG@) pursuant to which the Company issued to Ginsburg,
Levin and Federman, 600,000, 600,000 and 1,800,000 shares, respectively of the
common stock (the ACommon Stock@). In consideration for the issuance of an
aggregate of 3,000,000 shares of Common Stock, the Investors delivered to the
Company all right, title and interest owed by each of the Investors in the
proprietary products in the field of Internet protocol network and data
encryption and related property (collectively the AIntellectual Property@). As a
result of the issuance, the Investors collectively hold 73.9% of the issued and
outstanding capital stock of the Company. Pursuant to the Agreement, the
Investors are entitled to nominate one director to a three member board of
directors of the Company.
Upon consummation of the Agreement the Company established a research and
development subsidiary (the ASubsidiary@) in Israel and all the Intellectual
Property was transferred to the Subsidiary. Federman is to become a consultant
and Ginsburg and Levin are to become full time employees of the Subsidiary.
RIG was retained to act as a financial consultant to the Company to sell up
to $600,000 worth of shares of Common Stock for the Company. Upon the sale of
each installment of $50,000, RIG is entitled to 80,000 shares of Common Stock,
up to a maximum of 1,800,000 shares. The first phase of the offering was
completed in July 1999 and $100,000 was raised and RIG was issued 1,000,000
shares. The second phase of the offering must close within 180 days of the first
phase. The holders of such shares will have piggyback registration rights. In
addition, the Company is to pay RIG $75,000 for performing consultancy services
to the Company. Said amount is payable upon the closing of an offering of
1,000,000 shares of Common Stock. In addition, the Company shall pay RIG a
finder=s fees equal to 10% of the gross proceeds of any investment made by an
investor introduced by RIG and a non-accountable expense allowance of $10,000 in
connection with the private placement. RIG is also to receive warrants to
purchase up to 500,000 shares of Common Stock at an exercise price of $0.125 per
share. The warrants are exercisable the three years from July 1999. At the
request of RIG the Company must take all steps necessary to register the shares
exercisable upon the warrants.
The Company agreed not to execute any financing agreement or engage in any
offering of securities of the Company for a twelve-month period following such
period. RIG has a right of first refusal on any Regulation S, Regulation D or
Section 4(2) offerings proposed to be effected by the Company.
The net proceeds of first phase of the offering are to be transferred to
Subsidiary. In connection with acting as a consultant to the Subsidiary, RIG is
entitled to 7% of the gross proceeds of any investment made into the Subsidiary
and common shares of the Subsidiary representing 7% of the gross proceeds of an
investment made in the Subsidiary.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) 10.1 Agreement, dated as of June 11, 1999, by and among Savin
Electronics Inc. and Uriel Ginsburg, Jonatan Levin, John Federman
and Royce Investment Group.
10.2 Assignment Agreement, dated as of June 11, 1999, by Uriel
Ginsburg to and in favor of Savin Electronics Inc.
10.3 Assignment Agreement, dated as of June 11, 1999, by Jonatan Levin
to and in favor of Savin Electronics Inc.
10.4 Assignment Agreement, dated as of June 11, 1999, by John Federman
to and in favor of Savin Electronics Inc.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HIDENET SECURE ARCHITECTURES, INC.
(formerly known as Savin Electronics Inc.)
By: /s/ Ron Fussman
-------------------------
Ron Fussman
President
Date: November 4, 1999
AGREEMENT
THIS AGREEMENT is dated as of June 11, 1999 (this AAgreement@) by and among
Savin Electronics Inc., a New Jersey corporation (ANewco@); Royce Investment
Group (ARIG@); and Uriel Ginzburg, Jonathan Levin (the AInventors@) and John
Federman (the Aconsultant@), (collectively, the APrincipals@).
WHEREAS, as of the date hereof, Newco has no assets and is traded on the
OTC Bulletin Board market;
WHEREAS, Newco desires to enter and operate in the field of network data
security technology;
WHEREAS, in connection with its entrance in the network data security
field, Newco is also desirous of obtaining an initial $600,000 investment;
WHEREAS, the Inventors have jointly developed a proprietary technology in
the field of network data security and designed a line of products both for the
private and the corporate sectors (collectively, the AIntellectual Property@)
and own and have to the best of their knowledge, good, marketable and exclusive
title to each item of Intellectual Property free and clear of any lien, claim or
encumbrance or rights of any third party; and the consultant posses a vast
knowledge and expertise in the field of network data security;
WHEREAS, RIG has located and introduced the principals to Newco, and in
consideration thereof, Newco has agreed to the various terms and conditions
regarding the issuance of its securities so that upon completion of the proposed
transactions hereinafter described, the current stockholders of Newco (the
AExisting Shareholders@) will, as a group, own 32,600 shares of all outstanding
securities based upon the following proposed formulation:
Existing Shareholders 32,600 Shares
The Principals 3,000,000 Shares
RIG 1,800,000 Shares
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and conditions set forth herein, and other good and adequate consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
ARTICLE I
PREAMBLE
Section 1.1 Preamble. The preamble shall constitute an integral part of
this Agreement.
ARTICLE II
ASSIGNMENT
Section 2.1 Assignment of the Intellectual Property. Upon the terms and
subject to the conditions set forth in this Agreement, each of the Inventors
shall assign all the Intellectual Property to Newco, free and clear of any and
all liens, encumbrances, charges and any other rights of third parties, pursuant
to the assignment agreement (the AAssignment Agreements@) attached hereto as
Exhibit A.
Section 2.2 Consideration for the assigned Intellectual Properties and
Consulting services. In full consideration for the assignment to Newco of the
Intellectual Property and the consultancy services preformed by the consultant,
Newco shall issue to the Principals 3,000,000 newly issued restricted common
stock (the ANewco Shares@). The number of common shares of Newco issuable to
each Principal is set forth below:
Uriel Ginzburg - 600,000 Shares
Jonathan Levin B 600,000 Shares
John Federman- 1,800,000 Shares
Section 2.3 Subsidiary of Newco. It is the intention of the parties that
upon the consummation of the transactions contemplated herein, Newco shall
establish an R&D subsidiary (the ASubsidiary@) in Israel. The subsidiary=s name
shall be Hidenet Secure Architectures (if applicable by law). Newco shall
thereafter assign all the Intellectual Property to Subsidiary and shall transfer
all proceeds resulting from the execution of step A as described in Article V
section 5.1 below to the subsidiary, less all registration fees resulting from
the issuance of the 1,000,000 shares of step A.
Section 2.3.1 Employment agreement. Immediately following the establishment
of the Subsidiary, David Federman shall become a consultant and Uriel Ginzburg
and Jonathan Levin shall become full time employees of the Subsidiary, upon the
terms and conditions set forth in the consulting and employment agreements,
attached hereto as Exhibit B and Exhibit C, respectively (the AEmployment and
Consulting Agreements@).
Section 2.4 Restrictive Legend. The certificates evidencing Newco=s Shares
shall bear the following restrictive legend:
No sale, offer to sell or transfer of the securities represented by this
certificate shall be made unless a registration statement under the Securities
Act of 1933, as amended, with respect to such securities is then in effect or
the Company receives an opinion of counsel satisfactory to the Company that such
registration is not required.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Inventors. Each of the
Principals jointly and severally hereby represents and warrants to Newco that:
(a) Intellectual Property. The Inventors own the Intellectual Property free
and clear of any lien, claim or encumbrance or any right of any third party, and
are the exclusive owners of each item of the Intellectual Property. The
Inventors have not, and shall not, transfer ownership of, or grant any license
with respect to, or option to purchase, any of the Intellectual Property to any
third party, firm or entity, other than as provided herein. Neither the
Intellectual Property nor the operation of a network data security technology as
such business is contemplated to be conducted will infringe or misappropriate
any rights belonging to a third party, firm or entity to the best of the
Inventor=s knowledge. The Inventors have taken reasonable security measures to
protect the secrecy, confidentiality and value of the Intellectual Property, and
have not disclosed the Intellectual Property (or any portion thereof) to any
third party other than Newco and RIG.
As used in this Agreement, AIntellectual Property@ means any or all of the
following and all rights in, arising out of, or associated therewith anywhere in
the world: (i) all United States, international and foreign patents and
applications therefor and all reissues, divisions, renewals, extensions,
provisionals, continuations and continuations part thereof; (ii) all inventions
(whether patentable or not), invention disclosures, improvements, trade secrets,
proprietary information, know how, technology, technical data and customer
lists, and all documentation relating to any of the foregoing; (iii) all
trademarks, applications to register trademarks, copyrights, mask work rights,
copyrights registrations and applications therefor; (iv) all industrial designs
and any registrations and applications therefor throughout the world; (v) all
trade names, logos, common law trademarks and service marks, trademark and
service mark registrations and applications therefor throughout the world; (vi)
all databases and data collections and all rights therein throughout the world;
and (vii) any similar, corresponding or equivalent rights to any of the
foregoing.
(b) Authority. The Principals have all the power and authority to enter
into this Agreement and to carry out their obligations and consummate the
transactions contemplated hereunder. This Agreement, when duly executed and
delivered by the Principals, will constitute a valid and binding obligation of
the Principals, enforceable against each of them such respective parties in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, moratorium, reorganization, or other laws affecting creditors=
rights and remedies. Each of the Principals acknowledges that he has had an
opportunity to review this Agreement and discuss the terms of the transaction
contemplated herein with counsel and other advisers, as he deemed appropriate.
(c) Compliance with Other Instruments. The execution and delivery of this
Agreement by the Principals does not, and the consummation of the transactions
contemplated by this Agreement, the Assignment Agreements and the Employment and
Consulting Agreements will not conflict with, or result in any violation or
breach (i) of any law, regulation, judgment or order applicable to any of the
principals or (ii) result in a termination or modification of, or cause any
acceleration of any obligation of the Principals under any contract, lease,
agreement or other instrument to which any of the Principals or his respective
assets or properties are bound.
(d) Litigation. There is no claim, litigation, investigation, inquiry,
action, suit, or proceeding, administrative or judicial, pending or, to their
knowledge, threatened against any of the Principals, at law or in equity, before
any court or regulatory agency, or other governmental authority that may have a
material adverse effect on the consummation of any of the transactions
contemplated by this Agreement.
(e) Compliance with Laws. The Inventors are in compliance with all
applicable laws, permits, licenses, rules and regulations, including without
limitation those of governmental bodies or agencies having jurisdiction over it.
(f) Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, any third party, court, administrative
agency or commission or other governmental authority or instrumentality is
required by or with respect to the Principals in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(g) Contracts. There are no agreements, arrangements, contracts or
understandings, whether written or oral, to which any of the Principals is a
party that may: (i) involve the license of any Intellectual Property to or from
the Principals; (ii) contain provisions restricting and/or affecting the
development, manufacture, distribution or sales of the Intellectual Property or
any product or service derived therefrom; (iii) involve any joint venture or
partnership contract or arrangement or any other agreement which has involved or
is expected to involve a sharing of profits with other persons with respect to
the Intellectual Property; (v) involve any agreement containing covenants
purporting to limit the freedom of the Principals to compete in any line of
business or geographic area; or (vi) involve any agreement of indemnification
regarding the Principals; (vii) be considered a financing or consulting
agreement; or (viii) establish any powers of attorney regarding the Principals.
(h) Complete Disclosure. No representation or warranty by the Principals in
this Agreement, and no agreement, exhibit, schedule, statement, certificate, or
other writing furnished to the Principals pursuant to this Agreement or in
connection with the transactions contemplated thereby when taken together as a
whole, contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements contained
herein and therein not misleading. In addition, the Principals have disclosed to
Newco all material facts and information concerning the Intellectual Property
and the transactions contemplated by this Agreement. The Principals acknowledge
that Newco and RIG are relying on the representations and warranties of the
Principals contained in this Agreement and would not enter into the transaction
contemplated by this Agreement absent such representations and warranties being
wholly accurate and complete in all respects.
(i) General Statement. The Inventors hereby state that all aforesaid
statements and declarations regarding the intellectual property are made to the
best of their knowledge.
Section 3.2 Representations of Newco. Newco hereby, represent and warrant
to the Principals that:
(a) Newco is a corporation duly organized and validly existing under the
laws of the State of New Jersey which is traded on the OTC Bulletin Board
exchange, with all requisite corporate power and authority to own, operate and
lease its properties and to carry on its business as now being conducted.
(b) Authority. Newco has all requisite corporate power and authority to
enter into this Agreement and to carry out its obligations and consummate the
transactions contemplated hereunder. This Agreement, when duly executed and
delivered by Newco, will constitute a valid and binding obligation of Newco,
enforceable against it in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, moratorium, reorganization, or other laws of
creditors= rights and remedies generally.
(c) Compliance with Other Instruments. The execution and delivery of this
Agreement by Newco does not, and the consummation of the transactions
contemplated by this Agreement will not conflict with, or result in any
violation or breach (i) of any provision of its Articles of Incorporation or
By-Laws, (ii) of any law, regulation, judgment or order applicable to it or
(iii) result in a termination or modification of, or cause any acceleration of
any obligation of Newco under any contract, lease, agreement or other instrument
to which Newco or its assets or properties are bound.
(d) Litigation. There is no claim, litigation, investigation, inquiry,
action, suit, or proceeding, administrative or judicial, pending or, to its
knowledge, threatened against Newco, at law or in equity, before any court,
regulatory agency, or other governmental authority, and neither Newco, nor any
of Newco=s directors is engaged in, that may have a material adverse effect on
Newco.
(e) Compliance with Laws. Newco is in compliance with all applicable laws,
permits, licenses, rules and regulations, including without limitation those of
governmental bodies or agencies having jurisdiction over it.
(f) Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality is required by or
with respect to Newco in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for the approval of the Board of Director of Newco.
(g) The 3,000,000 common shares to be issued pursuant to the terms of this
Agreement, will be duly authorized, validly issued and outstanding, fully paid
and non-assessable shares, free and clear of all pledges, liens, encumbrances
and restrictions (other than restrictions under applicable U.S. federal and
state securities laws).
(h) Officers and Directors. The current officers and directors of Newco are
Avrum Savran and Ron Fussman. No other person or entity has any claim to any
position with the Company.
(i) Complete Disclosure. No representation or warranty by Newco in this
Agreement, and no exhibit, schedule, statement, certificate, or other writing
furnished to the Principals or its advisors pursuant to this Agreement or in
connection with the transactions contemplated thereby when taken together as a
whole, contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements contained
herein and therein not misleading. In addition, Newco has disclosed to the
Principals all material facts and information concerning the transactions
contemplated by this Agreement. Newco acknowledges that the Principals are
relying on the representations and warranties of Newco contained in this
Agreement and would not enter into the transaction contemplated by this
Agreement absent such representations and warranties being wholly accurate and
complete in all respects.
(j) Liabilities and Obligations. Newco has no liabilities and/or
obligations to any third party, (Attorney, Accounting or other fees) exceeding
$100,000.
ARTICLE IV
CLOSING
Section 4.1 Deliveries by The Inventors. Simultaneous with the execution
and delivery of this Agreement, each of the Principals shall deliver to Newco
the Assignments.
Section 4.2 Deliveries by Newco. Simultaneous with the execution and
delivery of this Agreement, Newco shall execute a certificate by the of Newco
certifying that Stock certificates representing ownership of Newco Shares
registered in the names of the Principals shall be issued and that Newco=s
transfer agent shall be properly notified of such ownership."
ARTICLE V
PRIVATE PLACEMENT OFFERING; FEE PAYMENTS; POST-CLOSING COVENANTS
Section 5.1 Private Placement Offering. RIG shall act as Newco=s exclusive
financial consultant in connection with a best efforts financing to offer and
sell up to approximately $600,000 principal amount of common shares to be issued
by Newco to RIG (F/B/O, i.e. for benefit of others) in a Private Placement
offering. The offering shall occur in two steps as described below.
Step A. An offering of 1,000,000 shares of common stock for a net cash
consideration of $100,000, which offering shall close within 120 following the
execution of this Agreement.
Step B. An offering of 800,000 shares of common stock for a net cash
consideration of $500,000, which offering shall close within 180 days after the
completion of Step A.
The aforementioned $500,000 investment may be completed in One or up to Twenty
installments, each of no less than $50,000. In consideration for such
installments, RIG shall be entitled to receive common shares on a pro rata
basis, i.e. 80,000 common shares for each installment of $50,000 and so on.
Upon the completion of step A and step B, all outstanding securities of
Newco shall be as follows:
Existing Shareholders 32,600 Shares
The Principals 3,000,000 Shares
RIG 1,800,000 Shares
RIG and its clients in the offerings will receive piggy back registration
rights to the shares issued pursuant to the financing as described above. RIG
shall use its best efforts in assisting Newco to close both Step A and Step B of
the private placement offerings and shall take all action it deems appropriate
in connection therewith.
Newco acknowledges that it has been advised by RIG that the offering must
comply completely with all applicable securities laws and regulations and that
Newco shall ensure that each purchaser of the securities executes a
representation certifying that the securities are subject to restrictions on
offers and sales under the Securities Act of 1933, as amended, and any other
necessary restrictions.
Section 5.2 Board Representation. The Inventors shall have the right to
nominate one director to a Three-member Board of Directors of Newco.
Section 5.3 Fee Payments. In consideration for RIG=s services, RIG shall be
entitled to receive, and Newco shall pay RIG the following:
(i) For one year from the date hereof, Newco shall pay RIG $75,000 for all
consultancy services in connection with this Agreement and the following
services: (a) issuance of press releases, (b) relationship with analysts
covering Newco, (c) consulting in choosing market-makers to handle all trading
activities, (d) investment services both in US and Israel and (e) consulting in
choosing the appropriate underwriter for a secondary offering for Newco.
Said amount shall be due and payable immediately following the closing of
step B of the financing as described in section 5.1 above.
(ii) Newco shall pay RIG a finder=s fee equal to 10% of the gross proceeds
of any investment made by any investor in Newco which has been introduced by
RIG. Such amounts shall be paid simultaneously with the closing of step B. In
the event that RIG will make an investment in Newco for the benefit of its own
account, the above-mentioned 10% finder=s fee shall not be paid to RIG.
(iii) Newco shall pay RIG non-accountable expense allowance of $10,000 in
connection with the Private Placement offering. Such amount shall be paid to RIG
upon the completion of Step B of the financing.
(iv) For acting as Newco=s business consultant and wholly separate and
apart and having no relationship with any capital raising transactions, RIG or
its designees shall receive warrants (options) to purchase up to Five Hundred
Thousand (500,000) shares of Common Stock of Newco, at a purchase price of $.125
per share The warrants shall be exercised in whole or in part for Three years
from the date of the closing of Step A. The parties acknowledge that none of the
aforesaid warrants are being issued as compensation for or in connection with
the offer or sale of securities in any capital raising transaction but are being
issued solely for bona fide services rendered in a conciliatory capacity. To the
extent permissible under applicable law, at the written request of RIG, Newco
shall take all steps necessary so that the shares of common stock underlying
said warrants shall be registered pursuant to S-8 under the Act with Newco being
responsible for all fees in connection therewith. It shall be Newco=s obligation
to bear all fees and expenses in connection with the Private placement offering,
including without limitation printing and duplication costs, postage and mailing
expenses, transfer agent fees, its counsel and accounting fees, escrow fees and
issue and transfer taxes, if any.
Section 5.4 No Shop Clause; Right of First Refusal. Newco agrees, and the
Principals agree that they will cause Newco, not to execute any financing
agreement or engage in any public or private offering of Newco=s securities with
any party other than RIG for the twelve-month period following the date of this
Agreement. Following such twelve-moth period, RIG shall have a right of first
refusal on any Regulation S, Regulation D or Section 4(2) offering proposed to
be effected by Newco of its own securities. RIG shall have 10 days to accept the
securities proposed to be offered and invest in Newco, on the same terms as
being offered within 20 days after receiving notice of the offering. If the
right of refusal is not exercised within such time, Newco can offer the
securities on the same terms as offered to RIG.
Section 5.5 RIG shall also act as Newco=s subsidiary (when formed)
exclusive financial consultant in connection with best efforts financing to
offer and sell common shares of the subsidiary, in a Private Placement offering.
Section 5.6 Fee Payments. In consideration for RIG=s services to the
subsidiary, RIG shall be entitled to receive, and the subsidiary shall pay RIG
the following:
(i) Newco shall pay RIG a finder=s fee equal to 7% of the gross proceeds of
any investment made by any investor in the subsidiary which has been introduced
by RIG. Such amounts shall be paid simultaneously with the closing of such
investment.
(ii) For acting as the subsidiary=s business consultant and wholly separate
and apart and having no relationship with any capital raising transactions, RIG
or its designees shall receive common shares of the subsidiary representing 7%
of the gross proceeds investment made in the subsidiary. The aforementioned
amount of common shares shall be based on the same valuation terms of the
Private Placement. It shall be the subsidiary=s obligation to bear all fees and
expenses in connection with the Private placement offering, including without
limitation printing and duplication costs, postage and mailing expenses,
transfer agent fees, its counsel and accounting fees, escrow fees and issue and
transfer taxes, if any.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Survival of Representations, Warranties, and Agreements. All
representations, warranties, covenants, and agreements of each party in this
Agreement shall survive the execution and delivery of this Agreement and shall
in no way be affected by any investigation of the subject matter thereof made by
or on behalf of the parties to this Agreement.
Section 6.2 Indemnity.
6.2.1 The Inventors hereby agree, jointly and severally, to indemnify and
hold harmless Newco, RIG and their respective officers, directors, stockholders,
employees, agents and representatives against any and all losses, liabilities,
damages, demands, claims, suits, actions, judgments or causes of action,
assessments, costs and expenses, including, without limitation, interest,
penalties, attorneys= fees, any and all expenses incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation (collectively, ADamages@), asserted against, resulting from, imposed
upon, or incurred or suffered by Newco, RIG and their respective officers,
directors, stockholders, employees, agents and representatives, directly or
indirectly, as a result of or arising from any breach or nonfulfillment of any
of the representations, warranties, covenants, or agreements made by the
Inventors in this Agreement or any accompanying schedule, exhibit or
certificate. The above undertakings are also subject to notification to the
inventors by either Newco, RIG and/or their respective officers, directors,
stockholders, employees, agents and representatives within 72 hours of such
event and said damages shall only be paid following final settlement or judicial
verdict.
6.2.2 Newco and RIG hereby agree, jointly and severally, to indemnify and
hold harmless the Principals against any and all losses, liabilities, damages,
demands, claims, suits, actions, judgments or causes of action, assessments,
costs and expenses, including, without limitation, interest, penalties,
attorneys= fees, any and all expenses incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation (collectively, ADamages@), asserted against, resulting from, imposed
upon, or incurred or suffered by the Principals, directly or indirectly, as a
result of or arising from any breach or nonfulfillment of any of the
representations, warranties, covenants, or agreements made by Newco or RIG and
their respective officers, directors, stockholders, employees, agents and
representatives, directly or indirectly in this Agreement or any accompanying
schedule, exhibit or certificate. The above undertakings are also subject to
notification to the Newco or RIG and their respective officers, directors,
stockholders, employees, agents and representatives by the Inventors within 72
hours of such event and said damages shall only be paid following final
settlement or judicial verdict.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered to the
parties at the address set forth below their respective signature blocks, or at
such other address that they designate by notice to all other parties in
accordance with this Section 7.2. Any party delivering notice to Newco and/or
RIG shall also deliver a copy to Ron Fussman, 52A Hanassi Street, Hertzelia,
46448, Israel at Fax: 972 9 954 6801. Any party delivering notice to the
Principals shall also deliver a copy to Ran Levin, Adv. at Bloch 11 Street,
Tel-Aviv, 64161, Israel at Fax: 972 3 529 9644.
All notices and communications shall be deemed to have been received: (i)
in the case of personal delivery, on the date of such delivery; (ii) in the case
of facsimile transmission, on the date on which the sender receives confirmation
by facsimile transmission that such notice was received by the addressee,
provided that a copy of such transmission is additionally sent by mail as set
forth in (iv) below; (iii) in the case of overnight air courier, on the third
business day following the day sent, with receipt confirmed by the courier; and
(iv) in the case of mailing by first class certified or registered mail, postage
prepaid, return receipt requested, on the tenth business day following such
mailing.
Section 7.3 Entire Agreement. This Agreement, the exhibits and schedules
hereto, and the documents referred to herein embody the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof,
and supersede all prior and contemporaneous agreements and understandings, oral
or written, relative to said subject matter.
Section 7.4 Binding Effect; Assignment. This Agreement and the various
rights and obligations arising hereunder shall inure to the benefit of and be
binding upon Newco, RIG, the Principals, their successors, permitted assigns,
heirs and legal representatives. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be transferred or assigned by either
of the parties hereto without the prior written consent of all the other
parties.
Section 7.5 Captions. The Article and Section headings of this Agreement
are inserted for convenience only and shall not constitute a part of this
Agreement in construing or interpreting any provision hereof.
Section 7.6 Expenses of Transaction. Each party shall bear their own fees
and expanses incurred in connection with this Agreement and the transactions
contemplated hereunder.
Section 7.7 Amendment; Waiver. This Agreement may not be changed, amended,
terminated, augmented, rescinded, or discharged (other than by performance), in
whole or in part, except by a writing executed by all the parties hereto, and no
waiver of any of the provisions or conditions of this Agreement or any of the
rights of a party hereto shall be effective or binding unless such waiver shall
be in writing and signed by the party claimed to have given or consented
thereto.
Section 7.8 Third-Party Beneficiaries. Except as otherwise expressly
provided for in this Agreement, nothing herein, expressed or implied, is
intended or shall be construed to confer upon or give to any person, firm,
corporation, or legal entity, other than the parties hereto, any rights,
remedies, or other benefits under or by reason of this Agreement.
Section 7.9 Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
Section 7.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provisions were so excluded and shall be enforceable in accordance with its
terms.
Section 7.11 Governing Law. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of New York,
without regard to any choice of law or conflicting provision or rule (whether of
the State of New York or any other jurisdiction) that would cause the laws. of
any other jurisdiction other than the State of New York to be applied. The
parties agree that the courts of New York shall have sole jurisdiction to hear
any disputes among the parties related to this Agreement and each of the parties
hereby irrevocably consents to the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the 11th day of June 1999.
SAVIN ELECTRONICS INC.
/s/Ron Fussman
--------------------------
Ron Fussman - President
/s/Uriel Ginzburg
--------------------------
Uriel Ginzburg
ROYCE INVESTMENT GROUP
/s/Jonathan Levin
--------------------------
Jonathan Levin
/s/David Greenberg
--------------------------
David Greenberg - Secretary
/s/John Federman
--------------------------
John Federman
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT made as of this 11 day of June 1999, by Uriel
Ginzburg, an individual with Israeli ID number 034404772, to and in favor of
Savin Electronics Inc., a New Jersey corporation and its subsidiaries (the
ACompany@).
For full and adequate consideration, the receipt and sufficient of which I
hereby acknowledge, I hereby represent, covenant, agree and acknowledge as
follows:
1. The Proprietary Products (as defined below) are and shall be the exclusive
property of the Company and I shall not have, nor claim to have, any right,
title or interest therein or thereto in such capacity. All opportunities
relating to the Proprietary Products, whether or not involving third
parties, shall belong to and be carried out for the account of the Company.
I shall from time to time execute and deliver such additional instruments
of transfer as may be requested by the Company to confirm such transfer to
the Company. "Proprietary Products" means collectively Documents,
Developments and Related Property, all as defined hereafter. ARelated
Property@ means all tangible and intangible property owned by, or licensed
to, or otherwise used by me in connection with network data security,
including, without limitation, ideas, concepts, projects, programs,
computer software or hardware, data bases, specifications, documentation,
algorithms, source codes, object codes, program listings, product platforms
and architectures, concepts, screens, formats, technology, know-how,
Developments, research and development and patents, copyrights, trademarks,
trade names, service names, service marks, logos and designs and other
proprietary rights and registrations and applications and the rights to
apply therefor. ADevelopments@ means discoveries, inventions, concepts,
ideas, designs, methods, formulas, know-how, techniques, systems or any
improvements or enhancements thereon, whether or not patentable or
copyrightable, made, conceived, improved or developed, in whole or in part,
by me relating to network data security. ADocuments@ means any and all
books, textbooks, letters, pamphlets, drafts, memoranda, notes, records,
drawings, files, documents, manuals, compilations of information,
correspondence or other writings of any kind and all copies, abstracts and
summaries of any of the foregoing, whether in printed, written or
electronic data or any machine readable form: (i) of mine; or (ii) in my
possession or control and pertaining to, and used in the furtherance of,
network data security.
2. Any and all Inventions (as defined below) shall be deemed work specifically
ordered or commissioned by the Company and each such work shall be
considered a "work made for hire" within the meaning of 17 U.S.C. '101 of
the United States Copyright Act and all rights to such work shall belong
entirely to the Company. I shall from time to time, promptly upon the
request of the Company, execute and deliver to the Company any instruments
necessary to effect the irrevocable assignment of all my right, title and
interest, including copyright and author rights, in such works to the
Company and for the Company to obtain proprietary rights in connection
therewith. "Inventions" shall mean discoveries, concepts, ideas, designs,
methods, formulas, know-how, techniques, or any improvements thereon,
whether patentable or not, made, conceived or developed, in whole or in
part, by me with respect to any Proprietary Products or any work in which I
may be engaged or to which I am exposed relating to the Proprietary
Products.
I shall, promptly upon the request of the Company, communicate and fully
disclose to the Company any and all Inventions made or conceived by me, and
any and all Inventions which I may conceive or make, during my employment
with the Company, shall be at all times and for all purposes regarded as
acquired and held by me in a fiduciary capacity and solely for the benefit
of the Company and shall be the sole and exclusive property of the Company.
3. That the success of the Company depends on the innovative Proprietary
Products and that it is imperative that all Confidential Information (as
defined below) is maintained in strict confidence. Confidential Information
is the exclusive property of the Company. I shall therefore retain in
strict confidence and not copy or disclose or transfer to any third party
any Confidential Information. "Confidential Information" means information
disclosed by the Company to me, or developed or obtained by me whether
before or after the date of this Agreement relating to or concerning the
Proprietary Products, and the research, development, sale, distribution,
marketing maintenance, support and licensing of the Proprietary Products
and the development and exploitation of proprietary rights relating
thereto, whether or not any of the foregoing are patentable or
copyrightable, including without limitation: all know-how, technical
information, inventions, ideas, concepts, processes, trading systems,
trading signals, procedures, operations, investment strategy, computer
programs and software, research and development plans and results, data
bases, specifications, documentation, algorithms, source codes, object
codes, program listings, product platforms and architecture, concepts,
screens, formats, "look and feel" of proprietary software, trade secrets,
technology, product information, product availability, pricing information,
customer and supplier lists, financial information, business and marketing
plans, the practices and methods of the Company, and marketing and other
relationships between the Company, its customers, employees, agents,
consultants and independent contractors; provided, that Confidential
Information shall not include information which (i) at the time of
disclosure is generally known in the business and industry in which the
Company is or may subsequently become engaged, or (ii) after disclosure is
published or otherwise becomes generally known in such business or industry
through no fault of mine.
4. That any and all Documents made or kept by me or work performed in the
performance of my duties for the Company, shall be and are the sole and
exclusive property of the Company. I agree to execute and deliver to the
Company any and all agreements or instruments of any nature which the
Company deems necessary or appropriate to acquire, enhance, protect,
perfect, assign, sell or transfer its rights under this Agreement. I also
agree that upon request I will place all Documents in the Company's
possession and will not take with me without the written consent of a duly
authorized officer of the Company any Documents or reproductions thereof
relating or pertaining to or connected with my relation to the company or
the business of the Company. I further agree to execute and deliver to the
Company such instruments as the Company may request from time to time,
necessary or appropriate to confirm or otherwise effectuate the Company's
rights under this Agreement including separate instruments of transfer.
5. That I shall assist the Company in every proper way upon request to obtain
for its benefit patents, copyrights, trade names, trademarks, service
names, service marks for any and all Proprietary Products and Inventions in
the United States and all foreign countries. All such patents, copyrights,
trade names, trademarks, service names, service marks and any registrations
and applications therefor are to be, and remain, the exclusive property of
the Company and I agree that I will, whenever so requested by the Company
or its duly authorized agent, make, execute and deliver to the Company its
successors, assigns, or nominees, without charge to the Company, any and
all applications, assignments and all other instruments which the Company
shall deem necessary or appropriate in order to apply for and obtain such
patents, copyrights, trade names, trademarks, service names, and service
marks or in order to assign and convey to the Company, their successors,
assigns or nominees, the sole and exclusive right, title and interest
therein and thereto. My obligations to execute any such instruments shall
continue for a period of two (2) years after the termination of my relation
with the Company (whether as an officer, director, employee, consultant,
agent, or otherwise), and such obligations shall be binding upon my heirs,
executors, assigns, administrators or other legal representatives. For the
aforementioned Two years obligation following the termination of my
relation with the Company, for services rendered by me , a reasonable fee
arrangement shall be negotiated with the Company.
6. That the Proprietary Products are the exclusive and valuable property of
the Company and may not be used by me for any purpose of any kind, directly
or indirectly, except for the sole and exclusive benefit of the Company and
acknowledge and agree that the success of the Company depends on my
observance of the covenants contained in this Paragraph 6.
In consideration of the rights and benefits granted to me by the
Company, I agree that for a period of Three (3) years after the date of
this Agreement (the ARestrictive Period@), I shall not directly or
indirectly, for myself or on behalf of or in conjunction with any other
person, company, partnership, corporation, business, group, or other entity
(each, a Aperson@) anywhere in the world:
(a) Engage or participate in any position, whether as an officer,
director, partner, joint venturer, executive, manager, supervisor,
employee, independent contractor, consultant, advisor, or sales
representative, or own more than 5% (five percent) of any class of
securities of, or own any equity securities which would enable me to
control or influence the management of, any business primarily or
substantially, directly or through subsidiaries or controlled
investments involved in the business contemplated by the Company or
conducted by the Company in the field of Network Data Security; or
perform any research or development or distribution or marketing
services for any Proprietary Product of the Company, or any product
which is developed or marketed by the Company.
2 Engage in (for my own account or otherwise), or perform services of
any nature for any entity which engages in, a business which is in any
manner directly or indirectly similar to that of the business
((contemplated (while I still have any relations with the company) or
actual)) of the Company other than the Company, without the prior
written approval of the Company, which the Company may grant or
withhold in its sole discretion.
In this regard, I acknowledge that the Company has made an extraordinary
investment in the development of the Proprietary Products and that even the
inadvertent disclosure of any element of the Proprietary Products could
cause irreparable harm to the Company and that any trading or other
investment activities described in this paragraph could also adversely
affect the performance of the Proprietary Products.
(c) Solicit, hire or retain any consultant or employee of the Company or
persuade or entice any such consultant or employee to terminate or
lessen the extent of his, her or its relationship with the Company;
(d) Engage in any activity to interfere with, disrupt or damage the
Company or its relationships with any of its clients, customers,
distributors, suppliers, investors or other financial co-venturers or
other business relationship;
i.e. In the event of my or threatened breach of this Section 6, the
Company shall be entitled to such equitable and injunctive relief
as may be available to restrain me and any business, individual
or entity participating in such breach from violating the
provisions hereof. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies
available in equity or at law for such breach or threatened
breach.
i.e. The covenants in this Section 6 are severable and separate, and
the unenforceability of any specific covenant shall not affect
the provisions of any other covenant. If any provision of this
Section 6 relating to the time period, geographic area or scope
of business of the restrictive covenants shall be declared by a
court of competent jurisdiction or arbitration panel to exceed
the maximum time period, geographic area or scope of business, as
applicable, that such court or arbitration panel deems reasonable
and enforceable, said time period, geographic area or scope of
business shall be deemed to be, and thereafter shall become, the
maximum time period, largest geographic area or widest scope of
business that such court or arbitration panel deems reasonable
and enforceable and this Agreement shall automatically be
considered to have been amended and revised to reflect such
determination.
Sincerely,
/s/Uriel Ginzburg
-------------------------
Uriel Ginzburg
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT made as of this 11 day of June 1999, by Jonathan
Levin, an individual with Israeli ID number 034404772, to and in favor of Savin
Electronics Inc., a New Jersey corporation and its subsidiaries (the ACompany@).
For full and adequate consideration, the receipt and sufficient of which I
hereby acknowledge, I hereby represent, covenant, agree and acknowledge as
follows:
1. The Proprietary Products (as defined below) are and shall be the
exclusive property of the Company and I shall not have, nor claim to
have, any right, title or interest therein or thereto in such
capacity. All opportunities relating to the Proprietary Products,
whether or not involving third parties, shall belong to and be carried
out for the account of the Company. I shall from time to time execute
and deliver such additional instruments of transfer as may be
requested by the Company to confirm such transfer to the Company.
"Proprietary Products" means collectively Documents, Developments and
Related Property, all as defined hereafter. ARelated Property@ means
all tangible and intangible property owned by, or licensed to, or
otherwise used by me in connection with network data security,
including, without limitation, ideas, concepts, projects, programs,
computer software or hardware, data bases, specifications,
documentation, algorithms, source codes, object codes, program
listings, product platforms and architectures, concepts, screens,
formats, technology, know-how, Developments, research and development
and patents, copyrights, trademarks, trade names, service names,
service marks, logos and designs and other proprietary rights and
registrations and applications and the rights to apply therefor.
ADevelopments@ means discoveries, inventions, concepts, ideas,
designs, methods, formulas, know-how, techniques, systems or any
improvements or enhancements thereon, whether or not patentable or
copyrightable, made, conceived, improved or developed, in whole or in
part, by me relating to network data security. ADocuments@ means any
and all books, textbooks, letters, pamphlets, drafts, memoranda,
notes, records, drawings, files, documents, manuals, compilations of
information, correspondence or other writings of any kind and all
copies, abstracts and summaries of any of the foregoing, whether in
printed, written or electronic data or any machine readable form: (i)
of mine; or (ii) in my possession or control and pertaining to, and
used in the furtherance of, network data security.
2. Any and all Inventions (as defined below) shall be deemed work
specifically ordered or commissioned by the Company and each such work
shall be considered a "work made for hire" within the meaning of 17
U.S.C. '101 of the United States Copyright Act and all rights to such
work shall belong entirely to the Company. I shall from time to time,
promptly upon the request of the Company, execute and deliver to the
Company any instruments necessary to effect the irrevocable assignment
of all my right, title and interest, including copyright and author
rights, in such works to the Company and for the Company to obtain
proprietary rights in connection therewith. "Inventions" shall mean
discoveries, concepts, ideas, designs, methods, formulas, know-how,
techniques, or any improvements thereon, whether patentable or not,
made, conceived or developed, in whole or in part, by me with respect
to any Proprietary Products or any work in which I may be engaged or
to which I am exposed relating to the Proprietary Products.
I shall, promptly upon the request of the Company, communicate and
fully disclose to the Company any and all Inventions made or conceived
by me, and any and all Inventions which I may conceive or make, during
my employment with the Company, shall be at all times and for all
purposes regarded as acquired and held by me in a fiduciary capacity
and solely for the benefit of the Company and shall be the sole and
exclusive property of the Company.
3. That the success of the Company depends on the innovative Proprietary
Products and that it is imperative that all Confidential Information
(as defined below) is maintained in strict confidence. Confidential
Information is the exclusive property of the Company. I shall
therefore retain in strict confidence and not copy or disclose or
transfer to any third party any Confidential Information.
"Confidential Information" means information disclosed by the Company
to me, or developed or obtained by me whether before or after the date
of this Agreement relating to or concerning the Proprietary Products,
and the research, development, sale, distribution, marketing
maintenance, support and licensing of the Proprietary Products and the
development and exploitation of proprietary rights relating thereto,
whether or not any of the foregoing are patentable or copyrightable,
including without limitation: all know-how, technical information,
inventions, ideas, concepts, processes, trading systems, trading
signals, procedures, operations, investment strategy, computer
programs and software, research and development plans and results,
data bases, specifications, documentation, algorithms, source codes,
object codes, program listings, product platforms and architecture,
concepts, screens, formats, "look and feel" of proprietary software,
trade secrets, technology, product information, product availability,
pricing information, customer and supplier lists, financial
information, business and marketing plans, the practices and methods
of the Company, and marketing and other relationships between the
Company, its customers, employees, agents, consultants and independent
contractors; provided, that Confidential Information shall not include
information which (i) at the time of disclosure is generally known in
the business and industry in which the Company is or may subsequently
become engaged, or (ii) after disclosure is published or otherwise
becomes generally known in such business or industry through no fault
of mine.
4. That any and all Documents made or kept by me or work performed in the
performance of my duties for the Company, shall be and are the sole
and exclusive property of the Company. I agree to execute and deliver
to the Company any and all agreements or instruments of any nature
which the Company deems necessary or appropriate to acquire, enhance,
protect, perfect, assign, sell or transfer its rights under this
Agreement. I also agree that upon request I will place all Documents
in the Company's possession and will not take with me without the
written consent of a duly authorized officer of the Company any
Documents or reproductions thereof relating or pertaining to or
connected with my relation to the company or the business of the
Company. I further agree to execute and deliver to the Company such
instruments as the Company may request from time to time, necessary or
appropriate to confirm or otherwise effectuate the Company's rights
under this Agreement including separate instruments of transfer.
5. That I shall assist the Company in every proper way upon request to
obtain for its benefit patents, copyrights, trade names, trademarks,
service names, service marks for any and all Proprietary Products and
Inventions in the United States and all foreign countries. All such
patents, copyrights, trade names, trademarks, service names, service
marks and any registrations and applications therefor are to be, and
remain, the exclusive property of the Company and I agree that I will,
whenever so requested by the Company or its duly authorized agent,
make, execute and deliver to the Company its successors, assigns, or
nominees, without charge to the Company, any and all applications,
assignments and all other instruments which the Company shall deem
necessary or appropriate in order to apply for and obtain such
patents, copyrights, trade names, trademarks, service names, and
service marks or in order to assign and convey to the Company, their
successors, assigns or nominees, the sole and exclusive right, title
and interest therein and thereto. My obligations to execute any such
instruments shall continue for a period of two (2) years after the
termination of my relation with the Company (whether as an officer,
director, employee, consultant, agent, or otherwise), and such
obligations shall be binding upon my heirs, executors, assigns,
administrators or other legal representatives. For the aforementioned
Two years obligation following the termination of my relation with the
Company, for services rendered by me , a reasonable fee arrangement
shall be negotiated with the Company.
6. That the Proprietary Products are the exclusive and valuable property
of the Company and may not be used by me for any purpose of any kind,
directly or indirectly, except for the sole and exclusive benefit of
the Company and acknowledge and agree that the success of the Company
depends on my observance of the covenants contained in this Paragraph
6.
In consideration of the rights and benefits granted to me by the
Company, I agree that for a period of Three (3) years after the date
of this Agreement (the ARestrictive Period@), I shall not directly or
indirectly, for myself or on behalf of or in conjunction with any
other person, company, partnership, corporation, business, group, or
other entity (each, a Aperson@) anywhere in the world:
(a) Engage or participate in any position, whether as an officer,
director, partner, joint venturer, executive, manager,
supervisor, employee, independent contractor, consultant,
advisor, or sales representative, or own more than 5% (five
percent) of any class of securities of, or own any equity
securities which would enable me to control or influence the
management of, any business primarily or substantially, directly
or through subsidiaries or controlled investments involved in the
business contemplated by the Company or conducted by the Company
in the field of Network Data Security; or perform any research or
development or distribution or marketing services for any
Proprietary Product of the Company, or any product which is
developed or marketed by the Company.
2 Engage in (for my own account or otherwise), or perform services
of any nature for any entity which engages in, a business which
is in any manner directly or indirectly similar to that of the
business ((contemplated (while I still have any relations with
the company) or actual)) of the Company other than the Company,
without the prior written approval of the Company, which the
Company may grant or withhold in its sole discretion.
In this regard, I acknowledge that the Company has made an
extraordinary investment in the development of the Proprietary
Products and that even the inadvertent disclosure of any element of
the Proprietary Products could cause irreparable harm to the Company
and that any trading or other investment activities described in this
paragraph could also adversely affect the performance of the
Proprietary Products.
(c) Solicit, hire or retain any consultant or employee of the Company
or persuade or entice any such consultant or employee to terminate or
lessen the extent of his, her or its relationship with the Company;
(d) Engage in any activity to interfere with, disrupt or damage the
Company or its relationships with any of its clients, customers,
distributors, suppliers, investors or other financial co-venturers or
other business relationship;
i.e. In the event of my or threatened breach of this Section 6, the
Company shall be entitled to such equitable and injunctive relief
as may be available to restrain me and any business, individual
or entity participating in such breach from violating the
provisions hereof. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies
available in equity or at law for such breach or threatened
breach.
i.e. The covenants in this Section 6 are severable and separate, and
the unenforceability of any specific covenant shall not affect
the provisions of any other covenant. If any provision of this
Section 6 relating to the time period, geographic area or scope
of business of the restrictive covenants shall be declared by a
court of competent jurisdiction or arbitration panel to exceed
the maximum time period, geographic area or scope of business, as
applicable, that such court or arbitration panel deems reasonable
and enforceable, said time period, geographic area or scope of
business shall be deemed to be, and thereafter shall become, the
maximum time period, largest geographic area or widest scope of
business that such court or arbitration panel deems reasonable
and enforceable and this Agreement shall automatically be
considered to have been amended and revised to reflect such
determination.
Sincerely,
/s/Jonathan Levin
-----------------------
Jonathan Levin
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT made as of this 11 day of June 1999, by John Federman,
an individual with Israeli ID number 034404772, to and in favor of Savin
Electronics Inc., a New Jersey corporation and its subsidiaries (the ACompany@).
For full and adequate consideration, the receipt and sufficient of which I
hereby acknowledge, I hereby represent, covenant, agree and acknowledge as
follows:
1. The Proprietary Products (as defined below) are and shall be the exclusive
property of the Company and I shall not have, nor claim to have, any right,
title or interest therein or thereto in such capacity. All opportunities
relating to the Proprietary Products, whether or not involving third
parties, shall belong to and be carried out for the account of the Company.
I shall from time to time execute and deliver such additional instruments
of transfer as may be requested by the Company to confirm such transfer to
the Company. "Proprietary Products" means collectively Documents,
Developments and Related Property, all as defined hereafter. ARelated
Property@ means all tangible and intangible property owned by, or licensed
to, or otherwise used by me in connection with network data security,
including, without limitation, ideas, concepts, projects, programs,
computer software or hardware, data bases, specifications, documentation,
algorithms, source codes, object codes, program listings, product platforms
and architectures, concepts, screens, formats, technology, know-how,
Developments, research and development and patents, copyrights, trademarks,
trade names, service names, service marks, logos and designs and other
proprietary rights and registrations and applications and the rights to
apply therefor. ADevelopments@ means discoveries, inventions, concepts,
ideas, designs, methods, formulas, know-how, techniques, systems or any
improvements or enhancements thereon, whether or not patentable or
copyrightable, made, conceived, improved or developed, in whole or in part,
by me relating to network data security. ADocuments@ means any and all
books, textbooks, letters, pamphlets, drafts, memoranda, notes, records,
drawings, files, documents, manuals, compilations of information,
correspondence or other writings of any kind and all copies, abstracts and
summaries of any of the foregoing, whether in printed, written or
electronic data or any machine readable form: (i) of mine; or (ii) in my
possession or control and pertaining to, and used in the furtherance of,
network data security.
2. Any and all Inventions (as defined below) shall be deemed work specifically
ordered or commissioned by the Company and each such work shall be
considered a "work made for hire" within the meaning of 17 U.S.C. '101 of
the United States Copyright Act and all rights to such work shall belong
entirely to the Company. I shall from time to time, promptly upon the
request of the Company, execute and deliver to the Company any instruments
necessary to effect the irrevocable assignment of all my right, title and
interest, including copyright and author rights, in such works to the
Company and for the Company to obtain proprietary rights in connection
therewith. "Inventions" shall mean discoveries, concepts, ideas, designs,
methods, formulas, know-how, techniques, or any improvements thereon,
whether patentable or not, made, conceived or developed, in whole or in
part, by me with respect to any Proprietary Products or any work in which I
may be engaged or to which I am exposed relating to the Proprietary
Products.
I shall, promptly upon the request of the Company, communicate and fully
disclose to the Company any and all Inventions made or conceived by me, and
any and all Inventions which I may conceive or make, during my employment
with the Company, shall be at all times and for all purposes regarded as
acquired and held by me in a fiduciary capacity and solely for the benefit
of the Company and shall be the sole and exclusive property of the Company.
3. That the success of the Company depends on the innovative Proprietary
Products and that it is imperative that all Confidential Information (as
defined below) is maintained in strict confidence. Confidential Information
is the exclusive property of the Company. I shall therefore retain in
strict confidence and not copy or disclose or transfer to any third party
any Confidential Information. "Confidential Information" means information
disclosed by the Company to me, or developed or obtained by me whether
before or after the date of this Agreement relating to or concerning the
Proprietary Products, and the research, development, sale, distribution,
marketing maintenance, support and licensing of the Proprietary Products
and the development and exploitation of proprietary rights relating
thereto, whether or not any of the foregoing are patentable or
copyrightable, including without limitation: all know-how, technical
information, inventions, ideas, concepts, processes, trading systems,
trading signals, procedures, operations, investment strategy, computer
programs and software, research and development plans and results, data
bases, specifications, documentation, algorithms, source codes, object
codes, program listings, product platforms and architecture, concepts,
screens, formats, "look and feel" of proprietary software, trade secrets,
technology, product information, product availability, pricing information,
customer and supplier lists, financial information, business and marketing
plans, the practices and methods of the Company, and marketing and other
relationships between the Company, its customers, employees, agents,
consultants and independent contractors; provided, that Confidential
Information shall not include information which (i) at the time of
disclosure is generally known in the business and industry in which the
Company is or may subsequently become engaged, or (ii) after disclosure is
published or otherwise becomes generally known in such business or industry
through no fault of mine.
4. That any and all Documents made or kept by me or work performed in the
performance of my duties for the Company, shall be and are the sole and
exclusive property of the Company. I agree to execute and deliver to the
Company any and all agreements or instruments of any nature which the
Company deems necessary or appropriate to acquire, enhance, protect,
perfect, assign, sell or transfer its rights under this Agreement. I also
agree that upon request I will place all Documents in the Company's
possession and will not take with me without the written consent of a duly
authorized officer of the Company any Documents or reproductions thereof
relating or pertaining to or connected with my relation to the company or
the business of the Company. I further agree to execute and deliver to the
Company such instruments as the Company may request from time to time,
necessary or appropriate to confirm or otherwise effectuate the Company's
rights under this Agreement including separate instruments of transfer.
5. That I shall assist the Company in every proper way upon request to obtain
for its benefit patents, copyrights, trade names, trademarks, service
names, service marks for any and all Proprietary Products and Inventions in
the United States and all foreign countries. All such patents, copyrights,
trade names, trademarks, service names, service marks and any registrations
and applications therefor are to be, and remain, the exclusive property of
the Company and I agree that I will, whenever so requested by the Company
or its duly authorized agent, make, execute and deliver to the Company its
successors, assigns, or nominees, without charge to the Company, any and
all applications, assignments and all other instruments which the Company
shall deem necessary or appropriate in order to apply for and obtain such
patents, copyrights, trade names, trademarks, service names, and service
marks or in order to assign and convey to the Company, their successors,
assigns or nominees, the sole and exclusive right, title and interest
therein and thereto. My obligations to execute any such instruments shall
continue for a period of two (2) years after the termination of my relation
with the Company (whether as an officer, director, employee, consultant,
agent, or otherwise), and such obligations shall be binding upon my heirs,
executors, assigns, administrators or other legal representatives. For the
aforementioned Two years obligation following the termination of my
relation with the Company, for services rendered by me , a reasonable fee
arrangement shall be negotiated with the Company.
6. That the Proprietary Products are the exclusive and valuable property of
the Company and may not be used by me for any purpose of any kind, directly
or indirectly, except for the sole and exclusive benefit of the Company and
acknowledge and agree that the success of the Company depends on my
observance of the covenants contained in this Paragraph 6.
In consideration of the rights and benefits granted to me by the
Company, I agree that for a period of Three (3) years after the date of
this Agreement (the ARestrictive Period@), I shall not directly or
indirectly, for myself or on behalf of or in conjunction with any other
person, company, partnership, corporation, business, group, or other entity
(each, a Aperson@) anywhere in the world:
(a) Engage or participate in any position, whether as an officer,
director, partner, joint venturer, executive, manager, supervisor,
employee, independent contractor, consultant, advisor, or sales
representative, or own more than 5% (five percent) of any class of
securities of, or own any equity securities which would enable me to
control or influence the management of, any business primarily or
substantially, directly or through subsidiaries or controlled
investments involved in the business contemplated by the Company or
conducted by the Company in the field of Network Data Security; or
perform any research or development or distribution or marketing
services for any Proprietary Product of the Company, or any product
which is developed or marketed by the Company.
2 Engage in (for my own account or otherwise), or perform services of
any nature for any entity which engages in, a business which is in any
manner directly or indirectly similar to that of the business
((contemplated (while I still have any relations with the company) or
actual)) of the Company other than the Company, without the prior
written approval of the Company, which the Company may grant or
withhold in its sole discretion.
In this regard, I acknowledge that the Company has made an extraordinary
investment in the development of the Proprietary Products and that even the
inadvertent disclosure of any element of the Proprietary Products could
cause irreparable harm to the Company and that any trading or other
investment activities described in this paragraph could also adversely
affect the performance of the Proprietary Products.
(c) Solicit, hire or retain any consultant or employee of the Company or
persuade or entice any such consultant or employee to terminate or
lessen the extent of his, her or its relationship with the Company;
(d) Engage in any activity to interfere with, disrupt or damage the
Company or its relationships with any of its clients, customers,
distributors, suppliers, investors or other financial co-venturers or
other business relationship;
i.e. In the event of my or threatened breach of this Section 6, the
Company shall be entitled to such equitable and injunctive relief
as may be available to restrain me and any business, individual
or entity participating in such breach from violating the
provisions hereof. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies
available in equity or at law for such breach or threatened
breach.
i.e. The covenants in this Section 6 are severable and separate, and
the unenforceability of any specific covenant shall not affect
the provisions of any other covenant. If any provision of this
Section 6 relating to the time period, geographic area or scope
of business of the restrictive covenants shall be declared by a
court of competent jurisdiction or arbitration panel to exceed
the maximum time period, geographic area or scope of business, as
applicable, that such court or arbitration panel deems reasonable
and enforceable, said time period, geographic area or scope of
business shall be deemed to be, and thereafter shall become, the
maximum time period, largest geographic area or widest scope of
business that such court or arbitration panel deems reasonable
and enforceable and this Agreement shall automatically be
considered to have been amended and revised to reflect such
determination.
Sincerely,
/s/John Federman
------------------------
John Federman
