EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”)
is made
as of this 11th day of December, 2006, by and between Global
Capacity Group, Inc., a
Texas
corporation (the “Company”),
and
Xxxx Xxxxxxx (the “Employee”).
RECITALS:
A. The
Company is in the telecommunications business.
B. The
Employee has been previously employed with Company and the Company and Employee
wish to enter into new terms of employment.
C. The
Company desires to employ the Employee and Employee desires to be employed
by
the Company as a Vice President and Managing Director, subject to the terms,
conditions and covenants hereinafter set forth.
D. As
a
condition of the Company employing the Employee, Employee has agreed not to
divulge to the public the Company’s confidential information, not to solicit the
Company’s vendors, customers or employees and not to compete with the Company,
all upon the terms and conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the foregoing and the agreements, covenants and conditions
set
forth herein, the Employee and the Company hereby agree as follows:
ARTICLE
I
EMPLOYMENT
1.1 Employment.
The
Company hereby employs, engages and hires Employee, and Employee hereby accepts
employment, upon the terms and conditions set forth in this Agreement. The
Employee shall serve as a Vice President and Managing Director of the Company.
The Employee shall have and fully perform the duties and responsibilities
required for such job title and position and shall perform such additional
services and discharge such other responsibilities as may be, from time to
time,
assigned or delegated by the Company, but in no case shall there be any
significant increase in the job duties from the duties of the Employee prior
to
the signing of this Agreement. The Employee shall report to the President and
Chief Operating Officer of the Company’s parent, Capital Growth Systems, Inc.
The Company and Employee shall develop, within a reasonable time after the
execution of this Agreement, a protocol of authority and responsibilities for
entering into contracts with vendors, suppliers, customers, and other parties
as
is necessary to run the Company in the ordinary course of business. Without
limiting the generality of the foregoing, this protocol shall provide that
all
contracts shall be reviewed by the CEO of the Company and that the Company
may
not become obligated on contracts in excess of $100,000 without prior approval
of the Company’s CEO.
1.2 Activities
and Duties During Employment.
Employee represents and warrants to the Company that Employee is free to accept
employment with the Company and that Employee has no prior or other commitments
or obligations of any kind to anyone else which would hinder or interfere with
the performance of this Agreement.
Employee
accepts the employment described in Article I
of this
Agreement and agrees to devote the necessary time to timely perform the duties
and responsibilities fully, including the performance of such other services
and
responsibilities as the Company may, from time to time, stipulate. Employee
shall be present on the Company premises or actively engaged in service to
or on
behalf of the Company during normal business hours Monday through Friday,
excluding business travel and periods of personal leave, vacation and sick
leave. However, Employee shall not be required to relocate from his personal
residence or to be out of Houston, Texas for excessive amounts of
time.
ARTICLE
II
TERM
2.1 Term.
The
term of employment under this Agreement shall be three (3) years (the “Initial
Term”), commencing on the date of the Agreement. This Agreement may be renewed
by mutual agreement of the two parties for subsequent one-year terms as agreed
by the parties (each a “Renewal Term”). The Initial Term and any Renewal Terms
shall herein be referred to as the “Employment Term”.
2.2 Termination.
The
Employment Term and employment of Employee may be terminated as
follows:
(a) By
the
Company immediately for “Cause.” For the purpose of this Agreement, “Cause”
shall mean: (i) conduct amounting to fraud, embezzlement, or illegal misconduct
in connection with Employee’s duties under this Agreement; (ii) the conviction
of Employee by a court of proper jurisdiction of (or his or her written,
voluntary and freely given confession to) a crime which constitutes a felony
(other than a traffic violation) or an indictment that results in material
injury to the Company’s property, operation or reputation; (iii) the willful
failure of Employee to comply with reasonable directions of the Company or
any
of the policies of the Company after (A) written notice is delivered to the
Employee describing such willful failure and (B) Employee has failed to cure
or
take substantial steps to cure such willful failure after a reasonable time
period (not to be less than 15 days) unless the Employee, after discussion
with
counsel, in good faith believes, that the directions of the Company (or its
actions or inactions in response to the Employee’s written notice) are illegal;
or (iv) willful misconduct or a material default by the Employee in the
performance or observance of any promise or undertaking of Employee under this
Agreement, which willful misconduct or default has continued for a period of
ten
(10) business days after written notice thereof from the Company to the
Employee.
(b) Automatically,
without the action of either party, upon the death of Employee
(“Death”).
(c) By
either
party upon the Total Disability of the Employee. The Employee shall be
considered to have a Total Disability for purposes of this Agreement if he
or
she is unable by reason of accident or illness to substantially perform his
or
her employment duties, and is expected to be in such condition for periods
totaling six (6) months (whether or not consecutive) during any period of twelve
(12) months. Nothing herein
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shall
limit the Employee’s right to receive any payments to which Employee may be
entitled under any disability or employee benefit plan of the Company or
under
any disability or insurance policy or plan. During a period of disability
prior
to termination hereunder, Employee shall continue to receive his or her full
compensation (including base salary and bonus) and benefits, subject to offset
to the extent of any disability insurance payments received by the Employee
pursuant to any disability insurance policy maintained by or paid for by
the
Company.
(d) By
the
Employee upon ten (10) business days notice to the Company for Good Reason,
which notice shall state the reason for termination. For the purpose of this
Agreement, “Good Reason” shall mean any (i) “Change in Control” (as hereinafter
defined) or (ii) any material failure by the Company to comply with the
provisions of this Employment Agreement, including but not limited to, failure
to timely pay any part of Employee’s compensation (including salary or bonus) or
provide the benefits contemplated herein, or (iii) failure by the Company to
perform any of its material obligations under the Agreement and Plan of Merger
dated October 6, 2006 between the Company, Capital Growth Systems, Inc., Global
Capacity Merger Sub, Inc., Employee and Xxxxx X. Xxxxx (the “Merger Agreement”)
and which is not remedied by the Company within ten (10) business days after
receipt by the Company of written notice thereof from Employee; provided,
that if
such default is of a nature that it cannot be reasonably cured within ten (10)
day period (but is curable), then if the Company shall have commenced an attempt
to cure such default within such ten (10) day period, the period to cure the
default shall be extended until the earlier of the date which is forty-five
(45)
days after receipt of notice or the Company has failed to diligently continue
its efforts in a reasonable manner to cure its default.
For
purposes hereof, the term “Change in Control” shall mean the occurrence of any
of the following:
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(1)
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the
Company: (a) consummates a merger or consolidation which results
in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) less than
fifty
percent (50%) of the total voting power represented by the voting
securities of the Company of such surviving entity outstanding immediately
after such merger or consolidation; and (b) following such event,
the
successor entity fails to employ Employee as follows (hereinafter,
the
“Same Terms”): on substantially identical terms as are required per this
Agreement for the remaining Employment Term, and the successor entity
further continues to employ Employee in the same city and with job
responsibilities of a level substantially equivalent to or greater
than
those presently in force and
effect;
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(2)
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a
plan of complete liquidation of the Company or an agreement for the
sale
or disposition by the Company of (in one transaction or a series
of
transactions) all or substantially all of the Company’s assets
is
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consummated,
and following such event the successor entity (if any) fails to employ Employee
on the Same Terms; or
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(3)
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Company
consummates a plan of complete liquidation of the Company or an agreement
for the sale or disposition (in one transaction or a series of
transactions) by the Company of all or substantially all of the Company’s
assets, and following such event the successor entity (if any) fails
to
employ Employee on the Same Terms;
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provided,
however,
that a
public offering of the stock of the Company irrespective of the amount of voting
securities owned by present shareholders after such offering shall not be deemed
to constitute a Change of Control; and provided further that if Employee agrees
to be employed by a successor entity on the Same Terms and the successor entity
fails to do so, a Change in Control shall be deemed to have occurred.
(e) By
the
Employee without Good Reason, and therefore in breach of this
Agreement.
(f) Upon
reasonable written notice to the Company, Employee shall be allowed to take
a
one-time leave of absence from the Company for up to six months, without pay,
at
any time during the Initial Term, and such leave of absence will not be
considered grounds for termination with Cause.
2.3 Cessation
of Rights and Obligations: Survival of Certain Provisions.
On the
date of expiration or earlier termination of the Employment Term for any reason,
all of the respective rights, duties, obligations and covenants of the parties,
as set forth herein, shall, except as specifically provided herein to the
contrary, cease and become of no further force or effect as of the date of
said
termination, and shall only survive as expressly provided for
herein.
2.4 Cessation
of Compensation.
In lieu
of any severance under any severance plan that the Company may then have in
effect, and subject to (i) the receipt of a full and unconditional release
from
Employee and (ii) any amounts owed by the Employee to the Company under any
contract, agreement or loan document entered into after the date hereof which
relates solely to his or her employment with the Company (including, but not
limited to, loans made by the Company to the Employee), the Company shall pay
to
the Employee, and the Employee shall be entitled to receive, the following
amounts within thirty (30) days of the date of a termination of his or her
employment:
(a) Voluntary
Termination/Cause/Expiration of Term.
Upon
(i) Employee terminating his or her employment without Good Reason as provided
in Section
2.2(e),
(ii)
the expiration of the Employment Term because the Employee or the Company elects
to not extend the Employment Term, or (iii) a termination of the Employment
Term
for Cause by the Company as provided in Section
2.2(a),
the
Employee shall be entitled to receive his or her or her base salary (which
shall
include any of his or her unused vacation pay for the year of such termination)
and expense reimbursements solely through the date of termination.
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(b) Death
or Total Disability.
Upon
the termination of the Employment Term by reason of the Death or Total
Disability of the Employee, the Employee (or, in the case of Death, his or
her
estate) shall be entitled to receive his or her base salary (which shall include
any of his or her unused vacation pay for the year of such termination) and
expense reimbursements solely through the date of termination.
(c) Involuntary.
Upon
the termination of the Employment Term by the Employee for Good Reason, the
Employee shall be entitled to receive in a lump sum the balance of his or her
base salary for the remaining term of the Employment Term (exclusive of any
renewals of the then existing term) (the “Severance Term”), together with
prorated vacation pay and expense reimbursement through the date of termination.
In addition, Employee shall be entitled to payment by the Company of the
premiums for group health insurance coverage otherwise payable by Employee
under
the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the
Severance Term. It shall be a condition to Employee’s right to receive the
payments described above that Employee shall be in compliance with all of the
Employee’s obligations which survive termination hereof, including without
limitation those arising under Articles
IV and V
hereof.
The payments described above are intended to be in lieu of all other payments
to
which Employee might otherwise be entitled in respect of termination of
Employee’s employment without Cause unless otherwise required by law or under
other agreements between the parties.
2.5 Business
Expenses.
(a) Reimbursement.
The
Company shall reimburse the Employee for all reasonable, ordinary, and necessary
business expenses incurred by him or her in connection with the performance
of
his or her duties hereunder, including, but not limited to, ordinary and
necessary travel expenses and entertainment expenses. The reimbursement of
business expenses will be governed by the policies of the Company from
time-to-time and the terms otherwise set forth herein.
(b) Accounting.
The
Employee shall provide the Company with an accounting of his or her expenses,
which accounting shall clearly reflect which expenses were incurred for proper
business purposes in accordance with the policies adopted by the Company and
as
such are reimbursable by the Company. The Employee shall provide the Company
with such other supporting documentation and other substantiation of
reimbursable expenses as will conform to Internal Revenue Service or other
requirements. All such reimbursements shall be payable by the Company to the
Employee within a reasonable time after receipt by the Company of appropriate
documentation therefor.
2.6 Sole
Compensation.
Employee shall not be entitled to any other compensation from the Company than
as set forth in Article
II
hereof
as a result of termination of Employee’s employment. The foregoing shall not be
construed to limit any rights of Employee to receive the Contingent
Consideration under the Merger Agreement.
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ARTICLE
III
COMPENSATION
AND BENEFITS
3.1 Compensation.
During
the Employment Term of this Agreement, the Company shall pay Employee such
salary and bonus as set forth on Exhibit
A.
3.2 Payment.
All
compensation shall be payable in intervals in accordance with the general
payroll payment practice of the Company. The compensation shall be subject
to
such withholdings and deductions by the Company as are required by
law.
3.3 Other
Benefits.
Employee shall be entitled to participate in any retirement, pension,
profit-sharing, health plan, insurance, disability income, incentive
compensation and welfare or any other benefit plan or plans of the Company
which
may now or hereafter be in effect and for which the Employee is eligible.
Notwithstanding the forgoing, the Company shall be under no obligation to
institute or continue the existence of any such benefit plan.
ARTICLE
IV
CONFIDENTIALITY,
NON-SOLICITATION AND NON-COMPETE AGREEMENT
4.1 Non-Disclosure
of Confidential Information.
Employee hereby acknowledges and agrees that the duties and services to be
performed by Employee under this Agreement are special and unique and that
as of
a result of the employment hereunder, Employee will acquire, develop and use
information of a special and unique nature and value that is not generally
known
to the public or to the Company’s industry, including but not limited to,
certain records, phone locations, documentation, software programs, data bases
of the Company or its Affiliates, including without limitation, the Magenta
data
base, proprietary information, price lists, contract prices for purchase and
sale of telephone access and telephone services, customer lists, prospect lists,
pricing on business proposals to new and existing customers, network
configuration, supplier pricing, equipment configurations, business plans,
ledgers and general information, employee records, mailing lists, accounts
receivable and payable ledgers, financial and other records of the Company
or
its Affiliates, and other similar matters (all such information being
hereinafter referred to as “Confidential
Information”).
Employee further acknowledges and agrees that the Confidential Information
is of
great value to the Company and its Affiliates and that the restrictions and
agreements contained in this Agreement are reasonably necessary to protect
the
Confidential Information and the goodwill of the Company. Accordingly, Employee
hereby agrees that:
(a) Employee
will not, while employed by the Company or at any time thereafter, directly
or
indirectly, except in connection with Employee’s performance of the duties under
this Agreement, or as otherwise authorized in writing by the Company for the
benefit of the Company, divulge to any person, firm, corporation, limited
liability company, or organization, other than the Company (hereinafter referred
to as “Third
Parties”),
or use
or cause or authorize any Third Parties to use, the Confidential Information,
except as required by law; and
(b) Upon
the
termination of Employee’s employment for any reason whatsoever, Employee shall
deliver or cause to be delivered to the Company any and all
-6-
Confidential
Information or documents containing Confidential Information, including notes,
drawings, notebooks, notes, records, keys, data and other documents and
materials belonging to the Company or its affiliates which is in his or her
possession or under his or her control relating to the Company or its
affiliates, regardless of the medium upon which it is stored, and will deliver
to the Company upon such termination of employment any other property of the
Company or its Affiliates which is in his or her possession or
control.
4.2 Non-Solicitation
Covenant.
So long
as Company is not in default of its obligations to pay Merger Consideration
under the Agreement and Plan of Merger signed by the parties on October 6,
2006:
Employee hereby covenants and agrees that while employed by the Company and
for
a period of one (1) year following the termination of Employee’s employment with
the Company for any reason, Employee shall not (i) directly or indirectly,
solicit, interfere with, or endeavor to entice away from the Company or its
Affiliates any person, firm, corporation, limited liability company or other
entity that was a customer of the Company at any time while Employee was an
employee of the Company or its Affiliates or who is a “prospective customer” of
the Company, or (ii) induce, attempt to induce or hire any employee (or any
person who was an employee during the year preceding the date of any
solicitation) of the Company or its Affiliates to leave the employ of the
Company or its Affiliates, or in any way interfere with the relationship between
any such employee and the Company or its Affiliates; provided, however, that
the
restrictions set forth in this clause (ii) shall not prohibit Employee, after
termination of Employee’s employment with Company, from retaining a former
employee of Company if the former Employee first approached Employee concerning
the possibility of working for Employee. For purposes hereof, “prospective
customer” shall mean any person or entity which has been solicited for business
by Employee or any officer or other employee of the Company during the one
year
period preceding the date of termination of Employee’s employment with the
Company, or if Employee is still employed by the Company within the one year
period preceding the event in question.
4.3 Non-Competition
Covenant.
So long
as Company is not in default of its obligations under this Agreement or the
Agreement and Plan of Merger: Employee acknowledges that the covenants set
forth
in this Section
4.3
are
reasonable in scope and essential to the preservation of the Business of the
Company (as defined herein). Employee also acknowledges that the enforcement
of
the covenant set forth in this Section
4.3
will not
preclude Employee from being gainfully employed in such manner and to the extent
as to provide a standard of living for himself or herself, the members of his
or
her family and the others dependent upon Employee of at least the level to
which
Employee and they have become accustomed and may expect. In addition, Employee
acknowledges that the Company has obtained an advantage over its competitors
as
a result of its name, location and reputation that is characterized by near
permanent relationships with vendors, customers, principals and other contacts
which it has developed at great expense. Furthermore, Employee acknowledges
that
competition by him or her following the termination or expiration of his or
her
employment would impair the operation of the Company beyond that which would
arise from the competition of an unrelated third party with similar skills.
Employee hereby agrees that he or she shall not, during his or her employment
and for a period of one (1) year after the end of his or her employment,
directly or indirectly, engage in or become directly or indirectly interested
in
any proprietorship, partnership, firm, trust, company, limited liability company
or other entity, other
-7-
than
the
Company (whether as owner, partner, trustee, beneficiary, stockholder, member,
officer, director, employee, independent contractor, agent, servant, consultant,
lessor, lessee or otherwise) that competes with the Company in the Business
of
the Company in the Restricted Territory (as defined herein), other than owning
an interest in a company listed on a recognized stock exchange in an amount
which does not exceed five percent (5%) of the outstanding stock of such
corporation. For purposes of this Agreement, (i) the term “Business of the
Company” shall include all business activities and ventures related to providing
telecommunications services or products in which Global Capacity Group, Inc.
is
engaged, plans to engage in the next twelve (12) months following termination
of
Employee’s employment or has engaged in during the prior twelve (12) months, as
determined at any time during the employment of the Employee; and (ii) the
term
“Restricted Territory” means the geographical area consisting of a seventy mile
radius surrounding each city (and including such city) in which the Company
maintains either an office or a telecommunications facility.
4.4 Remedies.
(a) Injunctive
Relief.
Employee expressly acknowledges and agrees that the Business of the Company
is
highly competitive and that a violation of any of the provisions of Sections
4.1, 4.2 or 4.3
would
cause immediate and irreparable harm, loss and damage to the Company not
adequately compensable by a monetary award. Employee further acknowledges and
agrees that the time periods and territorial areas provided for herein are
the
minimum necessary to adequately protect the Business of the Company, the
enjoyment of the Confidential Information and the goodwill of the Company.
Without limiting any of the other remedies available to the Company at law
or in
equity, or the Company’s right or ability to collect money damages, Employee
agrees that any actual or threatened violation of any of the provisions of
Sections
4.1, 4.2 or 4.3
may be
immediately restrained or enjoined by any court of competent jurisdiction,
and
that a temporary restraining order or emergency, preliminary or final injunction
may be issued in any court of competent jurisdiction, without notice and without
bond.
(b) Enforcement.
It is
the desire of the parties that the provisions of Sections
4.1, 4.2 or 4.3
be
enforced to the fullest extent permissible under the laws and public policies
in
each jurisdiction in which enforcement might be sought. Accordingly, if any
particular portion of Sections
4.1, 4.2 or 4.3
shall
ever be adjudicated as invalid or unenforceable, or if the application thereof
to any party or circumstance shall be adjudicated to be prohibited by or
invalidated by such laws or public policies, such section or sections shall
be
(i) deemed amended to delete therefrom such portions so adjudicated or (ii)
modified as determined appropriate by such a court, such deletions or
modifications to apply only with respect to the operation of such section or
sections in the particular jurisdictions so adjudicating on the parties and
under the circumstances as to which so adjudicated.
(c) Legal
Fees.
In any
action to enforce the terms of this Agreement, the prevailing party shall be
entitled to reimbursement from the non-prevailing party for all reasonable
costs
and expenses, including, but not limited to, attorney’s fees, incurred by the
prevailing party in connection with such enforcement proceedings.
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4.5 Company.
All
references to the Company in this Article IV
shall
include “Affiliates” of the Company, as that term is construed under
Rule 405 of the Securities Act of 1933, as amended.
4.6 Consideration.
The
undertakings of Employee pursuant to Sections
4.2 and 4.3
hereof
are given to the Company in consideration for the payments, if any, to be made
pursuant to Section
2.4
hereof.
ARTICLE
V
ASSIGNMENT
OF INTELLECTUAL PROPERTY
5.1 Assignment
of Patent Rights.
If
Employee, during the course of his or her employment with the Company, creates
or discovers any patentable or potentially patentable invention or design,
within the meaning of Title 35 of the United States Code, any utility or design
patent that may be derived from any such invention or design created or
discovered by Employee during the course of his or her employment with the
Company shall be assigned to the Company. Employee agrees to fully cooperate
with the Company in obtaining any such patents, and Employee further agrees
to
execute any and all documents the Company may deem necessary to obtain such
patent or to document such assignment to the Company. Employee hereby designates
the Company as his/her attorney-in-fact to execute any such documents relating
to any such patent or assignment thereof to the Company;
5.2 Work
For Hire.
Employee agrees that any original work of authorship fixed in a tangible medium
of expression, including but not limited to literary works; computer programs,
software or other associated intangible property; network configuration; musical
works, including any accompanying words; dramatic works, including any
accompanying music; pantomimes and choreographic works; pictorial, graphic
and
sculptural works; motion pictures and other audiovisual works; sound recordings;
and architectural works, within the meaning of Title 17 of the United States
Code, created during the course of his or her employment with the Company shall
be a “work for hire” within the meaning of Section 201(b) of the Copyright Act,
17 U.S.C. Section 201(b), and that all ownership rights comprised in the
copyright shall vest exclusively in the Company. Employee agrees to fully
cooperate with the Company in obtaining registration of any such copyright,
except that the Company will be responsible for any and all fees and costs
associated with obtaining any such copyright registration;
5.3 Trade
Secrets.
If
Employee, during the course of his/her employment with the Company, discovers,
invents, or produces, without limitation, any information, computer programs,
software or other associated intangible property; network configuration,
formulae, product, device, system, technique, drawing, program or process which
is a “trade secret” as defined in his/her Employment Agreement or within the
meaning of the Illinois Trade Secret Act (irrespective of where Employee is
employed), such information, formulae, product, device, system, technique,
drawing, program or process shall be assigned to the Company. Employee agrees
to
fully cooperate with the Company in protecting the value and secrecy of any
such
trade secret, and further agrees to execute any and all documents the Company
deems necessary to document any such assignment to the Company. Employee
appoints the Company as his/her attorney-in-fact to execute any documents the
Company may deem necessary that relates to any such trade secret or assignment
thereof to the Company;
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ARTICLE
VI
MISCELLANEOUS
6.1 Notices.
All
notices or other communications required or permitted hereunder shall be in
writing and shall be deemed given, delivered and received (a) when delivered,
if
delivered personally, (b) four days after mailing, when sent by registered
or
certified mail, return receipt requested and postage prepaid, (c) one business
day after delivery to a private courier service, when delivered to a private
courier service providing documented overnight service, and (d) on the date
of
delivery if delivered by telecopy, receipt confirmed, provided that a
confirmation copy is sent on the next business day by first class mail, postage
prepaid, in each case addressed as follows:
To
Employee at his or her home address as set forth on the books and records of
the
Company with a copy to:
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Richie
& Xxxxxxxxx, PC
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000
Xxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attn.:
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Xxxxxxx
X. Xxxxxx
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Phone:
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(000)
000-0000
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Fax:
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(000)
000-0000
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To
Company at:
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Global
Capacity Group, Inc.
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000
X. Xxxx Xxx Xxxx
Xxxxx
000
Xxxxxxx
Xxxxx 00000
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Attn.:
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President
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Phone:
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Fax:
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and
to:
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Capital
Growth Systems, Inc.
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00
Xxxx Xxxxxxxx Xxxxx
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Xxxxx
X
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Xxxxxxxxxx,
Xxxxxxxx 00000
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Attn.:
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Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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Phone:
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Fax:
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With
a copy to:
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Xxxxxxx
& Xxxxxxxx Ltd.
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000
X. Xxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxxxxx 00000
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Attn.:
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Xxxxxxxx
X. Xxxxxxxxx
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Phone:
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(000)
000-0000
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Fax:
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(000)
000-0000
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ny
party
may change its address for purposes of this paragraph by giving the other party
written notice of the new address in the manner set forth above.
6.2 Entire
Agreement; Amendments, Etc.
This
Agreement contains the entire agreement and understanding of the parties hereto,
and supersedes all prior agreements and understandings relating to the subject
matter hereof. Except as provided in Section
4.4(b),
no
modification, amendment, waiver or alteration of this Agreement or any provision
or term hereof shall in any event be effective unless the same shall be in
writing, executed by both parties hereto, and any waiver so given shall be
effective only in the specific instance and for the specific purpose for which
given.
6.3 Benefit.
This
Agreement shall be binding upon, and inure to the benefit of, and shall be
enforceable by, the heirs, successors, legal representatives and permitted
assignees of Employee and the successors, assignees and transferees of the
Company. This Agreement or any right or interest hereunder may not be assigned
by Employee without the prior written consent of the Company. No implication
shall be drawn in favor or against either party based upon the role of such
party’s counsel in the drafting of this Agreement.
6.4 No
Waiver.
No
failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder or pursuant hereto shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder or pursuant thereto.
6.5 Severability.
Wherever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law but, if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement. If any part of any covenant or other provision in this
Agreement is determined by a court of law to be overly broad thereby making
the
covenant unenforceable, the parties hereto agree, and it is their desire, that
the court shall substitute a judicially enforceable limitation in its place,
and
that as so modified the covenant shall be binding upon the parties as if
originally set forth herein.
6.6 Compliance
and Headings.
Time is
of the essence of this Agreement. The headings in this Agreement are intended
to
be for convenience and reference only, and shall not define or limit the scope,
extent or intent or otherwise affect the meaning of any portion
hereof.
6.7 Counterparts.
This
Agreement may be executed in one or more counterparts, whether by original,
photocopy or facsimile, each of which will be deemed an original and all of
which together will constitute one and the same instrument.
6.8 Recitals.
The
Recitals set forth above are hereby incorporated in and made a part of this
Agreement by this reference.
6.9 Waiver
of Jury Trial.
All
parties hereby agree, consent and waive any and all right to a trial by jury
in
any action to construe or enforce this Agreement or any of the rights, duties
and obligations hereunder.
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6.10 Survival.
Notwithstanding anything to the contrary contained herein, the terms of
Articles
III, IV, V and VI
hereof
shall survive any termination of this Agreement and remain in full force and
effect thereafter until each Article or portion of Article expires under its
own
terms.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed and delivered as
of
the day and year first above written.
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GLOBAL
CAPACITY GROUP, INC.
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|
|
By:
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/s/ Xxxxxx Xxxxxx |
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Its:
|
Chief Executive Officer |
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EMPLOYEE
|
|
| /s/ Xxxx Xxxxxxx | |
|
Xxxx
Xxxxxxx
|
|
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EXHIBIT
A - ECONOMIC TERMS OF EMPLOYMENT AGREEMENT
Global
Capacity Group, Inc./Xxxx Xxxxxxx
A. Compensation.
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1.
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Base
Salary.
During the Employment Term, the Company shall pay Employee such salary
and
benefits as shall be agreed upon each year between Employee and the
Company. For the Initial Term, the Company shall pay Employee a base
salary of One Hundred Ten Thousand Dollars ($110,000) per year.
Thereafter, the Company shall review the Employee’s base salary
annually.
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2.
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Bonus.
The Company may, at the Company’s sole discretion, in addition to
Employee’s base salary, pay Employee an annual bonus with respect to each
calendar year in the Employment
Term.
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3.
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Other
Benefits.
Employee shall be entitled to participate in any retirement, pension,
profit-sharing, health plan, insurance, disability income, incentive
compensation, vacation and welfare or any other benefit plan or plans
of
the Company which may now or hereafter be in effect and for which
he or
she is eligible.
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4.
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Vacation.
Employee shall be entitled to up to three (3) weeks of paid vacation
in
each calendar year during the Employment Term, provided,
however,
that the Employee’s 2006 calendar year vacation shall be prorated for the
portion of the calendar year remaining after the date hereof; Employee
shall be entitled to carry forward from one calendar year during
the
Employment Term to the next calendar year up to one additional week’s
vacation, to the extent it was accrued and not taken in the previous
year
(i.e. not more than 4 week’s total vacation can be taken in any
year).
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5.
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Existing
Automobile.
Employee is currently provided with the use of a 2005 Chevy Tahoe
vehicle.
After the Closing, the Company shall continue to make payments on
this
vehicle up to $1,000 per month, until such time as Capital Growth
Systems,
Inc. has adopted a comprehensive benefit package for its management
personnel, at which time Employee shall receive the benefits provided
for
other similarly situated management personnel; provided, however,
that the
Company’s obligation to make the vehicle payments shall continue for at
least twelve (12) months from the date hereof. This benefit package
may
not include a car allowance. If its does not, Employee shall have
the
right to purchase the 2005 Chevy Tahoe for its current Xxxxx Blue
Book
trade-in value, or comparable value from a similar publication, if
such
publication is discontinued.
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