EMPLOYMENT AGREEMENT
Exhibit
10.4
THIS
AGREEMENT is made this 15th
day of
May, 2006, by, Disaster
Preparedness Systems, Inc.,
a Nevada
corporation (“Company” or “Employer”) and Xxxx
Xxxxxxx (“Employee”).
R
e c i t a l s:
A. Company
believes that Employee is a key employee and that it is in the Company’s best
interests to obtain the services of Employee for the period of this
Agreement.
B. Employee
desires to accept said employment and enter into this Agreement.
A
g r e e m e n t s:
In
consideration of the premises, the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1.Employment.
Company
hereby employs Employee, and Employee accepts such employment and agrees to
perform services for Company, upon the terms and conditions set forth in this
Agreement.
2. Term.
Company
hereby agrees to employ Employee for a term commencing on May 15th 2006 and
continuing through the Initial Public Offering hereof (the “Initial Term”),
unless earlier terminated as hereinafter provided. At the end of the Initial
Term and sixty (60) days prior to the end of each successive one-year term
thereafter (the “Extended Terms”), the base salary will be negotiated unless
terminated as otherwise provided herein, the term of this Agreement shall be
automatically extended for one (1) additional year, unless Employee or Company
gives the other written notice, at least sixty (60) days prior to the end of
the
Initial Term or the Extended Terms, as the case may be, that either party does
not intend for the term of this Agreement to be extended further (the Initial
Term and the Extended Terms & collectively referred to herein as the “Period
of Employment”).
3. Position
and Duties.
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3.1
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Service
with the Company.
During the Period of Employment, Employee shall serve as, and his
title
shall be President and Director. Employee agrees to perform such
employment duties as the Board of Directors of Company (the “Board”) shall
assign to him from time to time.
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3.2
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Performance
of Duties.
Employee agrees to serve Company faithfully and to the best of his
ability. Employee shall devote his time as required to the business
of
Company, shall act at all times in the best interests of Company.
and
shall not, during the Period of Employment, be engaged in any other
competitive business activity, whether or not such business is pursued
for
gain, profit or other pecuniary advantage; provided, however, that
nothing
in this Agreement shall be construed as preventing Employee from
participating in non-competing business activities or investing his
personal assets in any form or manner that will not require any services
by Employee in the operation of the affairs of the businesses in
which
such investments are made. Employee hereby confirms that he is under
no
contractual commitments inconsistent with his obligations set forth
in
this Agreement, and that during the Period of Employment, he will
not
render or perform services, or enter into any contract to do so,
for any
other corporation, firm, entity or person which are inconsistent
with the
provisions of this Agreement.
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3.3
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Personnel
Policies.
Employee shall conduct himself at all times in a businesslike and
professional manner as appropriate for a person in his position,
and shall
represent Company in all respects as complies with good business
and
ethical practices. In addition, Employee shall be subject to and
abide by
the policies and procedures of Company applicable to personnel of
Company,
as adopted from time to time.
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4. Compensation
and Benefits.
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4.1
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Annual
Base Salary.
As compensation for all services to be rendered by Employee under
this
Agreement during the Initial Term, Company shall issue 75,000 common
shares of Disaster Preparedness Systems Inc. To be negotiated 60
days
prior to end of extended terms.
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4.2
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Company/Parent
Incentives.
Employee shall be entitled to participate in any incentive or supplemental
compensation plans or arrangements instituted by Company or Parent
and
covering their senior management and principal executive officers,
and
shall be entitled to receive additional compensation (of a comparable
nature and in a proportionate amount) as Company or Parent may pay
to
senior management and principal executive officers
generally.
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4.3
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Employee
Benefits.
Employee shall be entitled, to the extent that his position, title,
tenure, salary, age, health and other qualifications make him eligible,
to
participate in all employee benefit plans or programs of the
Parent/Company currently in existence on the date hereof. Employee’s
participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto. Such benefits
shall
include: participation in any and all vacation (to include no less
than
four (4) weeks vacation annually), medical insurance or other benefit
plans from time to time in effect and generally applicable to senior
management and principal executive officers of Parent or Company,
whichever shall be more favorable to
Employee.
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4.4
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Other Expenses.
In accordance with the Company’s policies established from time to time,
Company will pay or reimburse Employee for all reasonable and necessary
out-of-pocket expenses incurred by him in the performance of his
duties
under this Agreement, subject to the terms and conditions of Company’s
expense reimbursement policy, including, but not limited to, the
presentment of appropriate vouchers and receipts sufficient to permit
deductibility of such expenses by Company pursuant to the applicable
regulations under the Internal Revenue Code of 1986, as
amended.
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2
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4.5
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Withholding.
All references herein to compensation to be paid to the Employee
are to
the gross amounts thereof which are due hereunder. Company shall
have the
right to deduct there from all sums which may be required to be deducted
or withheld under any provision of law (including, but not limited
to,
social security payments, income tax withholding, and any other deduction
required by law) now in effect or which may become effective at any
time
during the term of this Agreement.
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4.6
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Cash
and Stock Options Based on Performance of Company.
Employee shall be entitled to stock options based on performance
of
Company as deemed by the Directors.
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The
parties shall comply with all applicable federal and state securities laws,
rules and regulations in connection with the exercise of the options and
issuance of the stock certificates.
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Ventures.
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 Company and a third party or parties, all rights
in the
project, program or venture shall belong to Company and shall constitute
a
corporate opportunity belonging exclusively to Company, unless otherwise
approved in writing by Company’s Board. Employee shall not be entitled to
any interest in such project, program or venture or to any commission,
finder’s fee or other compensation in connection therewith other than the
salary to be paid to Employee as provided in this
Agreement.
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6. Termination
of Employment.
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6.1
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Early
Termination of the Period of Employment.
Notwithstanding Section 2, and with specific reference to the definitions
set forth in Section 6.5 hereof, the Period of Employment shall end
upon
the earliest to occur of (i) a termination of Employee’s employment on
account of Employee’s death, (ii) a Termination by Company due to
Disability, (iii) a Termination by Company for Cause, (iv) a Termination
by Company without Cause or because of Change of Control, (v) a
Termination by Employee for Good Reason or (vi) a Termination by
Employee
not for Good Reason. For purposes of this Agreement, a transfer of
Employee’s employment (i) to any other entity controlled by or under
common control with Company (for so long as such entity continues
to be
controlled by or under common control with Company) or (ii) as a
result of
the implementation of any restructuring of Company, shall not be
treated
as a termination of employment, provided that, in either case, the
successor employer (the “New Entity”) expressly assumes and agrees to
perform all of Company’s obligations under this Agreement and there is not
a Change of Control Triggering Event as hereafter
described.
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3
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6.2
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Benefits
Payable Upon Termination.
Following the end of the Period of Employment pursuant to Section
6.1,
Employee (or, in the event of his death, his surviving spouse, if
any, or
his estate) shall be paid the type or types of compensation determined
to
be payable in accordance with the following table at the times established
pursuant to Section 6.3:
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Earned
Salary
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Vested
Benefits
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Accrued
Bonus
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Remaining
Salary
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Change
of Control or by Company without Cause
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Payable
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Payable
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Payable
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Payable
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Death
and Disability of Employee
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Payable
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Payable
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Payable
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Payable
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Good
Reason by Employee
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Payable
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Payable
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Payable
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Payable
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Cause
by Company
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Payable
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Payable
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Not
Payable
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Not
Payable
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Voluntary
termination by Employee
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Payable
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Payable
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Not
Payable
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Not
Payable
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6.3
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Timing
of Payments.
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(a) Earned
Salary and Accrued Bonus shall be paid in a single lump-sum as soon as
practicable, but in no event more than 30 days following the end of the Period
of Employment.
(b) Vested
Benefits shall be paid in accordance with the terms of the plan, policy,
practice, program, contract or agreement under which such benefits have
accrued.
(c) Remaining
Salary shall continue to be paid after termination in the manner in which it
was
paid prior to termination, unless such termination is pursuant to a Change
of
Control Triggering Event, in which case it shall be paid as set forth in Section
6.4(b).
(d) Anything
herein to the contrary notwithstanding, the foregoing payments shall be subject
to the prior satisfaction of the conditions specified in Section 6.6 and any
requirements of applicable law.
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6.4
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Employee’s
Rights Upon
Change of Control.
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(a) If
a
Change in Control occurs and one or more of the following events occurs (which
event, when it occurs after a Change in Control, is referred to herein as a
“Triggering Event”):
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(i)
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The
assignment to Employee of duties, responsibilities, or status materially
inconsistent with his duties, responsibilities and status prior to
the
Change in Control, or a material reduction or alteration in the nature
or
status of Employee’s duties and responsibilities from those in effect
prior to the Change in Control;
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(ii)
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The
failure by Employer to continue in effect Employee’s insurance,
disability, stock option plan, or any other employee benefit plans,
policies, practices or arrangements in which Employee participates
or the
failure of Employer to continue Employee’s participation therein on
substantially the same basis, both in terms of the amount of benefits
provided and the level of Employee’s participation relative to other
participants, as existed prior to the Change in
Control;
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4
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(iii)
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The
failure of Employer to obtain an agreement~ from a successor entity
which
is not controlled by or under common control with Company, which
is
acceptable to Employee, to assume and agree to perform this Agreement;
or
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(iv)
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Any
purported termination by Employer of Employee’s employment other than
provided hereby; then Employee may, in his sole discretion, within
two (2)
months of the date of the Triggering Event, give notice (the “Notice of
Intention”) that he intends to elect to exercise his rights to receive the
payment provided.
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(b) Within
thirty (30) days after receipt of the Notice of Intention, Company shall pay
to
Employee in cash the entire Base Salary due to Employee for the remainder of
the
Initial Term.
(c) Notwithstanding
anything herein to the contrary, and regardless of the time of termination
of
Employee’s employment under this Section 6.4, the provisions of Section 4 hereof
relating to stock and/or stock options shall continue and remain in full force
and effort for a period of five (5) years after the date Employee receives
all
of his Base Salary, as requested in subsection (b) immediately
above.
6.5 Definitions.
For
purposes of this Section 6, capitalized terms have the following
meanings:
(a) “Accrued
Bonus” means a prorated amount equal to the product of (i) the annual incentive
compensation Employee would have been entitled to receive under Section 4.2
for
the calendar year in which his active service for Company terminates pursuant
to
Section 6.1 had he remained employed for the entire year and assuming that
all
targets for such year had been met, multiplied by (ii) a fraction, the numerator
of which is equal to the number of days in such calendar year occurring on
or
prior to the termination of Employee’s active service for Company and the
denominator of which is 365.
(b) “Earned
Salary” means any Base Salary earned, but unpaid, for services rendered to
Company on or prior to the date on which the Period of Employment
ends.
(c) “Termination
by Company for Cause” means a termination of Employee’s employment by Company
due to (i) Employee’s deliberate and intentional continuing refusal to
substantially perform his duties and obligations under this Agreement (except
by
reason of incapacity due to disability or illness), if he shall have either
failed to remedy such alleged breach within forty-five (45) days from his
receipt of written notice demanding that he remedy such alleged breach, or
shall
have failed to take reasonable steps in good faith to that end during such
forty-five (45) day period and shall continue diligently to take such steps;
provided that Company has delivered to Employee a further notice after the
end
of such forty-five (45) day period asserting that Employee has failed to comply
with the remedy provisions of this Section 6.5, and specifying the particulars
thereof in detail, and provided further that Employee thereafter receives a
certified copy of a resolution of the Board of Company adopted by the
affirmative vote of not less than seventy-five percent (75%) of the entire
Board
at a meeting called and held for that purpose and at which Employee was given
an
opportunity to be heard, finding that Employee exhibited conduct set forth
in
this Section and that Employee failed to take reasonable steps in good faith
to
remedy such alleged breach and specifying the particulars thereof in detail;
(ii) Employee’s engaging in serious misconduct that is injurious to Company or
any subsidiary or any affiliate of Company, (iii) Employee’s having been
convicted of; or entered a plea of nolo contendere to, a crime involving an
act
that is immoral or wrong in and of itself (e.g., burglary, larceny, murder
and
arson) or a crime involving deceit, fraud, perjury or embezzlement, (iv) the
breach by Employee of any one or more of the restrictive covenants contained
in
Section 7, or (v) upon a determination that Employee has engaged in willful
fraud or defalcation involving material funds or other assets of
Employer.
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(d) “Termination
by Company Due to Disability” means a termination of Employee’s employment by
Company because Employee has been incapable of substantially fulfilling the
positions, duties, responsibilities and obligations set forth in this Agreement
because of physical, mental or emotional incapacity resulting from injury,
sickness or disease for a period of (i) at least three (3) consecutive months
or
(ii) more than six (6) months in any twelve (12) month period. Any question
as
to the existence, extent or potentiality of Employee’s disability shall be made
by Company, except that Employee shall have the right to request that Company
present the question of whether he is disabled to a qualified, independent
physician mutually acceptable to Company and Employee. The determination of
any
such physician shall be final and conclusive for all purposes of this
Agreement.
(e) “Termination
by Employee for Good Reason” means a termination of Employee’s employment by
Employee within 90 days following (i) a material reduction in Employee’s
positions, duties and responsibilities from those described herein; (ii) the
relocation of Employee’s principal place of employment to a location more than
50 miles from the location at which he performed his principal duties on the
date immediately prior to such relocation, (iii) a breach of the obligation
to
provide Employee with the benefits required to be provided, (iv) a failure
by
Company to pay any amounts due and owing to Employee within 10 days following
written notice from Employee of such failure to pay, or (v) any other material
breach of Company’s obligations to Employee hereunder that significantly affects
the compensation or benefits payable to Employee or materially impairs
Employee’s ability to perform the duties and responsibilities of his position.
In the event of Termination by Employee for Good Reason, the Company shall
pay
to Employee the Base Salary payment for the next twelve (12) months or for
the
period remaining during the Initial Term, whichever is longer. Notwithstanding
the foregoing, a termination shall not be treated as a Termination for Good
Reason (i) if Employee shall have consented in writing to the occurrence of
the
event giving rise to the claim of Termination for Good Reason or (ii) unless
Employee shall have delivered a written notice to the President of Company
within 60 days of his having actual knowledge of the occurrence of one of such
events stating that he intends to terminate his employment for Good Reason
and
specifying the factual basis for such termination, and such event shall not
have
been cured within 30 days of the receipt of such notice.
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(f) “Termination
by Company without Cause” means any termination of Employee’s employment by
Company other than (i) a Termination due to Disability or (ii) a Termination
for
Cause. Subject to Company’s obligations to make the Base Salary payments
remaining due during the Initial Term or for the next twelve (12) months,
whichever is longer, nothing in this Agreement shall be construed to limit
the
right of Company to terminate Employee’s employment at any time for cause or
without cause. A termination on account of Employee’s death shall not be deemed
a termination by Company.
(g) “Termination
by Employee not for Good Reason” means any termination of Employee’s employment
by Employee for any reason whatsoever, including, but not limited to, Employee’s
retirement, other than a Termination for Good Reason or a termination on account
of Employee’s death.
(h) “Vested
Benefits” means amounts which are vested or which Employee is otherwise entitled
to receive under the terms of or in accordance with any plan, policy, practice
or program of; or any contract or agreement with, Company or any of its
subsidiaries, at or subsequent to the date of his termination without regard
to
the performance by Employee of further services or the resolution of a
contingency.
6.6 Full
Discharge of Company Obligations.
Except
to the extent provided in this Section 6 the amounts payable to Employee
pursuant to this Section 6 following termination of his employment shall be
in
full and complete satisfaction of Employee’s rights under this Agreement and any
other claims he may have in respect of his employment by Company or any of
its
subsidiaries. Such amounts shall constitute liquidated damages with respect
to
any and all such rights and claims, shall not be subject to any offset or
mitigation, and, upon Employee’s receipt of such amounts, Company shall be
released and discharged from any and all liability to Employee in connection
with this Agreement or otherwise in connection with Employee’s employment with
Company and its subsidiaries. Notwithstanding anything else contained herein
to
the contrary, (i) Company’s obligations under this Section 6 are expressly
conditioned upon Employee’s execution of a general release and waiver of any
claims he may have in connection with the termination of, or arising out of,
his
employment with Company and (ii) nothing in this Section 6.6 shall be construed
to waive, release or otherwise limit any amounts required to be paid hereunder
or any benefits due and payable to Employee under the terms of any employee
pension benefit plan, as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended, or any other Vested
Benefit.
7
6.7 Surrender
of Records. etc.
Upon
termination of employment with Company, Employee shall promptly deliver to
Company all records, manuals, books, blank forms, documents, letters, memoranda,
notes, notebooks, reports, data, tables, calculations or copies thereof, which
are the property of Company and which relate in any way to the business,
products, practices or techniques of Company, and all other property, trade
secrets and confidential information of Company, including, but not limited
to,
all documents which, in whole or in part, contain any trade secrets or
confidential information of Company, which in any of these cases are in his
possession or under his control.
6.8 Survival.
Notwithstanding any termination of the Agreement, Employee, in consideration
of
his employment hereunder to the date of such termination, shall remain bound
by
the provisions of this Agreement which specifically relate to his activities
or
obligations upon or subsequent to the termination of Employee’s employment. The
salary and other benefits provided herein shall be paid to Employee up to the
effective date of termination of this Agreement for whatever reason, including
the death of Employee, and not thereafter.
6.9 Death
of Employee.
In the
event of Employee’s death during the term of his employment hereunder, Company
shall pay to Employee’s surviving spouse or to the executor or administrator of
Employee’s estate (if his spouse shall not survive him) an amount equal to the
installments of his Base Salary then payable for the month in which he dies
and
for an additional twelve (12) months.
6.10 Disability
of Employee.
Employee shall be covered by Company’s disability benefit plan as such plan may
from time to time exist. The Company may terminate Employee’s employment for
reason of his disability in accordance with Section 6.5(d). In such event,
Company shall be obligated to pay Employee monthly installments of his Base
Salary for the shorter of (i) the expiration of the Initial Term or (ii) one
(1)
year after the date on which written notice of such termination is received
by
Employee. The foregoing payment obligations shall be reduced by the amount
of
any payment made to such Employee under the coverage then afforded to Employee
by any disability benefit plan in effect at the time such disability
determination is made.
7. Restrictions
on Conduct of Employee.
Employee and Company understand and agree that the purpose of the provisions
of
this Section 7 is to protect legitimate business interests of Company, as more
fully described below, and are not intended to eliminate Employee’s
post-employment competition with Company, nor is it intended to impair or
infringe upon Employee’s right to work, earn a living, or acquire and possess
property from the fruits of his labor. Employee hereby acknowledges that the
post-employment restrictions set forth in this Section 7 are reasonable in
scope
and duration, as contemplated by NRS 613.200(2), and that they do not, and
will
not, unduly impair his ability to earn a living after the termination of this
Agreement. Employee further acknowledges that such restrictions do not impose
on
him (a) any greater restraint than is reasonably necessary to protect the
business and goodwill of the Company or (b) any undue hardship. Therefore,
subject to the limitations of reasonableness imposed by law upon the
restrictions set forth herein by the time and geographical area described below,
Employee shall be subject to the restrictions set forth in this Section
7.
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7.1
Definitions.
The
following capitalized terms used in this Section 7 shall have the meanings
assigned to them below, which definitions shall apply to both the singular
and
the plural forms of such terms:
(a)
“Competitive
Products” means any products used in the fire fighting/rescue/
environmental/training industry (“fire industry”) owned by or licensed to
Company or which Company has the right to sell, distribute or sublicense to
others, at the Determination Date, including, but not limited to, aircraft
fir
training equipment, pumps and related products.
(b) “Competitive
Services” means any services provided by Company at the Determination Date,
including, but not limited to, services used in the fire industry.
(c) “Confidential
Information”
means
any
confidential or proprietary information possessed by Company or its affiliated
entities or relating to its or their business, including without limitation,
any
confidential “know-how”, customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, fire fighting and/or rescue data, business plans,
operational methods, marketing plans or strategies, product development
techniques or plans, computer software programs (including object code and
source code), data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques, processes,
financial information and data, business acquisition plans, new personnel
acquisition plans and any other Confidential Information that would constitute
a
Trade Secret (as defined herein).
(d) “Determination
Date” means the date of termination of Employee’s employment with Company for
any reason whatsoever, or any earlier date (during the Employment Period) of
an
alleged breach of the Restrictive Covenants by Employee.
(e)
“Person”
means any individual or any corporation, partnership, joint venture, association
or other entity or enterprise.
(f)
“Principal
or Representative” means a principal, owner, partner, shareholder, joint
venturer, investor, member, trustee, director, officer, manager, employee,
agent, representative or consultant.
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(g)
“Protected
Clients” means clients of Company that obtained services or products from
Company within one (1) year prior to the Determination Date.
(h) “Protected
Employees” means employees of Company who were employed by Company at any time
within six (6) months prior to the Determination Date.
(i) “Restricted
Period” means the Period of Employment and a period extending two (2) years from
the termination of Employee’s employment with Company for any reason
whatsoever.
(j) “Restrictive
Covenants” means the restrictive covenants contained in Section 7.2
hereof.
(k) “Trade
Secret “means any item of Confidential Information that constitutes a “trade
secret(s)” under the common law or statutory law of the State of
Nevada.
(1) “Change
in Control” shall mean a change in control of Employer, which shall be deemed to
have occurred if and when, with or without the approval of the Board of
Employer:
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(i)
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More
than twenty-five percent (25%)
of
Employer’s outstanding securities entitled to vote in elections of
directors shall be acquired by any person (as such term is used in
Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
other
than; or
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(ii)
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As
the result of a tender offer, merger, consolidation, sale of assets
contested election or any combination of such transactions, the persons
who were directors of Company immediately before the transaction
shall
cease to constitute a majority of the Board or of the board of directors
of any successor to Employer.
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7.2 Restrictive
Covenants.
(a) Restriction
on Disclosure and Use of Confidential Information.
Employee
understands and agrees that the Confidential Information constitutes a valuable
asset of Company and its affiliated entities and may not converted to Employee’s
own use. Accordingly, Employee hereby agrees that Employee shall not, directly
or indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by Company any Confidential
Information, and Employee shall not, directly or indirectly, at any time during
the Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of Company; provided,
however, in the event the Confidential Information constitutes a Trade Secret,
the Restricted Period referred to above shall be five (5) years.
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(b) Non-solicitation
of Protected Employees.
Employee understands and agrees that the relationship between Company and each
of its Protected Employees constitutes a valuable asset of Company and may
not
be converted to Employee’s own use. Accordingly, Employee hereby agrees that
during the Restricted Period Employee shall not directly or indirectly on
Employee’s own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to terminate his or her
employment relationship with Company or to enter into employment with any other
Person.
(c) Restriction
on Relationships with Protected Clients.
Employee
understands and agrees that the relationship between Company and each of its
Protected Clients constitutes a valuable asset of Company and may not be
converted to Employee’s own use. Accordingly, Employee hereby agrees that during
the Restricted Period Employee shall not, without the prior written consent
of
Company, become a Principal or Representative of a Protected Client or otherwise
provide services to a Protected Client as a consultant or independent
contractor.
(d) Non-competition
with Company.
During
the Restricted Period, Employee, unless acting in accordance with Company’s
prior written consent, will not directly provide any Competitive Services to,
and will not, directly or indirectly, (i) own, manage, operate, join, control,
finance or participate in the ownership, management, operation, control or
financing of, or (ii) be connected as a Principal or Representative or otherwise
with, or (iii) permit Employee’s name to be used by or in connection with, any
Person engaged in (a) providing Competitive Services to any Person conducting
business activities within a 25-mile radius of the downtown center of any city
in the United States or any foreign country in which Employee performed services
for Company, equal to at least 25% of Employee’s total service days, during the
twelve (12) month period immediately prior to the Determination Date, or (b)
marketing, selling, distributing or licensing Competitive Products anywhere
in
the United States; provided, however, that the provisions of this Agreement
shall not be deemed to prohibit the ownership by Employee of any securities
of
Company or its affiliated entities or not more than five percent (5%) of any
class of securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended. Employee
acknowledges that (x) the provisions of this Agreement are reasonable and
necessary to protect the legitimate interests of Company and (y) any violation
of this Agreement will result in irreparable injury to Company and damages
at
law would not be reasonable or adequate compensation to Company for a violation
of this Agreement.
7.3 Exceptions
from Disclosure Restrictions.
Anything herein to the contrary notwithstanding, Employee shall not be
restricted from disclosing or using Confidential Information that: (a) is or
becomes generally available to the public other than as a result of an
unauthorized disclosure by Employee or his agent; (b)becomes available to
Employee in a manner that is not in contravention of applicable law from a
source (other than Company or its affiliated entities or one of its or their
officers, employees, agents or representatives) that is not bound by a
confidential relationship with Company or its affiliated entities or by a
confidentiality or other similar agreement; (c) was known to Employee on a
non-confidential basis and not in contravention of applicable law or a
confidentiality or other similar agreement before its disclosure to Employee
by
Company or its affiliated entities or one of its or their officers, employees,
agents or representatives; or (d) is required to be disclosed by law, court
order or other legal process; provided, however, that in the event disclosure
is
required by law, Employee shall provide Company with prompt notice of such
requirement so that Company may seek an appropriate protective order prior
to
any such required disclosure by Employee.
11
7.4 Enforcement
of Restrictive Covenants.
(a) Rights
and Remedies Upon Breach.
In the
event Employee breaches, or anticipatorily breaches any of the provisions of
the
Restrictive Covenants, Company shall have the following rights and remedies,
which shall be independent of any others and severally enforceable, and shall
be
in addition to, and not in lieu of, any other rights and remedies available
to
Company at law or inequity:
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(i)
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the
right and remedy to enjoin, preliminarily and permanently, Employee
from
violating or threatening to violate the Restrictive Covenants and
to have
the Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach
of the
Restrictive Covenants would cause irreparable injury to Company and
that
money damages would not provide an adequate remedy to Company;
and
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(ii)
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the
right and remedy to require the Employee to account for and pay over
to
Company all compensation, profits, monies, accruals, increments or
other
benefits derived or received by such party as the result of any
transactions constituting a breach of the Restrictive
Covenants.
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(b) Separate
Enforcement of Provisions.
If for
any reason a part of this Agreement is unenforceable, the remainder of the
Agreement shall be enforced to the fullest extent possible, giving due deference
to the intent of the parties, as expressed herein.. In particular, if any of
the
restrictions imposed on EMPLOYEE hereunder are deemed by a Court of competent
jurisdiction to contravene NRS 613.200(2) or the guidelines for reasonableness”
of restrictions on EMPLOYEE, as set forth by the Nevada Supreme Court in the
case styled, Xxxxx
x. Xxxxxx, 112 Nev. 291, 913 P.2d 1271 (1996),
then
the parties expressly request that the Court amend the provisions hereof to
satisfy the standards for reasonableness” of such restrictions and not deem them
totally unenforceable.
8. Assignment.
This
Agreement shall not be assignable, in whole or in part, by either party without
the written consent of the other party, except that Company may, without the
consent of Employee, assign its rights and obligations under this Agreement
to
any corporation, firm or other business entity with or into which Company may
merge or consolidate, or into which Company may sell or transfer all or
substantially all of its assets or of which fifty percent (50%)
or
more
of the equity investment and voting control is owned, directly or indirectly,
by, or is under common ownership with, Company. After any such assignment by
Company, Company shall be discharged from all further liability hereunder and
such assignee shall thereafter be deemed to be Company for the purposes of
all
provisions of this Agreement including this Section 8.
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9. Miscellaneous.
9.1 Governing
Law.
This
Agreement is made under and shall be governed by and construed in accordance
with the laws of the State of Nevada.
9.2 Entire
Agreement and Amendment.
This
Agreement, together with the instruments and agreements contemplated hereby,
represents the entire agreement of the parties with respect to the subject
matter hereof, and all agreements entered into prior hereto with respect to
the
subject matter hereof are revoked and superseded by this Agreement, and no
representations, warranties, inducements or oral agreements have been made
by
any of the parties except as expressly set forth herein, or in other
contemporaneous written agreements. This Agreement may not be changed, modified
or rescinded except in writing, signed by all parties hereto, and any attempt
at
oral modification hereof shall be void and of no effect.
9.3 No
Waiver.
No term
or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel to enforce any provisions of this Agreement, except by
a
statement in writing signed by the party against whom enforcement of the waiver
or estoppel is sought. Any written waiver shall not be deemed a continuing
waiver unless specifically stated, shall operate only as to the specific term
or
condition waived and shall not constitute a waiver or such term or condition
for
the future or as to any act other than that specifically waived.
9.4 Severability.
To the
extent any provisions of this Agreement shall be invalid or unenforceable,
it
shall be considered deleted here from and the remainder of such provision and
of
this Agreement shall be unaffected and shall continue in full force and effect.
It is the intention of the parties hereto that the provisions of this Agreement
shall be enforced to the fullest extent permissible under the laws or public
policies of each state and jurisdiction in which such enforcement is sought,
but
that the unenforceability (or the modification to conform with such laws or
public policies) of any provision hereof shall not render unenforceable or
impair the remainder of this Agreement, which shall be deemed amended to delete
or modify, as necessary, the invalid or unenforceable provisions. The parties
further agree to alter the balance of this Agreement in order to render the
same
valid and enforceable.
9.5 Agency.
Except
to the extent conferred upon him by Company Board, Employee shall have no
authority to enter into any contracts binding upon Company or to create any
obligations on the part of Company.
13
9.6 Notices.
All
notices hereunder shall be in writing and shall be effective (i) when personally
delivered by facsimile transmission, courier (including overnight carriers)
or
otherwise, or (ii) on the third business day following the date deposited in
the
mail if such notice is sent by certified or registered mail with return receipt
requested and postage thereon fully prepaid. The address for such notices shall
be as follows:
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If
to Company:
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Global
Preparedness Systems, Inc.,
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X/X
#000, 0000 Xxxxxx Xxxxxx
Xxxxxx
Xxxx, XX, 00000 XXX.
Attn:
Xx. X.Xxxxxx.
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|
If
to Employee:
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Xxxxxxx
Xxxxxxx
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0000
Xxxx 0xx Xxx.
Xxxxxxxxx,
XX, X0X 0X0
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9.7 Inurement.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and the respective heirs, executors, administrators, successors and permitted
assigns.
9.8 Attorneys
Fees.
In any
action relating to the enforcement of this Agreement or the Restrictive
Covenants, the prevailing party in such action shall be entitled to be paid
any
and all costs and expenses incurred by him or it in enforcing or establishing
his or its rights there under, including, without limitation, reasonable
attorneys’ fees, whether suit be brought or not, and whether or not incurred in
trial, bankruptcy or appellate proceedings.
9.9 No
Right of Set-Off.
Company
and Parent shall have no right of set-off or counter-claim in respect of any
debt or other obligation of Employee to them against any payment or other
obligation to Employee provided for in this Agreement or pursuant to any other
plan, agreement or policy.
9.1 Required
Payments Hereunder.
If any
amounts which are to be paid by Company or Parent hereunder are not paid
promptly at the times required, such amounts shall accrue interest at the rate
of twelve percent (12%) per annum from the date due until paid in
full.
14
IN
WITNESS WHEREOF,
this
Agreement has been duly executed by the parties hereto the day and year first
above written.
Disaster
Preparedness Systems, Inc.
/s/
Xxxx
Xxxxxxxxxx
By__________________________________
/s/
Xxxxxx Xxxxxx
By________________________________
/s/
Xxxx
Xxxxxxx
__________________________________
Employee
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