EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of May 16, 1997
(the "Effective Date"), by and between ICCE, Inc., a Georgia corporation, (the
"Company"), and (A), an individual resident of (B) (the "Executive").
WHEREAS, Executive was an executive officer and shareholder of (C), which
was merged to form a subsidiary of the Company;
WHEREAS, the Company recognizes the contributions of Executive in such
capacity;
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company; and
WHEREAS, Executive is willing to render services to the Company and/or one
or more of its subsidiaries on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and the Company
including, without limitation, the promises and covenants of the parties set
forth herein, the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 Term of Employment. The term of Executive's employment
hereunder shall commence on the Effective Date hereof and continue for a period
of three (3) years, unless earlier terminated as provided in this Agreement.
At the end of the initial three year term, this Agreement shall automatically
renew for consecutive one year terms unless either party hereto gives written
notice to the other of its intent to terminate sixty (60) days prior to the end
of any term.
Section 1.2 Duties and Responsibilities of Executive. Executive is
hereby employed full time as the (D) of the Company. Executive shall devote
his full time, energy, and skill to such office and shall do and perform all
services and acts necessary or advisable to fulfill the duties of such office.
In his capacity as an officer of the Company, Executive shall report to the
Board of Directors of the Company, and shall conduct and perform such
additional services and activities as may be determined from time to time by
such superior officer which are normal and customary for a similar officer of a
similarly situated company. Executive's authority and responsibility in the
Company shall at all times be subject to the review and discretion of the Board
of Directors, who shall have the final authority to make decisions regarding
the business of the Company. Executive acknowledges that she has a duty of
loyalty to the Company and shall not engage in, directly and indirectly, any
other business or activity that could materially and adversely affect the
Company's business or the Executive's ability to perform his duties under this
Agreement, provided, however, that the Executive shall be free to participate
in board, civic and charitable activities so long as such activities do not
interfere with his duties and responsibilities hereunder.
Section 1.3 Compensation. For services to be rendered by Executive
under this Agreement, Company shall pay Executive as follows:
Executive shall be paid an annual base salary of $200,000, plus bonus
compensation in an amount to be agreed upon by Company and Executive. At the
sole discretion of the Board of Directors of the Company, Executive's annual
salary may be increased from time to time.
Section 1.4 Benefits.
(a) Vacation. Executive shall be entitled to six weeks paid
vacation annually during his employment by the Company hereunder. Any vacation
not used during any calendar year shall be forfeited, except that one week's
unused vacation may be carried forward to the year following the year in which
such vacation entitlement accrued.
(b) Life, Disability and Retirement Programs. Executive shall be
entitled to participate in any life, disability and retirement programs that
are generally offered to or provided for the senior management personnel of the
Company and its subsidiaries.
(c) Group Insurance. Executive shall be entitled to participate in
such group health and dental insurance programs (including spouse coverage) as
may from time to time be offered generally to all of the other members of the
senior management personnel of the Company and its subsidiaries.
Section 1.5 Business Expenses. Executive shall be entitled to
reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phones and pager),
entertainment and meals in connection with the performance of Executive's
duties under this Agreement in accordance with the Company's established
policies for reimbursement of business expenses. The Company expects Executive
to attend and participate in continuing education seminars and courses with
respect to the staffing industry and business management related to his duties,
and the Company will reimburse all ordinary and necessary expenses of such
attendance and participation. Such continuing education courses and seminars
will be scheduled in conjunction with the other officers of the Company to
assure coordination of schedules.
ARTICLE II
COVENANTS OF EXECUTIVE
Section 2.1 Confidentiality. Executive recognizes the interest of the
Company in maintaining the confidential nature of its proprietary and other
confidential business and commercial information. In connection therewith,
Executive covenants that during the term of Executive's employment with Company
under this Agreement, and for a period of two (2) years thereafter, Executive
shall not, directly or indirectly, except as authorized by the Board, publish,
disclose or use for Executive's own benefit or for the benefit of a business or
entity (other than the Company) or otherwise, any secret or confidential
matter, or proprietary or other information not in the public domain that was
acquired by Executive during Executive's employment, relating to the Company's
or any of its subsidiaries' businesses, operations, customers, suppliers,
products, employees, financial affairs or industry practices, technology,
know-how or intellectual property or other similar information (the
"Proprietary Information").
Notwithstanding the foregoing, to the extent Proprietary Information
constitutes a Trade Secret (as that term is defined below, or otherwise defined
under applicable law), then Executive shall not, at any time, either during the
term of Executive's employment or after any termination of employment, use or
disclose any Trade Secrets of the Company or any of its subsidiaries, except in
fulfillment of Executive's duties as the Executive during Executive's
employment, for so long as the pertinent information or data remain Trade
Secrets, whether or not the Trade Secrets are in written or tangible form. As
used herein, "Trade Secret" means information which derives economic value,
actual or potential, from not being generally known to, or readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and which is subject to reasonable efforts by the
Company to maintain the secrecy thereof.
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems, methods,
personnel, technology and other materials relating to the Company or its
affiliated entities shall be and remain the sole property of the Company and/or
such affiliated entity and shall, upon the request of the Company, turn over
all copies of such Proprietary Information to the Company (together with a
written statement certifying as to Executive's compliance with the foregoing).
Section 2.2 Non-Solicitation of Customers. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive shall
not directly or indirectly, through one or more intermediaries or otherwise,
solicit or attempt to solicit Customers to induce or encourage them to acquire
or obtain from anyone other than the Company, service competitive with or
substitute for any Company Service. For purposes of this Section, a "Customer"
refers to any person or group of persons with whom Employee had direct material
contact with regard to the selling, delivery or support of Company Services,
including servicing such person's or group's account, during the two (2) year
period preceding termination of Executive's employment; and "Company Services"
refers to the services that the Company or any of its subsidiaries offered or
sold within six (6) months prior to the date of termination of Executive's
employment. For purposes of this Article II, the "Restricted Territory" shall
be the area that is within thirty (30) miles of the city limits of (E). In the
event Executive manages additional offices for the Company, the Executive and
the Company agree to amend this Agreement, by execution of an amendment
pursuant to Section 4.5 hereof, to change the Restricted Territory accordingly.
Section 2.3 Non-Compete. During the term of Executive's employment
with the Company, and for a period of two (2) years thereafter, unless
Executive is terminated other than for Cause (as defined below) or Executive
resigns for Good Reason (as defined below), Executive shall not, without the
prior written consent of the Board of Directors, which consent may be withheld
at the sole discretion of the Board of Directors, engage or participate within
the Restricted Territory, as a business executive, employee, consultant, or
equity owner of any business or enterprise that directly competes with any line
of business (i) in which the Company or any of its subsidiaries was engaged at
the time of termination of Executive's employment with the Company and (ii) in
which Executive was materially involved or responsible for; provided, however,
that nothing in this Section 2.3 shall prohibit Executive from acquiring or
holding, for investment purposes only, five percent (5%) or less of the
outstanding publicly traded securities of any corporation.
Section 2.4 Non-Solicitation of Employees. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive shall
not, directly or indirectly, through one or more intermediaries or otherwise,
employ, induce, solicit for employment, or assist others in employing, inducing
or soliciting for employment any individual who is at any time during such
period an employee of the Company or any of its subsidiaries for the purpose of
providing services within the Restricted Area that are the same or similar to
the types of services offered or engaged in by the Company or any of its
subsidiaries at the time of termination of Executive's employment with the
Company.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 Termination by Company. Executive's employment may be
terminated by the Company by giving notice during the term of this Agreement
upon the occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive
incapable of performing his duties for more than one hundred twenty (120)
calendar days (termination under this Section 3.1(a) shall be deemed
termination without Cause);
(b) for any reason following a determination by the Board of
Directors to terminate Executive's employment (termination under this Section
3.1(b) shall be deemed termination without Cause); or
(c) "for Cause", which for purposes of this Agreement shall mean
that the Executive shall have:
(i) committed an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course of his employment with the
Company which has a material adverse effect upon the Company;
(ii) inflicted intentional wrongful material damage to any
material asset of the Company or the Company;
(iii) intentionally and wrongfully violates Article II of this
Agreement, which violation has a material adverse effect upon the Company;
(iv) been convicted of a felony or any similar crime carrying a
prison term of at least one year (regardless of whether imprisonment is
actually imposed);
(v) a habitual and debilitating use of alcohol or drugs; or
(vi) failed to meet performance expectations, as determined and
articulated by the Company's Board of Directors; provided, however, that in the
event of this subsection (vi) being the sole reason for a termination for
Cause, Executive shall have the cure provisions and rights provided for in
Section 3.1(d) hereof.
(d) In the event of a determination by the Company's Board of Directors
that the Executive has failed to meet performance expectations, the Company
shall furnish to Executive in writing a notice of proposed termination setting
forth a specific statement of the deficiencies in his performance. Executive
shall then have a period of ninety (90) days after the giving of such written
notice of proposed termination by the Company in which to attempt to effect a
cure of the specified deficiencies. If at the end of such ninety (90) day
period no such cure has been effected to the reasonable satisfaction of the
Board of Directors of the Company, then Executive's employment shall be
terminated as of the end of such ninety (90) day period. The Company shall be
obligated to provide to Executive only one such notice of proposed termination,
and if subsequent to effecting a cure of specified deficiencies the Executive
is determined by the Board of Directors to have again failed to meet
performance expectations, then his employment may be terminated immediately
upon the Company's giving of notice of termination to Executive which specifies
his deficiencies in performance.
Section 3.2 Good Reason. For purposes of this Agreement, "Good Reason"
shall mean, without the express written consent of Executive, the occurrence of
any of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that she
intends to terminate his employment hereunder for one of the reasons set forth
below:
(a) a material breach by the Company of any material provision of
this Agreement, the Registration Rights Agreement to which Executive is a
party of even date herewith, or the Shareholders Agreement to which
Executive is a party of even date herewith, including, but not limited to,
the assignment to Executive of any duties inconsistent with Executive's
position in the Company or a material adverse alteration in the nature or
status of Executive's responsibilities;
(b) the relocation of Executive out of the (E) area; or
(c) the occurrence of a "Change in Control" as defined below.
For purposes of this Agreement a "Change in Control" shall mean an event
as a result of which: (i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange At")), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total voting power of the voting stock of
the Company; (ii) the Company consolidates with, or merges with or into another
corporation or sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets, or substantially all of the assets
of or all of the Company's interest in (C), to any person or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (a) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (b) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 30% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date of the
Merger constitute the Board of the Company (together with any new directors
whose election by such Board or whose nomination for election by the
stockholders of the Company was approved by a vote of 66-2/3% of the directors
then still in office who were directors at the date of the Merger or whose
election or nomination for election was previously so approved) ceased for any
reason to constitute a majority of the Board of the Company then in office; or
(iv) the Company is liquidated or dissolved or adopts a plan of liquidation;
provided, however, that a Change in Control shall not include the Merger.
Section 3.3 Severance. For purposes of this Agreement, Executive's
entitlement to any severance payments upon termination of his employment shall
be as set forth below:
(a) Termination Without Cause.
(i) Executive may not be terminated prior to the IPO;
(ii) If Executive is terminated without Cause or resigns for
Good Reason at any time, Executive shall be entitled to severance pay of a lump
sum equal to three times the sum of (i) his annual salary then in effect plus
(ii) the amount of his bonus as calculated based on the results of operations
for the twelve months prior to such termination.
(b) Voluntary Termination. If Executive voluntarily resigns for
reason other than Good Cause, Executive shall receive a lump sum severance
payment equal to his then current annual salary. Executive shall provide a
minimum of thirty (30) days prior notice to the Chief Executive Officer of his
resignation. In the event Executive shall provide thirty (30) days prior
written notice of his intent to resign, the Company may accept such resignation
effective as of any date during such thirty (30) day period as the Company
deems appropriate, provided that Executive shall receive from the Company his
salary and be entitled to participate at the Company's expense in any Company
sponsored benefit programs in which she was a participant as of the effective
date of his resignation for the duration of such thirty (30) day period.
(c) For Cause. Executive shall not be entitled to any severance pay
whatsoever if his employment is terminated "for Cause" pursuant to Section
3.1(c) of this Agreement, unless severance pay is approved by the Board of
Directors of the Company in its sole discretion, provided, however, that the
Executive shall receive such annual salary that is accrued but unpaid up to the
date of such termination for Cause. If termination is for Cause pursuant to
Section 3.1(c)(vi), then Executive shall be entitled to severance equal to pay
for the remainder of the then current term of this Agreement, or equal to one
year's salary at his then current rate, whichever is greater.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes
and withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 Notice. For purposes of this Agreement, all communications
including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or five (5) business days after having been
mailed by United States registered mail or certified mail, return receipt
requested, postage prepaid, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive at
his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except the
notices of change of address shall be effective only upon receipt.
Section 4.3 Validity. It is not the intent of any party hereto to
violate any public policy of any jurisdiction in which this Agreement may be
enforced. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of
such provision to any other person or circumstances shall not be affected, and
the provision so held to be invalid, unenforceable or otherwise illegal shall
be reformed to the extent (and only to the extent) necessary to make it valid,
enforceable and legal; provided, however, if the provision so held to be
invalid, unenforceable or otherwise illegal constituted a material inducement
to a party's execution and delivery of this Agreement, then such provision
shall not be reformed unless prior to any reformation that party agrees to be
bound by the reformation.
Section 4.4 Entire Agreement. This Agreement supersedes any other
agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between
the parties with respect to the employment of Executive by the Company. Any
waiver or modification of any term of this Agreement shall be effective only if
it is set forth in a writing signed by both parties hereto.
Section 4.5 Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any Successor of or to the Company, but shall not otherwise be
assignable or delegable by the Company. "Successor" shall mean any successor
in interest, including, without limitation, any entity, individual or group of
persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company, as the case may be, whether by sale, merger,
consolidation, reorganization or otherwise.
(b) The Company shall require any Successor to agree at the time of
becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
(c) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
heirs, distributee and legatees.
(d) This Agreement is personal in nature and neither of the parties
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided
in this Section 4.5.
Section 4.6 Captions. The captions in this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
Section 4.7 Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by Executive and the Company. No waiver by a
party hereto at any time of any breach by another party hereto or compliance
with any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provision or conditions
at the same or at any prior or subsequent time.
Section 4.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By:__________________ _______________________
Signature
Print Residence Address:
Print Name
________________________________
Print Title ________________________________
SCHEDULE TO FORM OF EMPLOYMENT AGREEMENT
(A) (i) Xxxxx X. Xxxxxx
(ii) Xxxx Xxxx Xxxxx
(B) (i) Georgia
(ii) Maryland
(C) (i) Xxxxx X. Xxxxxx & Associates, Inc. and DCCA
Professional Temporaries, Inc.
(ii) Infinity Enterprises, Inc.
(D) (i) Chairman of the Board
(ii) Chief Development Officer
(E) (i) Atlanta, Georgia
(ii) Washington, D.C.
