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EXHIBIT 10(g)
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of January, 1997, by and
between Computer Horizons Corp., a New York corporation with offices at 00 Xxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000 (hereinafter called the
"Company"), and Xxxxxxx X. Xxxxxx, residing at 000 Xxxxxxx Xxxxx, Xxxxx, Xxx
Xxxxxx 00000 (hereinafter called the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive as its
Chief Financial Officer and Executive Vice President and the Executive is
willing to serve the Company in such capacity;
WHEREAS, the Company and the Executive desire to set forth the
terms and conditions of such employment.
NOW, THEREFORE, in consideration of the foregoing premises and
of the mutual covenants and agreements herein contained, the Company and the
Executive agree as follows:
1. Employment. The Company hereby agrees to employ the
Executive, and the Executive agrees to be employed by the Company, on the terms
and conditions herein contained.
2. Term. Except as otherwise provided in this Agreement, the
Executive shall be employed under this Agreement for a three year period
commencing on the date hereof (the "Employment Term").
3. Duties. The Executive shall serve as the Company's Chief
Financial Officer. In such capacity the Executive shall report to the Board of
Directors of the Company (the "Board of Directors") and the Company's Chief
Executive Officer, and shall perform such duties and functions, consistent with
his status as a senior executive officer of the Company, as may be assigned by
the Board of Directors or the Chief Executive Officer. During the Employment
Term, the Executive shall devote substantially all of his business time and his
best efforts, energies, skills and attention to the business and affairs of the
Company. The foregoing shall not limit the Executive's right to be involved in
civic or charitable activities and manage his own personal investments, provided
that such activities do not materially interfere with his providing of his
services hereunder. The Executive, without additional compensation and subject
to the preceding provisions of this Section 3 and the other terms of this
Agreement, shall also serve, if so requested by the Board of Directors, in
senior management capacities of subsidiaries of the Company.
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4. Salary and Bonus.
(a) During the Employment Term, the Company shall pay the
Executive, in accordance with its normal payroll practices and subject to
required withholding, a base salary at the rate of $225,000 per annum. The base
salary payable to the Executive hereunder may be increased, but not decreased,
from time to time, in the sole discretion of the Board of Directors. (The base
salary, as it may be increased form time to time, is hereinafter referred to as
the "Base Salary".)
(b) During the Employment Term, the Executive shall be
entitled to receive, in addition to Base Salary, such annual cash bonuses, if
any, as the Board of Directors may, in its sole discretion, award the Executive.
5. Other Compensation and Benefits. During the Employment
Term, the Executive shall be entitled to:
(a) participate in all benefit, pension, retirement, deferred
compensation, savings, welfare and other employee benefit plans and policies in
which members of the Company's senior management generally are entitled to
participate (collectively, the "Benefit Plans"), in accordance with their
respective terms as in effect form time to time;
(b) receipt of all fringe benefits and perquisites maintained
by the Company from time to time for members of senior management generally, in
accordance with the policies of the Company with regard to such benefits and
perquisites as in effect from time to time;
(c) vacation each year in accordance with the Company's
policies for members of senior management generally as in effect form time to
time;
(d) such other compensation, if any, as the Company may, in
its sole discretion, award to the Executive.
6. Death Prior to Termination of Employment. If the Executive
shall die during the Employment Term, the Company shall have no liability or
further obligation except as follows:
(a) The Company shall pay the Executive's estate or designated
beneficiaries, as applicable, when otherwise due, any unpaid Base Salary for the
period prior to the Executive's death, any declared or awarded but unpaid
bonuses, whether pursuant to any bonus plan or otherwise, any unpaid amounts due
under any incentive plan in accordance with its terms, and any other unpaid
amounts due the Executive under any other Benefit Plans in accordance with the
terms of such Benefit Plans (collectively, the "Entitlements").
(b) The Executive's estate or designated beneficiaries, as
applicable, shall have such rights, if any, under the Benefit Plans and all
other employee benefit, fringe benefit or
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incentive plans maintained or offered by Company as may be provided in such
plans and any grants to the Executive thereunder in accordance with their
respective terms (collectively, the "Rights").
7. Termination Due to Disability. If the Executive shall
become physically or mentally incapable of performing his duties as provided in
Section 3 of this Agreement and such incapacity shall last for a period of at
least one hundred eighty (180) consecutive days, the Company may, at its
election at any time thereafter while the Executive remains incapable of
performing his duties hereunder, terminate the Executive's employment hereunder,
effective immediately, by giving the Executive written notice of such
termination. In such event, the Company shall have no other obligation to the
Executive or his dependents hereunder other than the obligation to pay or
provide the Entitlements and the Rights.
8. Termination for Cause. The Company may terminate the
Executive's employment hereunder for Cause by giving the Executive ten days'
written notice of such termination. For purposes of this Agreement, Cause shall
mean: (a) the Executive's embezzlement, willful breach of fiduciary duty or
fraud with regard to the Company or any of its assets or businesses, (b) the
Executive's conviction of, or pleading of nolo contendere with regard to, a
felony (other than a traffic violation) or any other crime involving moral
turpitude, or (c) any other breach by the Executive of a material provision of
this Agreement that remains uncured for thirty (30) days after written notice
thereof is given to the Executive. In such event, the Company shall have no
obligation to the Executive or his dependents other than to pay, when otherwise
due, any unpaid Base Salary for the period prior to such termination and to pay
or provide the Rights. In addition, the Company shall be entitled to exercise
all rights and remedies against the Executive that it may have under applicable
law.
9. Termination for Good Reason. The Executive may terminate
his employment hereunder for Good Reason upon written notice thereof to the
Company. For purposes of this Agreement, "Good Reason" shall mean the occurrence
or failure to cause the occurrence (as applicable) of any of the following
events without the Executive's express prior written consent: (a) any material
demotion of the Executive, any material reduction in the Executive's authority
or responsibility or any other material change in the terms of the Executive's
employment which is inconsistent with Section 3 hereof; (b) the failure of any
successor or assign of the Company (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to assume specifically the obligations of
the Company hereunder in accordance with Section 17 of this Agreement; (c) any
breach by the Company of any material provision of this Agreement that is not
cured by the Company within 30 days after written notice thereof from the
Executive; or (d) if a Change of Control has occurred, either (i) the failure to
provide the Executive with a cash bonus for each fiscal year of the Company
ending during the Employment Term and after the Change of Control at least equal
to the highest bonus earned by, or awarded to, the Executive in respect of any
fiscal year of the Company ending prior to the Change of Control or, if higher,
the fiscal year in which such Change of Control occurs, or (ii) the failure by
the Company to continue in effect any Benefit Plan in which the Executive or any
of his dependents is participating immediately prior to such Change of Control
or plans or
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arrangements that in the aggregate provide the Executive with substantially
similar benefits, or the taking of any action by the Company that would
adversely affect the Executive's or his dependent's participation in, or reduce
the Executive's or his dependent's benefits under, any of such Benefit Plans or
arrangements or the replacements thereof, providing that the foregoing shall not
limit the Company's right to make changes in such plans to comply with
applicable laws or otherwise, provided that the Company shall otherwise
compensate the Executive for any loss (including but not limited to tax
benefits) to the Executive as a result of such changes.
10. Consequences of Termination of Employment by the Executive
for Good Reason or by the Company Without Cause. Subject to Section 12 hereof,
in the event the Executive terminates his employment for Good Reason pursuant to
Section 9 hereof or the Company terminates the Executive's employment other than
for Cause or Disability, then the Company shall be deemed to have breached this
Agreement, and the Executive shall be entitled to exercise all rights and
remedies that he may have hereunder and under applicable law. Without limiting
the generality of the preceding sentence, the Company shall in any event pay the
Entitlements to the Executive within five (5) days of the date of termination of
employment and shall provide the Rights.
11. Consequences of Termination of Employment by the Executive
without Good Reason. If Executive's employment hereunder is terminated by the
Executive without Good Reason, the Company shall have no other obligation to the
Executive hereunder other than the obligation to pay or provide to Entitlements
and the Rights.
12. Change of Control.
(a) Subject to Subsection 12(b) hereof, if, and only if, a
Change of Control of the Company shall occur and either (i) the Executive
continues to be employed by the Company through the end of the Employment Term
or (ii) after such Change of Control the Executive terminates his employment for
Good Reason or the Company terminates the Executive's employment other than for
Cause or Disability, then the Executive shall be entitled to receive from the
company (without limiting any additional rights that the may have under
applicable law in the case of termination prior to the expiration of the
Employment Term), within five (5) days after the expiration of the Employment
Term (whether or not the Executive is then employed by the Company) or the
termination of the Executive's employment (as applicable), a lump sum payment
equal to the sum of (x) the Entitlements and (y) the product of (A) two and (B)
the sum of (1) the Executive's Base Salary and (2) the highest annual bonus
amount the Executive was awarded during the Employment Term. The Company shall
also provide to Rights.
(b) Notwithstanding anything else herein, to the extent the
Executive would be subject to the excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), on the amounts in Section 2(a)
above and such other amounts or benefits he received from the Company and
required to be included in the calculation of parachute payments for purposes of
Sections 280G and 4999 of the Code, the amounts provided under this Agreement
shall be automatically reduced to an amount one dollar less than the amount
that,
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when combined with such other amounts and benefits required to be so included,
would subject the Executive to the excise tax under Section 4999 of the Code if,
and only if, the reduced amount received by the Executive would be greater than
the unreduced amount to be received by the Executive minus the excise tax
payable under Section 4999 of the Code on such amount and the other amounts and
benefits received by the Executive and required to be included in the
calculation of a parachute payment for purposes of Section 280G and 4999 of the
Code.
(c) For purposes of this Agreement, a "Change of Control"
shall be deemed to have occurred if: (i) any person (as defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and as used in Sections 13(d) and 14(d) thereof), excluding the Company, any
Subsidiary and any employee benefit plan sponsored or maintained by the Company
or any Subsidiary (including any trustee of any such plan acting in his capacity
as trustee), but including a "group" as defined in Section 13(d)(3) of the
Exchange Act, becomes the beneficial owner of shares of the Company having at
least 20% of the total number of votes that may be cast for the election of
directors of the Company; (ii) the shareholders of the Company shall approve any
merger or other business combination of the Company, sale of all or
substantially all of the Company's assets or combination of the foregoing
transactions (a "Transaction"), other than a Transaction involving only the
Company and one or more of its Subsidiaries, or a Transaction immediately
following which the shareholders of the Company immediately prior to the
Transaction continue to have a majority of the voting power in the resulting
entity (excluding for this purpose any shareholder owning directly or indirectly
more than 10% of the shares of the other company involved in the Transaction),
or (iii) within any 24 month period beginning on or after the date hereof, the
persons who were directors of the Company immediately before the beginning of
such period (the "Incumbent Directors") shall cease (for any reason other than
death) to constitute at least a majority of the Board or the board of directors
of any successor to the Company, provided that, any director who was not a
director as of the date hereof shall be deemed to be an incumbent Director if
such director was elected to the Board by, or on the recommendation of or with
the approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually or by prior operation of this Section 12(b)
unless such election, recommendation or approval was the result of an actual or
threatened election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision. Notwithstanding
the foregoing, no Change of Control of the Company shall be deemed to have
occurred for purposes of this Agreement by reason of any actions or events in
which the Executive participates in a capacity other than in his capacity as an
executive or director of the Company, provided that the Executive's voting or
tendering, exchanging or otherwise disposing of any or all his shares of the
Company's capital stock shall not be deemed participation. For purposes of this
Section 12(b), "Subsidiary" shall mean any entity in which the Company owns,
directly or indirectly, at least 50% of the outstanding securities generally
entitled to vote for the election of directors.
13. Non-Competition; Confidential Information.
(a) The Executive agrees that, if he terminates his employment
without Good Reason (except pursuant to Section 12) hereunder or he is
terminated for Cause, he will not, for a
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period of one year after such termination of employment with the Company, in any
manner, directly or indirectly (or have a substantial ownership in, manage,
operate, or control any entity which shall directly or indirectly): (i) perform,
or cause to be performed, or solicit or aid, in any manner, solicitation of, any
work of a type performed by the Company for any firm, corporation, or other
entity ("Customer") with which, at any time during the twelve (12) month period
prior to termination of the Employment Period, the Company or any Subsidiary
conducted any business, or (ii) induce any personnel to leave the service of the
Company or any Subsidiary.
(b) The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their respective
businesses: (i) obtained by the Executive during his employment by the Company
or any of its affiliated companies and (ii) not otherwise public knowledge or
known within the Company's industry. After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company, unless compelled pursuant to the order of a court or
other body having jurisdiction over such matter or upon the advice of counsel,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.
(c) The Executive agrees that the remedy at law for any breach
by him of the foregoing shall be inadequate and that the Company shall be
entitled to injunctive relief. This section constitutes an independent and
separable covenant that shall be enforceable notwithstanding any right or remedy
that the Company may have under any other provision of this Agreement or
otherwise.
14. Garnishment. The benefits payable under this Agreement
shall not be subject to garnishment, execution or levy of any kind, and any
attempt to cause any benefits to be so subjected shall not be recognized.
15. Notice. Any Notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally or
sent by certified mail, return receipt requested, by Federal Express, Express
Mail or similar overnight delivery or courier service, or by telecopy,
answerback received. Notice to the Executive shall be delivered to his address
set forth at the head of this agreement, and notice to the Company shall be sent
as follows:
Computer Horizons Corp.
00 Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000
Any notice given by certified mail shall be deemed given five
days after the time of certification thereof. Any notice given by other means
permitted by this Section 13 will be deemed given at the time of receipt
thereof.
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Any party may by notice given in accordance with this Section
to the other parties, designate another address or person for receipt of notices
hereunder.
16. Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New Jersey
without reference to its conflict of law provisions.
17. Successors; Binding Agreement. The Company shall require
any successor (whether direct or indirect, by purchase of stock or assets,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, expressly to assume and agree, in a written
instrument in form and substance satisfactory to the Executive and his counsel,
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Notwithstanding anything herein to the contrary, this Agreement may not be
assigned by the Company without the prior written consent of the Executive. This
agreement shall inure to the benefit of, and be enforceable by, the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. This Agreement is personal to the
Executive and neither this Agreement nor any rights hereunder may be assigned by
the Executive.
18. No Mitigation; No Set-Off. The Company agrees that if the
Executive's employment with the Company is terminated during the Employment Term
for any reason whatsoever, the Executive is not required to seek other
employment or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to this Agreement. Further, the amount of any
payment or benefit provided for in this Agreement shall not be reduced by any
compensation earned by the Executive or benefit provided to the Executive as the
result of employment by another employer or otherwise.
19. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer of the Company
as may be specifically designated by the Board of Directors of the Company. No
waiver by either hereto party of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement constitutes the entire Agreement
between the parties hereto pertaining 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.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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21. Separability. If any provisions of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
22. Non-Exclusivity of Rights. Nothing in this Agreement shall
prejudice, prevent or limit the Executive's previously vested rights under, or
continuing or future participation in, any benefit, bonus, incentive, equity or
other plan or program provided by the Company and for which the Executive may
qualify, nor shall anything herein limit or otherwise prejudice such rights as
the Executive may have under any other currently existing plan or agreement
regarding severance from employment with the Company or statutory entitlements.
23. Beneficiary. The Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable under this
Employment Agreement following his death by giving the Company written notice
thereof in accordance with the applicable Company policies. In the event of the
Executive's death or judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed and the Executive has hereunto set his hand as of the date
first set forth above.
COMPUTER HORIZONS CORP.
By: /s/ Xxxx X. Xxxxxxx
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Authorized Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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