EXHIBIT 10(S)
EMPLOYMENT AGREEMENT
The Employment Agreement (this "Agreement") is made and entered into
this 21st day of October, 1997, by and between Guardian International, Inc., a
Nevada corporation("Employer"), and Xxxxxxx Xxxxxxxx ("Employee").
WITNESSETH
WHEREAS, the Board of Directors of Employer (the "Board") recognizes
that Employee's contributions to the past and future growth and success of the
security business of Employer (the "Business") have been, and are expected to
continue to be substantial and the Board therefore desires to assure Employer of
Employee's services as an employee of, and for the benefit of, Employer in an
executive, managerial capacity; and
WHEREAS, in order to induce Employee to remain in the employ of
Employer, this Agreement sets forth employment and other benefits which Employer
shall pay to Employee in connection with his employment, provides for Employee's
employment for a term of three years and provides for Employee's agreement not
to compete with the Business in the event of his termination of employment on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the receipt and sufficiency of which
are mutually acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. TERM. Subject to the provisions for termination contained in Section
10 hereof, the term of this Agreement, and the employment of Employee hereunder,
shall commence on October 15, 1997 and continue for a three-year term ending on
October 14, 2000.
3. DUTIES. During the term of his employment hereunder, Employee shall
serve as President and Chief Executive Officer of Employer. In such capacity,
Employee (i) shall have full authority as to the operations and management of
Employer in accordance with the general direction established by the Board, (ii)
shall supervise and administer the day-to-day operations, business and affairs
of Employer, (iii) shall have the power and authority to enter into contracts in
the name and on behalf of Employer in the ordinary course of its Business, (iv)
shall have the power and authority to do and to perform any and all other acts
and things which he shall reasonably consider to be necessary, desirable,
convenient, or appropriate, and in the best interests of Employer, in the
ordinary and usual course of its Business, (v) shall report to the Board, and
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(vi) shall perform such other duties as shall be usual and customary of his
offices in accordance with the Bylaws of Employer.
4. EXCLUSIVITY OF SERVICES. Employee shall devote his full business
time, energy and ability exclusively to the business, affairs and interests of
Employer and matters related thereto, shall use Employee's best efforts and
abilities to promote Employer's interests, and shall perform the services
contemplated by this Agreement in accordance with policies established by and
under the direction of the Board. During the term hereof, Employee shall not
serve as an officer, director, employee, consultant or advisor to any other
business, and shall not engage in any other business activities other than the
permitted Activities, as herein defined. The Employee may (i) make and manage
personal business investments of his choice, provided, that the Employee shall
hold no investment in any entity which competes in any way with Employer or its
subsidiaries, other than an investment representing a less than 5% interest in
any publicly held entity; and (ii) serve in any capacity with any civic,
educational or charitable organization without seeking or obtaining approval by
the Board, provided, that the activities and services described in clauses (i)
and (ii) (collectively, the "Permitted Activities") do not substantially
interfere or conflict with the performance of duties hereunder or create any
conflict of interest with such duties. Employee hereby confirms that he is under
no contractual commitments inconsistent with his obligations set forth in this
Agreement.
5. COMPENSATION.
a. During the term of his employment hereunder, Employee shall
receive a salary of One Hundred Thirty Five Thousand Dollars ($100,000) per
annum (the "Salary"), payable in equal installments no less frequently than
semi-monthly. Salary increases may be considered annually by the Board of
Directors.
b. Employee shall be entitled to a bonus from time to time
during the term of his Agreement pursuant to such policies as are adopted from
time to time by the Board.
c. Employee shall be entitled, in addition to the above, to
any benefits and perquisite to which executive officers of Employer may be or
may generally become entitled to receive under any present or future employment
benefit and perquisite plans or programs, or executive contingent compensation
plans, of Employer, and Employee shall be eligible to receive, during the period
of his employment under this Agreement, benefits and emoluments for which
corporate executive officers are eligible under every plan or program to the
extent permissible under the general terms and provisions thereof. The foregoing
notwithstanding, Employer may change or discontinue any such benefits in its
sole discretion; provided, however, that so long as any benefit is made
available to other executive officers, same shall be provided to Employee.
d. In addition to the above, upon execution of this Agreement,
Employer shall grant to Employee an option to purchase 100,000 shares of
Employer's Class A Common Stock at a price equal to the average Closing price
for the five trading days immediately following the
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public announcement of the equity investment by Westar Capital, Inc. in the
Employer. Employee shall be entitled to exercise a maximum of 20% of the option
shares each year of this Agreement. However, at the end of five years or anytime
thereafter following the date of this Agreement, Employee may, if he has
exercised fewer than the maximum allowable shares in the preceding five years,
exercise the remaining shares without restriction.
6. AUTOMOBILE ALLOWANCE. During the term of his employment hereunder,
Employer shall furnish to Employee an automobile allowance in an amount equal to
Six Hundred Dollars ($600) once a month.
7. EXPENSE REIMBURSEMENT. During the term of Employee's employment
hereunder, Employer, upon the submission of proper proof by Employee, shall
promptly reimburse Employee for reasonable business expenses actually and
necessarily paid or incurred by him in connection with the discharge of his
duties hereunder.
8. VACATION. During the term of his employment hereunder, Employee,
during each year of the term of this Agreement, shall be entitled to four weeks
of vacation time as selected in consecutive or nonconsecutive periods or any
combination thereof by Employee in his reasonable discretion consistent with his
duties and responsibilities hereunder, during which vacation time Employee shall
be paid the applicable portion of his Salary.
9. INSURANCE. During the term of his employment hereunder, Employer
shall at all times provide to Employee, and pay the reasonable premiums of,
medical insurance policies for Employee and his immediate family and shall
further provide and pay the premiums of group term life insurance, group
disability insurance and such other insurance as is from time to time provided
to all of Employer's senior employees on terms no less favorable than that
provided to Employer's other senior personnel.
10. TERMINATION.
a. Notwithstanding anything contained in this Agreement,
Employer by written notice to Employee shall at all times in its sole discretion
have the right to terminate this Agreement, and Employee's employment hereunder,
"for cause" effective upon delivery of notice to Employee. For purposes for this
Agreement, "for cause" shall mean: (i) any conviction of Employee of a felony;
(ii) conduct amounting to a material act of fraud or dishonesty involving
Employer; (iii) a material act of fraud or dishonesty not involving Employer
which has a material adverse effect upon the Business or reputation of Employer;
(iv) continuing material violation by Employee of his obligations under this
Agreement after written notice thereof to Employee and failure to cure such
violation within fifteen (15) days following such notice.
b. Employer by written notice to Employee shall have the right
to terminate this Agreement and Employee's employment upon the total and
permanent physical or mental disability ("Disability") of Employee, evidenced by
an inability to engage in his assigned duties for
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a period of 180 or more days, either consecutively or in the aggregate during
any nine-month period, as determined by an impartial reputable physician agreed
upon by the Board and Employee (or his representative, as the case may be).
c. If Employee dies during the term of his employment
hereunder, this Agreement shall terminate automatically upon the date of
Employee's death.
11. PAYMENTS UPON TERMINATION OR EXPIRATION.
a. In the event that this Agreement, and Employee's employment
hereunder, is terminated for cause pursuant to Section 10(a) hereof, then, in
such event, (i) Employer shall have no obligation whatsoever to make any
payment, including, without limitation, any payment of Salary, bonus, automobile
allowance or any insurance premium, to or on behalf of Employee for any period
subsequent to the date of such termination; and (ii) Employer may, subject to
the terms of such plans and applicable law remove Employee from coverage under
any medical, life, disability or other insurance plans or programs made
available to Employee by Employer.
b. In the event that this Agreement, and Employee's employment
hereunder, is terminated for death or Disability of Employee pursuant to Section
10(b) or 10(c) hereof, then, in any such event, Employer shall have no
obligation whatsoever to make any payment, including without limitation, any
payment of Salary, bonus, automobile allowance or any such insurance premium, to
or on behalf of Employee for any period subsequent to the date of such
termination or expiration. Notwithstanding the above, in the event this
Agreement is terminated for Disability of Employee pursuant to Section 10(b)
hereof, Employee shall have the right at Employer's expense through the
remaining term of this Agreement to continue such disability insurance as
Employer was providing as of the date of termination, and, at Employee's own
expense, to continue any group medical insurance then provided to Employee and
to such other benefits as he is then entitled under such insurance and any
disability plan or program of Employer.
c. In the event that this Agreement, and Employee's employment
hereunder, is terminated by Employer without cause during the terms set forth in
Section 2 hereof, or Employee shall terminate his employment with Employer as a
result of a material breach by Employer of the terms hereof, which breach is not
cured within fifteen (15) days following notice in writing from Employee to
Employer specifying the nature of such breach, then, in such event, in addition
to such amounts as have accrued prior to the date of termination and have not
previously been paid including any accrued vacation benefits, Employer shall pay
to Employee, payable at such time as such payments would otherwise be payable
hereunder, Employee's Salary, and any bonus the Board has otherwise approved
prior to termination, and shall continue to provide such other perquisites and
benefits as are then being provided pursuant to Sections 5(c), 6 and 9, subject
only to the requirements of any plan or agreement under which such perquisites
or benefits are provided, for the remaining term of this Agreement (the
"Severance Period").
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d. If (i) the term of this Agreement expires pursuant to
Section 2 hereof, (ii) this Agreement is not renewed or replaced and (iii)
Employee's employment with Employer ceases, other than for cause as defined
herein, then, in such event, Employer shall make a severance payment to Employee
equal to the Salary paid to Employee during the last year of the term of this
Agreement, payable at Employer's discretion either in a lump sum or in 24 equal
semi-monthly installments. The period during which such payments are made
pursuant to this Section 11(d) or, if such payment is made in a lump sum, the
one (1) year period following termination of this Agreement shall be deemed the
Severance Period. Notwithstanding the above, in lieu of making the severance
payment described in this Section 11(d), Employer may release Employee from the
covenant set forth in Section 14 hereof.
12. INCAPACITY; ILLNESS; DISABILITY. If at any time during the term of
this Agreement, and Employee's employment hereunder, Employee shall, as the
result of mental or physical incapacity, illness or disability, be unable or
fail to perform reasonably his duties and responsibilities provided for herein,
Employer shall nevertheless be obligated to continue to meet all of its
obligations hereunder to Employee unless and until such time as Employer shall
terminate this Agreement pursuant to Section 10(b) hereof; provided, however,
that the amount of any disability insurance benefits which Employee may be
entitled to receive from any source shall be deducted from the portion of the
Salary to be paid by Employer to Employee.
13. CONFIDENTIALITY.
a. Employee agrees that, both during the term of this
Agreement and after the termination of this Agreement, Employee will hold in a
fiduciary capacity for the benefit of Employer, and shall not, directly or
indirectly, use or disclose, except as authorized by Employer in connection with
the performance of his duties, any Confidential Information (as defined below)
that Employee may have or acquire (whether or not developed or compiled by
Employee and whether or not Employee has been authorized to have access to such
Confidential Information) during the term of this Agreement; provided that the
foregoing shall not prohibit the discussion of Confidential Information with an
attorney representing Employee in connection with a dispute between Employee and
Employer to the extent necessary to resolve such dispute. The term "Confidential
Information" as used in this Agreement shall mean and include any material
information, data and know-how relating to the Business of Employer that is
disclosed to Employee by Employer or known by him as a result of his
relationship with Employer and not generally within the public domain (whether
constituting a trade secret or not), including without limitation, the
following: financial information, supply and service information, marketing
information, personnel information, customer information and information with
respect to any corporate affairs that Employer treats as confidential.
The term "Confidential Information" does not include information that
has become generally available to the public by the act of Employer or by the
act of one who has the right to disclose such information without violating any
right of Employer or the customer to which such information pertains.
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Nothing in this Section 13 shall prevent Employee from disclosing any
Confidential Information to the extent such disclosure is required by law or any
order of a court or government authority with jurisdiction.
b. The covenant contained in this Section 13 shall survive the
termination of Employee's employment with Employer for any reason for a period
of two (2) years; provided, however, that with respect to those items of
Confidential Information which constitute trade secrets under applicable law,
Employee's obligations of confidentiality and non-disclosure as set forth in
this Section 13 shall continue to survive after said two (2) year period to the
greatest extent permitted by applicable law. These rights of Employer are in
addition to those rights Employer has under the common law or applicable
statutes for the protection of trade secrets.
14. COVENANT NOT TO COMPETE. Employee agrees that he will not engage or
participate in any business that competes with the Business of Employer in any
city or county within the United States in which the Employer is then engaging
and continues to engage in its Business, whether as employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or other representative capacity, at any time during Employee's employment with
Employer and during the applicable Severance Period as defined in Section 11(c)
or (d) of this Agreement. Notwithstanding the foregoing, Employee may hold an
investment representing a less than 5% interest in any publicly held entity
engaging in a business that competes with the Business of Employer. In addition,
in the event Employee's employment is terminated by Employer for cause as set
forth in Section 10(a) hereof, Employee shall be subject to the covenant not to
compete set forth in this Section 14 for a period of two years following the
date of termination. In the event that Employee violates the covenant contained
in this Section 15, Employer may, in addition to any other remedies available,
withhold severance payments due under Section 11(c) or (d). Further, upon
termination of Employee's employment with Employer in connection with the
expiration of the term of this Agreement, Employer may release Employee from
this covenant not to compete in lieu of making the severance payments described
in Section 11(d) hereof. In the event any court shall refuse to enforce any
portion of the covenant set forth in this Section 14, then such unenforceable
portion shall be deemed eliminated and severed from said contract for the
purposes of said court's proceedings to the extent necessary to permit the
remaining portions of the covenant to be enforced.
15. COVENANTS AGAINST OTHER ACTIONS DAMAGING EMPLOYER. Employee agrees
that he will not, at any time during his employment with Employer and for the
period that the covenant set forth in Section 14 above applies (the "Non-Compete
Period"), for himself or on behalf of or in conjunction with any third party
solicit any employee of Employer or its subsidiaries to leave such employment;
provided that the posting by Employee or nay entity with which Employee is
involved of general advertisements soliciting employees shall not constitute the
solicitation of any employee of Employer or its subsidiaries. Employee further
agrees that, during the Non-Compete Period, he will not directly or indirectly,
on his own behalf or in the service of or on behalf of others, solicit, divert
or appropriate, or attempt to solicit, divert or appropriate, to any competing
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business, any customers of Employer or its subsidiaries. If, during the term of
this agreement, Employee is engaged in or associated with the planning or
implementing of any project, program or venture involving Employer and a third
party or parties (a "Venture"), or any discussions, analysis or negotiations
with respect to an investment in, merger, acquisition or purchase, directly or
indirectly, of the stock, assets, or business of any entity (an "Acquisition"),
all rights in the Venture and the Acquisition and any opportunity to make any
investment in the entity to be so acquired (the "Target") shall belong to
Employer and shall constitute a corporate opportunity belonging exclusively to
Employer. Except as approved by the Board, Employee shall not be entitled to any
interest in any such Venture or to invest or solicit any third party to invest
in the Target or consummate the Acquisition, or to any commission, finder's fee
or other compensation in connection therewith other than any Salary paid to
Employee for performance of his duties in the ordinary course of business. In
the event any court shall refuse to enforce any portion of the covenants set
forth in this Section 15, then such unenforceable portion shall be deemed
eliminated and severed from said contract for the purposes of said court's
proceedings to the extent necessary to permit the remaining portions of the
covenant to be enforced.
16. ARBITRATION. Any dispute or controversy between the parties under
this Agreement shall exclusively be referred to binding, non-appealable
arbitration in accordance with the procedures set forth in Exhibit A hereto and
without recourse to any litigation except as set forth in Exhibit A. Each party
hereby irrevocably submits itself to a personal jurisdiction in Miami, Florida,
for the purpose of such arbitration proceedings, and/or any suits to confirm the
same. Pending the completion of any arbitration proceedings, payments not in
dispute shall continue to be made and obligations not in dispute shall continue
to be performed.
17. NO DELEGATION. Employee shall not delegate his employment
obligations pursuant to this Agreement to any other person without the prior
consent of the Board.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to the
conflicts of laws principles thereof.
19. TERMINATION OF PRIOR AGREEMENT. The Executive Employment Agreement
by and between Employer and Employee dated August 15, 1996 is hereby terminated
and superseded by this Agreement.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, both oral and written, between the parties hereto with respect
to the subject matter hereof. This Agreement may not be modified in any way
unless in writing signed by both Employer and Employee.
21. NOTICES. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand and receipted
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or when received or refused if delivered by United States mail, by registered or
certified mail, return receipt requested, postage prepaid, as follows:
If to Employer: Guardian International, Inc.
0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
If to Employee; Xxxxxxx Xxxxxxxx
XX Xxx 000000
Xxxxx, Xxxxxxx 00000-0000
or to such other addresses as either party hereto may from time to time give
notice of to the other on five days prior notice in the manner aforesaid.
22. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective legal
representatives, successors and, where applicable, assigns.
23. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law, and, in the event that anyone or more of the words, phrases, sentences,
clauses or sections contained in this Agreement declared invalid, this Agreement
shall be construed as if such invalid word or words, phrase or phrases, sentence
or sentences, clause or clauses, or section or sections had not been inserted.
24. WAIVERS. The waiver by either party hereto of a breach of any
provision of this Agreement shall not be construed as a waiver of any subsequent
breach.
25. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written.
EMPLOYER:
GUARDIAN INTERNATIONAL, INC., a Nevada
corporation
By: /s/XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
[Corporate Seal]
EMPLOYEE:
/s/XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
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EXHIBIT A
ARBITRATION PROCEDURES
a. If a dispute or controversy arises, the parties hereto shall attempt
in good faith to resolve such dispute or controversy promptly by negotiation.
Any such dispute or controversy which has not been resolved by negotiation
within thirty (30) days after the initiation of discussions shall be resolved by
binding arbitration in accordance with the then current CPR Rules for
Non-Administered Arbitration of Business Disputes. Unless the parties agree
otherwise, the arbitration shall be conducted in Miami, Florida, by a panel of
three arbitrators. The disputing parties shall each select one arbitrator, and
the arbitrators so selected shall select an attorney as the third arbitrator. If
the arbitrators selected by the disputing parties fail to agree on the third
arbitrator within thirty (30) days of the date this arbitration provision
becomes operative, any person involved may request CPR to make the appointment
in accordance with its applicable rules.
b. The arbitrators shall decide the issues submitted to them in
accordance with the provisions and commercial purposes of this Agreement;
provided that, all substantive questions of law shall be determined under the
laws of the State of Florida (without regard to its principles of conflicts of
laws).
c. The arbitration shall be governed by the United States Arbitration
Act, 9 X.X.X.xx. 1, et seq., and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof. The
arbitrators may grant any remedy or relief which is just and equitable,
including injunctive relief or specific performance.
d. The parties hereto agree to facilitate the arbitration by: (i)
making available to one another and to the arbitrators for examination,
inspection and extraction all documents, books, records and personnel under
their control if determined by the arbitrators to be relevant to the dispute;
(ii) participating in reasonable discovery, including oral depositions; (iii)
conducting arbitration hearings to the greatest extent possible on successive
days; and (iv) observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
e. Initially, the disputing parties shall each pay one-half of the
costs (excluding attorneys' fees) of any arbitration; provided, however, that
the arbitrators shall divide all costs (excluding attorneys' fees) incurred in
conducting the arbitration in their final award in accordance with what they
deem just and equitable under the circumstances, and any party who is allocated
in excess of one-half of such costs shall reimburse the other for such excess
costs.
f. Notwithstanding the exclusivity of the dispute resolution procedures
specified herein, a party hereto, without prejudice to such procedures, may file
a complaint or seek a preliminary injunction or other provisional judicial
relief if in its sole judgment such action is
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necessary to avoid irreparable damage or to preserve the status quo. Despite any
such action, the parties shall continue to participate in good faith in the
procedures specified herein.
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