exv4w17



 




Exhibit 4.17



EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (the “Agreement”), is dated as of December 8, 2005, but effective as
of October 3, 2005 (the “Effective Date”) by and between PRESCIENT APPLIED INTELLIGENCE, a Delaware
corporation (hereinafter called “Company”), and THOMAS AIKEN, an individual (hereinafter called
“Employee”).



RECITAL




     The Company wishes to employ Employee and Employee wishes to be employed by the Company on the
terms and conditions contained in this Agreement.



     NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and
intending to be legally bound hereby, Company and Employee agree as follows:



     1. Employment. Company hereby employs Employee and Employee hereby accepts employment
by Company for the period and upon the terms and conditions contained in this Agreement.



     2. Office and Duties.



          (a) Employee shall be CFO of Company and shall have such authority and such responsibilities
as the Company reasonably may determine from time to time. Employee shall be provided with such
office space and supplies as reasonably necessary to support the satisfaction of the performance of
goals to be established during the term hereof and shall be appropriate to his status as an officer
of the Company.




          (b) Throughout the term of this Agreement, Employee shall devote his entire working time,
energy, skill and best efforts to the performance of his duties hereunder in a manner which will
faithfully and diligently furthers the business and interests of Company.




     3. Term. The Company will employ the Employee for a period of one (1) year commencing
on October 3, 2005 (“Initial Term”) and automatically renewed for successive terms of one (1) year
each (“Renewal Term”) unless either party shall have given to the other party at least 60 days’
prior written Notice of the termination of this Agreement prior to the end of the current term.



     4. Compensation.



          (a) Base Salary. For all of the services rendered by Employee to Company for the
Initial Term, Employee shall receive an annual base salary (“Base Salary”) of One Hundred
Seventy-Five Thousand Dollars ($175,000.00), payable in reasonable periodic installments in
accordance with Company’s regular payroll practices in effect from time to time.




          (b) Bonus.  For all of the service rendered by Employee to Company for the year 2006,
Employee shall be eligible for a performance bonus of up 20% of Base Salary.














 







Employee’s 2006 Bonus shall be based on the financial performance goals and Management by
Objective (MBO) goals set for Employee and Company by the Compensation Committee of the Board of
Directors of the Company, which goals shall be dated and signed by both Employee and the Company
and attached hereto and made a part hereof as Schedule A. Nothing herein shall limit or restrict
the Employee from receiving any other bonuses or other compensation from the Company; provided that
such bonus or compensations is approved by the Compensation Committee of the Board of Directors of
the Company.




          (c) Equity. The Company grants the Employee an initial non-qualified stock option to
purchase shares of the Company’s common stock equal to 1.0% of the issued and outstanding on the
Effective Date (the “initial options”) and be set at a strike price equal to the closing price of
the stock on the date of issuance of the options. The options shall vest on a three-year schedule
commencing on the Effective Date. Further, on each anniversary of the Effective Date of this
Agreement, the Company may grant the Employee additional options, based upon a percentage of the
issued and outstanding shares at the time of grant, in an amount to be determined by the
Compensation Committee (the “additional options”). Any additional options shall vest on a
three-year schedule.




          (d) Benefits. Throughout the term of this Agreement and as long as they are kept in
force by Company, Employee shall be entitled to participate in and receive the benefits of any
profit sharing or retirement plans and any health, life, accident or disability insurance plans or
programs made available to, and on the same terms as, other similarly situated employees of
Company.




          (e) Paid Time Off (PTO). During each year of the term of this Agreement, Employee
shall be entitled to twenty (20) days PTO.




          (f) Expenses. The Company will reimburse the Employee for reasonable expense
(consistent with Company policy) incurred by the Employee concerning the Company, upon presentation
of appropriate substantiation for such expenses.




     5. Authority to Bind Company. Employee is permitted and authorized to make
disbursements or purchases and to incur liabilities on behalf of Company or to otherwise obligate
Company in any manner whatsoever up to $10,000. The CEO of the Company must authorize commitments
above $10,000.



     6. Termination. This agreement may be terminated prior to the expiration of the
Term as set forth in Section 3. above in the following manner:



          (a) Death. If Employee dies, all payments hereunder shall cease at the end of the month in
which Employee’s death shall occur and, after such payments including any bonus attributable to the
period prior to death and any unreimbursed expenses, Company shall have no other obligations or
liabilities hereunder to Employee’s estate or legal representative or otherwise, other than the
payment of benefits, if any, pursuant to Section 4(d) hereof.




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          (b) Disability.




               (i) If Employee becomes unable to perform his duties hereunder due to partial or total
disability or incapacity resulting from a mental or physical illness, injury or any other cause,
Company will continue the payment of Employee’s Base Salary at the then current rate for a period
of ninety (90) days following the date Employee is first unable to perform his duties due to such
disability or incapacity. Thereafter, Company shall have no obligation for Base Salary or other
compensation payments to Employee during the continuance of such disability or incapacity.



               (ii) If Employee is unable to perform his duties hereunder due to partial or total disability
or incapacity resulting from a mental or physical illness, injury or any other cause for a period
of thirty (30) consecutive days or for a cumulative period of sixty (60) days during any
twelve-month period, Company shall have the right to terminate this Agreement thereafter, in which
event, after payment of the amount set forth in Section 6(b)(i) and any bonus attributable to the
period prior to date of termination, any accrued but unused Paid Time Off (PTO) and any
unreimbursed expenses, Company shall have no other obligations or liabilities hereunder after the
date of such termination.



          (c) Discharge for Cause.




               (i) The Company may terminate the Agreement for “Cause.” As used herein, “Cause.” shall mean
any of the following: (1) the Employee’s conviction or plea of nolo contendre to a felony, or a
crime involving moral turpitude; (2) the Employee’s commission or omission of an act or course of
conduct constituting willful or intentional misconduct, embezzlement, fraud or malfeasance as to
the Company and/or the Employee’s employment hereunder; (3) the Employee’s failure to follow the
good faith written instructions of the CEO or Board of Directors of the Company; (4) the Employee’s
breach of this Agreement in any material respect; (5) the Employee’s failure to comply with the
Company’s written policies and procedures of which he has notice in any material respect; or (6)
the continued refusal by or inability of Employee, after written notice by the Company, to make
himself available for the performance of his duties hereunder (other than as the result of physical
or mental disability, as determined under the Company’s health or disability insurance plan). The
term “continued” shall mean a period of not less than thirty (30) consecutive business days (other
than while Employee is taking vacation or is otherwise unavailable with the permission of the Board
of Directors) and the term “available” shall mean that Employee shall be personally present at the
Company’s offices and shall be immediately willing and able to perform his duties.



               (ii) If the Cause is such that there is a reasonable prospect that it can be cured with
diligent effort, and such Cause is not the result of the Employee’s willful or intentional
misconduct, then prior to any termination by the Company for Cause, the Employee shall have a
reasonable time (having regard for the nature of the Cause) to cure such Cause, which time shall
not in any case exceed thirty (30) days from the date notice of termination for Cause is given to
the Employee.



               (iii) If the Employee’s employment hereunder is terminated for Cause prior to the expiration
of the then current term, the Employee shall be entitled to any unpaid



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Salary accrued through the date of termination, and any unpaid bonuses earned with respect to
the last full month that Employee was employed by the Company and any unreimbursed expenses.



          (d) Discharge Without Cause by the Company. The Company may terminate this agreement
at any time and at the Company’s sole convenience and in its sole discretion and without specifying
any cause as set forth in Section 6. (c) hereof. In such event, the Company shall pay to Employee
(i) his earned but unpaid salary, bonus and accrued but unused Paid Time Off (PTO) through the date
of termination, (ii) the amount of any unreimbursed expenses, and (iii) contingent upon the
execution and delivery by the Company and Employee of a mutually acceptable mutual general release
and mutual nondisparagement agreement, the Company shall pay Employee’s Base Salary as in effect at
the time of such termination for a period equal to six months from the effective date of such
termination. The Company shall continue to provide health insurance to the Employee for six months
at the same level as in effect at the effective date of such termination. Notwithstanding the
foregoing, for a period of four months from the Effective Date of this Agreement, Employee shall be
in an evaluation period during which discharge without cause would not result in a six month
severance package of salary and health benefits.




     7. Change of Control.



          (a) In the event of a Change of Control (as defined below), then Company shall pay to
Employee, upon delivery of a general release satisfactory to Company, an amount equal to the six
(6) months of the annual Base Salary in effect at the date of termination, paid upon termination
and provide six (6) months of health insurance coverage. Employee’s stock options shall be deemed
fully vested. Thereafter, Company shall have no other obligations or liabilities hereunder.




          (b) For purposes of the Agreement, a “Change of Control” shall be deemed to have
occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and as used in Sections 13(d) and 14(d) thereof)),
excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the
Company or any subsidiary (including any trustee of any such plan acting in his capacity as
trustee), but including a “group” as defined in Section 13(d)(3) of the Exchange Act, becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having
at least 50% of the total number of votes that may be cast for the election of directors of the
Company; (ii) the shareholders of the Company shall approve any merger or other business
combination of the Company, sale of all or substantially all of the Company’s assets or combination
of the foregoing transactions (a “Transaction”), other than a Transaction involving only
the Company and one or more of its subsidiaries, or a Transaction immediately following which the
shareholders of the Company immediately prior to the Transaction continue to have a majority of the
voting power in the resulting entity (excluding for this purpose any shareholder of the Company
owning directly or indirectly more than 10% of the shares of the other company involved in the
Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting
entity as contemplated by Section 7(b)(i) above; (iii) within any 24-month period beginning
on or after the date hereof, the persons who were directors of the Company immediately before the
beginning of such period (the “Incumbent Directors”) shall

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cease (for any reason other than death) to constitute at least a majority of the Board of
Directors of the Company or the board of directors of any successor to the Company, provided that
any director who was not a director as of the date hereof shall be deemed to be an Incumbent
Director if such director was elected to the Board, by or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either
actually or by prior operation of this Section 7(b)(iii), unless such election,
recommendation or approval was the result of an actual or threatened election contest of the type
contemplated by Regulation 14a-11 under the Exchange Act or any successor provision; (iv)
Notwithstanding the foregoing, if, Employee’s employment with the Company is not terminated within
one year after the date of consummation of such Change in Control, then no Change of Control of the
Company shall be deemed to have occurred for purposes of this Agreement unless (a) Employee is
demoted, removed or not reelected to any of his offices or positions or there is a material
diminishment of the Employee’s responsibilities, duties, powers, authority or status; (b) there is
a material reduction in the Employee’s compensation or benefits, unless as part of companywide
reduction in expenses; (iii) the Employee’s principal place of employment is changed to a location
more than 25 miles from the Employee’s current employment location; (c) any failure by the Company
to comply with any of the material provisions of this agreement; (d) any purported termination by
the Company of the Employee’s employment which is not effected in accordance the terms of this
Agreement; or (e) any failure by the Company to obtain the assumption of this Employment Agreement
by any successor or assign of the Company.




     8. Noncompetition, Trade Secrets, Etc.



          (a) During the term of this Agreement and for a period of one (1) year from the date of
termination, unless the Company terminated Employee or in the event of a Change of Control,
Employee shall not engage in, as a principal, partner, director, officer, agent, consult or any
employee, competition with Company’s software and services developed or acquired by the Company
during the term of this Agreement. Due to the nature of the business conducted by Company,
Employee acknowledges that the restrictions contained herein, which have no geographic limitation,
are reasonable and necessary to protect the legitimate interests of Company. Nothing contained in
this Paragraph 11 shall prevent Employee from: (i) holding for investment up to five percent (5%)
of any class of equity securities of a company whose equity securities are traded on a national
securities exchange; or (ii) working for any consumer products’ company or any channel partner of
Company as an employee or consultant.




          (d) Any and all writings, improvements, processes, procedures and/or techniques which Employee
may make, conceive, discover or develop, either solely or jointly with any other person or persons,
at any time during the term of this Agreement, whether during working hours or at any other time
and whether at the request or upon the suggestion of the Company or otherwise, which relate to or
are useful in connection with any business now or hereafter carried on or contemplated by the
Company, including developments or expansions of its present fields of operations, shall be the
sole and exclusive property of Company. Employee shall make full disclosure to Company of all such
writings, improvements, processes, procedures and techniques, and shall do everything necessary or
desirable to vest the absolute title thereto in Company.




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     9. Binding Arbitration



       Any controversy or claim arising out of this Agreement, or the breach thereof, shall be
settled by arbitration administered by the American Arbitration Association before a single
arbitrator in Philadelphia, Pennsylvania in accordance with its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s
and administrative fees of arbitration.



     10. Miscellaneous.



          (a) Indulgences, Etc. Neither the failure nor any delay on the part of either party
to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.




          (b) Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation, provisions concerning
limitations of actions), shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.




          (c) Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been duly given,
made and received only when delivered (personally, by courier service such as Federal Express, or
by other messenger) or when deposited in the United States mails, registered or certified mail,
postage prepaid, return receipt requested, addressed as set forth below:




	 	 	 	 	 
	(i)	 	If to Employee:
	 
	 	 	 	 
	 

	 	 	 	Thomas Aiken
	 

	 	 	 	1666 Franklynn Drive
	 

	 	 	 	Furlong, PA 18925
	 
	 	 	 	 
	 
	 	 	 	 
	(ii)	 	If to Company:
	 
	 	 	 	 
	 

	 	 	 	Jane Hoffer, President & CEO
	 

	 	 	 	Prescient Applied Intelligence, Inc.
	 

	 	 	 	1247 Ward Avenue
	 

	 	 	 	West Chester, PA 19380






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Any party may alter the address to which communications or copies are to be sent by giving notice
of such change of address in conformity with the provisions of this paragraph for the giving of
notice.




          (d) Binding Nature of Agreement. This Agreement shall be binding upon and inure to
the benefit of Company and its successors and assigns and shall be binding upon Employee, his heirs
and legal representatives.




          (e) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as the signatories.




          (f) Provisions Separable. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part. If any of the restrictions contained in Paragraph 11 are found
to be unenforceable in whole or in part, Employee agrees that the court should nevertheless enforce
each restriction or portion thereof that is not found to be unenforceable and may modify any
unenforceable restriction or obligation to render it enforceable.




          (g) Entire Agreement. This Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing.




          (h) Paragraph Headings. The paragraph headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.




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     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on the date first
above written.



	 	 	 
	

	 	PRESCIENT APPLIED INTELLIGENCE, INC.
	 
	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:
	 
	 	 
	 
	 	 
	 
	Thomas Aiken







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SCHEDULE A




2006 Bonus