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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
Agreement made on the 26th day of May, 2000 by and between Complete
Business Solutions, Inc. ("Employer"), a corporation organized under the laws of
the State of Michigan and Xxxxxxx Xxxxx ("Employee").
BACKGROUND OF AGREEMENT
Employee desires employment or continued employment by Employer.
As consideration for Employer's employment of Employee or continuing
employment of Employee, the parties have entered into this Employment Agreement
("Agreement").
1. AT-WILL EMPLOYMENT
This Agreement shall be effective on the date of signing of this
Agreement. The Agreement shall continue in affect for an indefinite or
undefined period of time, or until terminated by either of the parties.
The Agreement and Employee's employment by Employer are terminable at
will and therefore can be terminated at any time with or without cause,
and with or without notice, at the option of either Employer or
Employee.
2. DUTIES OF EMPLOYEE
The work and services to be required from Employee shall be to perform
the duties of Executive Vice President of the Industry Solutions Group
and other such services as Employer may from time to time require in
connection with the above. The work and services are to be done and
performed at such places as Employer may require.
3. SALARY AND BENEFITS
Employer shall pay Employee an annual salary of $ 300,000 (US) paid
semi-monthly.
All conditions concerning vacation and other company paid fringe
benefits shall be in accordance with company policies that may be in
effect from time to time as set forth in the Employee Handbook, and in
the employee offer letter.
4. TERMINATION PRIOR TO COMPLETING 24 MONTHS OF SERVICE
4.1 If Employee terminates his/her employment with Employer prior
to completing twenty-four (24) months of service, Employee
agrees to pay Employer as liquidated damages and not as a
penalty, to compensate
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Employer for its actual costs of any relocation expenses
advanced by Employer to Employee.
4.2 By signing this Employment Agreement, Employee expressly
agrees to these reimbursement obligations and expressly
authorizes Employer to deduct the maximum amounts allowed by
law from Employee's final paycheck, to be credited against
Employees obligations to Employer under Section 4.1.
4.3 In the event the Employer terminates the Employee without
cause during the first two years of employment, the Employee
will continue to receive gross annual salary and the signing
bonus for the remaining period until completion of two full
years of employment. Cause is defined as "deliberate
dishonesty with respect to a material aspect of the Employer's
business, or conviction of a criminal violation involving
fraud or dishonesty or felony which materially impairs the
business reputation of the employer.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1 Employee agrees to promptly inform Employer in writing of the
full details of all his/her inventions, discoveries, concepts,
and all copyright materials, ideas, information and
improvements (collectively referred to as "Developments'),
whether patentable or not, including, but not limited to:
hardware and apparatus, processes and methods, formulae,
computer programs and techniques, as well as any improvements
and related knowledge, which he/she conceives, develops,
makes, contributes to or reduces to practice (whether alone or
jointly with others) while he/she is employed by Employer and:
a) which relate to or are useful to the present or
prospective business, work, or investigations of
Employer; or
b) which result from any work he/she does using any
equipment, facilities, materials or personnel of
Employer; or
c) which result from or are suggested by any work which
Employee may do for Employer.
5.2 Employee agrees to assign, and does assign, to Employer or
Employer's designee, his/her entire right, title and interest
in:
a) all Developments;
b) all trademarks, copyrights and mask work rights in
Developments; and
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c) all patent applications filed and patents granted on
any Development, including those in foreign
countries, which he/she conceives or makes (whether
alone or with others) while employed by Employer or
within twelve (12) months of the end of his/her
employment, which shall be presumed to have been
conceived as a result of employment with Employer.
5.3 Employee acknowledges Employer's copyright in all of
Employer's present and future software products, programs,
code, documentation, and flowcharts in any form and agrees to
abide by the procedures of the Copyright Law, Title 17 of the
United States Code, prohibiting the reproduction of such
copyrighted works, in whole or in part, or in any form or by
any means without the written permission of Employer.
5.4 Both while employed by Employer and afterwards, Employee
agrees to execute any papers and take such further action as
Employer may consider necessary or helpful to obtain,
maintain, defend and enforce patent, copyright, trademark or
other intellectual property rights (all related expenses to be
borne by Employer).
6. CONFIDENTIAL INFORMATION
6.1 Employee agrees not to use or disclose, except as his/her
duties may require any of Employer's "Confidential
Information" as defined in this Agreement (whether or not
conceived, originated, discovered, or developed by Employee)
unless Employer consents in writing. Employee understands that
this obligation remains binding even after his/her employment
with Employer ends.
6.2 "Confidential Information" means information or material:
a) which is not generally available to or used by
others; or
b) the utility or value of which is not generally known
or recognized as standard practice, whether or not
the underlying details are in the public domain; or
c) which is trade secret as defined by the Restatement
of Torts, which the parties accept as an appropriate
statement of law.
6.3 "Confidential Information" includes, but is not limited to:
a) information or materials which relate to Employer's
inventions, technological development, "know-how",
purchasing, accounting, merchandising, or licensing,
information concerning the research design and
development of Employer's products and services,
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sales, costs, potential clients, potential projects,
pricing methods, employee lists, recruit lists,
customer lists, inventions, discoveries, concepts,
computer software in any form and the computer
software methods and techniques or algorithms of
organizing or applying the same, whether conceived
solely or jointly by Employee or which come into
his/her possession or knowledge during the course of
employment with Employer;
b) software in various states of development (source
code, object code, documentation, diagrams, flow
charts), designs, drawing, specifications, models,
data and customer information; and
c) any information of the type described above which
Employer obtained from another party and which
Employer treats as proprietary or designates as
confidential, whether or not owned or developed by
Employer.
7. SURRENDER OF MATERIALS ON TERMINATION
Employee agrees to deliver to Employer, and not to keep or deliver to
any other person or entity, on the date his/her employment ends, or at
any other time at Employer's request, all documents and things in
his/her possession pertaining to the business of Employer, Including
but not limited to, Confidential Information. If documents and things
pertaining to the business of Employer or originating with Employer
come into Employee's possession after his/her employment ends, he/she
will promptly deliver them to Employer.
8. COVENANTS
8.1 Employee agrees that he/she will not:
a) directly or through another individual, entity,
partnership, corporation, or enterprise, for eighteen
(18) calendar months from the date of Employee's
termination, provide computer consulting or
programming services to any accounts in which
Employee represented Employer in the twelve (12)
months preceding the termination of employment,
without written consent from Employer;
b) while employed by Employer and for eighteen (18)
calendar months from the date of Employee's
termination, directly or indirectly solicit or aid
any third party in soliciting, for contract
programming or software consulting purposes, accounts
in which Employee represented Employer in the twelve
(12) months preceding the termination of employment,
without written consent from Employer; and
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c) while employed by Employer and for eighteen (18)
calendar months from the date of termination, solicit
or aid any third party in soliciting the employment
of any other employee of Employer, without written
consent from Employer.
8.2 Employer and Employee agree that the restrictions set forth in
this section are considered by the parties to be reasonable
and necessary to protect the legitimate business interests of
Employer, including protecting the Confidential Information
set forth in Section 5, above.
9. REMEDIES FOR BREACH OF SECTIONS 5 THROUGH 8
9.1 It is agreed between the parties that a breach of Sections 5
through 8 of this Agreement or any part of those Sections will
cause irreparable injury to Employer, not fully compensable by
damages in any section of the law, and that the rights and
remedies of Employer as set forth in this Agreement shall be
cumulative and not in the alternative.
It is expressly agreed that Employer may affirmatively
exercise its right to file an action in any court of competent
jurisdiction to remedy any breach of the restrictions in
Sections 5 through 8 of this Agreement. Remedies for damages
occurring prior to Employer's knowledge of a breach, until
actions in breach of the Agreement stop, and related in any
way to the effects of the breach, shall include, but not be
limited to, monetary damages, liquidated damages, attorney's
fees and other costs related to said actions. Remedies from
actions in breach of the Agreement occurring after Employee
has knowledge of the breach shall include, but not be limited
to, a temporary restraining order; a preliminary injunction
prior to trial; an permanent injunction for full relief;
attorney's fees; and other costs related to such actions.
If the employer brings an unsuccessful action against the
employee, the employer will be responsible for employee's
legal fees.
9.2 Employee acknowledges and agrees that any actions by him/her
in breach of Sections 5 through 8 of this Agreement could
cause Employer immediate and irreparable injury of such nature
and magnitude that a court of competent jurisdiction may
properly issue a temporary restraining order to enjoin such
actions without prior notice and ultimately a permanent
injunction to fully enjoin such actions consistent with the
entire scope of this Agreement.
10. DISCLOSURE OF AGREEMENT TERMS
Employee agrees to fully and completely reveal the terms of this
Agreement to any individual, entity, partnership, corporation, or
enterprise that provides
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computer consulting or programming services, in the event Employee
becomes an employee or consultant of such an entity. Employee
authorizes Employer to reveal the terms of this Agreement to any
future employer of Employee.
11. EMPLOYEE HAS NO CONFLICTING AGREEMENTS
Employee represents that, except as is written below, he/she has no
employment, confidentiality, non-disclosure or non-competition
agreements with or obligation to others, nor does Employee have any
agreements or obligations that might conflict with this Agreement.
12. JUDICIAL REVIEW
In the event that a court of competent jurisdiction determines that any
part of this Agreement is unenforceable by reason that it restricts
Employee too broadly as to future employment or as to information
he/she may divulge to third parties, the parties expressly agree that
this Agreement shall be interpreted and enforced by the court to the
extent that is reasonable by substituting reasonable terms for the
applicable provisions in this Agreement.
13. NO ESTOPPEL OR WAIVER
The parties agree that the legal doctrine of estoppel and waiver, based
on any alleged failure by Employer to enforce all or any part of a
similar Agreement with any other party, shall not be asserted by
Employee to avoid the requirements of this Agreement.
14. ENTIRE AGREEMENT AS TO OWNERSHIP OF INTELLECTUAL PROPERTY AND
PROTECTION OF CONFIDENTIAL INFORMATION
This Agreement supersedes and cancels all prior agreements concerning
ownership of intellectual property and protection of confidential
information, whether verbal or written, between Employer and Employee
and constitutes the entire agreement concerning ownership of
intellectual property and protection of confidential information.
Employee further acknowledges that neither Employer nor any other
person or entity has made any representation to him/her concerning
ownership of intellectual property and protection of confidential
information which has not been expressly stated in this Agreement.
There are no understandings or agreements with Employee concerning
ownership of intellectual property and protection of confidential
information which are not included in this document. Any agreement or
agreement supplemental Agreement concerning ownership of intellectual
property and protection of confidential information shall not be
binding upon either party unless executed in writing by the President
of Employer or his/her designated representative and Employee.
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15. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of
Employer, its successors and assigns and to Employee, his/her heirs,
assigns, executors, and personal representatives as it relates to
ownership of intellectual property and protection of confidential
information.
16. EMPLOYEE HANDBOOK
This Agreement does not modify Employer's Employee Handbook which
remains in full force and effect.
17. GOVERNING LAW
The validity, construction, interpretation and performance of this
Agreement will be governed by the laws of the State of Michigan.
IN WITNESS HEREOF, Employer and Employee have executed this Agreement as of the
date and year first written above.
EMPLOYEE COMPLETE BUSINESS SOLUTIONS, INC.
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Xxxxxxx Xxxxx Xxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx /s/ Xxx Xxxxxxxxx
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Signature Signature
6-19-00 Co-Chairman
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Date Title
6/15/00
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Date
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