EXECUTIVE VICE PRESIDENT EMPLOYMENT AGREEMENT
Exhibit
10.4
EXECUTIVE
VICE PRESIDENT
AGREEMENT
made as of this 30__th day of
January,
2007, by and between Accountabilities, Inc. (referred to herein
as “Employer” or “Company”) with a principal place of business at 000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 and Xxxx X. Xxxxxx
(herein “Employee”) residing at 0000 Xxxxxxxx Xxxx Xxx, Xxxxxx, Xxxxxxx
00000.
NOW,
THEREFORE, in consideration of the foregoing, and intending to be
legally bound, the parties mutually agree as follows:
1. Employment
Employer
agrees to employ Employee, and Employee hereby accepts such
employment. This Agreement shall commence on the date hereof and
shall remain in effect for an indefinite time or until terminated by either
party. The Employee shall serve as Chief Operating
Officer. The Employee will be responsible
for:
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Managing
and being accountable for both Sales and Operations to meet the expected
growth and profit/loss expectations of the Company. This
includes hiring and termination of staff within the operating
units.
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Developing
marketing and sales strategies within the Company to maximize
profitability of current and future operating
units.
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Interfacing
with client management and site management to achieve the overall
facility
performance objectives of major
clients.
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Interfacing
with Accountabilities’ corporate and divisional management on a regular
basis to report results, communicate concerns and develop continuing
strategies.
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Assessing
operating units for staffing and training
needs.
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Organizing
weekly meeting with Managers to review accounts and
reports.
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Selling
new and re-activated accounts.
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Troubleshooting
issues and/or concerns.
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Developing,
recommending and implementing policies and
procedures.
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Assisting
divisional management with development of yearly
budgets.
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Other
duties as assigned.
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Employee
may serve in such positions, undertake such duties and have such authority
as
the Company shall assign to the Employee in its sole and absolute
discretion. The Company has the right to change the nature, amount or
level of authority and responsibility assigned to the Employee at any time,
with
or without cause. The Company may also change the title or titles
assigned to the Employee at any time, with or without cause. The
Employee agrees to devote substantially all of his working time and efforts
to
the business and affairs of the Company. The Employee further agrees
that he
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shall
not
undertake any outside activities which create a conflict of interest with his
duties to the Company, or which, in the judgment of the Board of Directors
of
the Company, interfere with the performance of the Employee’s duties to the
Company.
2. Duty
of Loyalty
Employer
and Employee agree to give each other two weeks notice of their intent to
terminate this Agreement and their employment relationship. The
parties agree that this is an at-will relationship, which means that either
of
them can terminate the employment relationship at any time for any lawful
reason.
3. Employee
Warranties; Indemnification of Employer
Employee
warrants that he is free to enter into the terms of this Agreement and that
he
has no obligations inconsistent with unrestrained employment for
Employer. Employee further agrees that during this employment, he
shall devote his full time and attention to the business of the
Employer. Employee shall not prepare for, undertake or discuss with
other employees of Employer any business or professional employment of any
kind
which is competitive with Employer. Employer acknowledges that, in
the event that any prior employer or other third party makes a claim against
Employer based on Employee entering into this Agreement or becoming employed
by
Employer, Employee shall defend, indemnify and hold Employer harmless from
any
and all such claims, or losses actually incurred by Employer, or Employer’s
officers, employees or authorized agents, relative to Employee’s employment by
Employer. Employee shall also be responsible for any and all legal
fees and other expenses incurred by Employer as a result of defending any such
claims. This provision shall also apply to any and all individuals
that Employee personally may recruit to work for or on behalf of
Employer.
4. Compensation
and Benefits
Salary
and Bonuses. The employee’s base salary shall be $230,000 per
annum. His bonus shall be a minimum of $25,000 or 2% of the companies
EBITA whichever amount is greater, payable twelve months after signing this
agreement.
Stock
Compensation. The Executive shall be granted 500,000 options to
purchase stock in the Company at $.005 per share. These shares will
vest at a rate of 100,000 per year. If the employee is terminated
without cause or terminates his own employment from the firm he may only
purchase the shares that have vested. If the majority of the Company
is sold, then all shares will immediately become vested to
employee.
Expenses. The
employee will be reimbursed for all reasonable and customary expenses incurred
by the employee performing services for the company. (i.e. employee cell phone,
tolls, parking etc.) In addition, the company will pay employee an
$800 per month automobile allowance.
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Health
Benefits. The company will pay the full premium amount for the Employee and
his family for medical dental and other future insurances selected by the
employee.
401K. The
employee will participate in the company 401k program and if a company matching
program is created he will participate in that as well.
Vacation The
Employee will be entitled to 4 weeks paid vacation per year.
5. Confidentiality
and Trade Secrets
Employee
acknowledges that the manuals, methods, forms, techniques and systems which
Employer owns, plans or develops, whether for its own use or for use by or
with
its clients, are confidential trade secrets and are the property of
Employer.
Employee
further acknowledges that he will obtain access to confidential information
concerning Employer’s clients, including their business affairs, special needs,
preferred methods of doing business, methods of operation, key contact personnel
and other data, all of which provides Employer with a competitive advantage
and
none of which is readily available except to employees of Employer.
Employee
further acknowledges that he will obtain access to the names, addresses,
telephone numbers, qualifications, education, accomplishments, experience,
availability, resumes and other data regarding persons who have applied or
been
recruited for temporary or permanent employment by Employer, as well as job
order specifications and the particular characteristics and requirements of
persons generally hired by a client, specific job listings, mailing lists,
computer runoffs, financial and other information, all of which provides
Employer with a competitive advantage and none of which is readily available
except to employees of Employer.
Employee
agrees that all of the foregoing information regarding Employer’s methods,
clients and employees constitutes valuable and proprietary trade secrets and
confidential information of Employer (hereafter “Confidential
Information”).
6. Termination
Clauses and Non-Competition
If
the
Employee is terminated for non- cause he is entitled to 3 months severance
pay
from the effective date of the termination. If the employee
terminates his own employment with a written two week notice he is not entitled
to the severance mentioned above.
Employee
agrees that in the event of termination of employment for any reason whatsoever,
he shall not, for a period of (12) months from the date of such termination
(such period not to include any period(s) of violation or period(s) of time
required for litigation to enforce the covenants herein) either directly or
indirectly, on his own account
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or
as
agent, stockholder, employer, employee or otherwise in conjunction with any
other person or entity. Employee further agrees that regardless of geographic
location, he will not, during said time period, service any customers the
Employer has done any business with during the preceding (12)
months.
Employer
acknowledges that doing so in any manner would interfere with, diminish and
otherwise jeopardize and damage the business and goodwill of the
Employer.
7. Non-Disclosure
Agreement
Employee
agrees that except as directed by Employer, the Employee will not at any time,
whether during or after his employment with the Employer, use for any reason
or
disclose to any person any of the Employer’s Confidential Information or permit
any person to examine and/or make copies of any documents which may contain
or
are derived from Confidential Information, whether prepared by the Employee
or
otherwise, without the prior written permission of Employer.
Employee
agrees that during his employment with Employer and/or the (12) months after
such employment ends, he will not, directly or indirectly, contact, solicit,
divert, take away or attempt to contact, solicit, divert or take away any staff
employee, temporary personnel, customer, account, business or goodwill from
Employer, either for Employee’s own benefit some other person or entity, and
will not aid or assist any other person or entity to engage in any such
activities.
8. Return
of Records and Papers
Upon
the
termination of his employment with Employer for any reason whatsoever, Employee
agrees to return to an officer of Employer all manuals, records, documents,
files and papers pertaining to Employer’s business, methods, clients, employees
or operations. In the event Employee fails to do so, or in the event
Employee shall violate any covenant of this Agreement, Employee agrees to and
does waive and forfeit all claims to unpaid compensation, commissions or
severance pay, without affecting the right of Employer to compel the return
of
said records and papers or Employer’s right to enforce any covenant of this
Agreement.
Employee
agrees that Employee has no proprietary interest in any documents or work
product developed or used by Employee which in any way arises out of his
employment by Employer. Employee shall from time to time, as
requested by Employer, do all things, which may be necessary to establish or
document Employer’s ownership of any such, work product, including, but not
limited to, execution of appropriate copyright applications or
assignments.
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9. Injunctive
Relief
Employee
recognizes that irreparable damage will result to Employer in the event he
violates any covenant contained herein, and agrees that in the event of such
violation Employer shall be entitled, in addition to its other legal or
equitable remedies and damages, to temporary and permanent injunctive relief
to
restrain such violation(s) by Employee, without the need to post any injunction
bond.
10. Liquidated
Damages
Employee
recognizes and acknowledges that it would be difficult to ascertain the damages
arising from a violation by him of the covenants herein
contained. Accordingly, Employee agrees that such damages will be
fixed at an amount equal to the gross profit, or twenty-five percent (25%)
of
the gross sales, whichever is greater, resulting from business directly or
indirectly generated by Employee for his own benefit or as agent, stockholder,
employer, officer, employee or otherwise in conjunction with any other person
or
entity through soliciting or doing business with clients or personnel of
Employer during the (12) month period following the termination of Employee’s
employment with Employer.
11. Legal
Fees
Employee
agrees that Employer is entitled to recover from him the cost of all reasonable
legal fees and expenses incurred in enforcing the covenants contained
herein. The parties agree to waive trial by jury in the event of any
dispute or controversy between them.
12. Interpretation
of Agreement
Any
provision or clause hereof which may be invalidated as prohibited by law shall
be ineffective to the extent of such illegality; however, this shall in no
way
affect the remaining provisions of this Agreement, and this Agreement shall
be
interpreted as if such clause or provision were not contained
herein.
13. Assignment
Employer
may assign this Agreement and Employer’s rights hereunder, to a successor or to
an affiliated company with written approval from Employees Legal
Counsel.
14. Understanding
of Parties
This
Agreement represents the entire Agreement between the parties and supersedes
any
and all prior agreements or understandings, oral or written, between Employee
and Employer pertaining to the subject matter covered by this
Agreement. This Agreement shall not be changed or terminated orally
or in writing, and no alleged
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change,
termination or attempted waiver of any of the provisions hereof shall be binding
on Employer. Employee agrees that this Agreement shall remain in full
force and effect notwithstanding any changes in job title, job assignment,
position or salary. Employee acknowledges that the covenants and
conditions of this Agreement are reasonable and necessary for the protection
of
Employer’s business, and that Employee will be able to work and earn a living in
the staffing industry even if this Agreement is fully enforced against
him.
15. Miscellaneous
A. All
references to he, his or other masculine derivatives in this Agreement shall
include she, hers and other feminine derivatives as appropriate.
B. Employee
agrees and acknowledges that a violation of paragraphs 3 or 5 through 9 hereof,
will be deemed to constitute gross misconduct within the meaning of the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) and, therefore, will
result in Employee’s ineligibility for continued coverage or medical benefits
through Employer’s group plans.
C. This
Agreement shall be interpreted and construed according to the laws of the State
of New Jersey. In the event of an action by either party alleging a
violation of this Agreement, the parties hereto agree to service of process
by
mail, submit to the jurisdiction of the state courts in New Jersey, waive any
claim that the forum is inconvenient and waive trial by jury.
D. The
waiver by Employer of a breach of any provision of this Agreement by Employee
shall not operate or be construed as a waiver of any continuing or subsequent
breach by Employee or as a waiver by Employer of any past, present or future
right granted under this Agreement.
E. Employee
agrees that he will advise any prospective employer of the covenants and
restrictions of this Agreement before accepting any offer from another
employer.
F. By
signing below, Employee acknowledges receiving a copy of this
Agreement. Employee acknowledges and agrees that he was not coerced
into executing this Agreement and that he had an opportunity to consult with
an
attorney of his choice to obtain advice and counseling relating to the terms
of
this Agreement in advance of executing this Agreement. Employee has
executed this Agreement of his own free will.
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IN
WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the date first above written.
EMPLOYER:
ACCOUNTABILITIES,
INC.
By: /s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx, President
EMPLOYEE:
/s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx
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