EMPLOYMENT AGREEMENT PAIGE BURKES
Exhibit 10.1
EMPLOYMENT AGREEMENT
XXXXX XXXXXX
XXXXX XXXXXX
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into this 8th day of
June, 2009, by and between Global Employment Solutions, Inc. (“Company”), and Xxxxx Xxxxxx,
an individual (“Manager”). Company and Manager are jointly referred to herein as the
“Parties.”
In consideration of the mutual promises and agreements contained herein, and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Company’s
continued employment of Manager.
ARTICLE 1. TERMS AND CONDITIONS OF EMPLOYMENT
1. Employment and Duties. Company agrees to employ Manager and Manager hereby accepts
employment as Chief Financial Officer under the terms and conditions set forth in this Agreement.
As Chief Financial Officer, Manager agrees to perform the duties and responsibilities described
more fully in Exhibit A to this Agreement (“Manager’s Duties” or “Duties”).
Company explicitly reserves the right to expand, diminish, or otherwise change the Duties
(including related tasks) or require Manager to work in other positions depending upon the
Company’s operational or business needs. Manager agrees to devote Manager’s best efforts in
performing the Duties and to observe and comply with all work rules, laws, and policies.
2. Employment Term. Company hereby employs the Manager and the Manager hereby accepts
employment upon the terms and conditions contained herein. Employment shall commence on June
8th 2009 and shall continue for an indefinite time until terminated by either party, for
any reason, with or without notice or cause.
3. Salary and Benefits.
(a) During the Employment Period, Manager’s base salary (the “Base Salary”)
shall be $165,000.00 per annum, which salary shall be payable in regular installments
in accordance with the Company’s general payroll practices.
(b) Car Allowance: $400.00 per month
(c) Bonus: At the end of each fiscal year during the Employment Period, Employee shall
be eligible to receive a bonus based on Holding’s achieving annual EBITDA target
amounts and performance criteria (MBO’s) established annually by the Compensation
Committee and the CEO. However, during employee’s first year of employment, this bonus
amount will be prorated for time worked. You qualify for up to $40,000.00 prorated
for time worked between your start date and December 31, 2009. $10,000.00 prorated
for time worked between your start date and December 31, 2009 of which will be
guaranteed. Payment is due after the receipt of an annual audit generated by the
Company’s accountants, but in no case later than 120 days after the Company’s fiscal
year-end, the Company shall notify Employee of the bonus earned in the preceding
fiscal year. Employee must be employed with the Company or its subsidiaries as of the
end of each fiscal year to be eligible for the bonus. Terms associated with how you
earn the prorated bonus amount will be reviewed with you during your first 30 days of
employment.
(d) Stock Options: The Company agrees to grant you 25,000 Options commensurate with
your date of hire. You will also qualify for an additional 25,000 Options to be
granted after you have completed 6 months of time worked.
(e) Relocation: The Company agrees to: (i) pay you $10,000.00 when you relocate your
family to the Denver metro area. This must occur prior to 12/31/09 in order to qualify
for payment or (ii) $5,000.00 of the $10,000.00 when you sign a lease for temporary
housing in the Denver metro area. This should occur within 45 days of your start date.
To qualify for the balance $5,000.00, you need to have relocated your family to the
Denver metro area prior to 12/31/09. Should you voluntarily terminate or are
terminated for cause, within your first 12 months of employment, you agree to
reimburse the Company for all relocation payments that you have received including
deducting said amounts from your final pay.
(f) During the Employment Period, Manager may participate in all of the Company’s
employee benefit programs for which similarly situated managers of the Company are
generally eligible. Nothing contained herein should be construed, however, as a
guarantee of coverage or eligibility in any of Company’s benefit programs. Manager
shall be entitled to two weeks (2) vacation per year. Earned in accordance with the
Company’s accrual practice with no carry over from year to year.
(g) Company shall reimburse Manager for all reasonable out-of-pocket expenses incurred
by Manager in the course of performing Manager’s Duties under this Agreement after
completion of an expense report and in accordance with Company’s reimbursement,
reporting and documentation policies in effect from time to time with respect to
travel, entertainment and other business expenses.
4. Termination of Employment. The Manager’s employment under this Agreement shall
terminate upon the occurrence of any one or more of the following:
(a) the termination by the Company of Manager’s employment for Cause (as defined
below);
(b) the termination by the Company of Manager’s employment without Cause;
(c) the Disability of Manager (as defined below); or
(d) the death of Manager.
5. Termination for Cause. Company shall have the right to terminate Manager’s
employment at any time, without prior notice, for cause. “Cause” shall mean:
(a) Manager’s breach of any part of this Agreement;
(b) Manager’s failure to adhere to any written Company policy;
(c) Manager’s failure to substantially perform the Duties on a full-time basis as
assigned by his / her manager;
(d) Manager’s failure to adhere to any of the requirements imposed on the Company by
the Securities Exchange Commission (SEC).
(e) Manager’s misappropriation or attempted misappropriation of Company’s funds,
property, Trade Secrets (defined below), or Confidential Information (defined below);
(f) Manager’s appropriation or attempted appropriation of a material business
opportunity of the Company, including, without limitation, securing or attempting to
secure personal profit or other benefit in connection with any sale or transaction
entered into on behalf of the Company; or
(g) Manager’s conviction of, indictment (or its procedural equivalent) for, or
entrance of a guilty plea or plea of no contest with respect to, any charge or crime
involving fraud or moral turpitude or any other charge or crime for which imprisonment
is a possible punishment (excepting traffic or moving vehicle violations).
6. Termination Payments.
(a) In the event that Manager’s employment is terminated pursuant to Xxxxxxxxx 0 (x),
(x), (x), (x), (x), (x) or (g) then all of Manager’s rights to the Base Salary and
Benefits shall immediately terminate as of the date that Manager’s employment is
terminated, except that Manager (or, in the event that Manager’s employment hereunder
is terminated due to Manager’s death, Manager’s heirs, personal representative or
estate) shall be entitled to any earned and unpaid portion of the Base Salary, less
all deductions or offsets for amounts owed by Manager to the Company (including but
not limited to any unearned salary advances or outstanding loans).
(b) If Manager is terminated without Cause, except in the case of the Sale of the
Company (see Paragraph 11 below), Manager shall be entitled to continue to receive
Three (3) months base salary following the date that Manager’s employment is
terminated. To earn this termination payment, Manager must complete 2 months
employment (6 months total) for each month of pay.
(d) If the Sale of the Company as defined in section 11 below occurs and Employee
either (A) is terminated by the purchaser substantially simultaneously with the Sale
of the Company or (B) voluntarily terminates his / her employment because the
purchaser offers employment on terms that are not substantially the same or better as
Employee’s current role and responsibilities. Employee shall be entitled to 6 months
base salary (no other benefits are eligible under this provision). Such payments will
be made in bi-weekly increments over the course of one (1) year. To earn this
termination payment, Manager must complete 2 months employment (12 months total) for
each month of pay. During this period, employee will remain bound by the non-compete
provisions agreed to as part of employees “Employment Agreement”. Thereafter, the
non-compete provisions of Employee’s Employment agreement will no longer apply. All
other provisions will continue in accordance with their description as outlined in
your Employment Agreement. In the event Employee violates the non-compete provision of
this agreement, the Company reserves all of its rights as outlined in Employee’s Employment Agreement to
recover payments made while employee remained bound by the Employment Agreement
including attorney fees.
(e) Except as otherwise provided in this Paragraph 6, all compensation and other
benefits shall cease to accrue upon termination of the Employment Period.
ARTICLE 2. CONFIDENTIALITY AND COMPETITION
1. Confidentiality.
(a) Manager recognizes and acknowledges that the Trade Secrets (defined below) and
Confidential Information (defined below) obtained by Manager while employed by the
Company concerning the business or affairs of the Company or any of their customers
are the property of the Company.
(b) Manager recognizes and acknowledges that the business design, functionality and
business operation of the computer systems and software which the Company owns, plans
or develops, or acquires from third parties, whether for its own use or for use by its
customers, are confidential in nature and shall be deemed to be Trade Secrets and/or
Confidential Information, proprietary to and the property of the Company. Manager
further recognizes and acknowledges that in order to enable the Company to perform
services for its customers, such customers may furnish to the Company Trade Secrets
and/or Confidential Information concerning the customers’ business affairs, property,
methods of operation or other data and that the goodwill afforded to the Company
depends upon, among other things, the Company and the Manager’s keeping such services
and information confidential.
(c) Manager shall not use for Manager’s own account or disclose to any third
person/party or unauthorized person any Trade Secret and/or Confidential Information
of the Company, or its customers during the Employment Period and thereafter, whether
or not the Trade Secret and/or Confidential Information is in tangible or intangible
forms, except (i) as required to perform duties for the Company, (ii) after receiving
the prior written consent of the Company’s CEO or (iii) to the extent that such Trade
Secret and/or Confidential Information becomes generally available to and available
for use by the public, other than as a result of Manager’s breach of Manager’s
obligations hereunder or the breach of a third party of its confidentiality or
non-disclosure obligations. Manager shall take all necessary precautions against
disclosure of such information to third parties during and after the Employment
Period.
(d) Manager shall keep in strictest confidence, both during the Employment Period and
subsequent to termination of employment, and shall not, during the Employment Period
or thereafter, disclose or divulge to any third person/party or unauthorized person,
firm or corporation, or use directly or indirectly, for the Manager’s own benefit or
the benefit of others, any Trade Secret or Confidential Information including, without
limitation, information as to sources of, and arrangements for, the Company’s business
plan(s), use of hardware or software supplied in any way to the Company or the
Company’s customers, submission and proposal procedures, and customers or contact
lists.
(e) Upon request of the Company and, in any event, upon the termination of the
Employment Period, Manager shall return to and leave with the Company all computer
programs, documentation, memoranda, client or customer lists, notes, records,
drawings, manuals, flow sheets or other documents pertaining to the Company’s business
or Manager’s employment (including all copies thereof). Manager shall also leave with
the Company all other materials involving, containing or incorporating any Trade
Secrets or Confidential Information of the Company, or their customers.
(f) Notwithstanding the foregoing, in the event Manager becomes legally compelled to
disclose Trade Secrets and/or Confidential Information pursuant to judicial or
administrative subpoena or process or other legal obligation, Manager may make such
disclosure only to the extent required, in the opinion of counsel for Manager, to
comply with such subpoena, process or other obligation. Manager shall, as promptly as
possible and in any event prior to the making of such disclosure, notify the Company
of any such subpoena, process or obligation and shall cooperate with the Company in
seeking a protective order or other means of protecting the confidentiality of the
Confidential Information and/or Trade Secrets.
2. Non-Compete; Non-Solicitation. In consideration of the terms and conditions of
this Agreement and for other good and valuable consideration, including, but not limited to, the
provision of training, facilities, client contacts, and experience by Company, Manager and Company
freely choose to include this Non-Compete; Non-Solicitation Clause (“Non-Compete Clause”)
as part of this Agreement. The Parties agree and recognize that this Non-Compete Clause is
necessary to protect the legitimate business interests and goodwill of Company.
(a) Manager’s Acknowledgement. Manager acknowledges that Manager’s Duties are
unique and Manager has or will have during the Employment Period access to Company’s
Trade Secrets and/or Confidential Information. Manager also acknowledges that Company
has, at a great expense, secured clients, temporary employees, consultants and
recruits, through its employees, agents, marketing throughout the continental U.S.,
and in particular, within Manager’s Market Area (defined below). Manager further
acknowledges that Company’s products and services are specialized and that Company has
a proprietary interest in its Trade Secrets and Confidential Information, including
its clients and client lists, which Company has invested considerable amounts of time
and expense in attaining and developing, and ensuring the confidentiality of.
(b) Non-Competition. Manager expressly covenants and agrees that during the
Employment Period and during the one (1) year immediately following the effective date
of any employment termination, Manager will not, within the Market Area, directly or
indirectly own, manage, operate, control, participate in, or be connected with as an
officer, employee, partner, creditor, or guarantor of any person, partnership, firm,
or corporation that is engaged or about to become engaged in the same business as
Company, described more fully in Exhibit B, or any other business that is
developed by Company during the Employment Period.
(c) Non-Solicitation of Customers. Manager expressly covenants and agrees
that during the Employment Period and during the one (1) year immediately following
the effective date of any employment termination, Manager will not in any way,
directly or indirectly, on Manager’s own behalf or on behalf of or in conjunction with
any other person, partnership, firm, or corporation solicit, divert, take away, or
attempt to take away any person, partnership, firm, or corporation (or their business
or patronage) that has been a customer or client of Company within the five (5) years
preceding Manager’s employment termination.
(d) Non-Solicitation of Employees. Manager expressly covenants and agrees
that during the Employment Period and during the one (1) year immediately following
the date of Manager’s employment termination, Manager will not in any way, on
Manager’s behalf or on behalf of or in conjunction with any person, partnership, firm,
or corporation directly solicit, entice, hire, employ, or endeavor to employ any of
Company’s employees.
3. Avoidance of Conflict of Interest. While employed by the Company, Manager shall
not engage in any other business activities which conflict with Manager’s duties to the Company.
Under no circumstances shall Manager work for any competitor or have any financial interest in any
competitor of the Company; provided, however, that this Agreement does not prohibit investment of a
reasonable part of Manager’s assets in the stock or securities of any competitor whose stock or
securities are publicly traded on a U.S. exchange.
ARTICLE 3. DEFINITIONS
1. “Confidential Information” shall mean any data, observations or information, that
is material, competitively sensitive, and not generally available to the public, other than
as a result of a breach of a confidentiality obligation, including, but not limited to,
training manuals, product development plans, marketing strategies, internal performance
statistics, and the Company’s products, services, processing, selling, storage, application
techniques and know-how such as client lists, client contact information, call lists, pricing
lists, and financial and marketing data.
2. “Disability” shall mean Manager’s physical or mental illness, disability or
incapacity that prevents Manager from substantially performing Manager’s Duties hereunder for
6 months or more during any 12-month period, determined in good faith by the Company.
3. “Market Area” shall mean the area within a 50 mile radius of the Company office(s)
or assigned sales territory outside the state of Florida to which Manager is assigned.
4. “Sale of the Company” means any transaction or series of related transactions (i)
the result of which is that any “person” (as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), of more than 50% of Company’s issued and
outstanding voting securities, (ii) that results in the sale of all or substantially all of the
Company’s assets, or (iii) that results in the consolidation or merger of the Company with or into
another entity, other than an affiliate, in which the Company is not the surviving entity.
Notwithstanding, these provisions will not apply in the event the Company decides to become a
private entity and his / her duties / responsibilities do not substantially change in scope.
5. “Trade Secret” shall mean the whole or any portion or phase of any technical
information, design, process, procedure, formula, improvement, confidential business or financial
information, listing of customer or client names, addresses, or telephone numbers or other
information which is secret and of value to any of Company’s areas of business.
ARTICLE 4. GENERAL PROVISIONS
1. Reformation. If, at the time of enforcement of this Agreement, a court holds that
the restrictions stated herein are unreasonable under the circumstances then existing, the
Parties hereto agree that the maximum period, scope or geographical areas reasonable under
such circumstances shall be substituted for the sated period, scope or area.
2. Enforcement. Manager acknowledges that the injury that would be suffered by the
Company as a result of a breach of any of the provisions of Paragraphs 7 through 9 hereof
would be irreparable and that an award of monetary damages to the Company for such a breach,
on its own, would be an inadequate remedy. Consequently, the Company shall have the right,
in addition to any other rights or remedies it may have at law or in equity, to obtain
injunctive relief to prevent or restrain any such breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and the Company shall not be obligated
to post bond or other security in seeking such relief. The Company shall be entitled to its
attorneys’ fees and costs incurred in enforcing this Agreement, including attorneys’ fees and
costs incurred in pursuing an injunction, which fees and costs shall be paid as soon as the
Court determines their reasonableness and amount, and before the adjudication on the merits
of any underlying action.
3. Liquidated Damages. In the event of a breach by Manager of Paragraphs 7 or 8
hereof, which results in a loss of a customer of the Company, and in addition to any
other rights or remedies, Manager shall pay to Company a sum of liquidated damages equal
to the amount of the gross fee that Company earned from such customer during the most recent
one (1) year period during which Company provided services to the client. If services were
not provided to the client for a full year, liquidated damages shall be equal to the
annualized value of the fees actually charged for services that were provided. Manager and
Company agree that the amount established hereunder as liquidated damages is reasonable under
the circumstances existing on the Effective Date.
4. Assignment. This Agreement and the rights and obligations of the Parties hereto
shall bind and inure to the benefit of any successor(s) of the Company by virtue of
reorganization, merger, or consolidation, and any assignee(s) of all or substantially all of
its business or properties. Since this Agreement is personal to Manager, Manager’s
obligations under this Agreement may not be assigned or transferred to any other person or
entity.
5. Survival. Notwithstanding the expiration of the Employment Period or termination
of the Manager’s employment with the Company, this Agreement shall continue in full force and
effect as to any provisions requiring observance or performance subsequent to any such
expiration or termination.
6. Severability. Wherever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law, but the
unenforceability of any one or more provisions, clauses, or portions hereof shall not render any
other provision, clause or portion hereof unenforceable or invalid. “If any court determines that
the scope or subject of a restriction in this Agreement is unreasonable or too broad, it may modify
the unreasonable or overly broad portion to the extent required to make such restriction valid and
enforceable and in conformance with applicable law, and enforce the restriction as modified.”
7. Extension of Covenants. If Manager breaches a restrictive covenant of this
Agreement containing a specified term, the length of the covenant shall be extended by the period
of time between the inception of the breach and the date a court of competent jurisdiction remedies
such breach of the covenant.
8. Entire Agreement. This Agreement contains the entire agreement between the Parties
and there are no agreements, understandings, restrictions, warranties, or representations between
the Parties relating to this subject matter other than those in this Agreement. This Agreement
supersedes all prior agreements, understandings, discussions, or negotiations relating to this
subject matter.
9. Waiver. Any failure of Company to demand rigid adherence to one or more of this
Agreement’s provisions or terms shall not be construed as a waiver nor deprive Company of the right
to insist upon strict compliance.
10. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to constitute one and the same agreement.
11. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado and shall not be construed against the drafter of the
Agreement.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the Effective
Date of this Agreement.
| GLOBAL EMPLOYMENT SOLUTIONS, INC. | ||||||||
| /s/ Xxxxxx Xxxxx | June 8, 2009 | |||||||
| By: | Xxxxxx Xxxxx | Date | ||||||
| Title: | CEO | |||||||
| /s/ Xxxxx Xxxxxx | June 8, 2009 | |||||||
| By: | Xxxxx Xxxxxx | Date | ||||||
| Title: | CFO | |||||||
