EX-10.05
Employment Agreement
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 20th
day of October, 1996 by and between On-Site Sourcing, Inc. with address of 0000
X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("OSS" or the "Company")
and Xxxxx X. Xxxxxx ("Xx. Xxxxxx" or the "Executive") with home address at home
address at 000 0xx Xxxxxx, XX, Xxxxxxx, XX 00000.
WHEREAS, OSS desires to employ the services of Xx. Xxxxxx utilizing his
knowledge and expertise as a full-time employee without the distraction of
employment related uncertainties and considers such employment in the best
interests of the Company and its shareholders, and Xx. Xxxxxx desires to be
employed full time by the Company; and
WHEREAS, OSS and Xx. Xxxxxx desire to enter into an Agreement reflecting
the terms under which Xx. Xxxxxx will be employed by the Company. Employment
commenced November 15, 1995.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto agree as follows:
1. Term. This Agreement will remain in effect for a period of three years
from the date of this agreement and will be renewed automatically for succeeding
periods of one year unless sooner terminated as provided in sections 6 and 7
below.
2. Nature of Employment. Xx. Xxxxxx shall be employed as Vice President -
Sales and Marketing of the Company with full power and authority as determined
by the Board of Directors of OSS (the "Board"). Xx. Xxxxxx agrees to diligently
and faithfully perform such duties and serve in the above capacity or in such
capacities as the Board of Directors of the Company shall determine from time to
time.
Xx. Xxxxxx'x duties include but are not limited to the following:
Report to the President, Chief Executive Officer and the Executive Vice
President - Sales & Marketing, of the Company.
(b) Be responsible for the start-up, development and growth of the
Atlanta-Regional office of the Company.
(c) Assist the Company in the development of all phases of the Company's
business.
3. Compensation for Services. As consideration to Xx. Xxxxxx for services
rendered under this Agreement, OSS shall compensate Xx. Xxxxxx as follows:
(a) Base salary draw. Xx. Xxxxxx shall receive a base non-refundable
salary draw of $4,333.33 per month against commission compensation starting
November 1, 1996.
(b) Commission Compensation.
(i) Reprographic Revenues. Xx. Xxxxxx shall receive a commission of
.25% on each percentage point of margin on reprographic revenues that are
realized by the Company through sales managed or closed by Xx. Xxxxxx. This
commission shall be capped at 10% on all full margin (40% or greater gross)
reprographic revenues that are realized by the Company through sales managed or
closed by Xx. Xxxxxx.
(ii) Facilities Management. Xx. Xxxxxx shall receive a commission of
.125% on each percentage point of margin on facilities management revenues that
are realized by the Company through sales managed or closed by Xx. Xxxxxx. This
Commission shall be capped at 5% on all full margin (40% or greater gross)
facilities management revenues that are realized by the Company through sales
managed or closed by Xx. Xxxxxx.
(iii) Printing. Xx. Xxxxxx shall receive a commission of .25% on
each percentage point of margin on printing revenues that are realized by the
Company through sales managed or closed by Xx. Xxxxxx. This Commission shall be
capped at 10% on all full margin (40% or greater gross) printing revenues that
are realized by the Company through sales managed or closed by Xx. Xxxxxx.
(c) Benefits. Xx. Xxxxxx shall be entitled to all other benefits normally
accorded to full time employees of OSS, including such bonuses, prescription,
life insurance, medical insurance for Xx. Xxxxxx'x entire family, holidays and
expense accounts as are consistent for other key senior management personnel or
as may be decided by the Executive if said items are discretionary with the
Executive.
Xx. Xxxxxx shall be entitled to two weeks paid vacation per year for each
of the first 5 years of employment beginning at commencement of employment. The
Executive shall be entitled to three weeks paid vacation each year after the
fifth anniversary which is to be considered November 15, 2000. No more than two
weeks shall be taken consecutively without the prior written approval by the
Company.
Xx. Xxxxxx shall be entitled to all health and sick leave as is accorded
to other key senior management personnel.
(d) Reimbursement. Xx. Xxxxxx shall be reimbursed within fifteen (15) days
for all properly documented OSS business expenses incurred by the Executive. To
the extent permitted by applicable law, OSS, shall treat these expenses as
senior in the right of payment to any other obligation of OSS.
(e) Stock Options. Stock options to purchase 108,000 shares of the
Company's common stock at $2.12 per share, the fair market value as of the date
of this Agreement, granted as of October 20, 1996. The options shall vest at
thirty-three and one-third percent (33 1/3% or 36,000 shares) per year on the
first, second and third anniversaries of the date of this Agreement with the
Company if the Agreement is still in effect. The options shall be exercisable
for a period of five years from the date of vesting. The options are cancelable
upon Xx. Xxxxxx'x termination from the Company for cause as defined in 6(a)
below. Furthermore, the options shall inure to the benefit of the Executive's
heirs and designees. Options to purchase 27,000 shares of On-Site Sourcing stock
at an exercise price $1.39 vested under Xx. Xxxxxx'x prior employment agreement.
4. Responsibility of Executive. The responsibilities of Xx. Xxxxxx under
this Agreement are as follows:
(a) Xx. Xxxxxx agrees to serve OSS for the term of employment specified in
Section 1 above. Xx. Xxxxxx agrees to (i) devote his full business time to the
business and affairs of OSS, (ii) use his
best efforts to promote the interests of OSS, and (iii) perform faithfully and
efficiently the responsibilities assigned to him by the Board and listed in
Section 2 above.
(b) During the term of this Agreement, Xx. Xxxxxx shall not perform
services for any person or entity that competes directly or indirectly with the
Company. Xx. Xxxxxx agrees to disclose in writing to the Board any non-Company
activities for which Xx. Xxxxxx receives compensation for services rendered. If
the Board deems such activities to be excessive and to conflict with Xx.
Xxxxxx'x full time commitment, then the Company shall notify Xx. Xxxxxx in
writing to limit those activities to periods in which no time conflict occurs.
(c) Xx. Xxxxxx agrees to abide by General Company Policies as the same are
duly adopted by the Board from time to time, so long as such Policies do not
conflict with the terms and conditions of this Agreement.
5. Confidentiality and Non-Disclosure Agreement.
(a) Xx. Xxxxxx hereby agrees that he will not at any time, without the
express written consent of the Company: (i) disclose, directly or indirectly,
any Confidential Information (as defined below) to anyone outside the employ of
the Company, or (ii) use, directly or indirectly, any Confidential Information
for the benefit of anyone other than the Company.
(b) Confidential Information as used herein means all information of a
business or technical nature disclosed to, learned or developed by Xx. Xxxxxx in
the course of his employment by the Company, which information relates to the
business of the Company or the business of any customer of the Company, or the
business of any other person, firm, corporation, or other entity which consults
with the Company in connection with the business which is not generally known in
the reprographic or facilities management industry. Confidential Information
shall include, but is not limited to, information and knowledge pertaining to
manufacturing processes, procedures, developments, improvements, methods of
operation, sales and profit figures, customer and client lists, credit and other
financial information about the Company or their customers, and relationships
between the Company and its customers, clients and others who have business
dealings with the Company.
(c) In the event that Xx. Xxxxxx voluntarily leaves the Company, Xx.
Xxxxxx agrees not to seek employment with a reprographic or facilities
management company (competitor) located within 100 miles of the Company's
Atlanta office located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX or within six
months after leaving the Company.
6. Termination by the Company. The Board of Directors may terminate the
employment of Xx. Xxxxxx at any time with or without cause, and in such event
the following shall apply. "Cause" for termination shall be defined as gross
neglect by the Executive of his duties hereunder, willful failure by the
Executive to perform his duties hereunder, conviction of the Executive of a
felony committed during the term of this Agreement, or any lesser crime or
offense involving the property of the Company or any of its subsidiaries or
affiliates, gross malfeasance by the Executive in connection with the
performance of his duties hereunder, willful engagement in conduct by the
Executive or willful refusal without proper legal cause by the Executive to
perform his duties and responsibilities which he has reason to know is
materially injurious to the Company.
(a) In the event of termination for cause, as defined above, by OSS, all
salary and other benefits paid or provided to the Executive hereunder shall
cease as of the date of termination, and the Company shall have no further
obligations to the Executive. Upon a finding by the Board of Directors that the
Executive has willfully failed or refused to observe or perform his duties or
grossly neglected his duties as specifically set forth in Section 4 hereof, OSS
may terminate this agreement for cause
provided that the Board of Directors has first notified the Executive on two
separate occasions of such failure and has given the Executive at least thirty
(30) days after each such occasion to remedy such breach of duty.
(b) In the event of termination by OSS without cause, the Company agrees
to provide the Executive with the following:
(i) Xx. Xxxxxx shall receive an amount equal to two weeks base
salary plus the value of his other employment benefits accrued at the time of
termination that Xx. Xxxxxx would have received under this Agreement but for
such termination. Such amount shall be payable to Xx. Xxxxxx in one installment
two weeks following termination.
(ii) "Termination without cause" shall be defined as: termination
for any reason other than "cause" (as defined previously in Section 6),
continuous disability or incapacity of Xx. Xxxxxx which prevents him from
performing his duties for a period of not less than three (3) months as
determined by any independent, licensed medical doctor, or death.
7. Effect on Successors in Interest. This Agreement shall inure to the
benefit of and be binding upon heirs, administrators, executors, successors and
assigns of each of the parties hereto.
8. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, including
by facsimile, or by recognized courier (such as Federal Express), or three (3)
business days after deposit in the United States Mail, by registered or
certified mail, addressed to a party at its address shown below or at such other
address or facsimile number as such party may designate in writing to the other
party pursuant to this section.
9. Assignment. OSS shall have the right to assign this Agreement and to
delegate all of its rights, duties and obligations hereunder, whether in whole
or in part to any parent, affiliate, successor, or subsidiary organization or
company of OSS or corporation with which OSS may merge or consolidate or which
acquires by purchase or otherwise all or substantially all of OSS assets, but
such assignment shall not release OSS from its obligations under this Agreement.
The Executive shall have no right to assign this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia. In the event of any dispute
under this Agreement, it shall be resolved through binding arbitration in
accordance with the rules of the American Arbitration Association.
11. Severability. The provisions of this Agreement are severable, and in
the event that any provision of this Agreement shall be determined to be invalid
or unenforceable under any controlling body of law, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
12. Entire Agreement. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions and previous agreements. This Agreement may not
be amended except in writing executed by the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
a duly authorized officer, and Xx. Xxxxxx has signed this Agreement as of the
date and year written above.
The Company:
On-Site Sourcing, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
BY: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Chairman
Executive:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
