EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the _____ day of May, 1996 between
COMPLETE MANAGEMENT, INC., a New York corporation (the "Company"), with its
principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and XXXXXX X. XXXXXXXXXX ("Xxxxxxxxxx"), residing at 00 Xxxxxx Xxxx,
Xxxxxxxxxxx, Xxx Xxxxxx 00000. Except where the context indicates otherwise, the
term Company shall include Complete Management, Inc. and any subsidiary.
1. Period.
Subject to the terms and conditions hereof, the term of employment of
Xxxxxxxxxx under this Agreement shall be for the period (the "Employment
Period") commencing on May ___, 1996 (the "Commencement Date") and expiring on
May ____, 1998 (the "Expiration Date"), unless sooner terminated by the death of
Xxxxxxxxxx or as provided in Paragraphs 5 or 6 hereof.
2. Duties and Responsibilities. The Company shall employ Xxxxxxxxxx, and
Xxxxxxxxxx accepts such employment to promote, organize and facilitate the
formation of a subsidiary or division of the Company for the purpose of engaging
in the acquisition, financing and disposal of accounts receivable (the
"Division"). Xxxxxxxxxx shall be employed as its Chief Operating Officer and
shall report to and be subject to the direction of the Chief Executive Officer
of the Division and shall render such executive and administrative services as
the Chief Executive Officer of the Division may from time to time assign to him,
provided they are consistent with his
status as Chief Operating Officer of the Division. During the Employment Period,
Xxxxxxxxxx shall devote his full time, energy, skill and attention to the
businesses of the Company and shall perform his duties in a diligent,
trustworthy, loyal and businesslike manner.
3. Compensation and Benefits.
(a) Xxxxxxxxxx'x base compensation shall be at the annual rate of
$75,000.00 for the first three months of the Employment Period (the
"Probationary Period") and at the annual rate of $150,000 for each month
thereafter of the Employment Period, payable in regular installments in
accordance with the Company's practice for its executives, less applicable
withholding for income and employment taxes as required by law and other
deductions to which Xxxxxxxxxx shall agree. Such base compensation shall be
subject to increases as and when determined by the board of directors of the
Company in its sole discretion.
(b) Except as otherwise provided herein, Xxxxxxxxxx shall be entitled to
participate, to the extent he qualifies, in any bonus or other incentive
compensation, profit-sharing or retirement plans, life or health insurance plans
or other benefit plans maintained by the Company, upon such terms and conditions
as are made available to executives of the Company, generally. Xxxxxxxxxx shall
also be entitled to a $500 transportation allowance, payable monthly.
(c) Xxxxxxxxxx shall be entitled to reimbursement of all reasonable,
ordinary and necessary business related expenses incurred by him in the course
of his
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duties and upon submission of appropriate documentation in accordance with the
Company's procedures.
(d) Xxxxxxxxxx shall be entitled to three full weeks of paid vacation
during each calendar year which shall be taken in accordance with the procedures
of the Company in effect from time to time.
4. Incentive Stock Options. On the Commencement Date, the Company and
Xxxxxxxxxx shall enter into a Stock Option Agreement (the "Stock Option
Agreement, pursuant to which the Company shall grant to Xxxxxxxxxx options (the
"Stock Options") to acquire 20,000 common shares, par value $.001 per share, of
the Company (the "Common Shares") at an exercise price equal to the fair market
value of the Common Shares on the Commencement Date and upon such other terms
and conditions as set forth therein. The Stock Options shall be issued pursuant
to the Complete Management, Inc. 1995 Stock Option Plan, subsequent to
shareholder approval of an amendment thereof, and are intended to constitute
Incentive Stock Options as defined in section 422 of the Internal Revenue Code
of 1986, as amended (the "Code") to the maximum extent permitted under the Code
and non qualified options for the balance. The Stock Options may be exercised at
such time and in such manner as provided in the Stock Option Agreement;
provided, however, that 10,000 of such Stock Options shall vest and become
exercisable one year from the date of grant and the balance one year thereafter.
In the event Xxxxxxxxxx'x employment is terminated for any reason other than
death or Disability (as defined in Paragraph 5) any
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nonvested Incentive Stock Options shall immediately be canceled without any
further action being required to be taken by the Company.
5. Termination in Case of Disability. In case of a Disability, which for
this purpose shall mean that as a result of illness or injury, Xxxxxxxxxx is
unable substantially to perform his duties hereunder for a period of at least 60
consecutive days, or a total of at least 120 days in any period of 365
consecutive days, the Company may terminate Xxxxxxxxxx'x employment hereunder
upon giving Xxxxxxxxxx at least thirty (30) days' written notice of termination.
6. Other Termination by the Company.
(a) The Company may terminate Xxxxxxxxxx'x employment, with or without
cause, on two weeks' written notice given at any time during the Probationary
Period.
(b) The Company may terminate Xxxxxxxxxx'x employment for Cause (as defined
in sub-paragraph (c) below) upon notice of termination. Upon such notice of
termination, the Company shall have no further obligations to Xxxxxxxxxx
hereunder.
(c) "Cause" shall mean (i) a material breach by Xxxxxxxxxx of any of the
terms, covenants, agreements or representations set forth herein, or (ii)
Xxxxxxxxxx'x engaging in misconduct which is materially injurious to the
Company, monetarily or otherwise, including, but not limited to, engaging in any
conduct which constitutes a crime under federal, state or local laws (other than
minor traffic violations).
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7. Date of Termination. "Date of Termination" shall mean the date on which
a notice of termination is given.
8. Confidentiality; Non-Compete.
(a) Xxxxxxxxxx agrees that during the Employment Period, or at any time
thereafter, he will not, directly or indirectly, use for his own benefit or for
the benefit of any third party, or reveal or cause to be revealed to any person,
firm, entity or corporation, any Confidential Information (as defined herein)
which relates to the Company or its customers and that upon the Expiration Date
or the Date of Termination, whichever the case may be, he will deliver all lists
of customers, notes, records and all other property belonging to the Company or
relating to its business or its customers. Confidential Information shall
include, but not be limited to, trade secrets, supplier lists, customer lists,
intellectual property and any other information, whether or not proprietary,
which relates to the business of the Company and which otherwise is not
considered to be public information.
(b) Xxxxxxxxxx further agrees that during the term of this Agreement and
for a period of two (2) years after the Expiration Date or the Date of
Termination, whichever the case may be, he will not, directly or indirectly, in
any manner (i) engage in any other business in which the Division is engaged on
the Expiration Date or the Date of Termination, whichever the case may be, in
such geographic areas in which the Company is then engaged, and will not,
directly or indirectly, own, manage, operate, join, control or participate in
the ownership, management, operation or control of, or be employed by or
connected in any manner with any corporation, firm, entity, or
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business that is so engaged unless duly authorized by written consent of the
Company; provided, however, that nothing herein shall prohibit Xxxxxxxxxx from
owning not more than three (3%) percent of the outstanding stock of any publicly
held corporation; (ii) persuade or attempt to persuade any employee of the
Company to leave the employ of the Company or to become employed by any other
entity; (iii) persuade or attempt to persuade any current client or former
client to reduce the amount of business it does or intends or anticipates doing
with the Company or (iv) take any action which might divert from the Company any
opportunity of which he became aware during his employment with the Company
which would be within the scope of any of the businesses then engaged in or
planned to be engaged in by the Company.
(c) Xxxxxxxxxx acknowledges that a violation of any of the covenants
contained in this paragraph 8 may cause irreparable injury to the Company and
that the Company will be entitled, in addition to any other rights and remedies
it may have, to injunctive relief; provided, however, that nothing contained
herein constitutes a waiver by Xxxxxxxxxx of his rights to contest the existence
of any such violation of such covenants.
(d) In the event the covenants contained in this paragraph 8 should be held
by any court or other duly constituted judicial authority to be void or
otherwise unenforceable in any particular jurisdiction or with respect to any
particular activity, then such covenants so affected shall be deemed to have
been amended and modified so as to eliminate therefrom the particular
jurisdiction or activity as to which such covenants are so held to be void or
otherwise unenforceable, and, as to all other
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jurisdictions and activities covered hereby, the terms and provisions hereof
shall remain in full force and effect.
(e) In the event this Agreement shall be terminated, then notwithstanding
such termination, the provisions of this paragraph 8 shall survive such
termination.
9. Successors; Binding Agreement. This Agreement shall inure to the benefit
of and be enforceable by the parties hereto, their personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Xxxxxxxxxx should die while any amount would still be
payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there be no such
designee, to his estate.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement (except that
all notices to the Company shall be directed to the attention of a senior
officer of the Company other than Xxxxxxxxxx, with a copy to the President of
the Company) or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
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11. Governing Law; Change or Termination. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in New York, and may not be
changed or terminated orally.
12. Validity. The invalidity or unenforceability of any provision of this
Agreement in any respect shall not affect the validity or enforceability of such
provision in any other respect or of any other provision of this Agreement, all
of which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date first hereinabove
written.
COMPLETE MANAGEMENT, INC.
by: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Chief Executive officer
/s/ XXXXXX X. XXXXXXXXXX
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XXXXXX X. XXXXXXXXXX
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