Exhibit 10.4
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into as of this 1st of September,
1998, by and between ACCU FACCS PRE-EMPLOYMENT SCREENING, INC., ("ACCU FACCS"),
a New York corporation ("Corporation") with offices located at 0 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and XXXXXX XXXXXX ("Employee"), residing at Long Beach,
New York.
In consideration of the mutual promises of the parties and other good and
valuable consideration, the parties hereby agree:
Section 1. Services. Corporation engages Employee to provide the following
services:
o President and CEO
Employee agrees to devote his full time to the business of and the benefit
of the Corporation.
Section 2. Term. Employee shall provide such services for a five (5) year period
beginning the day above-written.
Section 3. Compensation. For such services, the Corporation shall compensate
Employee as follows:
(a) $150,000.00 per annum payable bimonthly, at annual increases of 5%.
(b) Additional Compensation: Employee shall be entitled to 10% of any
profit (EBITD) in excess of $500,000.00 determined by the Company accountants at
the end of any fiscal year and shall be paid as a bonus no later than April 15,
in the following fiscal year.
(c) The Corporation shall reimburse employee for all reasonable
out-of-pocket expenses incurred by Employee in fulfilling his duties.
Corporation shall provide Employee with suitable office facilities, equipment,
supplies and staff.
(d) The Corporation will provide monthly payments of up to a maximum of
$700.00/month for car lease payments. Any amount in excess thereof shall be the
responsibility of the Employee.
Section 4. Proprietary Rights.
A. Employee agrees that all Work Product created during the term of this
agreement while employed by the Corporation or any work product created by, its
employees, associates, or subcontractors, arising from work performed hereunder,
or previously conceived in anticipation of this employment by the Corporation's
engagement of Employee, shall be deemed "work made for hire," and Employee shall
execute any assignment, oaths, declarations, and other documents as may be
prepared by Corporation to effect the foregoing, acknowledging that all rights
thereto shall be the property of the Corporation.
B. "Work Product" shall mean all documentation, manuals, teaching
materials,
creative works, know-how, and information including customer lists, created on
behalf of the Corporation, in whole or in part, by Employee, the Corporation and
all of its employees, associates, or subcontractors assisting in creating the
Work Product within the scope of this Agreement, whether or not copyrightable or
otherwise protectable, and all rights thereto shall be the property of the
Corporation.
C. Employee shall make prompt and full disclosure of such inventions to
Corporation and, at Corporation's expense, shall assist in every lawful way in
obtaining for Corporation, patents for any or all such inventions, in perfecting
in Corporation all right, title, and interest in and to such inventions and
copyrights, in protecting or enforcing Corporation's rights therein, and in
prosecuting and defending appeals, interferences, infringement suits, and
controversies relating thereto. Employee shall do all other things necessary to
effectuate the foregoing, including but not limited to executing and delivering
assignments, oaths, and disclaimers as needed.
Section 5. Confidentiality. Employee shall maintain in confidence (A) the
subject matter of this Agreement, (B) the work carried out hereunder, (C) any
inventions or ideas conceived hereunder, and (D) any business or technical
information of Corporation acquired by Employee as a result of the work carried
out pursuant to this Agreement, and Employee shall not, without Corporation's
prior authorization, directly or indirectly use, publish, or disclose to others
any information, data, designs, results, or opinions resulting from the work
carried out pursuant to this Agreement. These obligations of secrecy shall
continue throughout the duration of this Agreement and for two years thereafter.
Section 6. Records. Consultant shall keep full and accurate records of all work
performed under this Agreement. All records, sketches, drawings, prints,
computations, charts, reports, and other documentation made in the course of the
work performed hereunder, or in anticipation of the work to be performed in
regard to this Agreement, shall at all times be and remain the sole property of
Corporation. Employee shall turn over to Corporation all copies of such
documentation on request by Corporation.
Section 7. Termination.
A. Except for the provisions in section 22, in the event the Corporation
elects to terminate Employee, it shall continue to pay to Employee, the salary
at the rate in effect on the Effective Termination Date, for a period of two
years. The effective termination date shall be that date so stated in the
corporation's Notice of Termination. This provision shall also apply in the
event that the majority ownership of the corporation passes into the hands of
any person other than employee.
B. Employee held Corporation Shares. Corporation Stock shall mean shares in
the corporation obtained by the Employee pursuant to an employee profit share,
stock option or any incentive plan provided by the Corporation and shall not
mean stock purchased by the Employee outside corporation sources.
C. Redemption of Shares. In the event the corporation shall terminate the
employee without cause then in Addition to the payments provided in 7A the
corporation over a period of 6 months shall redeem employee shares at the lesser
of, market value (average bid and
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ask) or $1.00 per share.
Section 8. Non Compete. In the event Employee is terminated with or without
cause and provided the Corporation performs pursuant to section 7 in the case of
termination without cause, then Employee agrees not to engage in the business of
the Corporation with any other company, sole proprietorship or other entity, as
employee, consultant or otherwise for a period of two (2) years. The corporation
shall be entitled to all remedies provided by law including but not limited to
injunctive relief and the termination of any post termination payments to which
employee would be, but for this breach, be entitled.
Section 9. Notices. Any notice under this Agreement shall be in writing and
shall be effective when actually delivered in person or three days after being
deposited in the U.S. mail, registered or certified, postage prepaid and
addressed to the party at the address stated in this Agreement or such other
address as either party may designate by written notice to the other.
Section 10. Waiver. The waiver by either party of the breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach.
Section 11. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Section 12. Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbiter may be entered in any court having jurisdiction thereof.
Section 13. Attorney Fees. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
Section 14. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
Section 15. Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
Section 16. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
Section 17. Agreement Binding. This Agreement shall be binding upon the heirs,
executors,
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administrators, successors and assigns of the parties hereto.
Section 18. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section 19. Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
Section 20. Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
Section 21. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Section 22. In the event employee is discharged for cause which shall include
but not be limited to conviction of a felony or is guilty of provisions commonly
known as Moral turpitude, or is in breach of this agreement, then the
Corporation at its option may terminate this agreement, and the employee shall
not be entitled to any post termination payments as provided in paragraph 7A
hereof, or redemption of any shares as provided in paragraphs 7B & 7C hereof.
WHEREFORE, the parties have hereunder set their hand and seal on the day
above written.
ACCU FACCS PRE-EMPLOYMENT SCREENING, INC.
by: /s/ XXXX XXXXXXX
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XXXX XXXXXXX, Vice "President
/s/ XXXXXX XXXXXX
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XXXXXX XXXXXX, Employee
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