EXHIBIT 10.17
EMPLOYMENT AGREEMENT
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Employment Agreement dated as of December 1, 1997 by and between XXXXX X.
XXXX, residing at 000 Xxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000 ("Employee"), and
Command Systems Incorporated, a Delaware corporation with its principal office
at Pond View Corporate Center, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000
("Employer").
WITNESSETH:
WHEREAS, Employee has been employed by Employer; and
WHEREAS, Employee is desirous of continuing his employment with Employer;
and,
WHEREAS, Employer is desirous of having Employee remain with Employer; and
WHEREAS, Employer and Employee are desirous of setting out the terms and
conditions of said employment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, the parties hereto agree as follows:
1. PRIOR AGREEMENTS. Employer and Employee agree that this Employment
Agreement will supersede any prior Employment Agreement.
2. EMPLOYMENT. Employer hereby employs Employee for the services and
duties described in this Agreement and Employee hereby accepts the employment
upon the terms and conditions hereinafter set forth.
3. DUTIES. Employee shall perform his duties and functions under this
Agreement in a manner satisfactory to the Employer. Employee's duties hereunder
shall include, but not be limited to, performing duties on behalf of the parent
corporation (if any) of Employer and Employer's affiliates and subsidiaries.
Employee's primary function shall be that of a Vice President of Recruiting as
defined by Employer, which work shall include but not be limited to:
Manage Recruiting Functions for All Branch Locations;
Achieve Profit Goals to Ensure Continued Growth and Profitability;
Manage Recruiters;
Provide Forecasting for Staffing, Profit and Revenue; and,
Participate as Member of the Senior Management Team.
Employee shall devote his entire time, attention and energies to the performance
of his duties for Employer pursuant to this Employment Agreement and shall not
during the term of this Employment Agreement be engaged in any other business
activity, whether or not such business activity is pursued for gain, profit or
other pecuniary advantage, provided that the foregoing shall not prohibit
investment activities by Employee for his own benefit and account provided such
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investment activities by Employee shall not require any services on Employee's
part in any operations and shall not interfere with the duties to be performed
by Employee hereunder for Employer. Employee shall not engage in any activities
whatsoever which conflict with the objectives of Employer's business or its
affiliates and subsidiaries or any company Employer shall merge with.
4. TERM. This Employment Agreement shall not constitute an agreement by
the Employer to employ Employee for any specific period of time. Employee does
hereby agree that Employee shall be at all times an Employee at will and the
employment relationship may be terminated at any time by either Employee or
Employer. This Employment Agreement may also be terminated by either party for
cause at any time upon written notice. "Cause" shall be defined to mean (1) the
Employee's continued willful failure to substantially perform his duties with
the Company after a written demand for substantial performance is delivered to
him by the President or the Board, which demand specifically identifies the
manner in which the President or the Board believes that he has failed to
substantially perform his duties, (2) the Employee's conviction of a felony, (3)
the Employee's willful misconduct that is materially and demonstrably injurious
to the Company, or (4) the Employee's violation of Sections 14 and 15 hereof;
provided, however, that the Employee shall not be terminated for "Cause" unless
and until the President or the Board has given the Employee reasonable notice of
its intended actions and the alleged events or activities giving rise thereto
and with respect to those events or activities for which a cure is possible, a
reasonable opportunity to cure such breach, and there shall have been delivered
to him a written notice from the President or a copy of a resolution duly
adopted by the Board regarding such actions.
5. NOTICE OF TERMINATION. Any purported termination of the Employee's
employment by the Company or by him shall be communicated by a written notice
("Notice of Termination") that shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
6. DATE OF TERMINATION. "Date of Termination" shall mean if the
Employee's employment is terminated by the Company, the date specified in the
Notice of Termination.
7. SEVERANCE. In the event Employer shall terminate Employee's employment
without cause, then and in that event, Employee shall be entitled to receive six
month's salary less appropriate deductions for federal, state and city income
taxes, if any, FICA contributions and any other deductions required by law.
8. COMPENSATION. Employer shall pay to Employee, in consideration of the
services to be rendered hereunder, compensation in the form of an annual salary
to equal the rate of One Hundred Twenty Thousand Dollars and Zero Cents
($120,000.00) (less appropriate deductions for federal, state and city income
taxes, if any, FICA contributions and any other deductions required by law). In
the event of termination for any reason whatsoever, Employee forfeits all
commissions and/or bonuses as of the last day of payroll.
Employee acknowledges that the annual salary and the other terms that are
set out in this Employment Agreement is the consideration for Employee executing
the Non-Competition Agreement and Confidential Information
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Agreement, both set out as Articles 14 and 15 respectively.
9. VACATIONS. As set out in Employer's Employee Manual, a copy of which
Employee has received.
10. ILLNESS OR INCAPACITY. As set out in Employer's Employee Manual, a
copy of which Employee has received.
11. FRINGE BENEFITS. As set out in Employer's Employee Manual, a copy of
which Employee has received.
12. EXPENSES. Employer shall reimburse the Employee for all reasonable
travel other than by automobile, entertainment and other business expenses
incurred or paid by the Employee in performing his duties under this Agreement,
upon presentation by the Employee of expense statements or vouchers and such
other supporting information as Employer may from time to time request, provided
Employer shall have previously approved such expenditures. Employer agrees
Employee shall receive a car allowance as additional compensation in an amount
equal to Five Hundred Dollars and Zero Cents ($500.00) per month until same is
changed by the Company or Employee is no longer employed by Employer for
whatever the reason.
13. Employee shall also be reimbursed for expenses associated with
membership to Xxxxxx Xxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX for client golf outings.
Expenses must be documented according to current Expense Policy Reimbursement.
14. NON-COMPETITION. To induce Employer to enter into this Employment
Agreement, Employee covenants and agrees as follows:
A. For so long as Employee shall be employed by Employer pursuant to
this Employment Agreement or otherwise, and for a period of one (1) year after
the date on which Employee is no longer employed by Employer, Employee shall
not:
(i) solicit any Customers for the purchase of any services and/or
products which may be furnished or offered by the Employer or any
parent, subsidiary or affiliate of the Employer unless Employee is
involved in the Employer's "Right-to-Hire" program in which case
Employer's Customer has a "Right-to-Hire" and Employee has a right to
become an employee of the Employer's Customer under the terms and
conditions of the "Right-to-Hire" program;
(ii) employ or engage as an independent contractor, or enter into a
business relationship with any person who at such time is an officer
or employee of the Employer, or who then is a partner, principal or
employee of the Employer, or any parent, subsidiary or affiliate of
the Employer at any time during the term of this Agreement (any such
person herein referred to as a "Targeted Employee") or offer any
Targeted Employee such employment, engagement or relationship or,
during the term of this Agreement, advise, urge or counsel any other
person or legal entity to employ, engage as an independent contractor,
or enter into a business relationship with, any Targeted Employee;
(iii) compete with Employer within the State of Connecticut directly
or indirectly, whether as an officer, director, shareholder, partner,
independent contractor, agent or employee of any person or entity
which is engaged in a business similar to that of the Employer and
which relationship was created as a result of and/or during employment
with Employer; and,
(iv) enter into a business relationship of any nature with any
supplier of any products sold by the Employer or any parent,
subsidiary or affiliate of the Employer on or before the Effective
Date first written above, for the sale or distribution of any such
products or services sold or offered by the
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Employer, directly or indirectly, to any Customer.
B. Employee acknowledges (i) that his position with Employer will require
the performance of services which are special, unique, extraordinary and
intellectual in character and place him in a position of confidence and trust
with the Employer's Customers and Employer's employees and its affiliates, (ii)
that the goodwill of Employer will be generated among Employer's Customers,
potential customers and Employer's employees by Employee during the course of
services performed by him for Employer, (iii) that the covenants set forth above
are necessary in order to protect and maintain the goodwill to be generated by
Employee on behalf of Employer, and (iv) that Employer would not have entered
into this Employment Agreement nor given the Employee the renumeration set out
in Article 8 of this Agreement as consideration for Articles 15 and 16, unless
Employee agreed to the stated covenants.
C. Employee acknowledges that the covenants set forth herein are
reasonable as to time and scope and that the enforcement of the covenants set
forth above will not prevent him from earning a livelihood.
15. CONFIDENTIAL INFORMATION. To induce Employer to enter into this
Employment Agreement, Employee covenants and agrees to be bound by this Article.
Employee agrees that a breach of such Confidential Information shall constitute
a breach of this Employment Agreement.
Employee is being employed by the Employer and will be receiving wages or
salary, benefits and other compensation in connection therewith. In
consideration thereof and in recognition of the specialized, unique and highly
confidential aspects of the Employer's business to which Employee may be exposed
or in which Employee may participate during the course of his employment,
Employee is willing to undertake the obligations to be undertaken on his part as
hereinafter more fully set forth. The Employer is likewise willing to undertake
the obligations to be undertaken on its part as hereinafter more fully set
forth.
A. For all purposes of this Agreement, the following terms shall have the
meanings respectively set forth for them as follows:
(i) "Propriety Information" shall mean any and all sales data,
internal procedures, future strategies, plans, automation strategies,
organization, inventions, research, designs, products, processes,
formulae, know-how, customer lists, trade secrets and/or other non-
public information or data related, directly or indirectly, to the
business of the Employer or to the business of Employer's customers as
the same is carried on from time to time;
(ii) "Proprietary Rights" shall mean all computer systems, programs,
software and devices, including information in regards to the design,
methodology, techniques, and documentation thereof, all patents,
copyrights, rights of creators and/or similar rights and privileges,
whether domestic or foreign, statutory or at common law, filed or not
filed, perfected or unperfected, or otherwise, relating to any
Proprietary Information;
(iii) "Proprietary Proceeds" shall mean all proceeds and products of
any Proprietary Information and/or Proprietary Rights; and
(iv) "Proprietary Assets" shall mean Proprietary Information and/or
Proprietary Rights and/or Proprietary Proceeds, considered
collectively or separately.
B. Employee acknowledges that any and all Proprietary Assets wholly or
partially created, completed and/or developed by Employee, acting alone or
jointly with others at any time during Employee's employment with the Employer
or within a period of one year (1) following the termination of Employee's
employment with the Employer, shall be deemed to be and to have been at all
times, the sole and exclusive property of the Employer.
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C. Employee specifically agrees, confirms and acknowledges that (i) any
and all Proprietary Assets, however, whenever and from whomever acquired by the
Employer, are and shall at all times remain the sole and exclusive property of
the Employer, (ii) Employee shall not use, possess, disclose, transfer and/or
otherwise deal with any such Proprietary Assets at any time during his
employment other than specifically within the scope of his employment and in
furtherance of the business and affairs of the Employer and (iii) Employee shall
not use, possess, disclose, transfer and/or otherwise deal with any Proprietary
Assets at any time after the termination of his employment under any
circumstances whatsoever, provided that following termination of Employee's
employment, these restrictions shall not apply to such Proprietary Assets which
are then in the public domain (provided the Employee was not responsible,
directly or indirectly, for such Proprietary Assets entering the public domain)
without the written consent of the Employer.
D. Employee agrees that he shall not, throughout the term and/or within
the scope of his employment, use, possess, disclose, transfer and/or otherwise
deal with any information, rights, proceeds or other assets which are in the
nature of Proprietary Assets relating to the business or affairs of the Employer
for any purpose other than the business of the Employer.
E. Employee agrees that he, throughout the term of his employment with
the Employer and at any and all times following the termination thereof, execute
and deliver all such further instruments and documents, and do and perform all
such further acts and things, as may be necessary or helpful and/or as may be
reasonably requested by the Employer in furtherance of the purposes and intent
of this Agreement. By way of illustration and not by way of limitation of the
foregoing, Employee specifically agrees that he shall:
(i) immediately communicate and thoroughly describe to the Employer in
writing any and all such Proprietary Information;
(ii) promptly execute and deliver all such instruments or agreements
of assignment and/or transfer as the Employer may from time to time
request to carry out the purposes and intent of this Agreement.
(iii) assist the Employer, at such times and in such manner as the
Employer may request in connection with the Employer's efforts to
secure, apply for, renew or otherwise perfect Proprietary Rights with
respect to any and all Proprietary Assets; and
(iv) upon the termination of Employee's employment, immediately
deliver to the Employer any and all written, recorded or other
physical evidence of any and all Proprietary Assets in his possession
or under his control;
F. All Proprietary Information which is newly developed for, presented
to, or otherwise brought to the attention of the Company during Employee's
employment shall be the Proprietary Information of the Company. Any
compensation to be paid for the development or acquisition of such Proprietary
Information shall be at the sole discretion of the Company.
G. Employee represents and covenants that he is not presently and will
not hereafter become a party to any contract or agreement which contravenes any
of the terms, provisions, purposes or intent of this Agreement.
The parties hereto stipulate as their express mutual intention, in the
event that any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid and/or enforceable, that (a) such court reform the
offensive provision consistent with the balance of this Agreement but to the
least extent possible such that the offensive provision shall thereafter be
valid and enforceable, and (b) the balance of this Agreement be unaffected
thereby and continue in full force and effect.
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16. COSTS AND EXPENSES. In the event Employer shall incur or sustain any
costs or expenses including attorney's fees, in connection with or arising out
of any breach, threatened breach or otherwise to obtain the full and prompt
performance of this Employment Agreement by Employee, Employee shall pay such
costs or expenses on Employer's demand.
17. AMENDMENT AND MODIFICATION. This Employment Agreement contains the
entire agreement between the parties with respect to the subject matter hereof.
Subject to applicable law, this Employment Agreement may be amended, modified
and supplemented by written agreement of Employer and Employee with respect to
any of the terms contained herein.
18. WAIVER OF COMPLIANCE. Any failure of either party to comply with any
obligation, covenant, agreement or condition on its part contained herein may be
expressly waived in writing by the other party, but such waiver or failure to
insist upon strict compliance shall not operate as a waiver of any subsequent or
other failure. Whenever this Employment Agreement requires or permits consent
by or on behalf of any party, such consent shall be given in writing.
19. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, certified or registered mail
with postage prepaid, return receipt requested, courier service, express mail,
and properly addressed to the other party at the addresses hereinafter set
forth:
(a) if to Employer: Pond View Corporate Center
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxxxx & Associates, P.C.
00 Xxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esquire
(b) if to Employee: 000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
20. ASSIGNMENT. This Employment Agreement shall inure to the benefit of
Employee and Employer and be binding upon the successors and general assigns of
Employer and the heirs, executors and administrators of Employee. Except as
provided herein, this Employment Agreement shall not be assignable except by
Employer to an affiliate, subsidiary or company Employer is merged with. Any
assignment or delegation made by Employee shall be void ab initio.
21. If any of the provisions of this Agreement, or any part thereof, is
hereinafter construed to be invalid or unenforceable, the same shall not affect
the remainder of such provision or provisions, which shall be given in full
effect, without regard to the invalid portions. If any of the provisions of
this Agreement, or any part thereof, is held to be unenforceable because of the
duration of such provision or the type of conduct prohibited therein, the
parties agree that the court making such determination shall have the power to
modify the duration or other terms of such provision and, as so modified, said
provision shall then be enforceable. In the event that the courts of any one or
more jurisdictions shall hold such provisions wholly or partially unenforceable
by reason of the scope thereof or otherwise, it is the intention of the parties
hereto that such determination not bar or in any way affect the Company's right
to the relief provided for herein in the courts of any other jurisdictions as to
breaches or threatened breaches of such provisions in such other jurisdictions,
the above provisions as they relate to each jurisdiction being, for this
purpose, severable into diverse and independent covenants.
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22. Employee does hereby consent to the jurisdiction of the courts of the
State of Connecticut for any action arising out of or in connection with this
Agreement, and Employee does hereby agree that the Superior Court of the
Judicial District of Hartford/New Britain at Hartford shall be a proper venue
for any such action.
23. CONSTRUCTION. This Agreement shall be deemed as regards each
reference contained herein to "he", "him" or "his", to refer to "she", "her" or
"hers", as the context may require, and as regards each reference to the
singular to include the plural and vice versa, as the context may require.
24. SURVIVAL. Employee acknowledges and agrees that his/her undertakings
and agreements in this Agreement shall survive the termination of his/her
employment and shall continue and be binding upon his/her following such
termination.
25. ADDITIONAL PROVISIONS. (a) Employee acknowledges that the remedy at
law for any breach or threatened breach of the provision of this Agreement by
Employee will be inadequate, and that, accordingly, the Employer shall, in
addition to all other available remedies be entitled to injunctive relief,
without being required to post bond or other security and without having to
prove the inadequacy of the available remedies at law or in equity. Employee
agrees not to plead or defend on any grounds of adequate remedy at law or any
similar defense in any action by the Company against Employee for injunctive
relief or for specific performance of any Employee's obligations hereunder.
Nothing herein shall be construed prohibiting Company from pursuing any other
remedies for any breach or threatened breach hereof by Employee.
(b) In the event that any action, suit or other proceeding in law or in
equity is brought to enforce the provisions of this Agreement or to obtain money
damages for the breach thereof, and such action results in the award of a
judgment for money damages or in the granting of any other relief in favor of
the Employer, all expenses (including reasonable attorney's fees) of the Company
in such action, suit or other proceeding shall (on the demand of the Employer)
be paid by Employee. In the event the Employee is successful in defending said
action, then Employee shall be entitled to be reimbursed for all expenses
(including reasonable attorney's fees) in defending said action, suit or other
proceeding.
(c) Employee acknowledges that Employer or Employee on behalf of the
Employer, will commit Employee to various Customer assignments from time to time
and that these assignments require the Employee to complete certain projects
within certain time parameters. In the event of termination, for any reason
whatsoever, Employee agrees to use his best efforts to complete the assignment
or provide a reasonable transition period that will not jeopardize the
completion of the Customer's project.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and the year first written above.
COMMAND SYSTEMS INCORPORATED
/s/ Xxxxx Xxxxxxx 7/02/98
______________________________ _________
Date
/s/ Xxxxx X. Xxxx 7/02/98
______________________________ _________
Xxxxx X. Xxxx Date
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