EXHIBIT 4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") made as of the 13th day of
August, 1997 between UNIFORCE SERVICES, INC., a New York corporation hereinafter
called the "Employer," and Xxxx Xxxxxxx, hereinafter called the "Employee", who
resides at the address set forth under his signature hereto.
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Employer has entered into an Agreement and Plan of Merger (the
"Merger Agreement") with COMFORCE CORPORATION, a Delaware corporation
("Parent"), and COMFORCE COLUMBUS, INC., a New York corporation ("Subsidiary"),
wherein Subsidiary is to acquire the Employer; and
WHEREAS, Employer has employed Employee as its Chairman and President
under the terms of an Amended and Restated Employment Agreement dated as of
January 26, 1984 (the "Existing Agreement"), as amended by letter agreements
dated May 10, 1984, January 5, 1989, January 10, 1992, March 15, 1994, April 26,
1994, November 26, 1996 and January 1, 1997; and
WHEREAS, among other things, Parent and Subsidiary have conditioned
their execution and delivery of the Merger Agreement upon the execution and
delivery of this Agreement;
WHEREAS, Employer and Employee wish to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, and it is hereby agreed as follows:
1. The Employee is hereby engaged to work as President of the
[Columbus] Financial Services Division of Employer or in such other executive
capacity as is from time to time designated by the Board of Directors of
Employer from time to time. In connection with the Employee's employment by the
Employer, the Employee shall be based at the offices of the Employer located in
or about Boca Raton, Florida, it being understood that Employee shall travel to
and spend time at other offices of Employer as reasonably required by Employer.
2. The effective date of this Agreement (the "Effective Date")
shall be the date on which Parent, directly or indirectly, has acquired at least
51% of the issued and outstanding stock of Employer, and Employee's employment
hereunder shall continue for a period of one (1) year thereafter unless and
until terminated as hereinafter provided (the "Initial Term"). After the Initial
Term, Employee's employment hereunder shall continue on a year-to-year basis
unless and until terminated as hereinafter provided. This Agreement shall be
null and void and of no further force or effect in the event the Merger
Agreement is terminated in accordance with its terms unless prior to such
termination Subsidiary or another subsidiary of Parent has acquired at least 51%
of the issued and outstanding stock of Employee.
3. The Employer agrees as follows:
(a) To employ Employee as described in Section 1 hereof.
(b) To pay the Employee a base salary (the "Base Salary") at
the rate of One Hundred Fifty Thousand Dollars ($150,000.00) per year payable in
accordance with the Employer's pay schedule practices generally in effect for
its executive employees.
(c) To pay the Employee supplemental pay (the "Supplemental
Pay") at the rate of One Hundred Thirty-Four Thousand Five Hundred Dollars
($134,500.00) per year payable in accordance with the Employer's pay schedule
practices generally in effect for its executive employees.
(d) That the Employee shall receive such other incidental
benefits of employment, such as insurance, pension plan participation, and
vacation, as are provided generally to the Employer's other executive officers
and will be eligible in the sole discretion of the Employer's Board for
discretionary bonuses.
(e) To reimburse the Employee for business expenses incurred
in connection with conducting and promoting the business and affairs of the
Employer, subject to reasonable limitations and restrictions set by the Employer
from time to time. Submission of business expenses for reimbursement must
conform to the Internal Revenue Code.
(f) To pay to Employee incentive compensation payable with
respect to the period through the Effective Date under the Existing Agreement,
as amended, and the $25,000 bonus described in Section 6.13 of the Disclosure
Schedule (as defined in the Merger Agreement) to the extent such compensation
and bonus have not been previously paid.
4. The Employee agrees as follows:
(a) To devote Employee's full business time and entire
business skill, labor and attention to said employment, that Employee will not
engage in any other business during working hours without the prior written
consent of Employer and that Employee will promptly and faithfully do and
perform all services pertaining to said position that are or may hereafter be
reasonably required of Employee by the Employer consistent with Employee's
officership and with the provisions hereof during the term hereof.
(b) That any inventions, discoveries, improvements, or works
which are conceived, first reduced to practice, made, developed, suggested by,
or created in anticipation of, in the course of or as a result of work done by
Employee under this agreement or during his prior employment with Employer shall
become the absolute property of the Employer, and the Employee further agrees
that all such inventions, discoveries, improvements, creations, or works, and
all letters patent or copyrights that may be obtained therefor, shall be the
property of the Employer, and the Employee agrees that he will promptly execute
any and all applications, assignments or other instruments which the Employer
shall deem necessary or useful to vest said patents or copyrights in the
Employer without any other or additional consideration to the Employee than
herein expressed, other than reimbursement of out-of-pocket expenses incurred in
connection therewith.
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(c) To the extent permitted by applicable law, Employer may
set-off against any wages or other compensation due the Employee, any amounts
owed by the Employee to the Employer including, but not limited to, money due to
the Employer because of salary or bonus advances, excess payments, or damage to
or loss of the Employer's physical or intellectual property due to Employee's
violation of the terms hereof.
5. (a) Employer and Employee shall have the right to terminate
the employment of Employee as set forth in this paragraph 5.
(b) If Employee becomes disabled during the Initial Term
because of sickness, physical or mental disability, or any other reason so that
Employee is unable to perform Employee's duties hereunder, Employer agrees to
continue Employee's salary during such disability for a period of up to ninety
(90) continuous days. These benefits may be provided in whole or in part by a
policy of disability insurance. Immediately following such period, if Employee
continues to be unable to perform Employee's duties hereunder, Employee's
employment shall be terminated and Employee shall thereafter receive only such
amounts as are earned (including, without limitation, any accrued and earned or
otherwise due but unpaid bonus or incentive compensation) or otherwise due to
him under this Agreement to the date of such termination, and no further
consideration or compensation shall be owed by Employer to Employee hereunder.
(c) The employment of Employee shall automatically terminate
upon the death of the Employee. Upon such termination, Employee's estate shall
receive only such amounts as are earned (including, without limitation, any
accrued and earned or otherwise due but unpaid bonus or incentive compensation)
or otherwise due to Employee under this Agreement to the date of Employee's
death, and thereafter no further consideration or compensation shall be owed by
Employer to Employee or to Employee's estate.
(d) The Employer may immediately terminate Employee's
employment under this Agreement during the Initial Term by giving Employee
written notice of such termination upon the occurrence of any of the following
events (termination for any such reason being referred to herein as termination
for "Cause"): (i) repeated failure or refusal of Employee to implement or follow
the reasonable written policies or written directions of the Employer provided
that Employer shall have notified Employee in writing a reasonable period of
time prior to the termination of such willful failure or refusal and further
provided that Employee's failure or refusal is not based upon Employee's belief,
in good faith, as expressed to Employer in writing, that the implementation
thereof would be unlawful; (ii) intentional wrongful conduct by Employee which
results or which the Board of Directors of Employer reasonably concludes could
reasonably be expected to result in a material adverse effect (financial or
otherwise) to the business of Employer including without limitation any matters
described in clause (iii) below, whether or not a conviction is obtained
therefor; (iii) conviction of the Employee of a crime involving disloyalty,
dishonesty, embezzlement, fraud or the like; (iv) misappropriation of the
Employer's funds or misuse of the Employer's assets by the Employee; or (v)
material breach of this Employment Agreement by Employee. Upon termination
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for Cause as defined in this paragraph 5 or as a result of Employee's
resignation for any reason whatsoever, Employee shall receive only such amounts
as have been earned by or are otherwise due to him under this Agreement to the
date of such termination, and thereafter no further consideration shall be owed
by Employer to Employee.
(e) The Employer may terminate Employee's employment under
this Agreement without Cause by giving Employee written notice of termination.
In such case, Employer's sole obligation to Employee shall be to pay Employee
any amounts earned or otherwise due (including, without limitation, any earned
but unpaid bonuses or incentive compensation) to Employee under this Agreement
to the date of such termination plus, if and only if the termination occurs
during the Initial Term, a severance payment in an amount equal to the Base
Salary and Supplemental Pay payable to Employee hereunder for the period of time
from the date of termination until the end of the Initial Term, which amount
shall be payable in equal installments over such period of time in accordance
with the Employer's regular payroll practices for salaried executive employees.
Employee shall not be entitled to any such severance payment in the event
Employee's employment has terminated without Cause at any time after the end of
the Initial Term.
6. Employee confirms in their entirety the covenants and
agreements of Employee set forth in the Noncompetition Agreement (the
"Noncompetition Agreement") of even date herewith by and between Employer,
Employee and Parent.
7. The Employee recognizes and agrees that from time to time
certain confidential information will be made available to the Employee by the
Employer or by the Employer's clients or customer to assist the Employee in
Employee's job and that Employee possesses such information by virtue of
Employee's conduct and participation in the business of Employer prior to the
date hereof. Employee recognizes and agrees that such confidential information
possessed by Employee or which has been or will be compiled, created, and
maintained by special effort and expense of the Employer or by the Employer's
clients or customers and which is not generally available to the trade or the
public at large is a trade secret of Employer and agrees that such information
disclosed or known to the Employee remains at all times the property of the
Employer and/or the Employer's Clients and further, the Employee agrees that
such information shall not (except as required by law or court order) be
divulged by the Employee either during Employee's employment or after
termination for any reason whatsoever. The Employee shall upon such termination
promptly upon request deliver to the Employer's designated representative all
such confidential or proprietary information in his possession and any abstracts
therefrom or information developed on the basis thereof. The foregoing shall not
apply to any confidential information which has become available to the general
public other than as a result of disclosure by Employee in violation of this
Agreement.
8. Employee further agrees not to utilize or make available any
confidential knowledge or confidential information of Employer either directly
or indirectly in connection with the establishment of an enterprise similar to
that of the Employer or that will compete with Employer, or in connection with
the solicitation, acceptance, or conduct of employment with any other person or
entity.
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9. (a) Those paragraphs which by their nature are intended to
survive termination of this Agreement, including without limitation paragraphs
4(b), 7 and 8, shall survive termination of this Agreement. In addition, all
obligations of the Employer to make payments hereunder shall survive any
termination of this Agreement on the terms set forth herein.
(b) It is understood and agreed by and between the parties
hereto that the rights and privileges granted to Employer by Employee under
paragraphs 4(b), 7 and 8 are of a special, unique and extraordinary character,
which gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in any action at law, and that a breach by
Employee of any of the provisions contained in this Agreement will cause
Employer great and irreparable injury and damage. Employee hereby expressly
agrees that Employer shall be entitled to the remedies of injunction, specific
performance and other equitable relief to prevent a breach of this Agreement by
Employee. This provision shall not, however, be construed as a waiver of any of
the rights which Employer may have for damages or otherwise.
10. (a) This Agreement supersedes all prior agreements between the
parties regarding the subject matter hereof (other than the obligation to pay
incentive compensation payable with respect to the period through the Effective
Date under the Existing Agreement, as amended) , and this Agreement constitutes
and express the entire agreement of the parties hereto in reference to the
employment of the Employee by the Employer and in reference to any of the
matters or things herein provided for or hereinbefore discussed or mentioned in
reference to such employment, all promises, representations, and understandings
relative thereto being herein merged. It is a condition precedent to the
obligations of the parties hereto that the Effective Date shall have occurred.
(b) No oral arrangements have been made between the parties
hereto. This agreement may be amended only by a writing signed by both parties.
11. The Employee represents and warrants that at the time of the
signing of this agreement, Employee knows of no written or oral contract to
which he is a party which would inhibit or prohibit the employment herein
provided for and that the Employee will not knowingly utilize any trade secret,
company confidential information, or other intellectual property right of
another party in the performance of the Employee's duties hereunder.
12. The rights and obligations of the Employee and the Employer
under this agreement shall inure to the benefit of and shall be binding upon
their successors and assigns. The Employee may not assign Employee's obligations
under this agreement.
13. This Agreement shall be construed in accordance with the laws
of the State of New York.
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14. In construing this Agreement, feminine pronouns shall be
substituted for those masculine in form and vice versa, and plural terms shall
be substituted for singular and vice versa in any place the context so requires.
15. All notices shall be deemed to have been given or served only
if in writing, and shall be personally delivered (and shall be deemed given when
delivered if personally delivered) or sent by U.S. certified mail, postage
pre-paid, return receipt requested (and shall be deemed given five (5) days
after mailing if sent by certified mail), or by Federal Express or other private
express delivery or courier service (and shall be deemed given on the scheduled
delivery date if sent by courier), if to Employer at 0000 Xxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000, Attn: Chief Executive Officer, or at such other address
as Employer may direct, and if to Employee, at the address set forth under
Employee's signature or at such other address as Employee may direct.
16. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument
17. Any dispute, controversy or claim arising out of or relating
to this Agreement or to any breach or alleged breach hereof shall, upon the
request of the Employer or the Employee, unless and to the extent an injunction
or other equitable relief is requested, be submitted to and settled by
arbitration in the City of New York, New York pursuant to the rules then in
effect of the American Arbitration Association (or at any other place or under
any other form of arbitration mutually acceptable to the Employer and the
Employee). Disputes shall be arbitrated in accordance with the American
Arbitration Association's rules. Any award rendered shall be final and
conclusive upon the parties, and a judgment may be entered in the highest court,
state or federal, having jurisdiction. The expenses of arbitration shall be paid
as directed by the arbitrator.
18. Employee hereby agrees to hold confidential and not disclose
to any person the terms of this Agreement (other than the terms of paragraphs 7
and 8, terms disclosed publicly other than by Employee or as required by law)
without the express written consent of the Employer. Employee acknowledges that
Employer does not intend to permit any such disclosure except to the extent the
same may be necessary to comply with any reporting obligations imposed by
governmental authority, generally accepted accounting procedures or otherwise by
law.
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IN WITNESS WHEREOF, the parties have signed this Agreement on
the date first above written.
UNIFORCE SERVICES, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxx
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Title: Executive Vice President
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address:
0000 X. Xxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000