**Exhibit10.93**

** **

**EMPLOYMENTAGREEMENT**

 

**THIS AGREEMENT** (along with all Exhibits attachedhereto, hereinafter referred to as the “Agreement”) is made effective as of March 25,2010 by and between BIO-key International, Inc., a Delaware corporationwith its principal place of business at 3349 Highway 138 Building D Suite BWall, NJ 07719 (the “Company”), and Michael W. DePasquale residing at 704Michael Drive, Toms River, NJ 08753 (the “Executive”).

 

**WITNESSETH:**

 

**WHEREAS**, the Company desires tosecure the employment of the Executive in accordance with the provisions ofthis Agreement; and

 

**WHEREAS**, the Executive desires and is willing tobe employed by the Company in accordance herewith.

 

**NOW THEREFORE**, in consideration of the premises andmutual covenants contained herein, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, and intending tobe legally bound hereby, the parties hereto agree as follows:

 

1.             Employment**Term.  This Agreement shall remain in full force andeffect for a term commencing on the Effective Date hereof and expiring on the first (1st)anniversary hereof (the “Initial Term”), or, if earlier, until the employmentrelationship is terminated pursuant to Section 4 hereof.  Upon the expiration of the Initial Term, thisAgreement will be renewed automatically for successive one-year periods (each,a “Renewal Term”), unless sooner terminated in accordance with the provisionsof Section 4 or unless the Company gives written notice of non-renewal atleast two (2) months prior to the date on which the Initial Term or theapplicable Renewal Term, as the case may be, would otherwise end.

 

2.                                       Duties*;*Exclusive**Services**and**Best**Efforts.

 

(a)           Duties.  The Executive shall hold the positionassigned by the Company and serve in such position in accordance with theCompany’s Certificate of Incorporation and By-Laws and in accordance with theultimate control of the Board of Directors of the Company (the “Board”).

 

(b)           Exclusive Services and BestEfforts.  The Executive agrees todevote his best efforts, energies and skill to the faithful, competent anddiligent discharge of the duties and responsibilities attributable to hisposition, and to this end, will devote his full-time attention to the businessand affairs of the Company.  TheExecutive also agrees that he shall not take personal advantage of any businessopportunities that arise during his employment that may benefit theCompany.  All material facts regardingsuch opportunities must be promptly reported 

 

1

----

 

to the Board for its consideration. In addition, the Companyacknowledges and agrees that the Executive shall be permitted to engage in andpursue such contemporaneous activities and interests as the Executive maydesire, for personal profit or otherwise, provided such activities do notinterfere with the Executive’s performance of his duties and obligationshereunder.

 

3.             Compensation. On and after the commencement of Executive’s employment, the Executiveshall receive, for all services rendered to the Company hereunder, thefollowing:

 

(a)           Base Salary.  The Executive shall be paid a base annualsalary (“Base Salary”) equal to Two Hundred Fifty Thousand Dollars****($250,000).  BaseSalary shall be payable in equal installments in accordance with the Company’sgeneral salary payment policies but no less frequently than monthly.  Base Salary may be increased annually, or atsuch other intervals, as the Board or Compensation Committee thereof shalldetermine from time to time.

 

(b)**          **PerformanceBonus.  In addition to Base Salary,the Executive may be granted a performance bonus, the amount, if any, andtiming of which shall determined by the Board in its sole discretion.

 

(c)           Benefits.  Executive shall be eligible to participate inany of the Company’s employee welfare or health benefit plans (including, butnot limited to, life insurance, health, medical and dental plans).

 

(d)           Vacation.  The Executive shall be eligible for four (4) weeksof paid vacation each year of his employment hereunder.  The Executive shall be permitted to carryover and accrue unused vacation time for a period of up to two years.

 

(e)           Expenses.  Subject to and in accordance with the Company’spolicies and procedures, and, upon presentation of itemized accounts, theExecutive shall be reimbursed by the Company for reasonable and necessarybusiness-related expenses, which expenses are incurred by the Executive onbehalf of the Company.

 

(f)            Deductions fromSalary and Benefits.  The Companywill withhold from any salary or benefits payable to the Executive all federal,state, local, and other taxes and other amounts as required by law, rule orregulation.

 

4.             Termination. This Agreement may be terminated by either the Executive or the Companyat any time, subject only to the provisions of this Section 4.

 

(a)           Voluntary Termination.  If Executive terminates his own employment,the Company shall be released from any and all further obligations under thisAgreement, except that the Company shall be obligated to pay Executive hissalary and benefits owing to Executive through the effective date oftermination.  Executive shall also beentitled to any reimbursement 

 

2

----

 

owed in accordance with Section 3(e).  Executive’s obligations under Sections 5, 7,8 and 9 hereof and shall survive the termination of Executive’s employment, andExecutive shall remain bound thereby.

 

(b)           Death*.*  This Agreement shall terminate on the date ofthe Executive’s death, in which event salary, benefits, and reimbursableexpenses owing to the Executive through the date of the Executive’s death shallbe paid to his estate.

 

(c)           Disability*.*  If, during the term of this Agreement, in theopinion of the Company, the Executive, because of physical or mental illness orincapacity or disability, shall become unable to perform, with or withoutreasonable accommodation, substantially all of the duties and services requiredof him under this Agreement for a period one hundred eighty (180) days duringany twelve-month period, the Company may, upon at least ten (10) daysprior written notice given at any time after the expiration of such one hundredeighty (180) day period, notify the Executive of its intention to terminatethis Agreement as of the date set forth in the notice.  In case of such termination, the Executiveshall be entitled to receive salary, benefits, and reimbursable expenses owingto the Executive through the date of termination of the Initial Term orapplicable Renewal Term, as the case may be. The Company shall have no further obligation or liability to theExecutive.  The Executive’s obligationsunder Sections 5, 7 8 and 9 hereof shall survive the termination of Executive’semployment, and Executive shall remain bound thereby.

 

(d)           Termination by Employer for Cause.This Agreement may be terminated by the Company for Cause (as defined below) atany time.  Upon such termination forCause, the Company shall be released from any and all further obligations underthis Agreement, except that the Company shall be obligated to pay the Executivehis salary and benefits owing to the Executive through the effective date ofsuch termination.  The Executive shallalso be entitled to any reimbursement owed in accordance with Section 3(h). The Executive’s obligations underSections 5, 7, 8 and 9 hereof shall survive the termination of Executive’semployment, and Executive shall remain bound thereby.

 

As used herein, “Cause”shall include, but is not limited to, the following conduct of the Executive:

 

(i)            Breach of any material provision ofthis Employment Agreement by the Executive if not cured within two (2) weeksafter receiving written notice thereof;

 

(ii)           Misconduct as anExecutive of the Company, including but not limited to, misappropriating fundsor property of the Company; any attempt to obtain any personal profit from anytransaction in which the Executive has an interest that is adverse to theCompany or any breach of the duty of loyalty and fidelity to the Company; orany other material act or omission of the Executive which substantially impairsthe Company’s ability to conduct its ordinary business in its usual manner;

 

3

----

 

(iii)          Material neglect orrefusal to perform the duties assigned to the Executive pursuant to thisEmployment Agreement if not cured within two (2) weeks after receivingnotice thereof;

 

(iv)          Conviction of afelony or plea of guilty or *nolo contendere*to a felony;

 

(v)           Acts of dishonestyor moral turpitude by the Executive that are detrimental to the Company or anyother act or omission which subjects the Company or any of its affiliates topublic disrespect, scandal, or ridicule, or that causes the Company to be inviolation of governmental regulations that subjects the Company either tosanctions by governmental authority or to civil liability to its Executives orthird parties;

 

(vi)          Disclosure or use ofconfidential information of the Company, other than as specifically authorizedand required in the performance of the Executive’s duties.

 

(e)          Termination by Employer WithoutCause.  Upon termination of thisAgreement by the Company without Cause (including without limitationnon-renewal by the Company without Cause), the Company shall be released fromany and all further obligations under this Agreement, except that the Executiveshall be paid his Base Salary and benefits earned but unpaid through the dateof termination and continue to be paid in the same manner as beforetermination, (i) his then current monthly Base Salary and benefits for aperiod of time equal to the greater of nine (9) months or the remainingterm of this Agreement, beginning six months following the termination date orsuch earlier date as may be permitted under Section 409A of the Internal RevenueCode, as amended (“Section 409A”), (ii) any prorated bonusestablished by the Board that is earned during the then current bonus year,payable six months following the termination date or such earlier date as maybe permitted under Section 409A and (iii) Executive shall have theright to extend the exercise date of his existing stock options for twenty-four(24) months after the termination date (or such shorter period that shall notexceed the latest date on which the option could have expired by its terms orthe tenth anniversary of the date of grant), on a “cashless exercise” basis,if, and only if, the Executive signs a valid general release of all claimsagainst the Company, its affiliates, subsidiaries, officers, directors andagents, in a form provided by the Company. The Company shall have no further obligation or liability to theExecutive.  The Executive’s obligationsunder Sections 5, 7, 8 and 9 hereof and shall survive the termination of theExecutive’s employment, regardless of the circumstances of any suchtermination, and the Executive shall remain bound thereby.

 

(f)            Change ofControl.  If a Change of Control (asdefined below) occurs, and either (i) the Executive is not offeredcontinued employment with the Company or any successor thereto or (ii) withinfive (5) years following such Change of Control, the Company or anysuccessor thereto terminates the Executive’s employment without Cause, then, inlieu of any 

 

4

----

 

applicable payments to Executive under Section 4(e),as of the date of such termination the Executive shall be entitled to be paid an amountequal to (A) his Base Salary and benefits earned but unpaid through thedate of termination, plus (B) any prorated bonus established by the Boardthat is earned during the then current bonus year, payable six months followingthe termination date or such earlier date as may be permitted under Section 409A,plus (C) two (2) times his then current Base Salary, in a single lumpsum payment to be made six months following the termination date or suchearlier date as may be permitted under Section 409A.  As used herein, “Change of Control” means (x) theacquisition of beneficial ownership (as defined in Rule 13d-3 under theSecurities Exchange Act of 1934, as amended) directly or indirectly by anyperson or entity of securities of the Company representing a majority of thecombined voting power of the Company’s then outstanding securities, other thanan acquisition of securities for investment purposes pursuant to a bona fidefinancing of the Company; (y) a merger or consolidation of the Companywith any other entity in which the holders of the voting securities of theCompany prior to the merger or consolidation do not own more than 50% of thetotal voting securities of the surviving entity; or (z) the sale ordisposition by the Company of all or substantially all of the Company’s assetsother than a sale or disposition of assets to an affiliated person or entity.

 

(g)           Termination by Mutual Agreement.  This Agreement may be terminated at any timeby mutual agreement of the Executive and the Company.

 

5.             Non*-*Competition**and**Business**Opportunities.

 

(a)           Non-Competition.  The Executive understands that the Company isin the business of developing and licensing finger print identificationtechnologies, and distributing products incorporating such technologies, tooriginal equipment manufacturers and end users. The Executive agrees that during the period of his employment hereunderand for a period of one (1) year thereafter, the Executive will notdirectly or indirectly: (i) market, sell or perform  services such as are offered or conducted bythe Company, its affiliates and subsidiaries during the period of hisemployment, to any customer or client of the Company or “Prospective Customer”or client of the Company; or (ii) engage, directly or indirectly, whetheras principal or as agent, officer, director, Executive, consultant,shareholder, or otherwise, alone or in association with any other person, corporationor other entity, in any “Competing Business”. For the purpose of this Section 5(a) “ProspectiveCustomer” shall mean any person with whom the Company has engaged in anysubstantial discussion or negotiation regarding the use of the Company’s productsor services.  For purposes of this Section 5(a),the term “shareholder” shall exclude any interest owned by Employer in a publiccompany to the extent the Employer owns less than ten percent (10%) of any suchcompany’s outstanding common stock.  Forthe further purposes of this Agreement, the term “Competing Business” shallmean any person, corporation or other entity developing and/or licensing fingerprint identification technologies or distributing products incorporating suchtechnologies, within the United States, to original equipment manufacturers andend users at the time of such termination or non-renewal. Due to the nature ofthe markets served and the technology and products to be developed and marketedby the 

 

5

----

 

Company which are intended to be available on a national basis, therestrictions set forth in this Section 5(a) can not be limited to aspecific geographic area within the United States.

 

(b)           Business Opportunities.  The Executive agrees that during the periodof his employment hereunder, the Executive will not take personal advantage ofany business opportunities that are similar or substantially similar to thebusiness of the Company.  In addition,all material facts regarding any such business opportunities must be promptlyand fully disclosed by the Executive to the Board of Directors as soon as theExecutive becomes aware of any opportunity, and in no event later thanforty-eight (48) hours after learning of such opportunity.  Business opportunities covered by this Section 5(b) shallinclude, but are not limited to, opportunities relating to the development andlicensing of finger print identification technologies or the distribution ofproducts incorporating such technologies to original equipment manufacturersand end users.

 

(c)           Non-Solicitation. TheExecutive agrees that during the period of employment hereunder and for aperiod of one (1) year thereafter, the Executive will not request orotherwise attempt to induce or influence, directly or indirectly, any presentcustomer, distributor or supplier, or Prospective Customer, distributor orsupplier, of the Company, or other persons sharing a business relationship withthe Company to cancel, to limit or postpone their business with the Company, orotherwise take action which might be to the material disadvantage of theCompany. The Executive agrees that during the period of employment hereunderand for a period of one (1) year thereafter, Executive will not hire orsolicit for employment, directly or indirectly, or induce or actively attemptto influence, hire or solicit, any Executive, agent, officer, director,contractor, consultant or other business associate of the Company to terminatehis or her employment or discontinue such person’s consultant, contractor orother business association with the Company.

 

(d)           Scope.  The parties hereto agree that, due to thenature of the Company’s business, the duration and scope of the non-competitionand non-solicitation provisions set forth above are reasonable.  In the event that any court determines thatthe duration or the geographic scope, or both, are unreasonable and that suchprovisions are to that extent unenforceable, the parties hereto agree that suchprovisions shall remain in full force and effect for the greatest time periodand in the greatest area that would not render it unenforceable. The partiesintend that the non-competition and non-solicitation provisions herein shall bedeemed to be a series of separate covenants, one for each and every county ofeach and every state of the United States of America and each and everypolitical subdivision of each and every country outside the United States ofAmerica where this provision is intended to be effective.  The Executive agrees that damages are aninadequate remedy for any breach of such provisions and that the Company,shall, whether or not it is pursuing any potential remedies at law, be entitledto seek in any court of competent jurisdiction, equitable relief in the form ofpreliminary and permanent injunctions without bond or other security upon anyactual or threatened breach of either of these competition provisions.  If the Executive shall violate this Section 5,the duration of this Section 5 automatically shall be 

 

6

----

 

extended as against the Executive for a period equal to the periodduring which the Executive shall have been in violation of this Section 5.  The covenants contained in this Section 5are deemed to be material and the Company is entering into this Agreementrelying on such covenants.

 

6.             Representations**and**Warranties**of**the**Executive.  The Executive, hereby represents and warrantsto the Company as follows:  (a) TheExecutive has the legal capacity and unrestricted right to execute and deliverthis Agreement and to perform all of his obligations hereunder; (b) theexecution and delivery of this Agreement by the Executive and the performanceof his obligations hereunder will not violate or be in conflict with any fiduciaryor other duty, instrument, agreement, document, arrangement, or otherunderstanding to which Executive is a party or by which he is or may be boundor subject; and (c) except as set forth in Exhibit A attachedhereto, the Executive is not a party to any instrument, agreement, document,arrangement, including, but not limited to, invention assignment agreement,confidential information agreement, non-competition agreement, non-solicitationagreement, or other understanding with any person (other than the Company)requiring or restricting the use or disclosure of any confidential informationor the provision of any employment, consulting or other services.

 

7.         Disclosure ofInnovations; Assignment of Ownership of Innovations; Protection of ConfidentialInformation. Executive hereby represents and warrants to the Company thatExecutive understands that the Company is in the business of developing andlicensing finger print identification technologies, and distributing productsincorporating such technologies, to original equipment manufacturers and endusers****and that Executive may have access toor acquire information with respect to Confidential Information (as definedbelow), including software, processes and methods, development tools,scientific, technical and/or business innovations.

 

(a)           Disclosureof Innovations.  Executive agrees todisclose in writing to the Company all inventions, improvements and otherinnovations of any kind that Executive may make, conceive, develop or reduce topractice, alone or jointly with others, during the term of Executive’semployment with the Company, whether or not such inventions, improvements orother innovations are related to and grow out of Executive’s work for theCompany and whether or not they are eligible for patent, copyright, trademark,trade secret or other legal protection (“Innovations”).  Examples of Innovations shall include, butare not limited to, discoveries, research, inventions, formulas, techniques,processes, know-how, marketing plans, new product plans, production processes,advertising, packaging and marketing techniques and improvements to computerhardware or software.

 

(b)           Assignmentof Ownership of Innovations. Executive agrees that all Innovations will be the sole and exclusiveproperty of the Company and Executive hereby assigns all of Executive’s rights,title or interest in the Innovations and in all related patents, copyrights,trademarks, trade secrets, rights of priority and other proprietary rights tothe Company.  At the Company’s requestand expense, during and after the period of Executive’s employment 

 

7

----

 

with the Company, Executive will assist and cooperate with the Companyin all respects and will execute documents, and, subject to Executive’sreasonable availability, give testimony and take further acts requested by theCompany to obtain, maintain, perfect and enforce for the Company patent,copyright, trademark, trade secret and other legal protection for theInnovations.  Executive hereby appointsan authorized officer of the Company as Executive’s attorney-in-fact to executedocuments on his behalf for this purpose. Executive has attached hereto as Exhibit B a list ofInnovations as of the date hereof which belong to Executive and which are notassigned to the Company hereunder (the “Prior Innovations”), or, if no suchlist is attached, Executive represents that there are no Prior Innovations.

 

(c)           Protection ofConfidential Information of the Company. Executive understands that Executive’s work as an Executive of theCompany creates a relationship of trust and confidence between Executive andthe Company.  During and after the periodof Executive’s employment with the Company, Executive will not use or discloseor allow anyone else to use or disclose any “Confidential Information” (asdefined below) relating to the Company, its products, services, suppliers orcustomers except as may be necessary in the performance of Executive’s work forthe Company or as may be specifically authorized in advance by appropriateofficers of the Company. “Confidential Information” shall include, but not belimited to, information consisting of research and development, patents,trademarks and copyrights and applications thereto, technical information,computer programs, software, methodologies, innovations, software tools,know-how, knowledge, designs, drawings, specifications, concepts, data,reports, processes, techniques, documentation, pricing, marketing plans,customer and prospect lists, trade secrets, financial information, salaries,business affairs, suppliers, profits, markets, sales strategies, forecasts,Executive information and any other information not available to the generalpublic, whether written or oral, which Executive knows or has reason to knowthe Company would like to treat as confidential for any purpose, such asmaintaining a competitive advantage or avoiding undesirable publicity.  Executive will keep Confidential Informationsecret and will not allow any unauthorized use of the same, whether or not anydocument containing it is marked as confidential.  These restrictions, however, will not applyto Confidential Information that has become known to the public generallythrough no fault or breach of Executive’s or that the Company regularly givesto third parties without restriction on use or disclosure.

 

## **8.**             Work Made For Hire.

## ** **

## **(a)           WorkMade For Hire. Executive further recognizes and understands that Executive’sduties at the Company may include the preparation of materials, includingwithout limitation written or graphic materials, and that any such materialsconceived or written by Executive shall be done as “work made for hire” asdefined and used in the Copyright Act of 1976, 17 U.S.C. §§ 1 etseq.  In the event of publication of suchmaterials, Executive understands that since the work is a “work made for hire”,the Company will solely retain and own all rights in said materials, includingright of copyright.  In the event thatany of such works shall be deemed by a court of competent jurisdiction not tobe a “work made for hire,” this Agreement**

 

8

----

 

shall operate as an irrevocable assignment by Executive to the Companyof all right, title and interest in and to such works, including, withoutlimitation, all worldwide copyright interests therein, in perpetuity.  The fact that such copyrightable works arecreated by Executive outside of the Company’s facilities or other than duringExecutive’s working hours with the Company shall not diminish the Company’sright with respect to such works which otherwise fall within thisparagraph.  Executive agrees to executeand deliver to the Company such further instruments or documents as may berequested by the Company in order to effectuate the purposes of this paragraph.

## ** **

(b)           Disclosure of Works andInventions/Assignment of Patents.  Inconsideration of the promises set forth herein, Executive agrees to disclosepromptly to the Company, or to such person whom the Company may expressly designatefor this specific purpose (its “Designee”), any and all works, inventions,discoveries and improvements authored, conceived or made by Executive duringthe period of employment and related to the business or activities of theCompany, and Executive hereby assigns and agrees to assign all of Executive’sinterest in the foregoing to the Company or to its Designee.  Executive agrees that, whenever he isrequested to do so by the Company, Executive shall execute any and allapplications, assignments or other instruments which the Company shall deemnecessary to apply for and obtain Letters Patent or Copyrights of the UnitedStates or any foreign country or to otherwise protect the Company’s interesttherein.  Such obligations shall continuebeyond the termination or nonrenewal of Executive’s employment or service withrespect to any works, inventions, discoveries and/or improvements that areauthored, conceived of, or made by Executive during the period of Executive’semployment or service, and shall be binding upon Executive’s successors,assigns, executors, heirs, administrators or other legal representatives.

 

9.             Company**Property.  All records, files, lists, including computergenerated lists, drawings, documents, software, documents, equipment, models,binaries, object modules, libraries, source code and similar items relating tothe Company’s business that the Executive shall prepare or receive from theCompany and all Confidential Information shall remain the Company’s sole andexclusive property (“Company Business Property”).  Upon termination of this Agreement, theExecutive shall promptly return to the Company all property of the Company inhis possession, including Company Business Property.  The Executive further represents that he willnot copy or cause to be copied, print out, or cause to be printed out anyCompany Business Property other than as specifically authorized and required inthe performance of the Executive’s duties. The Executive additionally represents that, upon termination of his employmentwith the Company, he will not retain in his possession any such CompanyBusiness Property; provided, however, that the Executive shall beentitled to inspect, copy and retain copies of documents in any personnel filerelating to his employment which is maintained by the Company.

 

10.           Cooperation.  The Executive and Company agree that  during the term of Executive’s employment they shall, at the request of theother Party, render all assistance and perform all lawful acts that each Partyconsiders necessary or advisable in connection with any 

 

9

----

 

litigation involving either Party or any director, officer, Executive,shareholder, agent, representative, consultant, client, or vendor of theCompany.  Executive shall be entitled toall protections afforded officers, agents and directors under the Company’sCertificate of Incorporation and Bylaws. The Company shall maintain a Directors and Officers Liability InsurancePolicy.

 

11.           Employment Dispute SettlementProcedure/Waiver of Rights. The Executive and the Company each agree that,in the event either party (or its representatives, successors or assigns)brings an action in a court of competent jurisdiction relating to the Executive’srecruitment, employment with, or termination of employment from the Company,each party in such action agrees to waive his, her or its right to a trial byjury, and further agrees that no demand, request or motion will be made fortrial by jury.

 

The parties heretofurther agree that, in the event that either seeks relief in a court ofcompetent jurisdiction for a dispute covered by this Agreement, any otherAgreement between the Executive and the Company or which relates to theExecutive’s recruitment, employment with, or termination of employment from theCompany, the defendant or third-party defendant in such action may, at any timewithin sixty (60) days of the service of the complaint, third-party complaintor cross-claim upon such party, at his, her or its option, require all or partof the dispute to be arbitrated by one arbitrator in accordance with the rules ofthe American Arbitration Association. The parties agree that the option toarbitrate any dispute is governed by the Federal Arbitration Act.  The parties understand and agree that, if theother party exercises his, her or its option, any dispute arbitrated will beheard solely by the arbitrator, and not by a court.  Judgment upon the award rendered, however,may be entered in any court of competent jurisdiction.  The cost of such arbitration shall be borneequally by the parties.

 

This disputeresolution agreement will cover all matters directly or indirectly related tothe Executive’s recruitment, employment or termination of employment by theCompany; including, but not limited to, claims involving laws againstdiscrimination whether brought under federal and/or state law and/or local law,and/or claims involving co-Executives but excluding Worker’s CompensationClaims.  Nothing contained in this Section 11shall limit the right of the Company to enforce by court injunction or otherequitable relief the Executive’s obligations under Sections 5, 7, 8 and 9hereof.

 

The right to a trial, andto a trial by jury, is of value.

 

THE EXECUTIVE MAY WISHTO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.  IF SO, THE EXECUTIVE SHOULD TAKE A COPY OFTHIS AGREEMENT WITH HIM.  HOWEVER, THEEXECUTIVE WILL NOT BE OFFERED EMPLOYMENT UNTIL THIS AGREEMENT IS SIGNED ANDRETURNED TO EMPLOYER.

 

10

----

 

12.           Choice of Law and Jurisdiction.This Agreement shall be construed, interpreted and the rights of the partiesdetermined in accordance with the laws of the Commonwealth ofMassachusetts.  Each of the partieshereto hereby irrevocably consents and submits to the exclusive jurisdiction ofthe state courts of the Commonwealth of Massachusetts, and of the United StatesDistrict Court located in Boson, Massachusetts in connection with any suit,action, or other proceeding concerning this Agreement or enforcement ofSections 5, 7, 8 and 9 hereof.  TheExecutive waives and agrees not to assert any defense that the court lacksjurisdiction, venue is improper, inconvenient forum or otherwise.  The Executive waives the right to a jurytrial and agrees to accept service of process by certified mail at theExecutive’s last known address.

 

13.           Successors and Assigns.  Neither this Agreement, nor any of theExecutive’s rights, powers, duties or obligations hereunder, may be assigned bythe Executive.  This Agreement shall bebinding upon and inure to the benefit of the Executive and his heirs and legalrepresentatives and the Company and its successors.  Successors of the Company shall include,without limitation, any company or companies, individuals, groups, associations,partnerships, firm, venture or other entity or party acquiring, directly orindirectly, all or substantially all of the assets of the Company, whether bymerger, consolidation, purchase, lease or otherwise.  Any such successor referred to in this paragraphshall thereafter be deemed “the Company” for the purpose hereof.  All covenants and restrictions upon theExecutive hereunder, including, but not limited to Sections 5, 7, 8 and 9hereof, are specifically assignable by the Company.

 

14.           Waiver. Any waiver or consentfrom the Company with respect to any term or provision of this Agreement or anyother aspect of the Executive’s conduct or employment shall be effective onlyin the specific instance and for the specific purpose for which given and shallnot be deemed, regardless of frequency given, to be a further or continuingwaiver or consent.  The failure or delayof the Company at any time or times to require performance of, or to exerciseany of its powers, rights or remedies with respect to any term or provision ofthis Agreement or any other aspect of the Executive’s conduct or employment inno manner (except as otherwise expressly provided herein) shall affect theCompany’s right at a later time to enforce any such term or provision.

 

15.           Notices.  All notices, requests, demands, and othercommunications hereunder must be in writing and shall be deemed to have beenduly given if delivered by hand or mailed within the continental United Statesby first class, registered mail, return receipt requested, postage and registryfees prepaid, to the applicable party and addressed as follows:

 

11

----

 
| (a)    | If to the Company:                       |
|--------|------------------------------------------|
|   |                                     |
|   | BIO-key International, Inc.         |
|   | 3349 Highway 138 Building D Suite B |
|   | Wall, NJ 07719                           |
|   | Attn: Chairman, Board of Directors       |
|   |                                     |
| (b)    | If to the Executive:                     |
|   |                                     |
|   | Michael W. DePasquale                    |
|   | 704 Michael Drive                        |
|   | Toms River, NJ 08753                     |

 

16.           Construction of Agreement.

 

(a)           Severability.  In the event that any one or more of theprovisions of this Agreement shall be held to be invalid, illegal orunenforceable, the validity, legality or enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.

 

(b)           Headings.  The descriptive headings of the severalparagraphs of this Agreement are inserted for convenience of reference only andshall not constitute a part of this Agreement.

 

17.           Entire Agreement and Amendments.  This Agreement, including all Exhibits whichshall form parts hereof, contains the entire agreement of the partiesconcerning the Executive’s employment and all promises, representations,understandings, arrangements and prior agreements on such subject are mergedherein and superseded hereby.  Theprovisions of this Agreement may not be amended, modified, repealed, waived,extended or discharged except by an agreement in writing signed by the partyagainst whom enforcement of any amendment, modification, repeal, waiver,extension or discharge is sought.  Noperson acting other than pursuant to a resolution of the Board of Directorsshall have authority on behalf of the Company to agree to amend, modify,repeal, waive, extend or discharge any provision of this Agreement or anythingin reference thereto or to exercise any of the Company’s rights to terminate orto fail to extend this Agreement.

 

18.           Survival*. *The Executive’s obligations underParagraphs 5, 7, 8 and 9 shall survive and continue pursuant to the terms andconditions of this Agreement following specific termination.

 

19.           Understanding. The Executiverepresents and agrees that he fully understands his rights to discuss allaspects of this Agreement with his private attorney, that to the extent hedesires, he availed himself of this right, that he has carefully read and fullyunderstands all of the provisions of this Agreement, that he is competent toexecute this Agreement, that his decision to execute this Agreement has notbeen obtained by any duress and that he freely and voluntarily 

 

12

----

 

enters into this Agreement, and that he has read this document in itsentirety and fully understands the meaning, intent, and consequences of thisAgreement.

 

20.           Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall be deemed an original, and all of whichtogether shall constitute one and the same instrument.

 

21.           Injunctive**Relief.The Executive hereby agrees and acknowledges that in the event of a breach orthreatened breach of this Agreement by the Executive, the Company may sufferirreparable harm and monetary damages alone would not adequately compensate theCompany.  Accordingly, the Company willtherefore be entitled to injunctive relief to enforce this Agreement.

 

**[REMAINDER OF PAGE INTENTIONALLY LEFTBLANK]**

 

13

----

 

**INWITNESS WHEREOF**,the Company has caused this Agreement to be executed and attested by its dulyauthorized officers, and the Executive has set his hand, all as of the day andyear first above written.

 

 
|   | BIO-KEY INTERNATIONAL,  INC. |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   |
|   |                         | Name: Thomas J.  Colatosti |
|   |                         | Title:   Chairman of the Board of Directors |
|   |                         |
|   | EXECUTIVE                    |
|   |                         |
|   |                         |
|   |                         |
|   | Michael W.  DePasquale       |

 

14

----