GLOBAL DIGITAL SOLUTIONS, INC.
EMPLOYMENT AGREEMENT
Name of Employee (herein "Employee"): Xxxxxxx X. Xxxxxxx
Position: Executive Vice President
Name of Employer (herein "Employer"): Global Digital Solutions, Inc.
Commencement Date: January 8, 2004
Initial Termination Date: 3 years from Commencement*
Annual Salary: $200,000.00
THIS AMENDED AND RESTATED AGREEMENT is entered into between Global
------------------------------
Digital Solutions, Inc., a Delaware corporation ("Employer"), and
Employee for the following purposes and upon the following conditions:
1. Employment. Employer hereby employs Employee as provided herein
and Employee hereby accepts such employment upon the terms and
conditions hereinafter set forth.
2. Term. This Agreement is for a three year term, subject to the
termination provisions of Paragraph 3. This Agreement will be
automatically renewed for a two year term, unless; (1) the Board of
Directors (the "Board") delivers written notice of non-renewal at least
60 days before expiration of the initial term; (2) is terminated sooner
pursuant to the terms of this Agreement; or (3) the Employee delivers
written notice of resignation to the Board. Thereafter, this Agreement
will be automatically renewed for successive two-year terms under the
same condition.
3. Early Termination. Except as provided in Paragraphs 2 or 3,
"Term," Employer may not terminate this Agreement without cause.
Employer may terminate this Agreement at any time with cause if (i)
Employee is convicted of the willful and intentional commission of a
crime (excluding traffic violations); (ii) in the reasonable judgment
of the President, after notice to Employee and a reasonable opportunity
to cure, the President determines Employee has materially failed to
perform his duties hereunder. In the event of termination for cause,
the Employee's pro rated Annual Salary and other benefits shall be paid
through the date of termination, and the Employee shall have no further
rights to compensation or benefits other than as determined by the
terms of any applicable plan or program. If Employer terminates this
Agreement prior to the Termination Date without cause, Employee shall
be paid the equivalent to three-month's salary at the compensation rate
at the time of termination, payable upon the date of early termination.
4. Performance Requirements. The parties have mutually agreed upon
the financial and performance goals attached hereto as Exhibit A.
The Employee agrees that such goals are a material part of this
Agreement and failure to meet or exceed such goals on a yearly basis
shall be the basis of a termination for cause, without severance. The
Employee and the Board shall mutually agree upon such financial and
performance goals each year during the Term of this Agreement and
revise and update Exhibit A accordingly.
5. Compensation. (a) For the full Term of this Agreement, Employer
shall pay Employee an Annual Salary in the amount provided above,
payable in installments in the Employer's regular payroll periods.
Employer shall review such Annual Salary at least annually one month
prior to each anniversary of this Agreement; provided, however, that
such Annual Salary shall not be decreased without the consent of
Employee. Employee shall be eligible to receive such bonuses and cost
of living increases to his Annual Salary as the Board approves from
time to time.
(b) As previously agreed, the Employee shall be eligible to
participate in a stock option plan to be established by the Employer as
determined by the Board.
6. Duties. Employee is engaged in the Position listed above to
discharge the normal duties associated with said Position, as
specifically directed by the President or officers having authority of
Employee under the bylaws ("Senior Officers") or pursuant to the
general operating policies adopted by the Board of Employer. Employee
will keep the Board and Senior Officers fully informed on a periodic
basis as requested by the Board, present detailed financial information
and business plans when requested by the Board for approval and
adoption and thereafter will conscientiously pursue their
accomplishment.
7. Extent of Service. Employee will devote all of his time,
attention, and energies to the business of Employer, subject to the
other commitments set for in this paragraph. Employee will average no
less than forty hours per week while performing his duties.
8. Working Facilities. Employee shall maintain his office at any of
the facilities located in California. Employer shall provide Employee
with office space, computer equipment, and any other equipment or
facilities necessary to perform the duties under this Agreement.
9. Business Expenses. Employee is authorized to incur reasonable
expenses for promoting the business of Employer, including expenses for
entertainment, travel and similar items. Employer will reimburse
Employee for all such expenses upon presentation by Employee of an
itemized account of such expenditures. Such expenditures shall be
within approved budget items for such expense. In the event of any
subsequent disallowance by the United States Internal Revenue Service
of such reimbursed expenses as deductions on Employer's income tax
returns, such disallowed expense shall be treated as an advance of
future sums to be paid by Employer to Employee under this Agreement,
except in those instances where such expenses are specifically
authorized or directed by Employer prior to Employee's expenditure
therefore, which expenses shall not be chargeable to Employee.
10. Medical and Life Insurance. During the Term of this Agreement,
Employer shall provide, at Employer's cost, a life insurance policy and
group health and disability insurance plans for the coverage of the
medical expenses of Employee and his immediate family dependents. Such
plans shall provide for payment of medical expense benefits in amounts
and under terms as are reasonable and customary for plans of businesses
such as Employer.
11. Vacations. Employee shall be entitled during the first year of
this Agreement to a vacation of four weeks during which time his
compensation shall be paid in full. Employee may direct that unused
vacation time be carried over from the year to which it relates to a
following year and be accumulated for Employee's use in such year or
subsequent years, or that he be paid for any unused vacation time at
the end of any year. In addition, Employee shall be entitled to
normally established paid holidays and other employee benefit programs,
including but not limited to, sick leave.
12. Death or Disability. The Employee's employment by the Employer
pursuant hereto is subject to termination during the Term of this
Agreement as follows:
(a) Death. Employee's employment hereunder shall terminate upon
his death. In such event, the Employee's annual salary shall be paid
through the date of Employee's death. Eligibility for all other
benefits shall be determined by the terms of any applicable plan or
program.
(b) Disability. The Employer may, by written notice to the
Employee, terminate the Employee's employment if, as a result of the
Employee's incapacity due to physical or mental illness, the Employee
shall have been absent from his duties hereunder for sixty consecutive
days or for a total of ninety days in any three hundred sixty five day
period (the "Disability Period"). In the event of such termination,
the Employee shall receive the same benefits payable in the event of
death; provided however that if any time during the Term of this
Agreement the Employer should adopt a disability policy, the terms of
such policy shall govern.
13. Confidentiality.
13.1 Employee's Duty Regarding Confidential Information. Employee
shall regard and preserve as confidential all Confidential Information
pertaining to Employer's business. Such Confidential Information shall
be deemed confidential whether obtained by Employee by reason of his
employment with Employer or before or during the term hereof. Employee
shall not, without the prior written consent of Employer, use for his
own benefit or purposes, or disclose to others, either during his
employment or at any time thereafter, and except as required in
connection with his employment with Employer, and Confidential
Information connected with the business developments of Employer.
Employee represents and warrants that Employee has not, before
execution of this Agreement, made any disclosures of the type
prohibited by this Paragraph 13. Employee shall promptly disclose to
Employer all discoveries, improvements, inventions, and ideas,
conceived or made by Employee, either by Employee or with others,
during Employee's employment hereunder, and which are related to the
actual or anticipated business or activities of Employer. All such
discoveries, improvements, inventions, and ideas shall automatically be
exclusive property of Employer and shall be treated as Confidential
Information unless otherwise permitted under this Paragraph 13.
Employee shall execute any and all documents that Employer may
reasonably request to evidence that such discoveries, improvements,
inventions and ideas are the exclusive property of Employer, including,
without limitation, assignments of the same.
13.2 Definition of Confidential Information. As used in this
Agreement the term "Confidential Information" shall mean all business
information of any nature and in any form which at the time or times
concerned is not generally known to those persons engaged in business
similar to that conducted or contemplated by Employer, other than by
act or acts of an employee not authorized by Employer to disclose such
information, and which relates to any one or more of the aspects of the
present or past business of Employer or any of its predecessors,
including but not limited to patents and patent applications,
inventions and improvements, whether patentable or not, development
projects, policies, processes, formulas, techniques, know-how and other
facts relating to sales, advertising, franchising, promotions,
financial matters, customers, customers' lists, customers' purchases or
requirements, licenses and any trade secrets.
14. Covenant Not To Compete.
14.1 Scope of Covenant. As a material part of the consideration
given for this Agreement, Employee hereby agrees that upon termination
of employment with Employer, he will not directly or indirectly own,
manage, operate, control, be employed by, participate in, finance,
consult, advise, or be connected in any manner whatsoever with the
ownership, management, operation, control, or financing of any
business, person, corporation, partnership, or other entity which,
directly or indirectly, engages in any aspect of the business of
Employer or any of its subsidiaries in those states of the United
States and foreign countries during the term of this Agreement for a
period of one year following the termination. In an effort to allow
Employee to continue to work in the telecommunications field during and
after the one year following the employees termination, it is expressly
permitted that the Employee may work in the telecommunications industry
under the condition that Employee does not work for any company,
organization or consulting firm that is in direct competition with the
Employer, or any of it subsidiaries or Employee is not hired for the
express purposes of developing improvements, inventions or ideas that
will be in direct competition with Employer.
14.2 Enforceability. Employee represents and warrants to and
covenants with Employer as follows:
(a) Reasonableness. The covenants set forth in Paragraph 14.1
are reasonably necessary for the protection of the interests of
Employer, are reasonable as to duration, scope, and territory, and are
not unreasonably restrictive upon the rights of Employee.
(b) Injunctive Relief. In addition to any other rights or
remedies that Employer any may have, it shall be entitled to injunctive
relief without the necessity of providing actual damages.
(c) Severability. Notwithstanding Paragraph 14.2(a) should any
court determine that any of the covenants in Paragraph 14.1 are
unreasonable as to duration, scope, or territory, the covenants shall
be enforceable as provided herein with respect to such duration, scope,
and territory as the court determines to be reasonable.
15. Return of Books and Papers. Upon the termination of Employee's
employment with Employer for any reason, Employee shall deliver
promptly to Employer all manuals and memoranda; all cost, pricing and
other financial data; all customer information; all other written or
printed materials which are the property of the Employer's (and any
copies of them); and all other materials which may contain confidential
information relating to the business of Employer that Employee may then
have in his possession, whether prepared by Employer or not.
16. Specific Performance. Employee acknowledges that a breach of
any of the covenants contained in Paragraphs 13 and 14 hereof may
result in material, irreparable injury to the Employer for which there
is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall
cease and the Employer without posting any bond shall be entitled to
obtain a temporary restraining order and a preliminary or permanent
injunction restraining Employee from engaging in activities prohibited
by Paragraphs 13 or 14 hereof or such other relief as may be required
to enforce any of the covenants contained in Paragraphs 13 or 14
hereof.
17. Notices. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered by hand or
mailed by United States overnight express mail, or nationally
recognized private delivery service on an overnight basis, return
receipt requested, postage prepaid, addressed as follows:
If to the Employee: Xxxxxxx Xxxxxxx
If to the Employer: Global Digital Solutions, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000, Xxxx Tower
West Palm Beach, FL 33401
Attention: President
with copies to: Merra, Kanakis, Creme & Xxxxxx, P.C.
00 Xxxx Xx.
Xxxxxx, XX 00000
Attention: Xxxx X. Creme, Esquire
Telephone: 000-000-0000
Fax: 000-000-0000
Notices may also be sent to such other address as either party may
have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
18. Waiver of Breach. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not operate or be
construed as a waiver of any subsequent breach by Employee.
19. Inurement. The rights and obligations of Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer.
20. Representations and Warranties. The Employee hereby represents
and warrants that he is free to enter this Agreement and to render his
services pursuant hereto and that neither the execution nor delivery of
this Agreement, nor the performance of his duties hereunder, violates the
provisions of any other agreement to which he is a party or by which he
is bound. It is further provided that Employee shall indemnify
Employer for any and all damages and/or expenses (including attorney's
fees) that may result from a breach of such representations.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, and in
pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
22. Survival. Paragraphs 3, 4, 5, 13,14,16 and 22 shall survive the
termination of this Agreement.
23. Entire Agreement. This instrument contains the entire agreement
of the parties. It may not be changed orally but only by an agreement
in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
24. Paragraph Headings. Paragraph headings have been chosen and
used for convenience in referring to the various actions and paragraphs
of the Agreement and are not to be accorded by meaning or significance
beyond such use in any interpretation of any provision of this
Agreement.
25. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law
governing conflict of law questions) of the state of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day of January 2004.
-----
GLOBAL DIGITAL SOLUTIONS, INC.
By:
-----------------------------
Xxxxxx X. Xxxxxxxxxx
President
-----------------------------
Xxxxxxx X. Xxxxxxx
15,809 Xxxx Xxxxxxx Employment Agreement- final
