EMPLOYMENT AGREEMENT
Exhibit 10.2
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BETWEEN
AND
XXXXXXX XXXXXXXX
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EMPLOYMENT AGREEMENT
This
Employment Agreement (this “Agreement”), dated as of July 1,
2018, (the “Effective
Date”), by and between Command Center, Inc., a
Washington corporation (the “Company”), and Xxxxxxx Xxxxxxxx,
an individual (“Executive”).
WHEREAS, the Company desires to employ
Executive as its Executive Vice President and General Counsel,
and
WHEREAS, in connection therewith, the
Company and Executive desire to enter into this
Agreement.
PART ONE – DEFINITIONS
Definitions. For purposes of this
Agreement, the following definitions will be in
effect:
“Affiliates” means all persons and
entities directly or indirectly controlling, controlled by or under
common control with the entity specified, where control may be by
management authority, contract or equity interest.
“Board” means the Board of
Directors of the Company or the Compensation Committee thereof (or
any other committee subsequently granted authority by the Board),
subject to Section 12 below.
“Change of Control” means a change
in the ownership or control of the Company effected through any of
the following transactions: (i) a sale, merger, consolidation or
reorganization approved by the Company’s stockholders, unless
securities representing more than fifty percent (50%) of the total
combined voting power of the voting securities of the successor
corporation are immediately thereafter beneficially owned, directly
or indirectly and in substantially the same proportion, by the
persons who beneficially owned the Company’s outstanding
voting securities immediately prior to such transaction, (ii) any
stockholder-approved sale, transfer or other disposition of all or
substantially all of the Company’s assets, (iii) the
acquisition, directly or indirectly, by any person or related group
of persons (other than the Company or a person that directly or
indirectly controls, is controlled by or is under common control
with, the Company) of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”))
of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities
pursuant to a tender or exchange offer made directly to the
Company’s stockholders; or (iv) a change in the composition
of the Board over a period of thirty-six (36) consecutive months or
less such that a majority of the Board members ceases, by reason of
one or more contested elections for Board membership, to be
comprised of individuals who either (A) have been Board members
continuously since the
beginning of such period or (B) have been elected or nominated for
election as Board members during such period by at least a majority
of the Board members described in clause (A) who were still in
office at the time the Board approved such election or nomination.
Notwithstanding the foregoing, however, in any circumstance or
transaction in which compensation payable pursuant to this
Agreement would be subject to the tax under Section 409A of the
Code if the foregoing definition of “Change of Control”
were to apply, but would not be so subject if the term
“Change of Control” were defined herein to mean a
“change in control event” within the meaning of
Treasury Regulation § 1.409A-3(i)(5), then “Change of
Control” means, but only to the extent necessary to prevent
such compensation from becoming subject to the tax under Section
409A of the Code, a transaction or circumstance that satisfies the
requirements of both (1) a Change of Control under one of the
applicable clauses (i) through (iv) above, and (2) a “change
in control event” within the meaning of Treasury Regulation
Section § 1.409A-3(i)(5).
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“Code” means the Internal Revenue
Code of 1986, as amended from time to time, and the Treasury
regulations and administrative guidance promulgated
thereunder.
“Company” means, unless the context
otherwise requires, Command Center, Inc., a Washington corporation,
and all of its subsidiaries.
“Compensation Committee” means the
Compensation Committee of the Board, or in the absence of the
Compensation Committee, the Executive Committee of the
Board.
“Employment Period” means the
initial Term beginning on the Effective Date and all subsequent
Terms.
“Good Reason” shall mean the
occurrence of any of the following without Executive’s
consent: (i) a material reduction of Executive’s duties or
responsibilities, relative to Executive’s duties or
responsibilities as in effect immediately prior to such reduction;
(ii) a reduction of more than ten percent (10%) in
Executive’s Base Salary as in effect immediately prior to
such reduction; (iii) a reduction of more than ten percent (10%) by
the Company in the kind or level of employee benefits, including
bonuses, for which Executive was eligible (although amounts
actually earned will vary) immediately prior to such reduction,
with the result that Executive’s overall benefits package is
materially reduced, excluding any equity component thereof; (iv)
the relocation of Executive to a facility or a location more than
twenty-five (25) miles from the Company’s present location in
Lakewood, Colorado. A termination of employment by Executive shall
not be deemed to be for Good Reason unless (A) Executive gives the
Company written notice describing the event or events which are the
basis for such termination within 60 days after the event or events
occur, (B) such grounds for termination (if susceptible to
correction) are not corrected by the Company within 30 days of the
Company’s receipt of such notice (the “Correction Period”), and (C)
Executive terminates Executive’s employment no later than 30
days following the Correction Period.
“Termination for Cause” shall mean
the Company’s termination of Executive’s employment for
any of the following reasons: (i) Executive’s commission of
any act of fraud, embezzlement or dishonesty; (ii) the arrest or
conviction of Executive, or the entry of a plea of nolo contendere
by Executive, for a felony; (iii) Executive’s unauthorized
use or disclosure of any confidential information or trade secrets
of the Company; (iv) the disclosing or using of any material
Confidential Information (as hereinafter defined) of Company at any
time by Executive, except as required in connection with his duties
to Company; (v) Executive’s violation of a published Company
policy which stipulates the Executive may be terminated by the
Company for cause; or (vi) Executive’s continued failure, in
the reasonable good faith determination of the Board, to perform
the major duties, functions and responsibilities of
Executive’s position after written notice from the Company
identifying the deficiencies in Executive’s performance and a
reasonable cure period of not less than thirty (30)
days.
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PART TWO - TERMS AND CONDITIONS OF EMPLOYMENT
The
following terms and conditions will govern Executive’s
employment with the Company throughout the Employment Period (as
set forth below) and will also, to the extent expressly indicated
below, remain in effect following Executive’s cessation of
employment with the Company. This Agreement supersedes and replaces
any previous agreement implied, written or otherwise.
1. Employment
and Duties. During the Employment Period, Executive will
serve as the Executive Vice president and General Counsel of
Command Center, Inc., and will report to the Chief Executive
Officer. Executive will have such duties and responsibilities as
are commensurate with such position and such other duties and
responsibilities commensurate with such positions (including with
the Company’s subsidiaries) as are from time to time assigned
to Executive by the Chief Executive Officer. During the Employment
Period, Executive will devote his full business time, energy and
skill to the performance of his duties and responsibilities
hereunder, provided the foregoing will not prevent Executive from,
(a) serving as a non-executive director on the board of directors
of non-profit organizations and other companies following
authorization by Company’s Board of Directors, (b)
participating in charitable, civic, educational, professional,
community or industry affairs, (c) managing his and his
family’s personal investments, including in an advisory
capacity related to current or potential investments, or (d) such
other activities approved by the Board from time to time; provided,
that such activities individually or in the aggregate do not
interfere or conflict with Executive’s duties and
responsibilities hereunder, violate applicable law, or create a
potential business or fiduciary conflict.
2. Term.
The initial term of this Agreement shall run for a period of 1-year
from the Effective Date (such period, the “Term”), and may be terminated
earlier as contemplated by Section 5. Termination of this Agreement
due to its non-renewal shall not constitute a Termination for Cause
or a resignation by Executive for Good Reason. In the event of a
Change of Control, the Agreement shall automatically renew for a
new 1-year Term on the effective date of the Change of Control
ending on the anniversary of the Change of Control.
3.
Compensation; Additional Incentives.
A.
Base Salary. Executive’s
base salary (the “Base
Salary”) will be paid at the rate of $200,000 annually
during the Term. Executive’s Base Salary may be increased by
the Compensation Committee and/or Board in their sole discretion
but shall not be decreased without Executive’s consent.
Executive’s Base Salary will be paid at periodic intervals in
accordance with the Company’s normal payroll practices for
salaried employees.
B.
Performance Bonus
Opportunities.
a. During the
initial Term, Executive will be eligible for a Performance Bonus
tied to the Company’s earnings (the “Earnings Bonus”). The
Company’s Executive Team will share 15% of the
Company’s fiscal year Adjusted EBITDA for 2018 that exceeds
$3.0 million (the “Earnings
Bonus Pool”). The Company will calculate the
performance under this metric as it has traditionally done for
other executives. Executive will receive 25% of the 2018 Earnings
Bonus Pool as his Earnings Bonus. If Executive is not employed by
the Company at the time the results are calculated for payment of
the Earnings Bonus, and provided Executive’s employment was
not terminated pursuant to Paragraph 5.C., he will be paid a
pro-rated amount based on the last date of his employment. Unless
otherwise set forth in this Agreement, payments pursuant to this
paragraph will be made no later than 15 days following the
completion of the Company’s audited financial results and
filing of the Company’s annual report for fiscal year 2018
within the time extension period.
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b. Executive will
be eligible for a Performance Bonus tied to a potential Change of
Control of the Company. If such Change of Control occurs during the
Employment Period or within six months following the Employment
Period, Executive will receive a lump sum payment of $50,000,
payable within 15 days of the Change of Control.
c.
Additionally, in the event of a Change of Control of the
Company, Executive will receive $25,000 on the earlier of (i) 90
days following the Change of Control, (ii) 15 days following
Executive’s severance, provided such severance is not
pursuant to Section 5.C., or (iii) 15 days following the
Company’s filing of its Form 10-K. This payment amount will
offset by an equal amount any payment amount owed as and for the
Earnings Bonus for 2018.
d. Notwithstanding
anything herein, taking into consideration the payments set forth
in 3.B.c. (i) and (ii), and provided Executive’s employment
has not previously been terminated pursuant to Section 5.C., then
in the event of a Change in Control, Executive will also be paid
any amount above $25,000 that is owed as the result of the Earnings
Bonus set forth in 3.B.a. This amount, if any, will be paid within
15 days following the Company’s filing of its Form
10-K.
C.
The Company may deduct
and withhold, from the compensation payable and benefits provided
to Executive hereunder, any and all applicable federal, state,
local and other taxes and any other amounts required to be deducted
or withheld by the Company under applicable statute or
regulation.
D.
To the extent that any
compensation paid or payable pursuant to this Agreement is
considered “incentive-based compensation” within the
meaning and subject to the requirements of Section 10D of the
Exchange Act, such compensation shall be subject to potential
forfeiture or recovery by the Company in accordance with any
compensation recovery policy adopted by the Board or any committee
thereof in response to the requirements of Section 10D of the
Exchange Act and any implementing rules and regulations thereunder
adopted by the Securities and Exchange Commission or any national
securities exchange on which the Company’s common stock is
then listed. This Agreement may be unilaterally amended by the
Company to comply with any such compensation recovery
policy.
E. For
each fiscal year beyond 2018, the Board will develop, with
Executive’s and management’s input, an executive bonus
plan that will afford Executive with bonus opportunities in
addition to Executive’s Base Salary.
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4.
Expense
Reimbursement; Fringe Benefits; Paid Time Off (PTO).
A.
Executive will be
entitled to reimbursement from the Company for customary, ordinary
and necessary business expenses incurred by Executive in the
performance of Executive’s duties hereunder, provided that
Executive’s entitlement to such reimbursements shall be
conditioned upon Executive’s provision to the Company of
vouchers, receipts and other substantiation of such expenses in
accordance with Company policies.
B.
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.
During the Employment
Period, Executive will be eligible to participate in any group life
insurance plan, group medical and/or dental insurance plan,
accidental death and dismemberment plan, short-term disability
program and other employee benefit plans, including profit sharing
plans, cafeteria benefit programs and stock purchase and option
plans, which are made available to executives of the Company and
for which Executive qualifies under the terms of such plan or
plans.
D.
Executive shall be
entitled to three weeks paid vacation each year and paid or sick
time off (PTO) in accordance with the Company’s policies as
in effect from time to time.
5.
Termination
of Employment.
A.
General. Subject to Section
5.C., Executive’s employment with the Company is
“at-will” and may be terminated at any time by either
Executive or the Company for any reason (or no reason) in
accordance with this Agreement, which will also result in the Term
ending, by the party seeking to terminate Executive’s
employment providing 45-days written notice of such termination to
the other party.
B.
Death or Permanent Disability.
Upon termination of Executive’s employment with the Company
due to death or permanent disability during the Term, the
employment relationship created pursuant to this Agreement will
immediately terminate, the Term will end, and amounts will only be
payable under this Agreement as specified in this Section 5.B.
Should Executive’s employment with the Company terminate by
reason of Executive’s death or permanent disability during
the Employment Period, Executive, or Executive’s estate or
personal representative, will continue to receive Executive’s
Base Salary during the six-month period following the date of
termination or of determination of permanent disability. Executive
or Executive’s estate or personal representative, will also
remain eligible to receive any limited death, disability, and/or
income continuation benefits provided under Section 4.C., if any,
and will be payable in accordance with the terms of the plans
pursuant to which such limited death or disability benefits are
provided
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For
purposes of this Agreement, Executive will be deemed
“permanently disabled” if Executive is so characterized
pursuant to the terms of the Company’s disability policies or
programs applicable to Executive from time to time, or if no such
policy is applicable, if the Compensation Committee determines, in
its sole discretion, that Executive is unable to perform the
essential functions of Executive’s duties for physical or
mental reasons for ninety (90) days in any twelve-month
period.
C.
Termination for Cause; Resignation
without Good Reason. The Company may at any time during the
Employment Period, upon written notice summarizing with reasonable
specificity the basis for the Termination for Cause, terminate
Executive’s employment hereunder for any act qualifying as a
Termination for Cause. Such termination will be effective
immediately upon such notice. Upon any Termination for Cause (or
employee’s resignation other than for Good Reason), Executive
shall be solely entitled to receive:
a. The unpaid Base
Salary and Bonuses earned by Executive pursuant to Section 3 for
services rendered through the date of termination, payable in
accordance with the Company’s normal payroll practices for
terminated salaried employees;
b. Reimbursement of
all expenses for which Executive is entitled to be reimbursed
pursuant to Section 4, payable in accordance with the
Company’s normal reimbursement practices; and
c. The right to
continue health care benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended, at Executive’s cost,
to the extent required and available by law and subject to the
Company continuing to maintain a group health plan.
D.
Involuntary Termination Without Cause
by the Company; Resignation by Executive for Good Reason.
Pursuant to the notice period in Section 5.A., the Company shall be
entitled to terminate Executive and Executive shall be entitled to
resign with or without Good Reason; provided, however, that if
Executive (1) is terminated without Cause, or (2) resigns for Good
Reason, then Executive shall be solely entitled to
receive:
a. His Base Salary
through the end of the Term or for six months, whichever period is
longer; and
b. The immediate
vesting of all Options and all other awards held by Executive under
any equity incentive plan that may be adopted by the Board, except
and only to the extent that (i) any agreement with respect to an
award specifically provides otherwise and (ii) such vesting would
not result in the imposition of the additional tax under Section
409A of the Code.
c. Pro-rated
payment of the Earnings Bonus as set forth in Section 3.B.a., which
amount will be paid 15-days following the Company’s filing of
its Form 10-K.
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d. For purposes of
clarity, a termination of Executive’s employment due to
Executive’s death or to Executive’s permanent
disability shall not be considered either a termination by the
Company without cause or a resignation by Executive for Good
Reason, and such termination shall not entitle Executive (or his
heirs or representatives) to any compensation or benefits pursuant
to this Section 5.D.
E.
Termination by Non-Renewal. In
the event the company fails to renew Executive’s employment
before the expiration of this Agreement (“Non-Renewal”), Executive shall be
entitled to receive only:
a. The
unpaid Base Salary and vacation earned by Executive pursuant to
Sections 3 and 4 for services rendered through the date of
termination, payable in accordance with the Company’s normal
payroll practices for terminated salaried employees;
b. Full
payment of the Performance Bonus tied to a potential Change of
Control of the Company (Paragraph 3.B.b.) if such sale occurs
during the Term or within six months following the
Term.
c.
Pro-rated payment of the Earnings Bonus as set forth in Section
3.B.a., which amount will be paid 15-days following the
Company’s filing of its Form 10-K.
F.
Involuntary Termination
Without Cause by the Company following a Change of Control.
In the event Executive’s employment is terminated without
cause within 12-months following a Change of Control or there is a
failure or refusal of a surviving or successor entity to assume all
of the obligations of this Agreement or to offer a bona fide offer
of continued employment with a surviving or successor entity, with
compensation, benefits, and terms at least equal to those set forth
in this Agreement, Executive will continue to receive his Base
Salary for the greater of 6-months or the time remaining in the
current Term. In addition, any issued but then unvested stock
options will automatically become vested stock options for
Executive as of the end of Executive’s
employment.
G. Resignation
by Executive following a Change of Control. In the event of
Change of Control and if Executive refuses (for any reason) a bona
fide offer of continued employment with a surviving or successor
entity, with position, compensation, benefits, and terms at least
equal to those set forth in this Agreement, Executive will continue
to receive his Base Salary for three months after Executive’s
employment ends.
H. Resignations
from Other Positions. Upon any termination of
Executive’s employment, and as a condition to Executive
receiving any Severance Benefits under this Agreement, if so
requested by a majority of the Board, Executive will immediately
resign (1) as a director of the Company and any of its
subsidiaries, (2) from all officer or other positions of the
Company and (3) from all fiduciary positions (including as trustee)
Executive then holds with respect to any employee benefit plans or
trusts established, maintained or sponsored by the Company or by
any of its Affiliates. Failure by Executive to resign immediately
from all positions described in the immediately preceding sentence
shall result in automatic forfeiture of any and all rights to the
Severance Benefits.
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I. Options
Upon Termination. Except as otherwise provided in Section 7,
upon termination of Executive’s employment for any reason and
subject to the terms of the Company’s Stock Plan, as it may
be amended from time to time, including by reason of
Executive’s death or permanent disability, any portion of any
options held by the Executive that are not then vested will
immediately be forfeited and expire for no consideration and the
remainder of such options will remain exercisable for twelve months
thereafter (the “Final Exercise Date”) with the
understanding that any options that are intended to be
“incentive stock options” under the Code shall
thereupon be disqualified from such treatment; provided, that any
portion of the options held by Executive immediately prior to
Executive’s death, to the extent then exercisable, will
remain exercisable for one year following Executive’s death;
and provided, further, that in no event shall any portion of the
options be exercisable after the Final Exercise Date.
J.
Release.
Notwithstanding anything contained herein, Executive’s right
to receive (or retain) the payments and benefits set forth in
Sections 5.B, 5.D., or 5.E., as applicable, other than pay or
benefits legally obligated to be paid or provided by the Company
through the date of termination, is conditioned on and subject to
Executive’s execution within twenty-one (21) days (or, to the
extent required by applicable law, forty-five (45) days) following
the termination date and non-revocation within seven (7) days
thereafter of a general release of claims in a form substantially
similar in non-monetary terms to the historical release used by the
company.
6.
Non-Solicitation
Competition and Confidential Information.
A.
Non-Solicitation. During the
period Executive is receiving severance or other ongoing payments
from Company, or one year from Executive’s termination,
whichever is longer, for any cause or without cause, so long the
Company continues to carry on the same business, Executive agrees
to not, for any reason whatsoever, directly or indirectly, on
behalf of Executive or on behalf of, or in conjunction with, any
other person(s), company, partnership, corporation or business
entity, call upon, divert, influence, solicit, service or attempt
to call, divert, influence, solicit or service any customers or
potential customers (prospects) of the Company with whom Executive
had direct or indirect contact or whom you had responsibility
during Executive’s tenure with the Company. Additionally, for
a period of one year following the termination of the Term, for any
cause or without cause, Executive will not, for any reason
whatsoever, directly or indirectly, on behalf of Executive or on
behalf of any other person(s), company, partnership, corporation,
or other business entity, solicit or influence or attempt to
solicit or influence any employee of the Company to leave
employment with the Company.
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B.
Competition. During the Term
and during the period Executive is receiving severance or other
ongoing payments from Company, or one year from Executive’s
termination, whichever is longer, regardless of the reason
therefor, 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.
C.
Confidential
Information.
a.
For purposes of this Agreement, the words “Confidential
Information” include all of the following:
(i)
The methods, procedures, plans, techniques, systems,
data,
processes, formats
and designs utilized in Company’s operations;
(ii)
The software utilized by Company;
(iii)
All information relating to Company’s financial condition and
operational and financial plans and goals;
(iv)
All information pertaining to Company’s customers, aswell as
prospective customers, including customer lists and usage patterns,
pricing and bidding practices, customer contact information, and
marketing and sales practices, methods and plans;
(v)
All business forms and all operations, sales and training manuals;
and
(vi)
All other information which by its nature would be reasonably
understood to be confidential.
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b.
Executive agrees not to disclose any Confidential Information to
others, use any Confidential Information for his own benefit or
make copies of any Confidential Information without Company’s
written consent, whether during or after Executive’s
employment with Company. Executive also agrees to destroy or return
all Confidential Information in his possession to Company as
provided in section 6.D. below.
c.
For purposes of this Agreement the words “Confidential
Information” do not include any information that is or
becomes generally available to the public, other than as a result
of disclosure in violation of this agreement.
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.
D.
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.
E.
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
Employment Period.
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F.
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.
G.
Equitable
Relief.
In
the event a violation of any of the restrictions contained in this
Section 6 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 6, 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.
H.
Restrictions
Separable.
Each
and every restriction set forth in this Section 6 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.
I.
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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J.
Mutual Non-Disparagement.
Company and Executive agree that in recognition of the covenants
and benefits herein, neither party will, directly or indirectly, in
any capacity or manner, make, express, transmit, speak, write,
verbalize or otherwise communicate in any way (or cause, further,
assist, solicit, encourage, support, or participate in any of the
foregoing), any remark, comment, message, information, declaration,
communication or other statement of any kind, whether verbal, in
writing, electronically transferred or otherwise, that might
reasonably be construed to be derogatory or critical of, or
negative toward, the other party or the other party’s agents,
officers, Directors or representatives for 24 months following
Executive’s termination of employment.
7.
Section
409A of the Code.
A.
General. This Agreement shall
be interpreted and applied in all circumstances in a manner that is
consistent with the intent of the parties that, to the extent
applicable, amounts earned and payable pursuant to this Agreement
shall constitute short-term deferrals exempt from the application
of Section 409A of the Code and, if not exempt, that amounts earned
and payable pursuant to this Agreement shall not be subject to the
premature income recognition or adverse tax provisions of Section
409A of the Code.
B.
Separation from Service.
References in this Agreement to “termination” of
Executive’s employment, “resignation” by
Executive from employment and similar terms shall, with respect to
such events that will result in payments of compensation or
benefits, mean for such purposes a “separation from
service” as defined under Section 409A of the
Code.
C.
Specified Executive. In the
event any one or more amounts payable under this Agreement
constitute a “deferral of compensation” and become
payable on account of the “separation from service” (as
determined pursuant to Section 409A of the Code) of Executive and
if as such date Executive is a “specified employee” (as
determined pursuant to Section 409A of the Code), such amounts
shall not be paid to Executive before the earlier of (i) the first
day of the seventh calendar month beginning after the date of
Executive’s “separation from service” or (ii) the
date of Executive’s death following such “separation
from service.” Where there is more than one such amount, each
shall be considered a separate payment and all such amounts that
would otherwise be payable prior to the date specified in the
preceding sentence shall be accumulated (without interest) and paid
together on the date specified in the preceding
sentence.
D.
Separate Payments. For purposes
of Section 409A of the Code, each payment or amount due under this
Agreement shall be considered a separate payment, and
Executive’s entitlement to a series of payments under this
Agreement is to be treated as an entitlement to a series of
separate payments.
E.
Reimbursements. Any
reimbursement to which Executive is entitled pursuant to this
Agreement that would constitute nonqualified deferred compensation
subject to Section 409A of the Code shall be subject to the
following additional rules: (i) no reimbursement of any such
expense shall affect Executive’s right to reimbursement of
any other such expense in any other taxable year; (ii)
reimbursement of the expense shall be made, if at all, not later
than the end of the calendar year following the calendar year in
which the expense was incurred; (iii) the right to reimbursement
shall not be subject to liquidation or exchange for any other
benefit; and (iv) the right to reimbursement of expenses incurred
kind shall terminate one year after the end of the Employment
Period.
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8. Section
280G of the Code. Notwithstanding anything to the contrary contained
herein (or any other agreement entered into by and between
Executive and the Company or any incentive arrangement or plan
offered by the Company), in the event that any amount or benefit
paid or distributed to Executive pursuant to this Agreement, taken
together with any amounts or benefits otherwise paid to Executive
by the Company (collectively, the “Covered
Payments”), would
constitute an “excess parachute payment” as defined in
Section 280G of the Code, and would thereby subject Executive
to an excise tax under Section 4999 of the Code (an
“Excise Tax”), the provisions of this Section 8
shall apply. If the aggregate present value (as determined for
purposes of Section 280G of the Code) of the Covered Payments
exceeds the amount which can be paid to Executive without Executive
incurring an Excise Tax, then the amounts payable to Executive
under this Agreement (or any other agreement by and between
Executive and the Company or pursuant to any incentive arrangement
or plan offered by the Company) shall be reduced (but not below
zero) to the maximum amount which may be paid hereunder without
Executive becoming subject to the Excise Tax (such reduced payments
to be referred to as the “Payment Cap”). In the event Executive receives reduced
payments and benefits as a result of application of this
Section 8, Executive shall have the right to designate which
of the payments and benefits otherwise set forth herein (or any
other agreement between the Company and Executive or any incentive
arrangement or plan offered by the Company) shall be received in
connection with the application of the Payment Cap, subject to the
following sentence. Reduction shall first be made from payments and
benefits which are determined not to be nonqualified deferred
compensation for purposes of Section 409A of the Code, and
then shall be made (to the extent necessary) out of payments and
benefits that are subject to Section 409A of the Code and that
are due at the latest future date.
9. No
Guarantee of Tax Consequences. The Board, the Compensation
Committee, the Company and its Affiliates, officers and employees
make no commitment or guarantee to Executive that any federal,
state, local or other tax treatment will apply or be available to
Executive or any other person eligible for compensation or benefits
under this Agreement and assume no liability whatsoever for the tax
consequences to Executive or to any other person eligible for
compensation or benefits under this Agreement.
10. 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. However, 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- 16 et seq. ("USAA") and the provisions
of this Agreement. The parties agree that the arbitrator 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, and that each party will bear its own
expenses related to such action.
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11. Entire
Agreement; Severability. This Agreement and the agreements
referenced herein contain the entire agreement of the parties
relating to the subject matter hereof, and supersede in their
entirety any and all prior agreements, understandings or
representations relating to the subject matter hereof. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this
Agreement. The provisions of this Agreement shall be deemed
severable and, if any provision is found to be illegal, invalid or
unenforceable for any reason, (a) the provision will be amended
automatically to the minimum extent necessary to cure the
illegality or invalidity and permit enforcement and (b) the
illegality, invalidity or unenforceability will not affect the
legality, validity or enforceability of the other provisions
hereof.
12. Amendment;
Committee Authority. This Agreement may be amended,
supplemented, or modified only by a written instrument duly
executed by or on behalf of each party hereto. All determinations
and other actions required or permitted hereunder to be made by or
on behalf of the Company or the Board may be made by either the
Board (excluding Executive therefrom) or the Compensation Committee
(or any other committee subsequently granted authority by the
Board); provided that the actions of the Compensation Committee (or
any other committee subsequently granted authority by the Board)
shall be subject to the authority then vested in such committee by
the Board, it being understood and agreed that as of the date of
this Agreement the Compensation Committee has full authority,
concurrent with the Board, to administer this Agreement; and
provided, further, that a decision or action by the Compensation
Committee (or any other committee subsequently granted authority by
the Board) hereunder shall be subject to review or modification by
the Board if the Board so chooses.
13. Waiver.
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power, or privilege under
this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of
such right, power, or privilege or the exercise of any other right,
power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party
giving such notice or demand to take further action without notice
or demand as provided in this Agreement.
14. No
Violation. Executive represents and warrants that 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.
15
15. Assignment.
Notwithstanding anything else herein, this Agreement is personal to
Executive and neither this Agreement nor any rights hereunder may
be assigned by Executive. The Company may assign this Agreement to
an affiliate or to any acquirer of all or substantially all of the
business and/or assets of the Company, in which case the term
“Company” will mean such affiliate or acquirer. This
Agreement will inure to the benefit of and be binding upon the
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, legatees and permitted
assignees of the parties.
16. Counterparts,
Facsimile. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy
of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement. To the maximum
extent permitted by applicable law, this Agreement may be executed
via electronic mail.
17. Notices.
Any notice required to be given under this Agreement shall be
deemed sufficient, if in writing, and sent by certified mail,
return receipt requested, via overnight courier, or hand delivered
to the Company at 0000 X. Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, XX
00000, Attn: Chairman of the Compensation Committee and Chief
Executive Officer, and to Executive at the most recent address
reflected in the Company’s employment records.
Signature page follows.
16
IN
WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the Effective Date.
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COMMAND CENTER, INC., a Washington
corporation
By:
/s/ Xxxxxxx X. Xxxxxxx,
Xx.
Name:
Xxxxxxx X. Xxxxxxx, Xx.
Title:
President and Chief Executive Officer
Date:
June 29, 2018
EXECUTIVE
By:
/s/ Xxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxxx, an individual
Date:
June 29, 2018
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