EXHIBIT 10.4
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of December 19, 2003, by and between Guardian Technologies
International, Inc., a Delaware corporation (the "CORPORATION"), and Xxxxxx
Xxxxxxxx (the "EMPLOYEE").
WITNESSETH:
WHEREAS, the Corporation wishes to employ the Employee and the Employee
wishes to accept such employment on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS
1.1. The following words and terms shall have the meanings set forth
below for the purposes of this Agreement:
1.1.1 AFFILIATES. "Affiliates" of the Corporation, or a person
"affiliated" with the Corporation, shall mean any persons or entities which,
directly or indirectly, through one or more intermediaries, controls or are
controlled by or are under common control with, the persons or entities
specified.
1.1.2 BASE SALARY. "Base Salary" shall have the meaning set
forth in SECTION 3.1 hereof.
1.1.3 CAUSE. Termination of the Employee's employment for
"Cause" shall mean termination because the Corporation determines in its sole
discretion that the Employee has: (a) engaged in conduct which, when proven,
would constitute a crime involving moral turpitude or a felony of any type or
any breach of professional ethics; (b) engaged in conduct which injures the
business or reputation of the Corporation, or which compromises the Employee's
ability to perform the Employee's job duties; (c) failed to perform duties
assigned in accordance with this Agreement or to follow reasonable policies of
the Corporation; (d) engaged in negligence, incompetence or willful misconduct
in the performance of the Employee's duties; or (e) breached this Agreement;
provided that in the case of subparagraphs (b), (c) or (e), the Corporation
shall have given written notice to Employee setting forth in reasonable detail
the conduct, failure or breach and giving the Employee thirty (30) days in which
to correct any such conduct, failure or breach.
1.1.4 CHANGE IN CONTROL."Change in Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Corporation (the
"Outstanding Corporation Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Corporation entitled to vote generally
in the election of Directors (the "Outstanding Corporation Voting Securities");
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provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Corporation, (ii) any acquisition by the Corporation, (iii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any corporation controlled by the Corporation,
or (iv) any acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of Section 1.1.4(c) hereinbelow; or
(b) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least two-thirds
of the Board; provided, however, that any individual becoming a Director
subsequent to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least three-quarters of
the Directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of Directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of Directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Corporation or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the Board of Directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
1.1.5 DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if the Employee's employment is terminated by reason of Employee's death,
the date of Employee's death; (ii) if the Employee's employment is terminated
for Cause or Disability, the date specified in the Notice of Termination, and
(iii) if the Employee's employment is terminated for any other reason, the date
on which a Notice of Termination is given or as specified in such Notice of
Termination.
1.1.6 DISABILITY. Termination by the Corporation of the
Employee's employment based on "Disability" shall mean termination because the
Employee is, in the reasonable opinion of the Corporation as confirmed by
reasonable medical advice, unable to perform the essential functions of the
Employee's position with or without accommodation due to a disability (as such
term is defined in the Americans with Disabilities Act) for 90 consecutive days
or for 120 days in the aggregate during any 12-month period. This definition
shall be interpreted and applied consistent with the Americans with Disabilities
Act, the Family and Medical Leave Act and other applicable law.
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1.1.7 NOTICE OF TERMINATION. A "Notice of Termination" shall
mean a written, dated notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated, (iii) specifies a Date
of Termination, which shall be not less than 15 days nor more than 90 days after
such Notice of Termination is given, except in the case of the Corporation's
termination of Employee's employment for Cause or Disability, for which the Date
of Termination may be the date of the notice; and (iv) is given in the manner
specified in SECTION 9.2; provided that no Notice of Termination shall be
required in the event this Agreement is terminated by reason of Employee's
death.
1.1.8 SUBSIDIARY. "Subsidiary" shall mean any subsidiary of
the Corporation.
2. EMPLOYMENT
2.1. AGREEMENT AND TERM. The Corporation hereby employs the Employee,
and the Employee hereby accepts said employment and agrees to render such
services to the Corporation, on the terms and conditions set forth in this
Agreement. The term of this Agreement shall commence on December 3, 2003, and
shall continue from that date for one (1) year unless terminated prior thereto
by either the Corporation or the Employee as provided herein, and thereafter
shall automatically renew for successive one-year terms unless terminated prior
thereto by either the Corporation or the Employee as provided herein. If either
the Corporation or the Employee does not wish to renew this Agreement when it
expires at the end of the initial or any renewal hereof as provided herein or if
either the Corporation or the Employee wishes to renew this Agreement on
different terms than those contained herein, the Corporation or the Employee
shall give written notice in accordance with SECTION 9.2 of such intent to the
other party at least 30 days prior to the expiration date. In the absence of
such notice, this Agreement shall be automatically renewed on the same terms and
conditions contained herein for a term of one year from the date of expiration.
The parties expressly agree that designation of a term and renewal provisions in
this Agreement does not in any way limit the right of the parties to terminate
this Agreement at any time as provided herein. Reference herein to the term of
this Agreement shall refer both to the initial term and any successive term, as
the context requires.
2.2. DUTIES. During the term of this Agreement, the Employee shall
devote the Employee's full time, attention and energies and to use the
Employee's best efforts to further the interests of the Corporation and to
perform such services for the Corporation as is consistent with the Employee's
position, and as directed, from time to time, by the Corporation, including, but
not limited to, by the Board of Directors of the Corporation. The Employee's
initial title shall be Senior Developer. During the term of this Agreement the
Employee shall use such titles as assigned and approved by the Corporation. The
Employee shall not, during the term hereof, be employed or involved in any other
business activity, whether or not such activity is pursued for gain, profit or
other pecuniary advantage, except for (i) volunteer services for or on behalf of
such religious, educational, non-profit and/or other eleemosynary organization
as Employee may wish to serve as approved by the Corporation, (ii) service as a
director of for-profit business activities as approved by the Corporation, and
(iii) such other activities as may be specifically approved by the Corporation.
This restriction shall not, however, preclude the Employee, unless otherwise in
violations of any applicable law or regulation, from (x) owning less than 2% of
the total outstanding shares of a publicly traded company, (y) investing in real
estate as a limited or otherwise passive partner or (z) employment in any
capacity with Affiliates of the Corporation.
3. COMPENSATION AND BENEFITS
3.1. BASE SALARY. For services rendered hereunder by the Employee, the
Corporation shall compensate and pay Employee an annual salary of $90,000 ("Base
Salary") payable in equal biweekly installments, or in such other manner or on
such days as the Corporation may prescribe for the payment of salaries to
employees of the Corporation. The Corporation agrees to review Employee's salary
annually while this Agreement is in effect and may adjust the Employee's salary,
as it deems appropriate in its sole discretion.
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3.2 BONUSES. In addition to the Base Salary, the Employee shall be
eligible for an annual performance bonus based on the Employee's having met
goals established by the Corporation and mutually agreed to by the Employee and
the Corporation.
3.3. WITHHOLDING. All payments required to be made by the Corporation
hereunder to the Employee shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Corporation may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
3.4. BENEFITS.
3.4.1 VACATION. The Employee shall be entitled to the number
of paid vacation days provided to other employees at the Employee's level in
accordance with the Corporation's applicable policy for such other employees.
3.4.2 OTHER BENEFITS. The Employee shall be entitled to
participate in benefit policies or plans, including, without limitation, a
family health insurance program, adopted by the Corporation on the same basis as
other employees at the Employee's level as such policies or plans may be
changed, altered or terminated from time to time by the Corporation in its sole
discretion.
3.4.3 PERSONNEL POLICIES. Except as otherwise provided herein,
Employee's employment shall be subject to the personnel policies which apply
generally to employees at the same level as the Employee, and any code or codes
of ethics adopted by the Corporation or its Affiliates from time to time, as the
same may be interpreted, adopted, revised or deleted from time to time by the
Corporation in its sole discretion, during the term of this Agreement.
3.5 STOCK OPTIONS. Employee shall be entitled to participate in the
Corporation's stock option plan and to receive grants of stock options or other
awards thereunder as may be authorized and approved by the Board of Directors of
the Corporation (or any compensation or similar committee thereof). All of such
stock options or other awards granted or issued to Employee shall automatically
and immediately vest upon a Change in Control of the Corporation (or the
surviving corporation of a Business Combination that complies with Section
1.1.4(c), above).
4. EXPENSES
4.1. EXPENSES. The Corporation shall reimburse Employee or otherwise
provide for or pay for all reasonable expenses incurred by Employee in
furtherance of, or in connection with, the business of the Corporation,
including, but not limited to, traveling expenses, communication expenses and
all reasonable entertainment expenses (whether incurred at the Employee's
residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the policies of the
Corporation and/or the Board from time to time.
5. TERMINATION
5.1. TERMINATION DUE TO DEATH. This Agreement shall automatically
terminate upon the death of Employee. If the Employee's employment is terminated
by reason of the Employee's death, the Corporation shall have no further
obligation to pay compensation to the Employee effective as of the date of such
death. The entitlement of any beneficiary of the Employee to benefits under any
benefit plan shall be determined in accordance with the provisions of such plan.
5.2. TERMINATION DUE TO DISABILITY. This Agreement may be terminated by
the Corporation upon the Disability of the Employee. If the Employee is
terminated due to Disability, the Corporation shall have no further obligation
to pay compensation to the Employee effective as of the Date of Termination,
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consistent with the provisions of SECTION 1.1.6. The entitlement of the Employee
to benefits under a plan described in SECTION 3.4.2 or SECTION 3.5 upon such
termination shall be determined in accordance with the provisions of such plans.
5.3. TERMINATION FOR CAUSE. This Agreement may be terminated by the
Corporation for Cause. Upon the termination of the Employee for Cause, the
Corporation shall have no further obligation to pay any amounts to the Employee.
The entitlement of the Employee to benefits under a plan described in SECTION
3.4.2 or SECTION 3.5 upon such termination shall be determined in accordance
with the provisions of such plans.
5.4. TERMINATION IN THE EVENT OF A "CHANGE IN CONTROL." If, and only
if, (a) a Change in Control shall occur during the initial term or any renewal
term of this Agreement, (b) Employee is employed by the Corporation immediately
prior to the occurrence of the Change in Control, and (c) Employee is terminated
by the Corporation or the acquirer (within the first twelve (12) months
following the Change in Control) in the Change in Control transaction, then the
Corporation or any successor entity shall pay Employee, in equal monthly
installments (or, in the Corporation's sole discretion, as a lump sum based upon
the net present value of the future payments using the Corporation's incremental
borrowing rate, if any), the Base Salary for twelve (12) months following such
termination. During such twelve (12) month period, the Corporation shall not be
obligated to pay any additional amounts to the Employee pursuant to this
Agreement. The entitlement of the Employee to benefits under a plan described in
SECTION 3.4.2 or SECTION 3.5 upon such termination shall be determined in
accordance with the provisions of such plans.
5.5. TERMINATION BY THE CORPORATION OTHER THAN FOR DEATH, DISABILITY,
CAUSE, OR CHANGE IN CONTROL. This Agreement may be terminated by the Corporation
for any reason and at any time; provided that if this Agreement is terminated by
the Corporation for reasons other than death, Disability, or Cause, or Change in
Control and other than as provided by SECTIONS 5.8, then the Corporation shall
pay to the Employee, in equal monthly installments (or, in the discretion of the
Corporation, as a lump sum based upon the net present value of the future
payments using the Corporation's incremental borrowing rate, if any), the Base
Salary for twelve (12) months following such termination. Thereafter, the
Corporation's obligation to pay compensation of any kind pursuant to this
Agreement shall expire. During such twelve (12) month period, the Corporation
shall not be obligated to pay any additional amounts to the Employee pursuant to
this Agreement. The entitlement of the Employee to benefits under a plan
described in SECTION 3.4.2 upon such termination shall be determined in
accordance with the provisions of such plan. If this Agreement is terminated by
the Corporation for reasons other than death, Disability, Cause, and other than
as provided by SECTION 5.8, then all of the stock options, rights or awards
issued or granted to Employee pursuant to any incentive or stock option plan of
the Corporation shall automatically and immediately vest and become exercisable
in full.
5.6. TERMINATION BY EMPLOYEE. The Employee may terminate this Agreement
at any time by giving 30 days' Notice of Termination to the Corporation. At the
option of the Corporation, up to 30 days' Base Salary may be given to the
Employee in lieu of requiring the Employee to work any or all of the 30 days
following the Employee's Notice of Termination; provided, however, that in the
event the Employee fails to give at least 30 days' advance written notice of
termination of this Agreement, the Employee's resignation shall be deemed
effective, at the option of the Corporation, on any day designated by the
Corporation between the day notice is given and the date given by the Employee
as the Employee's last day of employment, and the Employee shall not be entitled
to any notice pay. In the event the Employee terminates this Agreement pursuant
to this SECTION 5.6, the Employee shall not be entitled to severance pay of any
kind, and the entitlement of the Employee to benefits under a plan described in
SECTION 3.4.2 or SECTION 3.5 shall be determined in accordance with the
provisions of such plans.
5.7. NOTICE OF TERMINATION. Any purported termination of the Employee's
employment by the Corporation for any reason other than the Employee's death,
including, but not limited to, for Disability or Cause, or by the Employee for
any reason, shall be communicated by a written Notice of Termination to the
other party hereto.
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5.8. TERMINATION BY MUTUAL CONSENT. Notwithstanding any of the
foregoing provisions of this SECTION 5, if at any time during the course of this
Agreement the parties by mutual consent decide to terminate this Agreement, they
shall do so by separate agreement setting forth the terms and conditions of such
termination.
5.9. COOPERATION WITH CORPORATION AFTER TERMINATION OF EMPLOYMENT.
Following termination of the Employee's employment for any reason, the Employee
shall reasonably cooperate with the Corporation in all reasonable matters
relating to the winding up of the Employee's pending work on behalf of the
Corporation, including, but not limited to, any litigation in which the
Corporation is involved, and the orderly transfer of any such pending work to
other employees of the Corporation as may be designated by the Corporation. The
Corporation agrees to reimburse the Employee for any reasonable out-of-pocket
expenses the Employee incurs in providing such cooperation at the request of the
Corporation, subject to reasonable documentation and to pay the Employee a pro
rata portion of the Base Salary for such time.
5.10. MITIGATION. The Employee shall not be required to mitigate the
amount of any benefits hereunder by seeking other employment or otherwise, nor
shall the amount of any such benefits be reduced by any compensation earned by
the Employee as a result of employment by another employer.
5.11. WITHHOLDING. All compensation required to be made by the
Corporation to the Employee under this SECTION 5 shall be subject to the
withholding of such amounts, if any, relating to tax and other payroll
deductions as the Corporation may reasonably determine should be withheld
pursuant to any applicable law or regulation.
6. NON-COMPETITION, CONFIDENTIALITY, PROPRIETARY RIGHTS AND
NON-SOLICITATION AGREEMENT
6.1. The parties hereto have entered into a Non-Competition,
Confidentiality, Proprietary Rights and Non-Solicitation Agreement dated the
date hereof. Such agreement is attached hereto as EXHIBIT A. The provisions of
the Non-Competition, Confidentiality, Proprietary Rights and Non-Solicitation
Agreement are intended by the parties to survive and do survive termination or
expiration of this Agreement for whatever reason.
7. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
7.1. NO CONFLICT OF INTEREST. The Employee represents and warrants to
the Corporation that the Employee is not, to the best of the Employee's
knowledge and belief, involved in any situation that might create, or appear to
create, a conflict of interest with the Employee's loyalty to or duties for the
Corporation.
7.2. NOTIFICATION OF MATERIALS OR DOCUMENTS FROM OTHER PERSONS OR
ENTITIES. The Employee further represents and warrants to the Corporation that
the Employee has not brought and will not bring to the Corporation or use in the
performance of the Employee's responsibilities at the Corporation any
information, materials or documents of another person or entity that are not
known in the industry or readily ascertainable, unless the Employee has obtained
express written authorization from the other person or entity for their
possession, disclosure and use.
7.3. PRE-EMPLOYMENT OBLIGATIONS. The Employee understands that, as part
of the Employee's employment with the Corporation, the Employee is not to breach
any obligation of confidentiality, proprietary rights or non-competition that
the Employee has to other persons or entities, and the Employee agrees to honor
all such obligations to such other person or entity during the Employee's
employment with the Corporation or otherwise in dealing with the Corporation.
The Employee warrants that the Employee is subject to no employment agreement or
restrictive covenant preventing full performance of the Employee's duties under
this Agreement.
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7.4. INDEMNIFICATION FOR BREACH. In addition to other remedies that
either party might have for breach of this Agreement, each party agrees to
indemnify and hold the other harmless from any breach of the provisions of this
SECTION 7.
8. ARBITRATION
8.1. EXCLUSIVE REMEDY. The parties recognize that litigation in federal
or state courts or before federal or state administrative agencies of disputes
arising out of the Employee's employment with the Corporation or out of this
Agreement, with the exception of SECTION 6, may not be in the best interests of
either the Employee or the Corporation, and may result in unnecessary costs,
delays, complexities, and uncertainty. The parties agree that any dispute
between the parties arising out of or relating to the Employee's employment, or
to the negotiation, execution, performance or termination of this Agreement or
the Employee's employment, including, but not limited to, any Claim arising out
of this Agreement, Claims under Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act
of 1967, the Americans With Disabilities Act of 1990, Section 1981 of the Civil
Rights Act of 1966, as amended, the Family Medical Leave Act, the Employee
Retirement Income Security Act, and any similar federal, state or local law,
statute, regulation, or any common law doctrine, whether that dispute arises
during or after employment with the exception of any dispute arising out of or
related to SECTION 6 and SECTION 8, shall be resolved by binding arbitration in
the Washington, D.C. metropolitan area, in accordance with the National
Employment Arbitration Rules of the American Arbitration Association, as
modified by the provisions of this SECTION 8. The parties each further agree
that the arbitration provisions of this Agreement shall provide each party with
its exclusive remedy, and each party expressly waives any right it might have to
seek redress in any other forum, except as otherwise expressly provided in this
Agreement. By election of arbitration as the means for final settlement of all
claims, the parties hereby waive their respective rights to, and agree not to,
xxx each other in any action in a Federal, State or local court with respect to
such claims, but may seek to enforce in court an arbitration award rendered
pursuant to this Agreement.
8.2. NOTICE AND SELECTION OF ARBITRATOR. Within 30 days after the
occurrence of an event giving rise to a dispute subject to this provision, the
aggrieved party shall provide the other party with a detailed written statement
of all facts pertaining to the dispute and shall permit the other party 30 days
within which to investigate and consider the facts and to resolve the matter
informally. Thereafter, an aggrieved party who wishes to proceed to arbitration
shall have an additional 90 days within which to so notify the other party in
writing. This notice shall include a clear, concise statement of the facts, the
issues to be resolved by the arbitrator and the desired remedy. Within ten (10)
days after delivery of a written notice requesting arbitration, the Corporation
will contact the Employee, or the Employee's designated representative, to
select an arbitrator. If the parties cannot agree on an arbitrator, they shall
select an arbitrator from a list provided by the American Arbitration
Association in accordance with its rules.
8.3. WITNESSES AND DOCUMENTS. Fourteen (14) days prior to the
arbitration hearing, the parties shall exchange a list of witnesses to be
called and a list of the documents they intend to introduce into evidence at
the hearing. Upon request, the Corporation will supply to the Employee a copy
of the Employee's personnel file, including, but not limited to, any internal,
non-privileged memoranda, which may be relevant to the dispute. All such files
and documents will be maintained in a confidential manner by the Employee,
shall be used only for preparation of the arbitration case, and shall be
returned to the Corporation at the close of the hearing.
8.4. ARBITRATION PROCEDURE. In the arbitration proceeding, each party
shall be entitled to retain its own counsel, to present evidence and
cross-examine witnesses, to purchase a stenographic record of the proceedings,
and to submit post-hearing briefs. The opinion and award of the arbitrator
shall be requested by the parties within 45 days of the submission of the
post-hearing briefs, which shall be due 30 days from the close of the
arbitration.
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8.5. THE EMPLOYEE'S REMEDIES. If the arbitrator finds that the Employee
was terminated in violation of law or this Agreement, the parties agree that
the arbitrator acting hereunder shall be empowered to provide the Employee with
equitable and/or legal remedies, including, but not limited to, compensatory
damages and back pay. "Back pay" shall include all forms of compensation
payable to the Employee by the Corporation, the cost of all fringe benefits,
and prejudgment interest at the rate of 10% per annum on such claims.
8.6. ARBITRATOR'S AUTHORITY. In reaching the Employee's decision, the
arbitrator shall have no authority to add to, detract from, or otherwise modify
any provision of this Agreement. The arbitrator shall submit with the award a
written opinion, which shall include findings of fact and conclusions of law.
Judgment upon the award rendered by the arbitrator may be entered in any court
having competent jurisdiction.
8.7. EFFECT OF ARBITRATOR'S DECISION: ARBITRATOR'S FEES. The decision
of the arbitrator shall be final and binding between the parties as to all
claims, which were or could have been raised in connection with the dispute, to
the full extent permitted by law. In all cases in which applicable federal law
precludes a waiver of judicial remedies, the parties agree that the decision of
the arbitrator shall be a condition precedent to the institution or maintenance
of any legal, equitable, administrative, or other formal proceeding by the
Employee in connection with the dispute, and that the decision and opinion of
the arbitrator may be presented in any other forum on the merits of the
dispute. The arbitrator's fees and expenses and all administrative fees and
expenses associated with the filing of the arbitration (the "FEES") shall be
paid the Corporation, provided however, that at the Employee's option, the
Employee may pay up to 50% of the Fees.
8.8. INDEMNIFICATION. In the event that either party breaches this
arbitration agreement and attempts to resolve in court claims covered by this
agreement, the prevailing party shall be entitled to recover from the other
party all of its legal costs and attorney's fees incurred to defend such action
in court and to enforce the provisions of the arbitration agreement or of this
Agreement.
8.9. CONTINUING NATURE OF AGREEMENT TO ARBITRATE. The parties
acknowledge and agree that their obligations under this arbitration agreement
survive the termination of this Agreement and continue after the termination of
the employment relationship between the Employee and the Corporation.
9. GENERAL PROVISIONS
9.1. ASSIGNMENT. The Corporation may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation
or other entity with or into which the Corporation may hereafter merge or
consolidate or to which the Corporation may transfer all or substantially all
of its assets, if in any such case said corporation or other entity shall by
operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party
hereto, but may not otherwise assign this Agreement or its rights and
obligations hereunder. The Employee may not assign or transfer this Agreement
or any rights or obligations hereunder. The applicability of this Section 9.1
is subject to the provisions specified in SECTION 5 of this Agreement.
9.2. NOTICE. 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 or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
If to the Corporation, to: Guardian Technologies International, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: President
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If to the Employee, to: Xxxxxx Xxxxxxxx
00000 Xxxxxx Xxxxxxxxx, Xxx. 000
Xxxxxx Xxxxxx, XX 00000
or to such other address as a party shall communicate to the other party in
writing from time to time in accordance with this Section 9.2
9.3. AMENDMENT AND WAIVER. No amendment or modification of this
Agreement shall be valid or binding upon (i) the Corporation unless made in
writing and signed by the President or Chief Executive Officer of the
Corporation or (ii) the Employee unless made in writing and signed by the
Employee. No other documents will be deemed to amend, alter or supersede the
provisions contained within this agreement without written consent by the
Corporation and the Employee
9.4. NON-WAIVER OF BREACH. No failure by either party to declare a
default due to any breach of any obligation under this Agreement by the other,
nor failure by either party to act quickly with regard thereto, shall be
considered to be a waiver of any such obligation, or of any future breach.
9.5. SEVERABILITY. In the event that any provision or portion of this
Agreement except SECTION 2.1 shall be determined to be invalid or unenforceable
for any reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
9.6. GOVERNING LAW. To the extent not preempted by Federal law, the
validity and effect of this Agreement and the rights and obligations of the
parties hereto shall be construed and determined accordance with the law of the
Commonwealth of Virginia.
9.7. ENTIRE AGREEMENT. This Agreement is the entire agreement between
the parties and contains all of the terms agreed upon by the Corporation and the
Employee with respect to the subject matter hereof and supersedes all prior
agreements, arrangements, letters offering employment, and communications
between the parties dealing with such subject matter, whether oral or written.
9.8. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the transferees, successors and assigns of the
Corporation, including, but not limited to, any Corporation or corporation with
which the Corporation may merge or consolidate.
9.9. HEADINGS. Numbers and titles to Sections hereof are for
information purposes only and, where inconsistent with the text, are to be
disregarded.
9.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which when taken together,
shall be and constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the date and year first written above.
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
(THE "CORPORATION")
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
NAME: Xxxxxx X. Xxxxxx
TITLE: President & Chief Operating Officer
EMPLOYEE
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxxx
10
EXHIBIT A
NON-COMPETITION, CONFIDENTIALITY, PROPRIETARY RIGHTS AND
NON-SOLICITATION AGREEMENT
This Non-Competition, Confidentiality, Proprietary Rights and
Non-Solicitation Agreement (this "Agreement") is between XXXXXX XXXXXXXX
(hereafter "YOU", and the possessive "YOUR") and GUARDIAN TECHNOLOGIES
INTERNATIONAL, INC., a Delaware corporation, its affiliates, successors,
assigns, parents and subsidiaries (hereafter "CORPORATION"), dated DECEMBER 19,
2003. You are entering into this Agreement based on consideration to You from
the Corporation including, but not limited to, your continued employment and
other benefits which you acknowledge to be sufficient consideration for this
Agreement.
1. NATURE OF AGREEMENT. You and the Corporation intend this Agreement to be
an Agreement of Non-Competition, Confidentiality, Proprietary Rights and
Non-Solicitation only. This Agreement does not limit in any way the right of
either You or the Corporation to terminate the employment relationship at any
time. This Agreement contains obligations which survive termination of the
employment relationship between You and the Corporation. If You and the
Corporation enter into or have entered into an Employment Agreement, this
Agreement is to be read and applied consistently with that Agreement.
2. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"CONFLICTING SERVICES" shall mean soliciting equity, debt or similar
financing from sources identified by the Corporation (other than from retail
banking or other non-commercial institutional financing providers) or business
sources of the Corporation in connection with any transaction transactions.
"CONFIDENTIAL INFORMATION" shall mean knowledge or information not
generally known to the public or in financial and investment services industry
(including, but not limited to, information conceived, discovered or developed
by You), that You learn of, possess, or to which You have access through your
employment by the Corporation, related to the Corporation, its business
partners, or the business of its Customers or Potential Customers. CONFIDENTIAL
INFORMATION shall not include information that is or becomes publicly known
through no breach of this Agreement or other act or omission of or by You. The
phrase "PUBLICLY KNOWN" shall mean readily accessible to the public in a written
publication, and shall not include information which is only available by a
substantial searching of the published literature, or information the substance
of which must be pieced together from a number of different publications and
sources. The burden of proving that information or skills and experience are not
CONFIDENTIAL INFORMATION shall be on the party asserting such exclusion.
"CUSTOMER OR POTENTIAL CUSTOMER" means each and every person and/or
entity who or which, at any time during Your employment with the Corporation,
any representative of the Corporation or its Subsidiaries (including You)
solicited money or deal or other transactions or otherwise contacted with
respect to financial or other investment services.
"PROPRIETARY RIGHTS" shall mean works of authorship, improvements and
ideas, related to any activities of the Corporation in providing financial or
investment services, that You learn of, possess or have access to through your
employment with the Corporation including, without limitation, customer lists,
list of money services or lists of business sources.
11
3. PROPRIETARY RIGHTS.
3.1. You agree that PROPRIETARY RIGHTS made or conceived by You, either
by yourself or with others shall be the property of the Corporation without
royalty or other consideration to You if they are made or conceived during the
period of your employment by the Corporation, during any period after
termination of your employment during which You are retained by the Corporation
as a consultant, or with use of The Company's PROPRIETARY RIGHTS or CONFIDENTIAL
INFORMATION.
4. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the
Corporation and/or at termination of your employment with the Corporation for
any reason, You will promptly deliver to the Corporation all property and
materials in any form belonging to or relating to the Corporation, its business
and the business of any CUSTOMER OR POTENTIAL CUSTOMER. You agree not to
download or keep copies of company property in any hard or soft format. You
agree that you have no ownership or interest in any such property.
5. RESTRICTIONS.
5.1. You agree that while you are employed by the Corporation, or any
subsidiary thereof, and for one year following termination of such employment.
You will not solicit or provide or offer to provide CONFLICTING SERVICES.
5.2. At any time during and after your employment with the Corporation
You agree:
5.2.1. You will not disclose CONFIDENTIAL INFORMATION to any
person or entity without first obtaining the Corporation's consent, and will
take all reasonable precautions to prevent inadvertent disclosure of such
CONFIDENTIAL INFORMATION. You agree to make every effort to ensure that persons
working in any capacity for the Corporation, including, but not limited to,
employees, officers, directors, sub-contractors, attorneys, and agents,
subsidiary or parent entities (and the employees, officers, directors,
attorneys, and agents, thereof) are permitted access to CONFIDENTIAL INFORMATION
on a strictly "need to know" basis. This prohibition against Your disclosure of
CONFIDENTIAL INFORMATION includes, but is not limited to, disclosing the fact
that any similarity exists between CONFIDENTIAL INFORMATION and information
independently developed by another person or entity. You understand that the
existence of such a similarity does not excuse You from honoring Your
obligations under this Agreement.
5.2.2. You will not to use any CONFIDENTIAL INFORMATION for
your personal benefit or for the benefit of any person or entity other than the
Corporation. You will not use, copy or transfer CONFIDENTIAL INFORMATION other
than as necessary in carrying out Your duties on behalf of the Corporation
without first obtaining the Corporation's written consent, and will take all
reasonable precautions to prevent inadvertent use, copying or transfer of
CONFIDENTIAL INFORMATION. This prohibition against Your use, copying, or
transfer of CONFIDENTIAL INFORMATION includes, but is not limited to, selling,
licensing or otherwise exploiting, directly or indirectly, any products or
services (including, but not limited to, software in any form) which embody or
are derived from CONFIDENTIAL INFORMATION, or exercising judgment in performing
analysis based upon knowledge of CONFIDENTIAL INFORMATION. Without in any way
limiting the generality of this SECTION 5.2.2. You agree not to directly or
indirectly circumvent or compete with the Corporation with regard to any
CONFIDENTIAL INFORMATION.
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5.2.3. You will not make any written use of or reference to
the Corporation's name or trademarks (or any name under which the Corporation
does business) for any marketing, public relations, advertising, display or
other business purpose unrelated to the express business purposes and interests
of Corporation or make any use of Corporation's facilities for any activity
unrelated to the express business purposes and interests of the Corporation,
without the prior written consent of the Corporation, which consent may be
withheld or granted in the Corporation's sole and absolute discretion.
5.2.4. In the event that You receive a subpoena or order of a
court, or other body having jurisdiction over a matter, in which you are
compelled to produce any information relevant to the Corporation, whether
confidential or not, You will immediately provide the Corporation with written
notice of this subpoena or order so that the Corporation may timely move to
quash if appropriate.
5.3 For the 12 months immediately following the termination of your
employment with the Corporation for any reason You agree:
5.3.1. You will not request, induce, or attempt to induce any
CUSTOMER OR POTENTIAL CUSTOMER to terminate its relationship with the
Corporation; and
5.3.2. You will not attempt to hire, employ or associate in
business with any person employed by the Corporation or who has left the
employment of the Corporation within the preceding six months and You will not
discuss any potential employment or business association with such person, even
if You did not initiate the discussion or seek out the contact.
6. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.
6.1. You represent and agree that You have read this entire Agreement,
and understand it. You agree that this Agreement does not prevent You from
earning a living or pursuing your career. You agree that the restrictions
contained in this Agreement are reasonable, proper, and necessitated by The
Company's legitimate business interests. You represent and agree that you are
entering into this Agreement freely and with knowledge of its content and with
the intent to be bound by the Agreement and the restrictions contained in it.
6.2. In the event that a court finds this Agreement, or any of its
restrictions, to be ambiguous, unenforceable, or invalid, You and the
Corporation agree that the court shall read the Agreement as a whole and
interpret the restriction(s) at issue to be enforceable and valid to the maximum
extent allowed by law.
6.3. If the Court declines to enforce this Agreement in the manner
provided in SECTION 6.2 of this Agreement, You and the Corporation agree that
this Agreement will be automatically modified to provide the Corporation with
the maximum protection of its business interests allowed by law and You agree to
be bound by this Agreement as modified.
6.4. You and the Corporation agree that the market for The Company's
products and services is global, so that this Agreement applies to your
activities regardless of where they take place. If, however, after applying the
provisions of SECTION 6.2 and/or SECTION 6.3 of this Agreement, a court still
decides that this Agreement or any of its restrictions is unenforceable for lack
of reasonable geographic limitation and the Agreement or restriction(s) cannot
otherwise be enforced, You and the Corporation agree that the 60 miles radius
13
from any office at which You worked for the Corporation on either a regular or
occasional basis during the two years immediately preceding termination of your
employment with the Corporation or its subsidiary shall be the geographic
limitation relevant to the contested restriction.
6.5. If any provision of this Agreement is declared to be ambiguous,
unenforceable or invalid, the remainder of this Agreement shall remain in full
force and effect, and the Agreement shall be read as if the ambiguous,
unenforceable or invalid provision was not contained in the Agreement.
7. INJUNCTIVE RELIEF AND REMEDIES.
7.1. You acknowledge that it may be impossible to assess the damages
caused by your violation of this Agreement, or any of its terms. You agree that
any threatened or actual violation or breach of this Agreement, or any of its
terms, will constitute immediate and irreparable injury to the Corporation.
7.2. You agree that in addition to any and all other damages and
remedies available to the Corporation if you breach this Agreement, the
Corporation shall be entitled to an injunction to prevent You from violating or
breaching this Agreement or any of its terms.
7.3. In the event that the Corporation enforces this Agreement through
a court order, You agree that the restrictions contained in SECTION 5.1 shall
remain in effect for a period of 12 months from the effective date of the Order
enforcing the Agreement.
7.4. You agree that if the Corporation is successful in whole or part
in any legal or equitable action against You under this Agreement, the
Corporation shall be entitled to payment of all costs, including, but not
limited to, reasonable attorney's fees, from You.
8. PUBLICATION OF THIS AGREEMENT TO YOUR SUBSEQUENT EMPLOYERS OR BUSINESS
ASSOCIATES.
8.1. If You are offered employment or the opportunity to enter into any
business venture in the financial or investment services industry or a related
industry as owner, partner, consultant or other capacity while the restrictions
described in SECTION 5.1 or SECTION 5.3 are in effect, You agree to inform your
potential employer, partner, co-owner and/or others involved in managing the
business which You have an opportunity to join of your obligations under this
Agreement and also agree to provide such person or persons with a copy of this
Agreement.
8.2. You also authorize the Corporation to provide copies of this
Agreement to any of the persons or entities described in SECTION 8.1 of this
Agreement and to make such persons aware of your obligations under this
Agreement.
9. MISCELLANEOUS.
9.1. This Agreement and the restrictions and obligations in it survive
the employment relationship and are binding regardless of the reason for
termination of employment.
9.2. The Agreement is for the benefit of You and of the Corporation,
its successor, assigns, parent corporations, subsidiaries, and/or purchasers.
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9.3. This Agreement is governed by the laws of the Commonwealth of
Virginia without regard to the conflicts of laws or principles thereof. Any suit
involving this Agreement must be brought in a state or federal court sitting in
Virginia.
9.4. No waiver by the Corporation of any breach of any of the
provisions of this Agreement is a waiver of any preceding or succeeding breach
of the same or any other provisions of this Agreement. No waiver shall be
effective unless in writing and then only to the extent expressly set forth in
writing.
9.5. Nothing in this Agreement grants a license or permission to use
any intellectual property of the Corporation, whether owned, pending, or
currently under development.
9.6. This Agreement may be amended by a writing signed by both parties.
9.7. You agree that on the subjects covered in this Agreement, it is
the entire Agreement between You and the Corporation, superseding any previous
oral or written communications, representations, understanding, or agreements
with the Corporation or with any representative of the Corporation.
BY SIGNING THIS AGREEMENT YOU REPRESENT THAT YOU HAVE READ AND
UNDERSTAND THIS AGREEMENT, YOU HAVE HAD AN OPPORTUNITY TO CONSULT LEGAL COUNSEL
CONCERNING THIS AGREEMENT AND THAT YOU SIGN IT VOLUNTARILY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date and year first written above.
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
(THE "CORPORATION")
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxx, President and COO
XXXXXX XXXXXXXX
Signed: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
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