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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of
________________ by and among Xxxxxx Acquisition Corp., a Delaware corporation
(subject to Section 12(b) below, the "Company"), and Xxxx Xxxxxx of
____________, California (the "Executive"), and, with respect to Section 23
hereof, Provant, Inc., a Delaware corporation ("Provant").
In consideration of the mutual promises, terms, provisions and
conditions set forth in this Agreement, the parties hereby agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions set forth in
this Agreement, the Company hereby offers and the Executive hereby accepts
employment.
2. TERM. Subject to earlier termination as hereafter provided,
the Executive's employment hereunder shall be for a term of three (3) years,
commencing effective [the Effective Time] (the "Effective Date"). The term of
this Agreement, as from time to time extended or renewed, is hereafter referred
to as "the term of this Agreement" or "the term hereof."
3. CAPACITY AND PERFORMANCE.
(a) During the term hereof, the Executive shall serve as the
Chairman and Chief Executive Officer of the Company. In addition, and
without further compensation, the Executive shall serve as a director
and/or officer of the Company and/or one or more of the Company's
Affiliates if so elected or appointed from time to time.
(b) During the term hereof, the Executive shall be employed by
the Company on a full-time basis except as set forth on Schedule 1
hereto, shall have all powers and duties consistent with his position
as the senior-most executive officer of the Company (including without
limitation the power to conduct and direct the day-to-day operations of
the Company, the power to hire and dismiss personnel, and those other
powers customarily exercised by the senior-most executive officer of a
publicly-held business), subject to the direction and control of the
Company's Board of Directors (the "Board") and the Chief Executive
Officer of Provant or its or his designees, and shall perform such
other duties and responsibilities on behalf of the Company and its
Affiliates as may reasonably be designated from time to time by the
Board and the Chief Executive Officer of Provant or its or his designee
consistent with the Executive's office as set forth above.
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(c) During the term hereof, the Executive shall devote
substantially all of his full business time and his best efforts,
business judgment, skill and knowledge to the advancement of the
business and interests of the Company and to the discharge of his
duties and responsibilities hereunder. The Executive shall not engage
in any other business activity or serve in any industry, trade,
professional, governmental or academic position during the term of this
Agreement, except (i) as set forth on Schedule 1 hereto, or (ii) as may
be expressly approved in advance by the Board in writing or to the
extent that any such activity or service does not materially and
adversely affect the discharge of his duties and responsibilities
hereunder. Without limiting the foregoing, the activities listed on the
attached Schedule 1 are hereby approved by the Company.
(d) The Company shall not require the Executive to relocate or
reassign the Executive to any location beyond a fifty (50) mile radius
of the location of the Company's headquarters as of the date hereof,
nor shall the Executive's duties hereunder be materially changed,
without the Executive's prior written consent.
4. Compensation and Benefits. As compensation for all services
performed by the Executive under and during the term hereof and subject to
performance of the Executive's duties and obligations, pursuant to this
Agreement or otherwise:
(a) BASE SALARY. During the term hereof, the Company shall pay
the Executive a base salary at the rate of One Hundred Twenty-Five
Thousand Dollars ($125,000) per annum, payable in accordance with the
payroll practices of the Company for its executives and subject to
increase from time to time by the Board or a compensation committee of
the Board in its sole discretion. Such base salary, as from time to
time increased, is hereafter referred to as the "Base Salary".
(b) BONUS COMPENSATION. Executive shall be entitled to
participate in such bonus plan as the Company provides to its
executives generally, in accordance with the terms of that plan, as
amended by the Company from time to time. The total Base Salary and
bonus compensation for the Executive, when combined with that of Mr.
Xxxxxxx Xxxxxx, shall not exceed $325,000 for any year.
(c) VACATIONS. During the term hereof, the Executive shall be
entitled to four weeks of vacation per annum, to be taken at such times
and intervals as shall be determined by the Executive, subject to the
reasonable business needs of the Company. Vacation time shall not
cumulate from year to year.
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(d) OTHER BENEFITS. During the term hereof and subject to any
contribution therefor generally required of employees of the Company,
the Executive shall be entitled to participate in any and all employee
benefit plans from time to time in effect for employees of the Company
generally, except to the extent such plans are in a category of benefit
(including without limitation bonus compensation and severance
compensation) otherwise provided to the Executive. Such participation
shall be subject to (i) the terms of the applicable plan documents,
(ii) generally applicable Company policies and (iii) the discretion of
the Board or any administrative or other committee provided for in or
contemplated by such plan. The Company may alter, modify, add to or
delete any of the employee benefit plans maintained for its employees
generally at any time as it, in its sole judgment, determines to be
appropriate, without recourse by the Executive.
(e) BUSINESS EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable and necessary business expenses incurred
or paid by the Executive in the performance of his duties and
responsibilities hereunder, subject to any maximum annual limit and
other restrictions on such expenses set by the Board and to such
reasonable substantiation and documentation as may be specified by the
Company from time to time.
5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
Notwithstanding the provisions of Section 2 hereof, the Executive's employment
hereunder shall terminate prior to the expiration of the term under the
following circumstances:
(a) DEATH. In the event of the Executive's death during the
term hereof, the Executive's employment hereunder shall immediately and
automatically terminate. In that event, the Company shall pay to the
Executive's designated beneficiary or, if no beneficiary has been
designated by the Executive, to his estate, any earned and unpaid Base
Salary, prorated through the date of his death.
(b) DISABILITY.
(i) The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the
Executive becomes disabled during his employment hereunder
through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, is unable
to perform substantially all of his duties and
responsibilities hereunder for ninety (90) days during any
period of three hundred sixty-five (365) consecutive calendar
days.
(ii) The Board may designate another employee to act in
the Executive's place during any period of the Executive's
disability.
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Notwithstanding any such designation, the Executive shall
continue to receive the Base Salary in accordance with Section
4(a) and his other benefits pursuant to Section 4(d), to the
extent permitted by the then-current terms of the applicable
benefit plans, until the Executive becomes eligible for
disability income benefits under any disability income plan
provided by the Company or until the termination of his
employment, whichever shall first occur.
(iii) If any question shall arise as to whether, during
any period, the Executive is disabled through any illness,
injury, accident or condition of either a physical or
psychological nature such that he is unable to perform
substantially all of his duties and responsibilities
hereunder, the Executive may, and at the request of the
Company shall, submit to a medical examination by a physician
selected by the Company to whom the Executive or his duly
appointed guardian, if any, has no reasonable objection to
determine whether the Executive is so disabled and such
determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination,
the Company's determination of the issue shall be binding on
the Executive.
(c) BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment hereunder for Cause at any time upon notice to
the Executive setting forth in reasonable detail the nature of such
Cause. The following, as determined by the Board in its reasonable and
good faith judgment, shall constitute Cause for termination: (i)
conviction in a court of law of any felony (other than a felony arising
out of the operation of a motor vehicle) or a plea of nolo contendere
to such an offense, (ii) commission of any act involving theft,
embezzlement, fraud, dishonesty or moral turpitude which act relates to
or otherwise has an adverse effect (including through publicity) on the
Company or its Affiliates, (iii) material breach of any of the material
provisions of this Agreement (other than breaches of the nature
described in clause (iv) below) or of any other material agreement
between the Executive and the Company or any of its Affiliates, or (iv)
repeated and consistent willful misconduct or dereliction of duty in
the performance of his duties under this Agreement, or repeated and
consistent failure to be present at work, which conduct or failure
continues for more than thirty (30) days after notice given to the
Executive, such notice to set forth in reasonable detail the nature of
such conduct or failure. Upon the giving of notice of termination of
the Executive's employment hereunder for Cause, the Company shall not
have any further obligation or liability to the Executive, other than
for Base Salary earned and unpaid, accrued vacation time and
unreimbursed business expenses outstanding at the date of termination.
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(d) SEVERANCE PAYMENTS UPON EXPIRATION. If the Executive shall
cease to be employed by the Company (or any of its Affiliates) upon the
expiration of this Agreement, the Executive shall be entitled, subject
to the immediately following sentence, to receive as a severance
benefit periodic payments in an amount equal to his Base Salary in
effect at the date of such expiration divided by the number of payroll
periods per year then applicable to executives of the Company
(hereinafter, "Severance Payments"), for a period of six months from
and after the date of such expiration. The Executive's rights to
receive Severance Payments hereunder is conditioned upon (X) the
Executive's prior execution and delivery to the Company of a general
release of any and all claims and causes of action of the Executive
against the Company, Provant and their respective officers, directors
and Affiliates, excepting only (i) the right to any Base Salary and/or
reimbursable expenses then accrued and unpaid under Section 4 of this
Agreement, and (ii) the right to receive any Additional Shares to which
the Executive then is entitled or may thereafter be entitled under that
certain Agreement and Plan of Merger among Provant, the corporate
predecessor of the Company, the Executive and certain other Persons,
and (Y) the Executive's continued performance of those obligations
hereunder that continue by their express terms after the termination of
his employment, including without limitation those set forth in
Sections 7 and 8. Any Severance Payments to be paid hereunder shall be
payable in accordance with the payroll practices of the Company for its
executive generally as in effect from time to time, and subject to all
required withholding of taxes.
6. EFFECT OF TERMINATION. Upon termination of this Agreement, all
obligations and provisions of this Agreement shall terminate except with respect
to any accrued and unpaid monetary obligations and except for the provisions of
Section 7 through (and inclusive of) 23 hereof.
7. COVENANT NOT TO COMPETE.
(a) The Executive acknowledges that this Agreement is being
entered into contemporaneously with, and in connection with, Provant's
acquisition of the Company's corporate predecessor, of which the
Executive was a principal stockholder, and that the goodwill thereby
acquired by Provant and the Company is of significant value. The
Executive further acknowledges that the Company's and its predecessor's
business operations are and were of broad geographic scope, and that
the Company's and its predecessor's products are by their nature not
subject to geographic boundaries, both of which factors cause such
goodwill to extend without geographic limitation.
(b) Having due regard for the matters acknowledged in
subsection (a) above, and provided only that the Company is not then in
default on its payment obligations under this Agreement, for a period
of five (5) years from
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the Effective Date the Executive will not engage or become interested,
directly or indirectly, as an owner, employee, director, partner,
consultant, through stock ownership, investment of capital, lending of
money or property, rendering of services, or otherwise, either alone or
in association with others, in the operation, management or supervision
of any type of business or enterprise in any way similar to or
competitive with the business of the Company. In addition, during such
period the Executive will not, directly or indirectly, whether on his
behalf or on behalf of anyone else, (i) solicit or accept orders from
any present or past customer of the Company for a product or service
offered or sold by, or competitive with a product or service offered or
sold by, the Company; (ii) induce or attempt to induce any such
customer to reduce such customer's purchases from the Company; (iii)
use for the benefit of the Executive or disclose the name and/or
requirements of any such customer to any other person or persons,
natural or corporate; or (iv) solicit any of the Company's employees or
consultants to leave the employ of the Company or hire anyone who was
an employee of the Company or a consultant to the Company at any time
within one year from the date the Executive's employment with the
Company terminated. The foregoing restrictions shall not prevent the
Executive from hiring or otherwise engaging any professional firm.
8. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company will
continually develop Confidential Information, that the Executive may
develop Confidential Information for the Company and that the Executive
may learn of Confidential Information during the course of employment.
The Executive agrees that, except as required for the proper
performance of his duties for the Company, he will not, directly or
indirectly, use or disclose any Confidential Information, as defined
below. The Executive understands and agrees that this restriction will
continue to apply after his employment terminates, regardless of the
reason for termination.
(b) The Executive agrees that all Confidential Information
which he creates or to which he has access as a result of his
employment is and shall remain the sole and exclusive property of the
Company. Except as required for the proper performance of his duties,
the Executive will not copy any documents, tapes or other media
containing Confidential Information ("Documents") or remove any
Documents, or copies, from Company premises. The Executive will return
to the Company immediately after his employment terminates, and at such
other times as may be specified by the Company, all Documents and
copies and all other property of the Company then in his possession or
control.
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9. ENFORCEMENT OF COVENANTS. The Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
The Executive further agrees that all goodwill of the Company and its Affiliates
is their exclusive property. The Executive further acknowledges and agrees that,
were he to breach any of the covenants contained in Section 7 or 8 hereof, the
damage would be irreparable. The Executive therefore agrees that the Company or
any of its Affiliates, as the case may be, in addition to any other remedies
available to it, shall be entitled to preliminary and permanent injunctive
relief against any breach or threatened breach by the Executive of any of said
covenants, without having to post bond, provided the Company has made a prima
facie showing of such a breach or threatened breach.
10. INDEMNIFICATION. Subject to the second sentence of this Section 10,
the Company agrees to indemnify Executive against all liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, together with counsel fees, in each case reasonably incurred by
him in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he may be involved or with which
he may be threatened during the term of this Agreement or thereafter, in each
case to the extent incurred by reason of his serving or having served (a) as an
executive officer or director of the Company, or (b) at its request as a
director or executive officer of any organization in which the Company directly
or indirectly owns shares or of which it is directly or indirectly a creditor,
or (c) at its request in any capacity with respect to any employee benefit plan.
Notwithstanding the immediately preceding sentence, the Company shall not
indemnify the Executive if the Executive (i) did not act in good faith and in a
manner the Executive reasonably believed to be in or not opposed to the best
interests of the Company, and (ii) with respect to any criminal action or
proceeding, had reasonable cause to believe that the Executive's conduct was
unlawful. Provant shall purchase and maintain in force directors' and officers'
liability insurance having policy limits and other terms reasonably determined
by the Provant Board of Directors.
11. CONFLICTING AGREEMENTS. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which
the Executive is a party or is bound and that the Executive is not subject to
any covenants against competition or similar covenants that would affect the
performance of his obligations hereunder. The Executive will not disclose or use
any proprietary information of a third party without such party's consent.
12. DEFINITIONS. Words or phrases which are initially capitalized or
are within quotation marks shall have the meanings provided in this Section 12
and as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
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(a) "Affiliates" means all persons and entities directly or
indirectly controlling, controlled by or under common control with the
Company, where control may be by either management authority or equity
interest , including without limitation Provant.
(b) "Company" means, for purposes of Sections 7, 8, and 12(c)
only, the Company or any of its Affiliates; and means the corporation
named in the preamble for purposes of all other Sections.
(c) "Confidential Information" means any and all information,
inventions, discoveries, ideas, research, engineering methods,
practices, processes, systems, formulae, designs, concepts, products,
projects, improvements and developments that are not generally known by
others, developed by or known to the Executive prior to or during the
term of this Agreement and relating in any material respect to the
Company, including their respective businesses, products or services
(or learned by the Executive after the term hereof from a source known
to the Executive to be violating an obligation to the Company not to
disclose the same), including but not limited to (i) products and
services, technical data, methods and processes, (ii) marketing
activities and strategic plans, (iii) costs and sources of supply, (iv)
the identity and special needs of customers and prospective customers
and vendors and prospective vendors, and (v) the people and
organizations with whom the Company has or plans to have business
relationships and those relationships. Confidential Information also
includes such information that the Company may receive or has received
belonging to customers or others who do business with the Company and
any publication or literary creation of the Executive, developed in
whole or in significant part during the term hereof, in whatever form
published, whose content in whole or in part is competitive in any
material respect with the products or services offered by the Company
(including as such products or services could reasonably be expected to
evolve or be extended in the foreseeable future).
(d) "Person" means an individual, a corporation, an
association, a partnership, an estate, a trust and any other entity or
organization.
13. WITHHOLDING. All payments made under this Agreement shall be
reduced by any tax or other amounts required to be withheld under applicable
law.
14. ASSIGNMENT. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Company shall
hereafter effect a reorganization, consolidate with, or merge into, any other
Person or transfer all or
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substantially all of its properties or assets to any other Person unless the
Executive shall object in writing to such assignment within 60 days following
the effective date thereof, in which event the Executive's sole remedy shall be
to terminate this Agreement, which termination shall have the effect set forth
in Section 6 hereof. This Agreement shall inure to the benefit of and be binding
upon the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
15. SEVERABILITY. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. Without limiting the foregoing, in the event
that the temporal or geographic scope of Section 7 shall be determined by a
court of competent jurisdiction to exceed the maximum scope permissible by law,
the applicable provisions of this Agreement shall be deemed modified to the
minimum extent necessary to render such provisions enforceable.
16. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
17. NOTICES. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at his
last known address on the books of the Company or, in the case of the Company,
at Provant's principal place of business, to the attention of Chief Executive
Officer, or to such other address as either party may specify by notice to the
other actually received.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment, including without limitation any agreements relating to
employment between the Executive and any corporate predecessor of the Company,
any such agreement being hereby terminated by the mutual agreement of the
parties without liability to either party.
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19. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by an expressly authorized
representative of the Company.
20. HEADINGS. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
22. GOVERNING LAW. This Agreement shall be construed and enforced under
and be governed in all respects by the laws of the State of California, without
regard to the conflict of laws principles thereof.
23. GUARANTY BY PROVANT. Provant hereby unconditionally and irrevocably
guarantees all of the Company's obligations to the Executive provided in this
Agreement. Provant's guaranty is of the full payment and performance of all of
the Company's covenants, agreements, duties and obligations under this
Agreement, and not a guaranty of collection. This is a continuing guaranty for
all future amounts. Provant waives all rights of subrogation it may have against
the Company until all amounts due or to become due hereunder have been paid to
the Executive, and Provant waives all other defenses and remedies available to
guarantors at law or in equity with respect to the guaranty hereby provided.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Executive and by the Company and Provant, by their respective
duly authorized representatives, as of the date first above written.
Executive: XXXXXX ACQUISITION CORP.
_______________________________ By:_____________________________
Xxxx Xxxxxx Name:
Title:
As to paragraph 23:
PROVANT, INC.
By:_____________________________
Name:
Title:
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SCHEDULE 1
TO EMPLOYMENT AGREEMENT OF XXXX XXXXXX
DATED __________, 1998
The parties acknowledge that Xxxx Xxxxxx has been actively involved in
several organizations, Churches and Boards over the past several years,
including Westmont College, Christian Businessmen's Committee, National Speakers
Association, Bold Assurances Ministries, City Church of San Francisco and United
Way. It is agreed that Xx. Xxxxxx may continue in these, or similar, activities
at no greater level of
participation.
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