Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
entered into by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive") and Global Signal
Services LLC (the "Company") on December 21, 2005.
WHEREAS, the Executive and Pinnacle Holdings Inc. entered into an
Employment Agreement, dated February 26, 2003, which Employment Agreement was
assigned to and assumed by the Company on February 5, 2004 (the "Original
Employment Agreement"); and
WHEREAS, the Company desires to provide for the service and employment
of the Executive with the Company and the Executive wishes to perform services
for the Company, all in accordance with the terms and conditions provided
herein; and
WHEREAS, the parties wish to amend and restate the Original Employment
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Executive and the Company hereby agree as follows:
Section 1. EMPLOYMENT. The Company does hereby employ the Executive
and the Executive does hereby accept employment as Executive Vice President,
Sales and Marketing, of the Company. The Executive shall have all the duties,
responsibilities and authority normally performed by an executive vice
president and shall render services consistent with such position. The
Executive shall report to the Chief Operating Officer of the Company, and at
such time as the Company hires a President, then he shall report to the
President. The Executive agrees to devote all of his working time and efforts
to the business and affairs of the Company, GSL and their respective
subsidiaries, subject to periods of vacation and sick leave to which he is
entitled, and shall not engage in activities that substantially interfere with
such performance.
Section 2. EMPLOYMENT-AT-WILL; TERM OF AGREEMENT. The Executive
understands and agrees (i) that he/she is an employee-at-will, (ii) that this
Agreement does not constitute, for any reason, a guaranty or promise of
continued employment with the Company (with the "Company" understood, for
purposes of this Section 2, to include any subsidiary of the Company or the
Company's parent, Global Signal Inc. ("GSL") and any successor in interest to
the Company or GSL or to any such subsidiary), (iii) that the commencement of
his employment with the Company does not constitute, for any reason, a guaranty
or promise of continued employment with the Company and (iv) that the
continuation of his employment with the Company for any period of time does not
constitute, for any reason, a guaranty or promise of continued employment with
the Company. The Executive acknowledges that this Agreement has no term, and
that the Company may terminate the Executive's employment with the Company at
any time, with or without cause, subject to the Company's obligations set forth
in Section 5 below relating to the payment of severance. The obligations under
this Agreement shall commence on January 1, 2006.
Section 3. LOCATION. In connection with the Executive's employment by
the Company, the Executive shall be based at the Company's headquarters,
currently located in Sarasota, Florida, except for required travel for the
Company's business.
Section 4. COMPENSATION.
(a) BASE SALARY. Effective for 2006, for all services rendered by the
Executive hereunder, the Company shall pay the Executive a base salary ("Base
Salary") at an initial rate of $200,000 per year, but in no event shall the
Base Salary be reduced without the Executive's approval. The Base Salary shall
be payable on a bi-weekly basis.
(b) BONUS.
(i) ANNUAL BONUS. The Executive shall have the opportunity to
earn a discretionary bonus in respect of each calendar year in which
the Executive is employed by the Company, subject to the terms and
conditions of the bonus policy of the Company. In order to be eligible
for any bonus, the Executive must be an active employee at, and not
have given or received notice of termination prior to, the time of the
bonus payment. Bonus payments shall be made to the Executive within a
reasonable time after the end of the fiscal year in respect of which
they are granted, but in no event later than two months following the
last day of the fiscal year for which such bonus was granted. The
Company's discretionary bonus policy takes into account the success of
the Company as a whole as well as the contribution of each individual
to that success; payment of additional compensation or a bonus in or
in respect of any given fiscal or calendar year does not entitle the
Executive to additional compensation or a bonus in or in respect of
any subsequent year.
(c) EQUITY PARTICIPATION.
(i) The Executive shall be granted a deferred share award
representing the right to receive up to that number of shares of
common stock, par value $0.01 (the "Common Stock") of Global Signal
Inc. ("GSL") equal to 150% of the Deferred Shares as specified in the
Deferred Shares Award Agreement attached hereto as Appendix A (the
"Deferred Share Award Agreement").
(ii) The Executive has been granted 15,151 shares of Common
Stock of GSL pursuant to the Restricted Shares Award Agreement, dated
as of January 6, 2005, attached hereto as Appendix B (the "Restricted
Shares Award Agreement").
(iii) The right of the Executive to payments of awards and
vesting of restricted stock, if any, under the Deferred Shares Award
Agreement and the Restricted Shares Award Agreement upon termination
of employment shall be governed exclusively by the terms of those
agreements and the Global Signal Inc. Omnibus Stock Incentive Plan (as
in effect on the date hereof).
(d) FRINGE BENEFITS. The Executive shall be entitled to participate in
each fringe, welfare and pension benefit and incentive program adopted from
time to time by the Company for the benefit of, and which generally apply to,
its senior executive officers from time to time, including medical and dental
plans, disability insurance, 401(k) plans or other retirement benefits provided
to employees generally, subject to the terms of such plans, as the same may be
amended or even eliminated from time to time.
(e) PAID TIME OFF. The Executive will be entitled to twenty (20) days
of paid time off per year in accordance with the Company's paid time off policy
applicable to employees, as amended from time to time.
(f) REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Executive for all reasonable expenses which are incurred by him in the course
of performing his duties and which are consistent with the Company's policies
in effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
(g) SEVERANCE. Upon termination by the Company of the Executive's
employment with the Company for any reason (a) other than for Cause (as defined
below), or (b) upon termination by the Executive of his employment with the
Company for Good Reason (as defined below) within thirty (30) days of the
occurrence of the circumstances giving rise to such Good Reason, then (i) the
Executive shall be entitled to receive payment of any accrued and owing Base
Salary for the applicable period and (ii) a lump sum payment equal to one half
of one year's Base Salary at its then current rate. Payment of any severance is
conditioned upon (A) the Executive signing a separation agreement prepared by
the Company which includes a general release of claims and (B) the Executive's
compliance with the restrictive covenants set forth in the Non-Compete,
Non-Solicitation and Confidentiality Agreement between the Executive and GSL,
effective as of December 16, 2004, attached hereto as Appendix C (the
"Non-Compete, Non-Solicitation, and Confidentiality Agreement"). For the sake
of clarity, the severance payment provided for herein shall be in lieu of any
amount to which the Executive would be entitled under the Company's severance
policy, if any, in effect at the time of the termination. In the event the
Executive becomes entitled to any payments of severance and the Executive is a
"specified employee" within the meaning of Section 409A(a)(2)(B)(1) of the
Internal Revenue Code of 1986, as amended, the payment of such severance shall
be delayed in accordance with the provisions of such section to the extent
necessary or appropriate to avoid adverse tax consequences under Section 409A
of the Code.
"Cause" means (i) any act of dishonesty committed by the Executive in
connection with the Company's, GSL's or their subsidiaries' business; (ii) the
Executive's indictment or conviction of a crime involving moral turpitude;
(iii) the Executive's non-performance or non-observance in any material respect
of any requirement with respect to the Executive's employment hereunder; or
(iv) any other action by the Executive involving willful and deliberate
malfeasance or negligence in the performance of the Executive's duties as
Executive Vice President, Sales and Marketing, provided that the determination
of cause shall be made by the Board. In the event that the GSL Board of
Directors makes a determination that "cause" for termination exists under
clause (iii) above, the Executive shall be given at least fifteen (15) days
advance written notice thereof and be provided with an opportunity to meet with
at least one member of the Board, discuss the basis for the decision, and a
reasonable opportunity to cure such failure. "Good Reason" shall mean the
occurrence, without the express prior written consent of the Executive, of any
of the following circumstances, unless such circumstances are fully corrected
by the Company within thirty (30) days following written notification by the
Executive (which written notice must be delivered within thirty (30) days of
the Executive's becoming aware of the occurrence of such circumstances) that he
intends to terminate his employment for one of the reasons set forth below: (i)
the relocation of the Executive's principal office at the Company to a location
outside a seventy-five (75) mile radius from such present office location or
(ii) a material reduction in the Executive's duties and responsibilities
evidenced by the Company's hiring of an employee who is given the title of
Executive Vice President, Sales and Marketing, or is otherwise senior to the
Executive in respect of the Company's sales and marketing department. For
purposes of Section 5(g), the hiring of a President as described in Section 1
shall not constitute termination without Cause.
Section 5. NO VIOLATION OF THIRD-PARTY RIGHTS.
(a) The Executive hereby represents, warrants and covenants to the
Company that the Executive:
i. is not a party to any agreements with third parties that
prevent him from fulfilling the terms of employment and the
obligations of this Agreement or which would be breached as a result
of his execution of this Agreement;
ii. is in compliance with any and all valid obligations which
he may now have to prior employers or to others relating to
confidential information, inventions or discoveries which are the
property of those prior employers or others, as they case may be.
If the Executive is in breach of any of the foregoing representations,
warranties and covenants or a court of competent jurisdiction issues a final
order (not including a temporary restraining order or other order subject to
interlocutory appeal) precluding the Executive from performing his duties
hereunder, the Company shall be entitled to terminate this Agreement for Cause.
Section 6. WITHHOLDING. The Company shall make such deductions and
withhold such amounts from each payment made to the Executive hereunder as may
be required from time to time by law, governmental regulation or order.
Section 7. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand, facsimile or
first-class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given upon delivery or three (3) days after
mailing or twenty-four (24) hours after transmission of a facsimile to the
respective persons named below:
(a) If to the Company
Global Signal Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Human Resources
if to the Executive:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Either party may change such party's address for notices by notice duly given
pursuant hereto.
Section 8. DISPUTE RESOLUTION; ATTORNEYS' FEES. The parties agree that
any and all disputes arising out of the terms of this Agreement, their
interpretation, or the Executive's employment or termination by the Company
shall be subject to binding arbitration before the American Arbitrator
Association under its National Rules for the Resolution of Employment Disputes.
The Company agrees to pay all costs associated with arbitration, except that
the parties shall pay for their own attorneys' fees and costs. The arbitrator
shall permit the parties to engage in reasonable discovery measures, including
depositions, document production, interrogatories, and any other discovery
measures that the arbitrator may order. The arbitrator shall issue a written
decision and shall have authority to award any and all damages to which the
party would otherwise be entitled to under applicable law. Such decision shall
be subject to limited review by a court of competent jurisdiction. The parties
agree that the prevailing party in any arbitration shall be entitled to
injunctive relief in any court or competent jurisdiction to enforce the
arbitration award. The parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorneys' fees and costs to the
extent not prohibited by law.
Section 9. GOVERNING LAW. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the State of Florida, without regard to its
conflicts of law principles.
Section 10. ENTIRE AGREEMENT. This Agreement is complete and embraces
the entire understanding of and between the Parties. All prior understandings
of or in connection with the subject matter contained herein, either oral or
written, having been merged herein or canceled. The Executive acknowledges and
agrees that no representations have been made by the Company except those
expressly set forth herein. Without limiting the foregoing, the Executive
represents that he shall not be entitled to any equity interest or other
interest in the Company or GSL or any of its affiliates except to the extent
such an interest is granted by the Board and evidenced in a writing signed by
the Chief Executive Office of the Company.
Section 11. WAIVER; MODIFICATION. Failure to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed by
each party hereto.
Section 12. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its
nature and neither of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any other rights or obligations
hereunder; provided that, in the event of the merger, consolidation, transfer
or sale of all or substantially all of the assets of the Company or GSL with or
to any other individual or entity or any similar event, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the benefit of
such successor and such successor shall discharge and perform all the promises,
covenants, duties and obligations of the Company hereunder.
Section 13. SEVERABILITY. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, only the portions of this Agreement that violate
such statute or public policy shall be stricken. All portions of this Agreement
that do not violate any statute or public policy shall continue in full force
and effect. Furthermore, any court order striking any portion of this Agreement
shall modify the stricken terms as little as possible to give as much effect as
possible to the intentions of the parties under this Agreement.
Section 14. HEADINGS; INCONSISTENCY. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. In the event of any
inconsistency between the terms of this Agreement and any form, award, plan or
policy of the Company, the terms of this Agreement shall control.
Section 15. COUNTERPARTS. This Agreement may be executed in
counterparts (including counterparts delivered by facsimile), each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
Section 16. ORIGINAL EMPLOYMENT AGREEMENT TERMINATED. The Original
Employment Agreement is hereby terminated in full and is of no further force or
effect and is superceded and replaced by this Agreement.
Section 17. NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY
AGREEMENT. The Non-Compete, Non-Solicitation and Confidentiality Agreement
shall remain in full force and effect and shall not be affected in any way by
this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by it duly authorized officer and the Executive has hereunto signed
this Agreement on the date first written above.
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and
President
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇