EMPLOYMENT AGREEMENT
Exhibit 10.31
THIS
AGREEMENT, made as of this ___ day of ___,
2005, by and between ___ (hereinafter
“Employee”) and GLOBAL EMPLOYMENT SOLUTIONS, INC. with its principal place of business located
at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, which as used in this Agreement shall
include its affiliates, subsidiaries, related organizations, successors and assigns (hereinafter
collectively “Employer”).
BACKGROUND
WHEREAS,
Employer desires to employ Employee in the position of ___; and
WHEREAS, Employee desires to accept the employment offered by Employer upon the terms and
conditions herein set forth.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the mutual
covenants set forth herein, Employee and Employer agree as follows:
1. Employment
and Duties. Employer shall employ Employee in the position of ___.
Employee’s employment will be on an “at-will” basis which means that Employee’s employment may be
terminated by either Employee or Employer at any time, for any reason, with or without cause.
Nothing in this Agreement shall be construed as a guarantee of employment for any specific period.
Employee
shall serve as a ___, shall perform the duties associated with that
position and shall also have such other responsibilities and duties, consistent with Employee’s
position and expertise, as may from time to time be prescribed by Employer. Employee shall
perform his/her duties and responsibilities with fidelity and to the best of his/her ability.
Employee shall devote his/her full time, energy, skill and best efforts to the business and affairs
of Employer. In addition, Employee shall comply with Employer’s policies, standards and
regulations as determined by Employer.
1.1 Business of Employer. Employee acknowledges, understands and agrees that Employer
is a nationwide, full service, multi-divisional staffing, recruiting and search organization that
meets the hiring needs of its customers. Employer’s business covers all industries with widespread
recruiting expertise in areas, including but not limited to, information technology, engineering,
accounting and finance, software and hardware, healthcare, nursing, pharmacy, allied health
professions, pharmaceuticals, sales, architectural, e-commerce, manufacturing, purchasing, biotech,
HVAC, personnel, programming, embedded, materials management, production, and customized executive
searches. In addition to Global Employment Solutions, Inc., Employer has conducted business and
trades under the name Friendly Advanced Software Technology (“Business of Employer”).
2. Compensation.
2.1 Base Salary. In consideration of the services rendered by Employee to Employer,
Employee shall receive an annual base salary of ___ Thousand Dollars ($___,000.00) (“Base
Salary”), payable in equal periodic installments in accordance with Employer’s regular payroll
practices in effect from time to time. Employee’s Base Salary may be reviewed periodically by
Employer, and may be increased or decreased in the sole discretion of the Employer.
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2.2 Commission. Employee shall also be entitled to participate in and receive
commissions in accordance with Employer’s commission program, if any, as may be in effect from time
to time, to the extent Employee is eligible under the general provisions thereof. Employer may, in
its sole discretion, modify, alter or discontinue the commission program available to Employee at
any time upon written notice to Employee.
2.3 Benefits. During his/her employment, Employee shall be entitled to participate in
all fringe benefits, if any, as may be in effect from time to time which are generally available to
Employees of Employer, to the extent he/she is eligible under the general provisions thereof.
Employer may, in its sole discretion, increase, decrease or modify the benefits available to
Employee. Such changes shall be effective upon written notice to Employee.
2.4 Draw. Employee may, at some time during his/her employment, receive a payroll
advance against future commissions. This payroll advance is called a “Draw”. Employee understands
and agrees that this Draw is an advance against future commissions earned, a loan, which Employee
is responsible to pay back to Employer by way of earned commissions or other means. At the time of
the Employee’s termination from Employer (voluntary or involuntary), should Employee’s commissions
earned fail to cover his/her Draw Balance, Employee understands and agrees that he/she shall be
responsible to repay to Employer, upon demand by Employer, any portion of the Draw which was not
satisfied by earned commissions. Furthermore, any remaining Draw Balance will be deducted from the
Employee’s final paycheck (regardless of the type of pay included in the paycheck. For example:
base salary, vacation payout, commissions, bonus, etc.).
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3. Termination Of Employment. Upon termination of Employee’s employment by either
Employer or Employee regardless of the reason, Employee agrees that he/she shall promptly return to
Employer all Employer property, documentation, correspondence, literature, memorandum, files,
customer, prospective customer and candidate lists and information, business card files, computer
files, financial information, leads, account information, manuals, materials, reports, and all
other Employer documents or records in Employee’s possession or control, no matter from whom or in
what manner acquired, and any and all copies thereof. Employee shall also return to Employer all
Employer equipment, computers, computer disks, personal data assistants or other hand-held
computerized devices, cell phones, CD Rom disks, and any other Employer property in Employee’s
possession, custody or control, that Employee shall completely delete all remaining computer files
or e-mails containing any Employer information from the hard drive of his/her personal computer or
held-held computerized devices, and that he/she shall not retain any copies thereof.
4. Employee’s Covenants. In consideration of employee’s employment with Employer, and
other good and sufficient consideration which Employee hereby acknowledges receipt of, Employee
agrees to be bound by the following restrictive covenants which Employee understands and agrees
shall remain in full force and effect both during Employee’s employment and after Employee’s
termination from employment regardless of the reason for Employee’s termination.
4.1 Non-Competition. During Employee’s employment, and for a period of twelve (12)
months after termination for any reason, Employee will not, in any capacity (including, but not
limited to, owner, operator, partner, member, shareholder, consultant, advisor, financier, agent,
employee, officer, director, manager or otherwise), directly or indirectly, for
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his/her own account or for the benefit of any natural person, corporation, partnership, trust,
estate, joint venture, sole proprietorship, association, cooperative or other entity (“Person”),
establish, engage in, work for, or be connected with, except as an employee of Employer, any
business in competition with the Business of Employer, if such business competes with the Business
of Employer within a radius of one hundred (100) miles of any office then maintained by Employer.
4.2 Non-Solicitation. During Employee’s employment, and for a period of twelve (12)
months after termination for any reason, Employee will not, directly or indirectly, for his own
account or for the benefit of any Person or entity:
4.2.1 solicit, service, contact, or aid in the solicitation or servicing of any Person or
entity which is or was a customer, prospective customer, client, prospective client or candidate of
Employer within two (2) years prior to Employee’s termination (“Employer
Customers/Clients/Candidates”), for the purpose of (a) selling services or goods in competition
with the Business of Employer; (b) inducing Employer Customers/Clients/Candidates to cancel,
transfer or cease doing business in whole or in part with Employer; or (c) inducing Employer
Customers/Clients/Candidates to do business with any Person or business entity in competition with
the Business of Employer.
4.2.2 solicit, aid in solicitation of, induce, contact for the purpose of, encourage or in any
way cause any employee of Employer to leave the employ of Employer, or interfere with such
employee’s relationship with Employer.
4.3 Non-Disclosure. Employee acknowledges and agrees that, during the course of
employment with Employer, Employee will learn and have access to Employer’s trade secrets,
confidential information, and proprietary materials which include but are not limited to,
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Employer customer, prospective customer, client and candidate lists, accounts and information,
services, training techniques, methods of operation, pricing, costs, sales, sales strategies and
methods, marketing, marketing strategies and methods, products, product development, research,
know-how, policies, financial information, financial condition, and other information which is not
generally available to the public, and which has been developed or acquired by Employer with
considerable effort and expense. Employee covenants and agrees to hold all of the foregoing trade
secrets, confidential information and proprietary materials in the strictest confidence and shall
not disclose, divulge or reveal the same to any Person or entity during the term of his/her
employment with Employer or at any time thereafter. Employee further covenants and agrees not to
remove any Employer trade secrets, confidential information and proprietary materials or any other
Employer documents or property from Employer’s office without the express written consent of
Employer.
4.4 Enforcement. Employee acknowledges that the covenants and agreements of this
Section 4 (“Covenants”) herein are of a special and unique character, which give them peculiar
value, the loss of which cannot be reasonably or adequately compensated for in an action at law.
Employee further acknowledges that any breach or threat of breach by Employee of any of the
Covenants will result in irreparable injury to Employer for which money damages could not be
adequate to compensate Employer. Therefore, in the event of any such breach or threatened breach,
Employer shall be entitled, in addition to all other rights and remedies which Employer may have at
law or in equity, to have an injunction issued by any competent court enjoining and restraining
Employee and/or all other Persons involved therein from committing a breach or continuing such
breach. Employee understands and agrees that he/she shall be liable to pay Employer’s reasonable
attorneys fees and costs in any successful
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action to enforce this Agreement. The remedies granted to Employer in this Agreement are
cumulative and are in addition to remedies otherwise available to Employer at law or in equity.
The Covenants contained in this Section 4 are independent of any other provision of this Agreement,
and the existence of any claim or cause of action which Employee or any such other Person may have
against Employer shall not constitute a defense or bar to the enforcement of any of the Covenants.
If Employer is obliged to resort to litigation to enforce any of the Covenants which has a fixed
term, then such term shall be extended for a period of time equal to the period during which a
material breach of such Covenant was occurring, beginning on the date of a final court order
(without further right of appeal) holding that such a material breach occurred, or, if later, the
last day of the original fixed term of such Covenant.
4.5 Acknowledgements/Consideration. Employee expressly acknowledges that the
Covenants are a material part of the consideration bargained for by Employer, and, without the
agreement of Employee to be bound by the Covenants, Employer would not have agreed to employ
Employee and enter into this Agreement. Employee further acknowledges and agrees that the Business
of Employer and its services are highly competitive, and that the Covenants contained in this
Section 4 are reasonable and necessary to protect Company’s legitimate business interests and
prevent improper and unfair competition. In addition, Employee acknowledges that in the event
his/her employment with Employer terminates, he/she will still be able to earn a livelihood without
violating this Agreement, and that the Covenants contained in this Section 4 are material
conditions to his/her employment and continued employment with Employer.
4.6 Scope. If any portion of any Covenant or its application is construed to be
invalid, illegal or unenforceable, then the other portions and their application shall not be
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affected thereby and shall be enforceable without regard thereto. If any of the Covenants are
determined to be unenforceable because of its scope, duration, geographical area or similar factor,
then the court making such determination shall have the power to reduce or limit such scope,
duration, area or other factor, and such Covenant shall then be enforceable in its reduced or
limited form.
5 Miscellaneous.
5.1 Entire Understanding. This Agreement sets forth the entire understanding between
the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous,
written, oral, expressed or implied, communications, agreements and understandings with respect to
the subject matter hereof.
5.2 Modification. This Agreement shall not be amended, modified or supplemented
except in writing and signed by the CEO of the Corporation.
5.3 Prior Agreements. Employee represents to Employer (1) that there are no
restrictions, agreements or understandings whatsoever to which Employee is a party which would
prevent or make unlawful his/her execution of this Agreement, (2) that his/her employment hereunder
shall not constitute a breach of any contract, agreement or understanding, oral or written to which
he/she is a party or by which he/she is bound and (3) that he/she is free and able to execute this
Agreement and to enter into employment by Employer.
5.4 Parties in Interest. This Agreement and all rights of Employee hereunder shall
inure to the benefit of, bind and be enforceable by Employee and his heirs, personal
representatives, estate and beneficiaries, and by Employer and its successors and assigns.
5.5 Assignment. Employee understands and agrees that Employer only shall have the
right to assign or otherwise transfer its rights and duties under this Agreement,
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including but not limited to all Covenants contained in Section 4 above, to any successor,
affiliated business or corporation, whether by sale of stock, merger, consolidation, sale of assets
or otherwise. This Agreement may not, however, be assigned by Employee to any third party, nor may
Employee delegate his duties under this Agreement.
5.6 Severability. If any provision of this Agreement is construed to be invalid,
illegal or unenforceable, then the remaining provisions hereof shall not be affected thereby and
shall be enforceable without regard thereto.
5.7 Section Headings. Section and subsection headings in this Agreement are inserted
for convenience of reference only, and shall neither constitute a part of this Agreement nor affect
its construction, interpretation, meaning or effect.
5.8 References. All words used in this Agreement shall be construed to be of such
number and gender as the context requires or permits.
5.9 Controlling Law. This Agreement is made under, and shall be governed by,
construed and enforced in accordance with, the substantive laws of the State of New York applicable
to agreements made and to be performed entirely therein.
5.10 Exclusive Jurisdiction. The parties hereto irrevocably consent to the exclusive
jurisdiction of the courts of Illinois in any action or proceeding between the parties hereto and
both of the parties agree to service of process by hand delivery or by certified mail, to Employer
at the address set forth above, and to Employee at the address Employee provided to Employer for
purposes of tax and payroll records.
5.11 Non-Waiver. Neither the failure nor delay on the part of either party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall the single or partial exercise of any right, remedy, power or privilege preclude
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any other or further exercise of the same or any other right, remedy, power or privilege with
respect to any occurrence, nor be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is in writing and is
signed by the party asserted to have granted such waiver.
5.12 Acknowledgement. Employee acknowledges that he/she has carefully read and fully
understands the provisions of this Agreement, including the Covenants contained in Section 4 above,
and has had sufficient time and opportunity to review this Agreement prior to executing it.
Employee further acknowledges that he/she enters into this Agreement knowingly
and voluntarily, and signs this Agreement with the full intention of being bound by its terms,
including the Covenants contained in Section 4 above.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above
mentioned, intending to be legally bound hereby.
| GLOBAL EMPLOYMENT SOLUTIONS, INC. | EMPLOYEE: | |||||||
By:
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Dated:
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Dated: |
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