EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.7
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BETWEEN
AND
XXXX XXXXX
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This EXECUTIVE EMPLOYMENT AGREEMENT (the
“Agreement”)
made this 22nd day of July,
2017, by and between COMMAND CENTER,
INC., a Washington corporation
(hereinafter called “Company”)
and XXXX
XXXXX, an individual
(hereinafter called “Executive”).
RECITALS
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 foregoing 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 and effective as of
the Effective Date, Company hereby employs Executive, and Executive
hereby accepts such employment. Company agrees that its board of
directors shall appoint Executive as Principal Accounting Officer
not later that September 1, 2017. Executive’s employment
shall be in such capacities and for such duties and services as
will from time to time be mutually agreed upon by Company and
Executive, consistent with the position of the Principal Accounting
Officer and reporting directly to the President and Chief Executive
Officer. The Effective Date shall be
July ___, 2017 or the date upon which this Executive Employment
Agreement has been fully executed and delivered by both Executive
and Company, whichever is later.
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, except as may be specifically allowed by the Board of
Directors, will not engage in any other employment while employed
by Company.
3. Compensation.
(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 $150,000
per annum (“Base
Salary”). Company will
pay the Base Salary in accordance with Company's established
payroll procedures. Payments will be made in bi-weekly
installments, or in such other periodic installments upon which
Company and Executive will mutually agree.
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(b)
Bonus Eligibility. Bonus
eligibility shall be in the sole discretion of the Compensation
Committee of the company’s board of directors.
(c)
Withholding. The Company may withhold
from any payments or benefits under this Agreement, all federal,
state and local taxes as the Company is required to withhold
pursuant to any law or governmental rule or regulation. Executive
shall bear all expense of, and be solely responsible for, all
federal, state and local taxes due with respect to any payment
received hereunder.
4. Relocation
Expenses.
Company
shall provide reasonable and customary relocation assistance,
including reimbursement for costs for moving household furnishings
and belongings, in an amount not to exceed $10,000 for household
goods and $1,000 for one car. For a period of up to six months
following the Effective Date or until Executive’s home in
Florida is sold or leased, whichever occurs sooner, Company will
pay the Executive’s cost of temporary housing in the Denver
area, not to exceed $2,000 per month, except for the first month,
which shall be reimbursed at cost not to exceed $4000. If
Executive’s house in Florida has not been sold or leased
within six months, then Executive and Company agree to discuss a
possible extension of the temporary housing allowance.
5. Other
Benefits.
(a) 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. To obtain reimbursement, Executive
will submit to Company receipts, bills, or sales slips for the
expenses incurred.
(b)
Professional
Memberships and Continuing Professional Education.
Company will pay for dues and fees
required for any professional licenses maintained by Executive,
membership in professional or industry associations, continuing
education requirements associated with any professional license and
conferences and seminars commonly attended by executives in similar
companies.
(c) Vacation.
Executive will be entitled to three
weeks paid vacation each year.
(d)
Other
Benefits. During the Employment
Period, Executive will be entitled to participate in any group
insurance, pension, retirement, vacation, expense reimbursement,
stock option, and other benefits approved by the Compensation
Committee 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.
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6. 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
one year following the Effective Date, unless terminated by either
party pursuant to the terms of this Agreement (such period and any
extensions thereof, the “Employment
Period”).
The term of the Employment Period hereunder will automatically renew for a
successive one-year term, unless 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,
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)
Executive’s indictment for, or
conviction of, a crime involving moral turpitude whether or not
relating to Company;
(2) willful
misconduct by Executive in the performance of his duties as an
employee of Company;
(3) the
commission by Executive of an act of fraud or embezzlement against
Company;
(4) substance
abuse;
(iv)
Change of
Control. In the event of a
Change of Control (as defined below), Company may, upon written
notice to the Executive, terminate Executive’s employment by
providing the Executive 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) 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 50% or more of the
combined voting power of Company’s then outstanding voting
securities;
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(2)
Merger or
Consolidation. The shareholders
of Company 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
(3) Sale
of Assets. The shareholders of
Company approve an agreement for the sale or disposition by Company
of all or substantially all of Company's assets to another person
or entity, which is not a wholly owned subsidiary of
Company.
(v)
Without Cause
(1) Executive
may terminate the Employment Period at any time upon giving to
Company written notice sixty days in advance of the proposed
termination date.
(2) Company
may terminate the Employment Period 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 of Employment Period.
(1)
In the event of the termination of the Employment Period pursuant
to Section 6(b)(iii)
[Cause] or Section
6(b)(v)(1) [Without Cause by Executive] above, Executive
will receive no further compensation under this Agreement following
the date of termination. If this Agreement is terminated by
Executive during the initial one year term, Executive shall
immediately reimburse Company for all relocation expenses paid by
Company, including moving of goods and temporary
housing.
(2) In
the event of the termination of the Employment Period pursuant to
Section 6(b)(i) [Death] or
6(b)(ii) [Disability] 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.
(3)
In the event of the termination of the Employment Period pursuant
to Section 6(b)(iv) [Change in Control] above or failure or refusal
of a surviving or successor entity to assume all of the obligations
of this Agreement, Executive will continue to receive his Base
Salary through the end of the current Employment
Period.
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(4) In
the event of termination during the initial one year term pursuant
to Section 6(b)(v)(2) [Without Cause by Company] above, Executive
will continue to receive his Base Salary through the end of the
Employment Period. If the termination occurs in an Employment
Period following the initial one-year term, no additional
compensation shall be due.
(5)
Executive will continue to be bound
by Sections 7 and
8 of this Agreement following
termination of Executive’s employment on any basis set forth
in this Section
6(b).
7. Competition
and Confidential Information.
(a) Non-Competition.
During the term of the Employment Period and for
twelve months after the termination of the Employment Period ,
regardless of the reason therefor, or twelve months after the final
payment of compensation by Company to Executive, whichever is
later, 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, procedures, plans,
inventions, 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.
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(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 materials, whether written, printed
or stored in any electronic media, which are the property of
Company or any of its subsidiaries (and any copies of them);
desktop or laptop computers, software,
access cards, “passwords”, cellular phones, personal
digital assistants and pagers; and all other materials which may
contain Confidential Information relating to the business of
Company or any of its subsidiaries (whether maintained in tangible,
documentary form, computer memory or other electronic or digital
format), which Executive may then have in Executive's possession
whether prepared by Executive or not.
(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. All copyrights, patents, trade secrets, or other
intellectual property rights associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship developed
or created by Executive during the Employment Period (collectively,
the "Work Product") shall belong exclusively to Company and shall
be considered a work made by Executive for hire within the meaning
of Title 17 of the United States Code. To the extent the Work
Product may not be considered work made for hire, Executive agrees
to assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest
that Executive may have in such Work Product. Upon Company’s
request, Executive will take such further actions, including
execution and delivery of instruments of conveyance, as may be
appropriate to give full and proper effect to such
assignment.
(f)
Equitable Relief.
In the event a violation of any of the
restrictions contained in this Section 7
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
7, 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 7
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.
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(i) Non-Disparagement.
Executive agrees that he will make no statement, oral or written,
and which, by itself, may significantly or substantially damage the
reputation of the Company or any director, officer or employee of
the Company.
8. Miscellaneous.
(a) 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: if mailed by
registered or certified mail, three business days after deposit in
the United States mail, postage prepaid, return receipt
requested; if hand delivered,
upon delivery against receipt or upon refusal to accept the notice;
or 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:
0000
X Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxx Xxxxxxxx
With a copy to:
Xxxxxxx
Xxxxxxxx
0000
X Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
(ii)
If to
Executive:
Xxxx
Xxxxx
000 Xxxx
Xxxxxxx, XX
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Either party may change 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 8(a)
for the giving of
notice.
(b)
Waivers.
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 Colorado, notwithstanding any Colorado or other
conflict-of-interest provisions to the contrary. Executive agrees
that any and all claims arising between the parties out of this
agreement shall be controlled by the laws of the State of Colorado,
as follows: any dispute, controversy arising out of, connected to,
or relating to any matters herein of the transactions between
Company and Executive, or this Agreement, which cannot be resolved
by negotiation (including, without limitation, any dispute over the
arbitrability of an issue), will be settled by binding arbitration
in accordance with the J.A.M.S/ENDISPUTE Arbitration Rules and
Procedures, as amended by this Agreement. Arbitration proceedings
will be held in Denver, Colorado. Company and Executive agree the
prevailing party on any action to enforce rights hereunder shall be
entitled, in addition to any awarded damages, their costs and
reasonable attorney's fees, whether at arbitration, or on appeal.
The parties agree that this provision and the Arbitrator's
authority to grant relief are subject to the United States
Arbitration Act, 9 U.S.C. §
1 et seq. ("USAA") and the provisions
of this Agreement. The parties agree that the arbitrator shall have
no power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event
does the arbitrator have the authority to make any award that
provides for punitive or exemplary damages. The award may be
confirmed and enforced in any court of competent jurisdiction. All
post-award proceedings will be governed by the USAA. Company and
Executive irrevocably consent to the jurisdiction and venue of such
arbitration and such courts.
(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.
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(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.
(k)
Third Party
Beneficiaries. This Agreement
shall not inure to the benefit of anyone other than Executive and
Company and their successors and assigns. No third party may bring
an action to enforce any term hereof and no third party beneficiary
rights are created by this Agreement.
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(l) Non-Transferability.
This is a personal agreement. None of the Executive’s rights,
benefits, or interests hereunder may be subject to sale,
anticipation, alienation, assignment, encumbrance, charge, pledge
hypothecation, transfer, or set off in respect of any claim, debt,
or obligation, or to execution, attachment, levy or similar
process, or assignment by operation of law. Any attempt, voluntary
or involuntary, to effect any such action shall be null, void, and
of no effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the Effective Date.
| XXXX XXXXX,
EXECUTIVE |
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COMMAND CENTER,
INC., a
Washington corporation
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By: Xxxx
Xxxxx
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Name: | Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx
Xxxxx
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Title: | Xxxxxxxxx Xxxxxxxx |
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| Date: July 14, 2017 |
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President and Chief Executive Officer |
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Date: | July 22, 2017 |
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