EXECUTIVE EMPLOYMENT AGREEMENT
DATED AS OF JANUARY 1, 2006
BETWEEN
COMMAND CENTER, INC.
AND
XXXXXX X. XXXXXXX
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EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") made this 1st day of
January, 2006 (the "Effective Date"), by and between COMMAND CENTER, INC., a
Washington corporation (hereinafter called "Company") and XXXXXX X. XXXXXXX, an
individual (hereinafter called "Executive").
RECITALS
A. Company desires to employ Executive and Executive desires to accept
such employment, all on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT.
Subject to the terms and conditions of this Agreement, Company
hereby employs Executive, and Executive hereby accepts such employment, as the
Chief Operating Officer of Company and in such other capacities and for such
other duties and services as will from time to time be mutually agreed upon by
Company and Executive, consistent with the position of the Chief Operating
Officer and reporting directly to the Company's Chief Executive Officer and the
Company's Board of Directors.
2. FULL TIME OCCUPATION.
Executive will devote Executive's entire business time, attention,
and efforts as reasonably necessary to the performance of Executive's duties
under this Agreement, and will serve Company faithfully and diligently and will
not engage in any other employment while employed by Company.
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. During the Employment Period (as defined herein),
Company will pay to Executive, as full compensation for the services rendered by
Executive, a base salary at a rate of $120,000 per annum ("Base Salary").
Company will pay the Base Salary in accordance with Company's established
payroll procedures. Payments will be made in monthly installments, or in such
other periodic installments upon which Company and Executive will mutually
agree.
(b) BONUS; OPTIONS. In addition to the Base Salary, Executive will
be eligible to receive annual bonus compensation (the "Annual Bonus") and such
stock or option grants in an amount to be set by the Company's Board of
Directors, acting in its sole and absolute discretion.
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(c) BENEFITS. During the Employment Period, Executive will be
entitled to participate in any group insurance, pension, retirement, vacation,
expense reimbursement, stock option, and other plans, programs, and benefits
approved by the Board of Directors of Company and made available from time to
time to executive employees of Company generally during the term of Executive's
employment hereunder. The foregoing will not obligate Company to adopt or
maintain any particular plan, program, or benefit.
(d) REIMBURSEMENT. During the Employment Period, Company will
reimburse Executive for all travel and entertainment expenses and other ordinary
and necessary business expenses incurred by Executive in connection with the
business of Company and Executive's duties under this Agreement. The term
"business expenses" will not include any item not deductible by Company for
federal income tax purposes. Company's obligations under this Section 3(d)
include reimbursement for the costs of Executive's spouse to accompany Executive
on business travel, only if approved in writing by Company's Chief Executive
Officer prior to such travel. To obtain reimbursement, Executive will submit to
Company receipts, bills, or sales slips for the expenses incurred.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of Executive's employment hereunder
will commence on the Effective Date and will continue for a period of three
years following the Effective Date, unless and until terminated by either party
pursuant to the terms of this Agreement (such period and any extensions thereof,
the "Employment Period"). The term of Executive's employment hereunder will
automatically renew for successive one-year terms, unless and until terminated
by either party giving written notice to the other not less than 30 days prior
to the end of the then-current term or as otherwise set forth in this Agreement.
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Notwithstanding
anything to the contrary herein contained:
(i) DEATH. Executive's employment will be automatically
terminated, without notice, effective upon the date of Executive's death.
(ii) DISABILITY. If Executive will fail to perform any of
Executive's job duties under this Agreement as the result of illness or other
incapacity, with or without reasonable accommodation, for a period of more than
eight consecutive weeks, or for more than eight weeks within any six-month
period, as determined by Company, Company may, at its option, and upon notice to
Executive, terminate Executive's employment effective on the date of that
notice.
(iii) CAUSE. Company may terminate Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
will mean any of the following:
(1) the failure of Executive to perform Executive's
duties pursuant to this Agreement to the reasonable satisfaction of the Board of
Directors, which remains uncured for 15 days after a written demand for
performance is delivered to Executive by the Board of Directors or an executive
officer of Company that specifically identifies the manner in which the Board of
Directors or such executive officer believes that Executive has not performed
Executive's duties;
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(2) Executive's indictment for, or conviction of, a
crime involving moral turpitude whether or not relating to Company;
(3) gross negligence or willful misconduct by Executive
in the performance of his duties as an employee of Company;
(4) the association, directly or indirectly, of
Executive, for his profit or financial benefit, with any person, firm,
partnership, association, entity, or corporation that competes with Company;
(5) the disclosing or using of any material Confidential
Information (as hereinafter defined) of Company at any time by Executive, except
as required in connection with his duties to Company;
(6) the breach by Executive of his fiduciary duty or
duty of trust to Company, including, but not limited to, the commission by
Executive of an act of fraud or embezzlement against Company;
(7) chronic absenteeism;
(8) substance abuse; or
(9) any other material breach by Executive of any of the
terms or provisions of this Agreement, which other material breach is not cured
within ten business days of notice by the Company.
(iv) CHANGE OF CONTROL. In the event of a Change of Control
(as defined below), Company or Executive may, each at their respective options,
upon written notice to the other, terminate Executive's employment by providing
the other party with 30 days' written notice after the effective date of the
Change of Control. For the purposes of this Agreement, a "Change in Control"
will be deemed to have occurred if and when:
(1) TURNOVER OF BOARD. The following individuals no
longer constitute a majority of the members of the Board of Directors of
Company: (1) the individuals who, as of the Effective Date, constitute the Board
of Directors of Company (the "Current Directors"); (2) the individuals who
thereafter are elected to the Board of Directors of Company and whose election,
or nomination for election, to the Board of Directors of Company was approved by
a vote of at least two-thirds (2/3) of the Current Directors then still in
office (such directors becoming "Additional Directors" immediately following
their election); and (3) the individuals who are elected to the Board of
Directors of Company and whose election, or nomination for election, to the
Board of Directors of Company was approved by a vote of at least two-thirds
(2/3) of the Current Directors and Additional Directors then still in office
(such directors also becoming Additional Directors immediately following their
election);
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(2) TENDER OFFER. A tender offer or exchange offer is
made whereby the effect of such offer is to take over and control Company, and
such offer is consummated for the equity securities of Company representing 20%
or more of the combined voting power of Company's then outstanding voting
securities;
(3) MERGER OR CONSOLIDATION. The shareholders of Company
will approve a merger, consolidation, recapitalization, or reorganization of
Company, or consummation of any such transaction if shareholder approval is not
obtained, other than any such transaction that would result in at least 75% of
the total voting power represented by the voting securities of the surviving
entity outstanding immediately after such transaction being beneficially owned
by the holders of outstanding voting securities of Company immediately prior to
the transaction, with the voting power of each such continuing holder relative
to other such continuing holders not substantially altered in the transaction;
or
(4) LIQUIDATION OR SALE OF ASSETS. The shareholders of
Company will approve a plan of complete liquidation of Company or an agreement
for the sale or disposition by Company of all or a substantial portion of
Company's assets (i.e., 50% or more of the total assets of Company) to another
person or entity, which is not a wholly owned subsidiary of Company
(v) WITHOUT CAUSE
(1) Executive may terminate this Agreement at any time
upon giving to Company written notice sixty days in advance of the proposed
termination date.
(2) Company may terminate this Agreement at any time
before the expiration of this Agreement without cause by giving to Executive
written notice sixty days in advance of the proposed termination date.
(vi) RESULT OF TERMINATION.
(1) In the event of the termination of Executive's
employment pursuant to Section 4(b)(iii) or Section 4(b)(v)(1) above, Executive
will receive no further compensation under this Agreement following the date of
termination.
(2) In the event of the termination of Executive's
employment pursuant to Section 4(b)(i) or 4(b)(ii) above, Executive or
Executive's personal representative or estate will continue to receive
Executive's Base Salary during the six-month period following the date of
termination of Executive's employment.
(3) 1)In the event of the termination of Executive's
employment pursuant to Section 4(b)(iv) above, Executive will continue to
receive his Base Salary for the 12-month period following the date of
termination of Executive's employment pursuant to this Agreement.
(4) In the event of termination of Executive's
employment during the initial three year term pursuant to Section 4(b)(v)(2)
above, Executive will continue to receive his Base Salary for the 12 month
period following the date of termination of Executive's employment. In the event
of termination of Executive's employment during any subsequent one year term
pursuant to Section 4(b)(v)(2) above, Executive will continue to receive his
Base Salary until the expiration of the one year term in effect when the notice
of termination is given.
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(4) Executive will continue to be bound by Sections 5
and 6 of this Agreement following termination of Executive's employment on any
basis set forth in this Section 4(b).
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) NON-COMPETITION. During the term of Executive's employment with
Company and for the period ending 12-months after the termination of Executive's
employment with Company, regardless of the reason therefor, Executive will not
(whether directly or indirectly, as owner, principal, agent, stockholder,
director, officer, manager, executive, partner, participant, or in any other
capacity) engage or become financially interested in any competitive business
conducted within the Restricted Territory or solicit, canvas, or accept, or
authorize any other person, firm, or entity to solicit, canvas, or accept, from
any customers of Company or its subsidiaries, any business within the Restricted
Territory for Executive or for any other person, firm, or entity. As used
herein, "customers of Company" will mean any persons, firms, or entities that
purchased goods or services from Company during the Employment Period;
"competitive business" will mean any business which sells or provides or
attempts to sell or provide products or services the same as or substantially
similar to the products or services sold or provided by Company or any of its
subsidiaries; and the "Restricted Territory" will mean the United States or, in
the alternative, in the event any reviewing court finds the United States to be
overbroad or unenforceable, within 25 miles of any existing or proposed office
location of Company.
(b) CONFIDENTIAL INFORMATION. Executive will maintain in strict
secrecy all confidential or trade secret information relating to the business of
Company or any of its subsidiaries (the "Confidential Information") obtained by
Executive in the course of Executive's employment, and Executive will not,
unless first authorized in writing by Company, disclose to, or use for
Executive's benefit or for the benefit of any person, firm, or entity at any
time either during or subsequent to the term of Executive's employment with
Company, any Confidential Information, except as required in the performance of
Executive's duties on behalf of Company. For purposes hereof, "Confidential
Information" will include, without limitation, any trade secrets, knowledge, or
information with respect to processes, inventions, formulae, machinery,
manufacturing techniques, or know-how; any business methods or forms; any names
or addresses of customers or data on customers or suppliers; and any business
policies or other information relating to or dealing with the purchasing, sales,
or distribution policies or practices of Company.
(c) RETURN OF BOOKS AND PAPERS. Upon the termination of Executive's
employment with Company for any reason, Executive will deliver promptly to
Company all catalogues, manuals, memoranda, drawings, and specifications; all
cost, pricing, and other financial data; all customer information; all other
written or printed materials which are the property of Company or any of its
subsidiaries (and any copies of them); and all other materials which may contain
Confidential Information relating to the business of Company or any of its
subsidiaries, which Executive may then have in Executive's possession whether
prepared by Executive or not.
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(d) DISCLOSURE OF INFORMATION. Executive will disclose promptly to
Company, or its nominee, any and all ideas, designs, processes, and improvements
of any kind relating to the business of Company or any of its subsidiaries,
whether patentable or not, conceived or made by Executive, either alone or
jointly with others, during working hours or otherwise, during the entire period
of Executive's employment with Company, or within six months thereafter.
(e) ASSIGNMENT. Executive hereby assigns to Company or its nominee,
the entire right, title, and interest in and to all discoveries and
improvements, whether patentable or not, which Executive may conceive or make
during Executive's employment with Company, or within six months thereafter, and
which relate to the business of Company or any of its subsidiaries.
(f) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this Section 5 is established, Company will be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits, and other benefits arising
from such violation, which right will be cumulative and in addition to any other
rights or remedies to which Company may be entitled. In the event of a violation
of any provision of this Section 5, the period for which those provisions would
remain in effect will be extended for a period of time equal to that period
beginning when such violation commenced and ending when the activities
constituting such violation will have been finally terminated in good faith.
(g) RESTRICTIONS SEPARABLE. Each and every restriction set forth in
this Section 5 is independent and severable from the others, and no such
restriction will be rendered unenforceable by virtue of the fact that, for any
reason, any other or others of them may be unenforceable in whole or in part.
(h) NO VIOLATION. The execution and delivery of this Agreement and
the performance of Executive's services contemplated hereby will not violate or
result in a breach by Executive of, or constitute a default under, or conflict
with: (i) any provision or restriction of any employment, consulting, or other
similar agreement; (ii) any agreement by Executive with any third party not to
compete with, solicit from, or otherwise disparage such third party; (iii) any
provision or restriction of any agreement, contract, or instrument to which
Executive is a party or by which Executive is bound; or (iv) any order,
judgment, award, decree, law, rule, ordinance, or regulation or any other
restriction of any kind or character to which Executive is subject or by which
Executive is bound. Executive agrees to indemnify and hold Company and each of
its officers, directors, stockholders, employees, and agents (each an
"Indemnitee") harmless for, from, and against any and all damages, losses,
liabilities, fines, penalties, costs, and expenses (including, without
limitation, reasonable counsel fees, costs, and expenses) incurred in the
investigation, defense, or settlement with respect to or arising out of any
demand, claim, inquiry, investigation, proceeding, action, or cause of action
that any Indemnitee may suffer or incur by reason of any breach of this Section
5.
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6. MISCELLANEOUS.
(a) 2)NOTICES. All notices, requests, demands, and other
communications required or permitted under this Agreement will be in writing and
will be deemed to have been duly given and received: i) if mailed by registered
or certified mail, three business days after deposit in the United States mail,
postage prepaid, return receipt requested; ii) upon confirmation of a receipt of
a facsimile or e-mail transmission; iii) if hand delivered, upon delivery
against receipt or upon refusal to accept the notice; or iv) if delivered by a
standard overnight courier, one business day after deposit with such courier,
postage prepaid, in each case, addressed to such party at the address set forth
below:
(i) If to Company:
Command Center, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxxx
with a copy to:
--------------
Law Offices of Xxxxxx X. Xxxxx
0000 X Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx Xxxxx
(ii) If to Executive:
Xxxxxx X. Xxxxxxx
0000 X Xxxxxx Xxxx
Xxxxx x'Xxxxx, XX 00000
Fax: 000-000-0000
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 6(a) for the giving of notice.
(b) INDULGENCES. Neither any failure nor any delay on the part of
either party to exercise any right, remedy, power, or privilege under this
Agreement will operate as a waiver thereof, nor will any single or partial
exercise of any right, remedy, power, or privilege preclude any other or further
exercise of the same or of any other right, remedy, power, or privilege, nor
will any waiver of any right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power, or privilege
with respect to any other occurrence.
(c) CONTROLLING LAW, JURISDICTION AND VENUE. This Agreement and all
questions relating to its validity, interpretation, performance, and enforcement
will be governed by and construed in accordance with the laws of the state of
Idaho, notwithstanding any Idaho or other conflict-of-interest provisions to the
contrary. Jurisdiction of and venue for any legal action between the parties
shall be in the state and federal courts serving Kootenai County, Idaho and the
parties hereby consent to such jurisdiction and venue.
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(d) BINDING NATURE OF AGREEMENT. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors, and assigns except that no party may
assign or transfer such party's rights or obligations under this Agreement
without the prior written consent of the other party.
(e) EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original as
against any party whose signature appears thereon, and all of which will
together constitute one and the same instrument. This Agreement will become
binding when one or more counterparts hereof, individually or taken together,
will bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision will be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements, and conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control and
supersede: (a) any course of performance and/or usage of the trade inconsistent
with any of the terms hereof; and (b) any provision of any other plan or
agreement maintained by Company for the benefit of its employees generally
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing signed by the parties hereto.
(h) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and will not affect
its interpretation.
(i) GENDER. Words used herein, regardless of the number and gender
specifically used, will be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine, or neuter, as the
context requires.
(j) NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days will be counted, including Saturdays, Sundays, and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday, or holiday, then the final day will be deemed to be the next
day which is not a Saturday, Sunday, or holiday.
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of Effective Date.
COMMAND CENTER, INC., a Washington
corporation
By:
--------------------------------------
Name: Xxxxx Xxxxxxx
Title:
----------------------------------
---------------------------------
Xxxxxx X. Xxxxxxx, an individual
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