EXHIBIT 10.42
DIVISION EXECUTIVE EMPLOYMENT AGREEMENT
THIS DIVISION EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
January 1, 1997 by and between XXXXXX XXXXXXXXX ("Executive"), and AMERICAN
BUILDING MAINTENANCE CO. OF NEW YORK ("Company").
WHEREAS, Company is engaged in the janitorial and related service businesses,
and
WHEREAS, Executive is experienced in the administration, operation and
marketing of such services, and
WHEREAS, Company has invested significant time and money to develop
proprietary trade secrets and other confidential business information, as
well as invaluable goodwill among its customers, sales prospects and
employees, and
WHEREAS, Executive desires to be employed by Company, and to utilize such
proprietary trade secrets, other confidential business information and
goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive
will utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be an Executive Vice President of the
Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the President of the Company or his designee
or successor to whom Executive shall report and be accountable. It is
understood and agreed that in as much as Executive shall receive only one
half (1/2) of his regular Salary for the months of January and February,
1997 that Executive shall only be expected to devote one half (1/2) of his
full-time duties to the Company during said two (2) month period.
D. TERM OF AGREEMENT: Employment hereunder shall commence on January 1, 1997
for a term of twenty two (22) months ("Term"), unless sooner terminated
pursuant to Paragraph O hereof. Notwithstanding anything to the contrary
contained in this Agreement, at the expiration of the Term, this Agreement
and Executive's employment shall continue on an "at-will" basis ("Extended
Term") meaning that during the Extended Term either party may terminate
this Agreement and Executive's employment, with or without cause at any
time, by giving the other party not less than thirty (30) days written
notice. During the Extended Term Paragraph M of this Agreement shall be
inapplicable and of no force and effect. Company has the option, without
terminating this Agreement or Executive's employment hereunder, of placing
Executive on a leave of absence at the full compensation set forth in
Paragraph F hereof for any or all of such thirty (30) day period in lieu of
the aforementioned notice.
E. PRINCIPAL OFFICE: During the Term, and Extended Term if any, of this
Agreement, Executive shall be based at a Company office located in
Metropolitan New York City ("County of Employment"), New York ("State of
Employment").
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F. COMPENSATION: Company agrees to compensate Executive, and Executive agrees
to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments no less frequently
than semi-monthly at the annual rates set forth in Paragraph X1
hereof.
2. FRINGE BENEFITS: The then current fringe benefits generally provided
by Company to all of its Executives. Such benefits may include but
not be limited to the use of a Company-leased car or a car allowance,
group health benefits, long-term disability benefits, group life
insurance, sick leave, vacation, and a service award plan. Each of
these fringe benefits is subject to the applicable Company policy at
all times. Company reserves the right to add, increase, reduce or
eliminate any fringe benefit at any time, but no such benefit or
benefits shall be reduced or eliminated as to Executive unless
generally reduced or eliminated as to comparable executives within the
Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay directly
or reimburse Executive for reasonable business expenses of Company incurred
by Executive in connection with Company business, and approved in writing
by the person with the title set forth in Paragraph C hereof, upon
presentation to that person by Executive within sixty (60) days after
incurring such expense of an itemized request for payment including the
date, nature, recipient, purpose and amount of each such expense,
accompanied by receipts for all such expenses in excess of Twenty-Five
Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this Agreement,
and with all lawful and ethical rules, regulations, policies, procedures
and instructions of Company, including but not limited to the following:
1. GOOD FAITH: Executive shall not act in any way contrary to the best
interest of Company.
2. BEST EFFORTS: During all full-time employment hereunder, Executive
shall devote full working time and attention to Company, and shall not
at any time be directly or indirectly employed by, own, operate,
assist or otherwise be involved, invested or associated in any
business that is similar or competitive to any business of Company;
except that Executive may own up to five (5%) per cent of any such
publicly-held business(es), provided that Executive: (a) shall give
Company notice(s) of such ownership in accordance with Paragraph W
hereof, and (b) shall not at any time be directly or indirectly
employed by or operate, assist, or otherwise be involved or associated
with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any employee,
supplier, contractor, customer or sales prospect of Company that are
unauthorized by Company or are in any way untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid driver's
license issued by the State of Employment hereunder and a driver's
permit issued by the Company whenever Executive is driving any motor
vehicle in connection with Company business. Executive agrees to
immediately notify Company in writing if Executive's driver's license
is lost, expired, restricted, suspended or revoked for any reason
whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any
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contract with a previous employer or with any other business that might
prevent Executive from entering into this Agreement or disclosing
information about any previous employer or any other business to Company,
or might otherwise interfere with Executive's employment hereunder; with
the exception that Executive acknowledges that his former employer, ISS,
Inc., allows that Executive is free to enter the employ of a competitor,
but contends that Executive continues to be bound, until June 27, 1997
under the provisions of a prior employment agreement which provides:
(i) that until such time, Executive shall not directly or indirectly
solicit any of the customers served by ISS, Inc., at the time of
Executive's termination of employment with ISS, Inc., nor solicit any
person to leave the employ of ISS, Inc., or any of its subsidiaries;
and
(ii) that Executive will not divulge any confidential information of ISS,
Inc.
Company and Executive agree that Executive shall not take any action while
employed by Company which would directly or indirectly violate either the
provisions of (i) or (ii) above.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include but shall not be limited to customer lists, financial statements,
cost data, price lists, invoices, forms, mailing lists, contracts, reports,
manuals, personnel files or directories, correspondence, business cards,
copies or notes made from Company documents and documents compiled or
prepared by Executive for Executive's use in connection with Company
business. Executive specifically acknowledges that all such documents are
the property of Company, notwithstanding their preparation, care, custody,
control or possession by Executive at any time(s) whatsoever.
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees, and
agrees that Company may disclose to Executive and Executive may
disclose to Company, proprietary trade secrets and other confidential
information not in the public domain ("Proprietary Information")
including but not limited to specific customer data such as: (a) the
identity of Company's customers and sales prospects, (b) the nature,
extent, frequency, methodology, cost, price and profit associated with
their services and products purchased from Company, (c) any
particular needs or preferences regarding their service or supply
requirements, (d) the names, office hours, telephone numbers and
street addresses of their purchasing agents or other buyers, (e) their
billing procedures, (f) their credit limits and payment practices and
(g) their organization structure.
2. Executive agrees that such Proprietary Information and Goodwill have
unique value to Company, are not generally known or readily available
to Company's competitors, and could only be developed by others after
investing significant time and money. Company would not make such
Proprietary Information and Goodwill available to Executive unless
Company is assured that all such Proprietary Information and Goodwill
will be held in trust and confidence by Executive. Executive hereby
acknowledges that to use this Proprietary Information and Goodwill
except for the benefit of Company would be improper and unfair to
Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if any,
of this Agreement, and thereafter for as long as it shall be enforceable:
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1. Except in the proper performance of this Agreement, Executive shall
not directly or indirectly solicit or otherwise encourage or arrange
for any employee to terminate employment with Company.
2. Except in the proper performance of this Agreement, Executive shall
not directly or indirectly disclose or deliver to any other person or
business, any Proprietary Information obtained directly or indirectly
by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or accept
the patronage of any customer or sales prospect of Company through the
direct or indirect use of any Proprietary Information of Company, or
by any other unfair or unlawful business practice.
4. Executive agrees that for a reasonable time after the termination of
this Agreement, which Executive and Company hereby agree to be one (1)
year, Executive shall not directly or indirectly, for Executive or for
any other person or business, seek, solicit, divert, take away, obtain
or accept any site-specific customer account or sales prospect of
Company with whom Executive had direct business involvement on behalf
of Company within the one (1) year period prior to termination of this
Agreement.
M. MODIFICATION OF EMPLOYMENT: At any time during the Term of this Agreement,
a majority of the Board of Directors of Company shall have the absolute
right, with or without cause and without terminating this Agreement or
Executive's employment hereunder, to modify the nature of Executive's
employment for the remainder of the Term of this Agreement, from that of a
full-time employee to that of a part-time employee ("Modification Period").
The Modification Period shall commence immediately upon Company giving
Executive written notice of such change.
1. Upon commencement of the Modification Period: (a) Executive shall
immediatelyresign as a full-time employee of Company and as an officer
or director of Company if applicable, (b) Executive shall promptly
return all Company property in Executive's possession to Company,
including but not limited to any motor vehicles, equipment, supplies
and documents set forth in Paragraph J hereof and (c) Company shall
pay Executive all previously earned and vested but as yet unpaid
salary, prorated bonus or other contingent compensation, reimbursement
of business expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to pay
Executive's monthly salary pursuant to Paragraph F1 hereof, and to the
extent available under the Company's group insurance policies,
continue to provide Executive with the same group health and life
insurance (subject to Executive continuing to pay the employee portion
of any such premium) to which Executive would be entitled as a
full-time employee, with the understanding and agreement that such
monthly salary and group insurance, if available, shall constitute the
full extent of Company's obligation to compensate Executive, (b)
Executive shall not be eligible or entitled to receive or participate
in any bonus or fringe benefits other than the aforementioned group
insurance, if available, (c) in the alternative, Executive may
exercise rights under COBRA to obtain medical insurance coverage as
may be available to Executive, (d) Executive shall be deemed a
part-time employee and not a full-time employee of Company, (e)
Executive shall provide Company with such occasional executive or
managerial services as reasonably requested by the person with the
title set forth in Paragraph C hereof, except that failure to render
such services by reason of any physical or mental illness or
disability other than Total Disability or death as set forth in
Paragraph O3 hereof, or unavailability because of absence from the
State of Employment hereunder, shall not affect Executive's right to
receive such salary and (f) Company shall pay directly or reimburse
Executive in accordance with the provisions of
INITIALS: EXECUTIVE COMPANY
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Paragraph G hereof for reasonable business expenses of Company
incurred by Executive in connection with such services requested by
the person with the title set forth in Paragraph C hereof.
3. The Modification Period shall continue until the earlier of: (a) Total
Disability or death as set forth in Paragraph O4 hereof, (b)
termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or receiving
any other compensation from operating, assisting or otherwise being
involved, invested or associated with any business that is similar to
or competitive with any business in which Company is engaged on the
commencement date of the Modification Period or (d) expiration of the
then current term of this Agreement.
N. INTENTIONALLY OMITTED
O. TERMINATION OF EMPLOYMENT:
1. Termination of employment which either party schedules for the
expiration of the Term or any Extended Term (pursuant to the notice
set forth in Paragraph D hereof) shall be effective with or without
cause for termination.
2. Except as provided in Paragraph O1 respecting termination, effective
with or without cause which is scheduled at the expiration of the Term
or Extended Term, at any time during the Term of this Agreement,
Company shall have the right to terminate Executive's employment
hereunder without notice subject only to a good faith determination by
a majority of the Board of Directors of Company of "just cause."
"Just cause" includes but is not limited to any theft or other
dishonesty, or any material: (a) neglect of employment duties, (b)
inability or unwillingness to perform employment duties, (c)
insubordination, (d) abuse of alcohol or other drugs, (e) breach of
this Agreement, (f) other material misconduct, unethical or unlawful
activity or (g) other conduct that is harmful to Company.
3. With or without cause, Executive may terminate employment hereunder by
giving Company ninety (90) days prior written notice.
4. Employment hereunder shall automatically terminate upon the total
disability ("Total Disability") or death of Executive. Total
Disability shall be deemed to occur on the ninetieth (90th)
consecutive or non-consecutive calendar day within any twelve (12)
month period that Executive is unable to perform the duties set forth
in Paragraph C hereof because of any physical or mental illness or
disability. Company shall pay to Executive or his estate, as
applicable, all prorated salary, bonus or other contingent
compensation, reimbursement of business expenses and fringe benefits
which would have otherwise been payable to Executive under this
Agreement, through the end of the month in which Total Disability or
death occurs.
5. Upon termination of employment hereunder, Executive shall immediately
resign as an employee of Company and as an officer or director of
Company, if applicable. Executive shall promptly return all Company
property in Executive's possession to Company, including but not
limited to, any motor vehicles, equipment, supplies and documents set
forth in Paragraph J hereof. Company shall pay Executive, when due,
all previously earned and vested but as yet unpaid salary, prorated
bonus or other contingent compensation, reimbursement of business
expenses and fringe benefits.
6. Nothing contained in this Agreement shall entitle Executive to receive
a bonus or other
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incentive or contingent compensation, if any are otherwise payable to
Executive, from Company based on any sales or profits made by Company
after termination of employment hereunder.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive relief
pursuant to Paragraph L hereof (which, at Company's option, shall be
subject to litigation in any court having proper jurisdiction), any
claim or dispute related to or arising from this Agreement (whether
based in contract or tort, in law or equity) including, but not
limited to, claims or disputes between Executive and Company or its
directors, officers, employees and agents regarding Executive's
employment or termination of employment hereunder, or any other
business of Company, shall be resolved by mandatory, final, binding
arbitration in accordance with the rules of the American Arbitration
Association; provided, however, that no party shall be entitled to an
award of general or punitive damages hereunder.
2. Any such arbitration must be requested in writing within one (1) year
from the date the party initiating the arbitration knew or should have
known about the claim or dispute, or all claims arising from that
dispute are forever waived. Any such arbitration (or court proceeding
as applicable hereunder) shall be held in the County of Employment.
Judgment upon the award rendered through such arbitration may be
entered and enforced in any court having proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened breach of Paragraph L hereof, the damage or imminent damage
to the value of Company's business shall be inestimable, and therefore
any remedy at law or in damages shall be inadequate. Accordingly, the
parties hereto agree that Company shall be entitled to the immediate
issuance of a restraining order or an injunction against Executive in
the event of such breach or threatened breach, in addition to any
other relief available to Company pursuant to this Agreement or under
law.
2. Executive agrees that the actual amount of damages resulting from any
breach of any of the provisions of Paragraph L hereof would be
impractical or impossible to ascertain. It is therefore agreed that
the damages resulting from any such breach which involves any customer
of Company shall be liquidated damages, not a penalty, in an amount
equal to four (4) times the lost monthly revenue to the Company based
on the average monthly revenue which was payable by that customer to
Company during the four (4) months immediately preceding the breach.
This provision for liquidated damages is in addition to any other
relief available to Company pursuant to this Agreement or under law.
3. To the full extent permitted under the laws of the State of Employment
hereunder, Executive authorizes Company to escrow from Executive's
compensation and from any other funds held for Executive's benefit by
Company, any damages or losses sustained by Company as a result of any
breach or other violation of this Agreement by Executive, pending
arbitration between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
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T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other provisions
of this Agreement. It is the intent of the parties that if any provision
of this Agreement is ruled to be overly broad, the arbitrator or court
shall interpret such provision with as much permissible breadth as is
allowable under law rather than to consider such provision void.
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the termination
of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who hereby agree to share the responsibility for any ambiguities,
uncertainties or inconsistencies herein. Paragraph headings are used
herein only for ease of reference, and shall not in any way affect the
interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and delivered in person, or sent prepaid
by certified mail, bonded messenger or overnight express, to the party
named at the address set forth below or at such other address as
either party may hereafter designate in writing to the other party:
EXECUTIVE: XXXXXX XXXXXXXXX
__________________________________
__________________________________
COMPANY: AMERICAN BUILDING MAINTENANCE CO. OF NEW YORK
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: President, American Building Maintenance Co. of
New York
COPY: ABM Industries Incorporated
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
2. Any such notice shall be assumed to have been received when delivered
in person, or forty-eight (48) hours after being sent in the manner
specified above.
X. SPECIAL PROVISIONS:
1. SALARY: Fourteen Thousand Five Hundred Eighty Four Dollars
($14,584.00) per month for January and February 1997; and Twenty Nine
Thousand One Hundred Sixty Seven Dollars ($29,167.00) per month for
the period March, 1997 through October, 1998.
2. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs
H, I, J, K, L, R and Y in this Agreement shall include Company, its
parent and subsidiary corporations.
3. CONSULTANCY: Upon Executive's resignation from employment with
Company,
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Company shall pay to Executive, commencing no earlier than Executive's
sixty-fifth (65th) birthday, consulting fees ("Consulting Fees") in
equal installments of One Thousand Dollars ($1,000.00) per month for a
period not to exceed one hundred twenty (120) months ("Consultancy").
Consulting Fees shall be earned by Executive, beginning January 1,
1997 on a pro-rata basis; that is, for each full year of employment
completed by Executive after January 1, 1997, Executive shall receive
Consulting Fees for twelve (12) months to the maximum of one hundred
twenty (120) months.
a. During the Consultancy: (1) Executive shall provide Company with
such occasional executive or managerial services as reasonably
requested by the person with the title set forth in Paragraph C
hereof, except that failure to render such services by reason of
death or disability or unavailability because of absence from the
County of Employment, shall not affect Executive's right to
receive such Consulting Fees, (2) Company shall pay directly or
reimburse Executive for reasonable business expenses of Company
incurred by Executive in connection with such services requested
by the person with the title set forth in Paragraph C hereof,
upon presentation to that person by Executive within sixty (60)
days after incurring such expense of an itemized request for
payment including the date, nature, recipient, purpose and amount
of each such expense, accompanied by receipts for all such
expenses in excess of Twenty-Five Dollars ($25) each, (3) Company
shall pay Executive's Consulting Fees pursuant to this Paragraph
X3, with the understanding and agreement that such Consulting
Fees shall constitute the full extent of Company's obligation to
compensate Executive for such consulting services except as
otherwise specifically provided in Paragraph X3 herein, (4)
Executive shall not be eligible or entitled to receive or
participate in any other Company fringe benefits, and (5)
Executive shall be deemed an independent contractor and not an
employee of Company.
b. If Executive dies before any or all payments to Executive of such
Consulting Fees, all unpaid Consulting Fees shall be paid monthly
to Executive's estate commencing with the month in which
Executive would have reached Executive's sixty-fifth (65th)
birthday.
4. OUTSIDE BOARDS OF DIRECTORS: Executive and Company agree that
Executive may remain on the boards of directors of the following
non-U.S. companies, on the following terms:
a. Service Management International A/S -- Executive's membership
and involvement not to continue past September 1, 1997;
b. Chartec Laboratories A/S -- Executive's membership and
involvement expected to last at least two (2) years;
x. Xxxxxx Group A/S -- Executive's membership and involvement
expected to last indefinitely;
d. Oracle/Denmark A/S and other companies' boards -- Executive's
membership and involvement are currently being terminated and
shall be discontinued by Executive as soon as possible but in no
event later than January 1, 1998;
e. Executive represents that his total involvement with the
aforementioned activities shall not exceed ten (10) days in
calendar year 1997. All such time taken shall be charged against
Executive's vacation benefit payable by Company (or shall be
unpaid leave in the event Executive lacks sufficient vacation
benefits); and all such
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activities shall be at Executive's sole cost and expense without
reimbursement or payment, in whole or in part, by Company.
Y. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and that no
evidence with respect to its terms and conditions other than this
Agreement itself may be introduced in any arbitration or judicial
proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
provisions of Company's Personnel Policy and Procedures Manual,
including but not limited to, the termination, discipline and
discharge provisions contained therein. Said Manual is not an
Agreement between Executive and Company, nor shall it be binding on
either party. The purpose and intent of said Manual are only to
suggest guidelines for Company managers to apply as they see fit on a
case by case basis.
Z. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and conditions
of this Agreement, and that they are voluntarily entering into this
Agreement with full knowledge of the benefits and burdens, and the risks
and rewards, contained herein.
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ Xxxxxx Xxxxxxxxx
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Date: November 3, 1996
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COMPANY: By: ABM Co. of New York
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Date: November 11, 1996
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Signature: /s/ Xxxx X. Xxxx
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Title: President
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