EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of the 1st day of
January, 1999, by and between COMFORCE Corporation ("COMFORCE") a Delaware
corporation and COMFORCE Operating, Inc. ("COI"), a Delaware corporation that is
wholly-owned by COMFORCE (COMFORCE and COI are collectively referred to as the
"Employer"), and John Fanning, a resident of the State of Florida ("Employee").
RECITALS:
A. COMFORCE and/or a subsidiary has employed Employee prior to the date
hereof as an employee and Employer wishes to employ Employee on and after the
effective date hereof on the terms and conditions hereof.
B. Employee is willing to continue employment with Employer on the terms
and conditions hereof.
NOW, THEREFORE, in consideration of the promises and mutual obligations of
the parties contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
1. Employment of Employee. Employer employs Employee, and Employee accepts
employment by Employer, during the "Term of Employment," as defined in Section 2
hereof, for the consideration and on the terms and conditions provided herein.
Employee shall be employed during the Term of Employment in such capacity or
capacities, and perform such duties, as may be determined from time to time by
each Employer's Board of Directors. COMFORCE, COI and/or a subsidiary shall
allocate between each other the uses of Employee and costs hereunder. Subject to
this power of the Board of Directors of Employer to designate the position in
which Employee shall serve Employer, Employee shall maintain the title and
position of Chairman of the Board & Chief Executive Officer of Employer.
Employee shall have full authority and responsibility to undertake and carry out
the functions and activities of that position in all respects, subject only to
directions of, and policies established and communicated to Employee from time
to time by, the Board of Directors.
2. Effective Date: Term of Employment. This Agreement shall commence and be
effective for all purposes as of the date first seen set forth above and shall
remain in effect, unless earlier terminated as provided in Section 7 hereof,
until December 31, 2001 (the "Initial Termination Date"), which date shall be
extended to the subsequent December 31 unless no less than sixty (60) days prior
to the Initial Termination Date or subsequent extension thereof, either party
has given the other written notice of termination hereof. The period during
which Employee is employed by Employer pursuant to this Agreement is herein
called the "Term of Employment."
3. Employee's Duties and Restrictions.
(a) During the Term of Employment, Employee shall: (i) devote his full
working time and attention to the business and affairs of Employer and to the
performance of his duties hereunder; (ii) serve Employer faithfully and to the
best of his ability, and use his best efforts to promote the interests of
Employer; and (iii) follow and implement the policies and directions of the
Board of Directors. Notwithstanding the above, nothing contained in this Section
3 shall be deemed to prevent Employee from engaging in activities relating to
(a) the making of investments for his own account or for the account of others,
or (b) investment banking, venture capital and finance activities, (c) serving
as a member of the board of directors of other corporations, or (d) engaging in
charitable or public service activities, provided that such investments,
services and activities do not interfere or conflict with Employee's performance
of his duties hereunder.
(b) During the Term of Employment, Employee shall not engage either
directly or indirectly on Employee's own account or as agent, stockholder,
owner, employee, employer or otherwise, in a business which is the same as or
substantially similar to that of the Employer or its subsidiaries, parent or
affiliates (collectively the "Group"),
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(i) within the United States or (ii) within any country in which the Group
conducts any business. Notwithstanding the foregoing, Employee may during the
period in which this paragraph is in effect own stock or other interests in
corporations or other entities that engage in businesses the same or
substantially similar to those engaged in by the Group provided that Employee
does not, directly or indirectly (including without limitation as the result of
ownership or control of another corporation or other entity), individually or as
part of a group [as that term is defined in Section 13 (d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder] (a) control or have the ability to control the corporation or other
entity, (b) provide to the corporation or entity, whether as an employee,
consultant or otherwise, advice or consultation, (c) provide to the corporation
or entity any confidential or proprietary information regarding the Group or its
businesses or regarding the conduct of businesses similar to those of the Group,
(d) hold or have the right by contract or arrangement or understanding with
other parties to hold a position on the board of directors or other governing
body of the corporation or entity or have the right by contract or arrangement
or understanding with other parties to elect one or more persons to any such
position, (e) hold a position as an officer of the corporation or entity, (f)
have the purpose to change or influence the control of the corporation or entity
(other than solely by the voting of his shares or ownership interest) or (g)
have a business or other relationship, by contract or otherwise, with the
corporation or entity other than as a passive investor in it; provided, however,
that Employee may vote his shares or ownership interest in such manner as he
chooses provided that such action does not otherwise violate the prohibitions
set forth in this sentence.
4. Employee's Compensation.
(a) Base Salary. During the Term of Employment, as Employee's base
compensation for all services to be performed hereunder, Employer shall pay
Employee an annual salary of Three Hundred Eighty Five Thousand Dollars
($385,000) (the "Base Salary"), payable in accordance with the Employer's
payroll practices for its officers. This base salary will increase annually
during the Term of Employment on each January 1, beginning January 1, 2000, by
the greater of (i) seven percent (7%) or (ii) a percentage equivalent to the
percentage increase of (a) the Price Index (as defined below) for the most
recently available month at the time of each such increase over (b) the Price
Index reported for the same month one year prior (such percentage increase
calculated pursuant to this Section 4(a) is referred to herein as the "CPI
Increase"). The Base Salary shall also be increased from time to time at the
discretion of the Board of Directors or any committee thereof having authority
over Employee's compensation to account for material changes of circumstances of
the Employer or of the responsibilities of Employee, and may be increased by the
Board or such committee from time to time in its discretion for any other reason
whatsoever.
For purposes of this Agreement, "Price Index" shall mean the United States
Department of Labor, Bureau of Labor Statistics, Consumer Price Index U.S. City
Averages, all Urban Consumers, All Items, 1982-84 = 100. If the manner in which
the Price Index as determined by the Department of Labor shall be substantially
revised, or if the 1982-84 average shall no longer be used as an index of 100,
an adjustment shall be made in such revised index so that the number used shall
be that which would have been obtained if the Price Index had not been so
revised or if said average was still in use. If the Price Index shall become
unavailable for any reason whatsoever, the parties will substitute therefor a
comparable index based upon changes in the cost of living or purchasing power of
the consumer dollar published by an other governmental agency or, if no such
index shall then be available, a comparable index published by a major bank or
other financial institution.
(b) Reimbursement of Expenses. It is recognized that during the Term of
Employment, Employee will be required to incur ordinary and necessary business
expenses in connection with the performance of his duties hereunder. Employer
shall pay or reimburse Employee promptly in the amount of all such expenses upon
presentation of itemized vouchers or other evidence of those expenditures in
accordance with Employer's policies and procedures. In addition the Employee
will be given an annual non-accountable expense allowance of $15,000.
(c) Automobile. It is recognized that the services to be performed by
Employee hereunder will require the use of a suitable automobile, and Employer
shall supply Employee with an automobile of Employee's choice at a cost to
Employer of no more than $650 per month. In the event that a Severance Payment
shall become due and payable under Section 7(c) hereof, Employer shall continue
to supply Employee with an automobile during the term of the Severance Payment.
In the event that a Termination Payment shall become payable under Section 7(e)
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hereof, Employer shall transfer such automobile to Employee for the aggregate
consideration of $1.00 (if such automobile is leased by Employer, Employer shall
acquire such automobile prior to its transfer to Employee).
(d) Benefit Plans
(i) Medical, Dental and Pension Benefits.
Employee shall receive such incidental benefits of employment, such as
medical and dental insurance, and pension plan participation as are provided
generally to the Employer's other executive officers.
(ii) Continuation of Salary During Disability.
If Employee becomes disabled during the Term of Employment because of
sickness, physical or mental disability, or for any other reason so that he is
unable to perform his duties hereunder. Employer agrees to continue Employee's
salary during such disability throughout the Term of Employment. These benefits
may be provided in whole or in part by a policy of disability insurance.
(e) Incentive Compensation. In addition to Employee's compensation as
provided herein, Employer shall pay incentive compensation for each year during
the Term of Employment in an amount equal to 5% of the Employer's pre-tax
operating income in excess of $2,500,000, but not in excess of $3,000,000 plus
3.5% of such income in excess of $3,000,000. For this purpose, "pre-tax
operating income" shall mean the consolidated earnings of the Employer and its
subsidiaries before (i) deduction of, or allowance or provision for, taxes based
on income, (ii) deduction of, or allowance or provision for, the incentive
compensation payable pursuant to this Agreement or incentive compensation based
upon consolidated income or profits of the Employer payable pursuant to any
other employment agreement or arrangement between the Employer and any employee
thereof, or as from time to time hereafter amended, or any successor agreement
thereto, and (iii) any extraordinary gain or loss.
(f) Fringe Benefits. Employee shall be entitled to participate in all other
fringe benefits generally offered by Employer to its employees during the Term
of Employment.
5. Employee's Vacation. Employee shall be entitled to four weeks paid
vacation per year during the Term of Employment.
6. Confidentiality: Business Opportunities.
(a) Confidentiality of Information. Employee recognizes and acknowledges
that the business interests of Employer require a confidential relationship
between Employer and Employee and the fullest protection and confidential
treatment of the financial data, lists of customers, lists of suppliers, special
agreements with suppliers, market information, marketing and/or promotional
techniques and methods, pricing information, purchase information, sales
policies, employee lists, policy and procedure manuals, books and publications,
records, advertising methods or schemes, computer records, trade secrets, know
how, plans and programs, sources of supply, and other knowledge of the business
of Employer (all of which are hereinafter jointly termed "Confidential
Information") which may in whole or in part be conceived, learned or obtained by
Employee in the course of Employee's employment with Employer. Accordingly,
Employee agrees to keep secret and treat as confidential all Confidential
Information whether or not copyrightable or patentable, and agrees not to use or
aid others in learning of or using any Confidential Information except in the
ordinary course of business and in furtherance of Employer's interests. During
the Term of Employment and at all times thereafter, except insofar as is
necessary disclosure consistent with Employer's business interests:
(i) Employee will not, directly or indirectly, disclose any Confidential
Information to others either within or outside of the business of Employer;
(ii) Employee will not make copies of or otherwise disclose the contents of
documents containing disclosures of Confidential Information;
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(iii) As to documents which are delivered to Employee or which are made
available to him as a necessary part of the working relationships and duties of
Employee within the business of Employer, Employee will treat such documents
confidentially and will treat such documents as proprietary and confidential,
not to be reproduced, disclosed or used without appropriate authority of
Employer; and
(iv) Employee will not advise others that the information and/or know how
included in Confidential Information is known to or used by Employer or
Employee.
During the Term of Employment and at all times thereafter, Employee will
not in any manner disclose or use Confidential Information for Employee's own
account and will not aid, assist or abet others in the use of Confidential
Information for their account or benefit, or for the account or benefit of any
person or entity other than Employer.
Employee shall have no obligations with respect to Confidential Information
which at the time of disclosure is generally available to the public or with
respect to which disclosure is required by law.
(b) Confidentiality of Customers. Employee agrees that during the Term of
Employment and for a period ending two (2) years after termination of Employee's
employment with Employer:
(i) Employee will not, directly or indirectly, make known or divulge names,
addresses or any information concerning the customers of Employer existing at
the time Employee entered the employ of Employer or of whom Employee learned or
with whom Employee became acquainted after entering the employ of Employer, to
any person, partnership, firm, company, corporation or other entity; and
(ii) Employee will not, either directly or indirectly, either for himself
or for any other person, partnership, firm, company, corporation or other
entity, contact, solicit, purchase from, divert, or take away any of the
customers of Employer who were contacted, dealt with or solicited by Employee or
with whom Employee became acquainted, or of whom Employee learned or obtained
information about during the Term of Employment or during the previous
employment of Employee by Employer or any predecessor in interest.
(c) Non-Interference with Contractual Relationships. Employee agrees that
during the Term of Employment and for a period ending two (2) years after
termination of Employee's employment with Employer, Employee will not solicit,
entice or otherwise induce any employee of Employer to leave the employ of
Employer for any reason whatsoever; nor will Employee directly or indirectly
aid, assist or abet any other person or entity in soliciting or hiring any
employee of Employer, nor will Employee otherwise interfere with any contractual
or other business relationships between Employer and its employees. The only
exception to this provision is that upon termination Employee may solicit and/or
offer employment to and subsequently employ Harry Maccarrone.
(d) Disclosure of Business Opportunities. During the Term of Employment,
Employee agrees to promptly and fully disclose to Employer, and not to divert to
Employee's own use or benefit or the use or benefit of others, any business
opportunities involving any existing or prospective line of business, supplier,
product or activity of Employer or any business opportunities which otherwise
should rightfully be afforded to Employer.
(e) Should a court of competent jurisdiction determine that this Section 6
or any subsection hereof are otherwise unenforceable because one or all of them
are vague or over broad, the parties agree that these subsections may and shall
be enforced to the maximum extent permitted by law. It is the intent of the
parties that each of these subsections be a separate and distinct promise and
that unenforceability of any one subsection shall have no effect on the
enforceability of another.
(f) Employee agrees that should either party seek to enforce or determine
its rights through legal or judicial proceedings because of an act of the
Employee which the Employer believes to be in contravention of this Section 6
("Covenant"), the Covenant period shall be extended for a time period equal to
the period necessary to obtain judicial enforcement of the Employer's rights
hereunder.
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(g) The parties agree that in the event of Employee's violation of this
Section 6 or any subsection thereunder, that the damage to the Employer will be
irreparable and that money damages will be difficult or impossible to ascertain.
Accordingly, in addition to whatever other remedies the Employer may have at law
or in equity, the Employee recognizes and agrees that the Employer shall be
entitled to a temporary restraining order and a temporary and permanent
injunction enjoining and prohibiting any acts not permissible pursuant to this
Section 6.
7. Termination of Agreement.
(a) Employer agrees not to terminate this Agreement except for "just
cause," and agrees to promptly give Employee written notice of its belief that
acts or events constituting "just cause" exist. Employee has the right to cure
within thirty (30) days of Employer's giving of such notice, the acts, events or
conditions which led to Employer's notice, but only if such acts are capable of
being cured. For purposes of this Agreement, "just cause" shall mean (i) the
willful failure or refusal of Employee to implement or follow the reasonable
written policies or directions of Employer's Board of Directors, provided that
Employee's failure or refusal is not based upon Employee's belief in good faith,
as expressed to Employer in writing, that the implementation thereof would be
unlawful; (ii) embezzlement; (iii) material violation of any of Employee's
covenants or agreements set forth in this Agreement due to Employee's
willfulness or gross negligence; and (iv) conviction of Employee of a felony
arising from an act or acts which result in material harm to Employer; provided,
however, that after a Change of Control, "just cause" shall only mean the events
described in clauses (ii), (iii) and (iv) of this sentence.
(b) The employment of Employee shall automatically terminate upon the death
of the Employee. Upon such termination, Employee's estate shall receive only
such amounts as are earned and due to Employee under this agreement as the
result of Employee's activities prior to Employee's death, and thereafter no
further consideration or compensation shall be owed by Employer to Employee or
to Employee's estate.
(c) Employer agrees that if prior to a Change of Control it gives notice of
termination pursuant to Section 2 that this contract will not be extended: (i.)
Employee will be entitled to full compensation, including incentive compensation
as set forth below, and including participation in all benefit programs set
forth in Section 4 hereof, subject to the provisions of such Section 4, for one
(1) year, except that reimbursement for the costs of COBRA or health insurance
(in lieu of participation in Employer's health plan) shall be continued for 36
months as provided in this Section 7 (c) (the "Severance Payment"). In the event
of such Severance Payment, the incentive compensation provided for in Section 4
(e) shall be amended to the highest amount of cash bonus and incentive
compensation paid to the Employee in any one (1) year during the three (3) years
prior to such notice of termination. In addition, all stock options for the
stock of employer theretofore granted to Employee will become immediately
exercisable and will remain exercisable throughout the original term of such
option, notwithstanding any provision to the contrary regarding termination of
employment in the stock option agreement issued in respect of such stock option
or any other stock option plan of Employer pursuant to which such stock option
may have been granted; and (ii.) Employer agrees to reimburse the Employee for
Employee's cost of COBRA coverage if such coverage is: (a.) available; and (b.)
elected by Employee for a period not to exceed thirty six (36) months. If such
COBRA coverage is not available then Employer shall reimburse Employee for the
cost of such other medical insurance that Employee chooses to obtain by paying
Employee monthly for the period set forth above the lesser of: (x.) the cost of
such other insurance; or (y.) the cost of COBRA insurance had it been available.
(d) Employer agrees that if at any time within three (3) years following a
Change of Control it discharges Employee or refuses to extend the Term of
Employment for any reason other than "just cause", or if within one year after a
Change of Control Employee resigns from his employment with Employer for any
reason whatsoever,
(i) The Employer will pay to Employee immediately after such termination of
employment a lump-sum cash payment equal to 300% of the aggregate of (A) his
then-current annual base salary (or, if his base salary has been reduced at any
time after the Change of Control, his base salary in effect prior to the
reduction), (B) the highest amount of cash bonus and incentive compensation paid
to Employee in any one (1) year during the three (3) calendar years immediately
prior to the Change of Control, (C) the annual cost to the Employer of any
benefits, other than those provided for by Section 4(d), then provided to
Employee, and (D) the amount contributed by the Employer on behalf of the
Employee for the calendar year ending immediately prior to the termination of
any pension plan of the Employer.
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(ii) All of Employee's outstanding stock options, restricted shares and
other similar incentive interests and rights that have not vested or been
exercised will become immediately and fully vested and exercisable and will
remain exercisable throughout the original term of such option, notwithstanding
any provision to the contrary regarding termination of employment in the stock
option agreement issued in respect of such stock option or any other stock
option plan of Employer pursuant to which such stock option may have been
granted.
(iii) The Employer will promptly reimburse Employee for any and all legal
fees and expenses reasonably incurred by him as a result of such termination of
employment, including without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of this Agreement.
All compensation received by Employee pursuant to this subsection is
collectively referred to herein as the "Termination Payment."
(e) In the event that Employee becomes entitled to a Termination Payment,
if any of the Termination Payment will be subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Internal Revenue Code of 1986 (the "Code"),
Employer shall pay to Employee an additional amount ("the "Gross-up Payment")
such that the net amount retained by Employee, after deduction of Excise Tax on
the Termination Payment and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Section, shall be equal to the
Termination Payment. For purposes of determining whether any of the Termination
Payment will be subject to the Excise Tax and the amount of such Excise Tax, (i)
any other payments or benefits received or to be received by Employee in
connection with the Change of Control of Employer or the termination of
Employee's employment (whether pursuant to the term of this Agreement or any
other plan, arrangement or agreement with Employer, any person whose action
result in a Change of Control or any person affiliated with Employer or such
person) shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and "excess parachute payments" within the meaning of
Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by Employer and acceptable to Employee such
other payments or benefits (in whole or in part) do not constitute parachute
payments, or such excess parachute payments (in whole or in part) represent,
reasonable compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code, (ii) the amount of Termination Payment which
shall be treated as subject to the Excise tax shall be equal to the lesser of
(A) the total amount of the Termination Payment or (B) the amount of excess
parachute payments within the meaning of Section 280G(b)(1) and (4) after
applying clause (i) above, and (iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by Employer's independent
auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up Payment, Employee
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rates of
taxation in the state and locality that imposes such tax on the date of
termination of Employee's employment, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes. In the event that the Excise Tax is subsequently determined to be less
than the amount taken into account hereunder at the time of the termination of
Employee's employment, Employee shall repay to Employer at the time that the
amount of such reduction in Excise Tax is finally determined the portion of the
Gross-Up payment attributable to such reduction plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of Employee's employment (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), Employer shall make an additional gross-up
payment in respect of such excess (plus any interest payable with respect to
such excess) at the time that the amount of such excess is finally determined.
(f) For purposes of this Agreement, a "Change of Control" of Employer shall
be deemed to have occurred if
(i) any individual, corporation, partnership, company, or other entity (a
"Person"), which term shall include a "group" (within the meaning of section
13(d) of the Securities Exchange Act of 1934 (the "Act") who does not currently
own directly or indirectly 20% or more of the combined voting power of
COMFORCE's outstanding securities becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act) of securities of COMFORCE representing more than 20%
of the combined voting power of COMFORCE's then-outstanding securities.
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(ii) the stockholders of COMFORCE approve a merger or consolidation of
COMFORCE with any other corporation, other than a merger or consolidation which
would result in the voting securities of COMFORCE outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 80% of the
combined voting power of the voting securities of COMFORCE or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders approve a plan of complete liquidation of COMFORCE or an agreement
for the sale or disposition by the Employer of all substantially all of the
Employer's assets; PROVIDED, HOWEVER, that if the merger, plan of liquidation or
sale of substantially all assets is not consummated following such stockholder
approval and the transaction is abandoned, then the Change of Control shall be
deemed not to have occurred.
(iii) the Board of Directors of COMFORCE ceases to consist of a majority of
Continuing Directors. For purposes hereof, "Continuing Director" shall mean a
member of the Board of Directors of COMFORCE who either (A) was a member of the
Board of Directors as of the date of this agreement or (B) was nominated or
appointed (before initial election as a director) to serve as a director by a
majority of the then Continuing Directors and was approved in writing by
Employee.
(g) If Employee shall voluntarily cease his employment with Employer for
any reason prior to a Change of Control, all compensation and benefits payable
to Employee hereunder shall thereupon, without further writing or act, cease,
lapse and be terminated; provided, however, that Employee may continue to
receive benefits under any group health care insurance plan, at Employee's
expense, to the extent required by the Consolidated Omnibus Budget
Reconciliation Act of 1985. This paragraph (g) does not affect any rights of
Employee under any stock option agreements with Employer.
(h) In the event of the Bankruptcy (as defined below) of Employer, Employee
may at his option cease his employment hereunder, whereupon all of the
obligations of the parties hereto shall be terminated. For purposes of this
Agreement, "Bankruptcy" shall mean with respect to Employee, (i) the entry of a
decree or order for relief of either Employer by a court of competent
jurisdiction in any involuntary case involving the Employer under any
bankruptcy, insolvency or other similar law now or hereafter in effect; (ii) the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar agent for either Employer or for any substantial
part of the Employer's assets or property; (iii) the filing with respect to
either Employer of a petition in any such involuntary bankruptcy case, which
petition remains undismissed for a period of ninety (90) days or which is
dismissed or suspended pursuant to Section 305 of the Federal Bankruptcy Code
(or any corresponding provision of any future United States bankruptcy law);
(iv) the commencement by either Employer of a voluntary case under any
bankruptcy, insolvency or other similar law now or hereafter in effect; (v) the
consent by either Employer to the entry of an order for relief in an involuntary
case under any such law or to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar agent for the Employer or for any substantial part of the Employer's
assets or property; or (vi) the making by either Employer of any general
assignment for the benefit of creditors.
(i) In the event that Employee terminates his employment with Employer
prior to a Change of Control as a result of a material breach by Employer of its
obligations under this Agreement, which breach, if it is capable of being cured,
has not been cured within 30 days following receipt of written notice of such
breach from Employee to Employer (such notice and opportunity to cure to apply
only if such breach is capable of being cured), such termination shall be deemed
for all purposes of this Agreement as a termination of Employee's employment by
Employer without "just cause".
8. Indemnification and Insurance. In the event that during or after the
Term of Employment, Employee is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("proceeding"), by reason of the fact that he is
or was a director or officer, employee or agent of or is or was serving at the
request of Employer as a director or officer, employee or agent or another
corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, Employee shall be indemnified and held harmless by
Employer to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may
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hereafter be amended (but, in the case of any such amendment, only to the extent
such amendment permits Employer to provide broader indemnification rights than
said law permitted Employer to provide prior to such amendment) against all
expenses, liabilities and losses (including attorneys fees, judgments, fines
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by Employee in connection therewith. Such right
shall be a contract right and shall include the right to be paid by Employer
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that the payment of such expenses incurred by
Employee in his capacity as a director or officer (and not in any other capacity
in which service was or is rendered by Employee while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding will be made only upon delivery to
Employer of an undertaking, by or on behalf of Employee, to repay all amounts to
so advanced if it should be determined ultimately that Employee is not entitled
to be indemnified under this section or otherwise.
Promptly after receipt by the Employee of notice of the commencement of any
action, suit or proceeding for which the Employee may be entitled to be
indemnified, the Employee shall notify the Employer in writing of the
commencement thereof (but the failure to notify the Employer shall not relieve
it from any liability which it may have under this Section 8 unless and to the
extent that it has been prejudiced in a material respect by such failure or from
the forfeiture of substantial rights and defenses). If any such action, suit or
proceeding is brought against the Employee and he notifies the Employer of the
commencement thereof, the Employer will be entitled to participate therein, and,
to the extent it may elect by written notice delivered to the Employee promptly
after receiving the aforesaid notice from the Employee, to assume the defense
thereof with counsel reasonably satisfactory to the Employee, which may be the
same counsel as counsel to the Employer. Notwithstanding the foregoing, the
Employee shall have the right to employ his own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the Employee
unless (i) the employment of such counsel shall have been authorized in writing
by the Employer, (ii) the Employer shall not have employed counsel reasonably
satisfactory to the Employee to take charge of the defense of such action within
a reasonable time after notice of commencement of the action or (iii) the
Employee shall have reasonably concluded, after consultation with counsel to the
Employee, that a conflict of interest exists which makes representation by
counsel chosen by the Employer not advisable (in which case the Employer shall
not have the right to direct the defense of such action on behalf of the
Employee), in any of which events such fees and expenses of one additional
counsel shall be borne by the Employer. Anything in this Section 8 to the
contrary notwithstanding, the Employer shall not be liable for any settlement of
any claim or action effected without its written consent.
Employer agrees that it will maintain Directors and Officers Insurance
during the Term of Employment and for a period of three (3) years thereafter
covering Employee and the other officers and directors of Employer in the amount
of not less than Ten Million Dollars ($10,000,000). In the event that such
Directors and Officers Insurance is not commercially available to Employer,
Employer will create a self-insurance reserve for all liabilities which would
otherwise be covered by Directors and Officers Insurance in the amount of Ten
Million Dollars ($10,000,000), which reserve shall be maintained in a separate
escrow account and used exclusively for payment of liabilities, judgments,
settlements or claims against officers and directors of Employer, including
Employee, which would otherwise have been the subject of Directors and Officers
Insurance.
9. Effect of Reorganization. If the Employer is at any time before or after
a Change of Control merged or consolidated into or with any other corporation or
other entity (whether or not the Employer is surviving entity), or if
substantially all of the assets thereof are transferred to another corporation,
the provisions of this Agreement will be binding upon and inure to the benefit
of the corporation or other entity resulting from such merger or consolidation
or the acquirer of such assets, voting power or control, and this Section 9 will
apply in the event of any subsequent merger or consolidation or transfer of
assets.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise limit
Employee's right to participate or privilege of participation in any stock
option or purchase plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or arrangement which may be
or become applicable to executives of the corporation resulting from such merger
or consolidation or the corporation acquiring such assets of the Employer.
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In the event of any merger, consolidation or sale of assets described
above, references to the Employer in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger or
consolidation or the acquirer of such assets.
10. No Duty to Mitigate. There shall be no requirement on the part of the
Employee to seek other employment or otherwise mitigate damages in order to be
entitled to the full amount of any payments and benefits to which Employee is
entitled under this Agreement, and the amount of such payments and benefits
shall not be reduced by any compensation or benefits received by Employee from
other employment.
11. Miscellaneous.
(a) All notice hereunder to the parties hereto shall be in writing sent by
certified or registered mail, return receipt requested, postage prepaid, or by
telegram, telex or telecopy, addressed to the respective parties at the
following addresses:
EMPLOYER: COMFORCE Corporation
COMFORCE Operating, Inc.
415 Crossways Park Drive
Woodbury, NY 11797
EMPLOYEE: John Fanning
3505 South Ocean Boulevard
Apt. 5N
Highland Beach, FL 33487
Any party may, by written notice complying with the requirements of this
section, specify another or different person or address for the purpose of
notification hereunder. All notices shall be deemed to have been given and
received on the next day following the sending of such telegram, telex or
telecopy, or if mailed, on the third business day following such mailing.
(b) If the Employer fails to timely make any payment to the Employee that
is required to be made hereunder, the amount not timely paid shall bear interest
after the date it is due hereunder at the rate of 18% per annum until it is
paid. All payments required to be made by the Employer hereunder to Employee or
his dependents, beneficiaries, or estate will be subject to the withholding of
such amounts relating to tax and/or other payroll deductions as may be required
by law.
(c) This Agreement contains the entire and only agreement of the parties
hereto respecting the matters herein set forth, supersedes all prior agreements
and understandings between the parties hereto regarding the matters hereby
contemplated, and may not be changed or terminated orally, nor shall any change,
termination or attempted waiver of any of the provisions contained in this
Agreement be binding unless in writing and signed by the party against whom the
same is sought to be enforced, nor shall this section itself by waived verbally.
This Agreement may be amended only by a written instrument duly executed by or
on behalf of the parties hereto.
(d) This Agreement and all of its provisions, rights and obligations shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors. This Agreement may be assigned by Employer to any person,
firm or corporation which shall become the owner of substantially all of the
assets of Employer or which shall succeed to the business of Employer; provided,
however, that in the event of any such assignment Employer shall obtain an
instrument in writing from the assignee in which such assignee assumes the
obligations of Employer hereunder and shall deliver an executed copy thereof to
Employee.
(e) This Agreement shall be construed and enforced according to, and the
rights and obligations of the parties shall be governed in all respects by, the
laws of the State of New York. Should any action be brought to interpret or
enforce the terms hereof, the prevailing party shall be awarded costs and
reasonable attorneys' fees.
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(f) Any controversy, dispute or claim arising out of or relating to this
Agreement, or the breach hereof, shall at the option of Employee be resolved by
(i) arbitration in accordance with the then current rules of the American
Arbitration Association and all findings of fact by the arbitrators shall be
conclusive and binding on the parties or (ii) litigation before a federal or
state court of competent jurisdiction located in the State of New York. If the
Employee elects to have the matter resolved by arbitration, the controversy or
claim shall be submitted to the American Arbitration Association through its New
York, New York office, and the hearing of such dispute will be held in New York,
New York. The decision of the arbitrator(s) will be final and binding on all
parties to the arbitration and said decision may be filed as a final judgment in
any court.
(g) The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall in no way affect the interpretation of
any of the terms or conditions of this Agreement.
(h) If any provision or part thereof of this Agreement for any reason shall
be validly held by an official body to be invalid or unenforceable, the valid
and enforceable provisions or parts thereof shall continue to be given effect
and bind the Employer and Employee.
(i) Employer shall pay Employee's reasonable legal fees and expenses
incurred in connection with the negotiation of this Agreement.
(j) No right or interest to or in any payments or benefits hereunder shall
be assignable by the Employee; provided, however, that this provision shall not
preclude him from designating one or more beneficiaries to receive any amount
that may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal representative of
the Employee's estate.
(k) No right, benefit, or interest hereunder, shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt, or obligation, or to
execution, attachment, levy, or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void, and of no effect.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the day
and year first above mentioned.
COMFORCE CORPORATION
By:_______________________________
Its:
COMFORCE OPERATING, INC.
By:_______________________________
Its:
EMPLOYEE
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John Fanning
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