Motion for Writ in Ievolve, Inc. v. Gerald E. Hickson| Trellis.Law

On March 18, 2020 a Exhibit,Appendix was filed involving a dispute between Ievolve, Inc., and Gerald E. Hickson, for Commercial Division in the District Court of Erie County.

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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

EMPLOYMENT AGREEMENT

THIS•EMPLOYMENT AGREEMENT ("Agreement') is made this 1st clay of January,
2015, by and between IEVOLVE, INC. d/b/a I-EVOLVE TECHNOLOGY SERVICES; a
New York corporation (the 'Company"). and GERALD E. HICKSON, a New York resident
("Employee).

WITNESSETH:

WHEREAS; the Company desires to secure the services of Employee, and Employee is
willing to provide such servieeS•:to the Company, upon the terms and conditions herein set forth.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
part:es agree as follows:

1. Employment. Subject to the terms hereof, the Company hereby employs
Employee, and. Employee accepts employment by the Compariy1

Term. The term of this Agreement shall be for a period of five (5) years,
commencing on the date hereof and expiring on the fifth (5t11) anniversary of this ALtreernent,
unless sooner terminated pursuant to the terms hereof.

3.. Capacity/Duties Employee, shall serve as Senior Technology Consultant of the.
Company. F.':inployee shall have all of the responsibiiities, obligations, privileges and
emoluments commensurate with such position and shall be subject to the general supervision,
direction and control of the Chief Executive Officer and/or'President of the Company. Employee
shall. Make himself available to the. Company for not less than forty (40) hours each week to
perform such duties. Employee shall doyote all of his professional :tithe and effbri to the business
and afThirs of the Company and:shall perform his duties faithfully, diligently and to the best of
his ability.

Compensation/Benefits..

(a) In consideration of the services to he performed by Employee hereunder,
the Company shall pay to Employe; as a commissioned salesperson, commission-based
compensation in accordance with Exhibit A attached hereto.

(h) During the term of this Agreement, Employee shall be entitled to receive
the following benefits:

i. ErriplOyee Shall be entitled to participate in any retirement plan or
plans adopted by the Board for the employees of the Company, as such plan or plans may be
amended from time to time;

12524C)51:6 1

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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

ii. Employee shall be entitled to participate in and shall be covered by
such health and medical insurance plans and policies maintained by the Company covering its
employees, as such plans and policies may be amended from time to time:,

iii. Five Hundred Wk.:Its ($590) per month for reimbursement of any
and all vehicle-related expenses (including, without limitation, gas, mileage, insurance;
maintenance, repairs and vehicle: lease/loan payments); and

iv. Executive shall be entitled to all other benefits offered. Company-
wide to employees of the Company.

Exhibit. B attached hereto sets forth a summary of the benefits Currently offered Company-wide
to employees of the Company.

5. Termination.

(a) By Employee. Employee may terminate this Agreement at any time for
any reason whatsoever upon fifteen (15) days prior written notice from Employee to the
Company.

(h) By the CoMparty. The Company may terminate thiS Agreen-int for Cause.
For purposes of this Agreement, "Cause' shall mean:

(i) Employee shall be convicted of, or plead nolo contendere to, any
crime involving moral turpitude or any other crime or punishable offense against the Company,
or any of the Company's employees or agents;

(ii) Employee shall commit any act of fraud upon, or willful.
Misconduct toward, the Company;

(iii) Employee shall engage in conduct which has been or is likely to be
materially injurious to the COMpany and Einployee shall fail to cure such conduct within .fifteen
(15) days after written notice by the Company to Employee;

(iv) there shall be a failure by Employee (other than by reason of his
illness or incapacity) to substantially perform the duties and obligations imposed upon Employee
under this Agreement and Employee shall fail to cure such failure within fifteen (15) days after
written notice by the Company to Employee; or

(v) the continued failure by Employee to substantially perform any of
the duties set forth in Section 3 (other than a failure resulting from the Employee's incapacity due
to injury or illness) and Employee shall fail to cure such failure within fifteen (15) days after
written notice by the Company to Employee.

[2524051

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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

(d) Disability. This Agreement shall automatically terminate upon Employee
becoming Disabled. Employee shall be considered "Disabled" if he shall be unable, by reason of
physical or mental incapacity, to perform substantially all of his normal duties under this
Agreement for a period of ninety (90) consecutive days.

(e) Effect of Termination. In the event of the expiration or any termination of
this Agreement, this Agreement shall be of no further force and effect, and neither party shall
have any further obligation to the other hereunder, except for obligations accruing prior to the
effective date of expiration or termination (as the case may be), or as otherwise expressly
provided herein.

6. Confidential information.

(a) hi..the coarse of performing his duties, it is anticipated that Employee shall
receive Confidential Information (as hereinafter defined) from the Company. Employee agrees
that he shall not, during the term of this Agreement and thereafter, directly or indirectly, use,
supply, transfer, discriminate, reveal or disclose or publish any Confidential Information to any
person other than authorized personnel or representatives of the Company, except in the
performance of his duties for the Company. "Confidential Information" means any and all
information which is regarded as confidential and/or proprietary by the Company and. which is
disclosed to Employee relating to the business, methods or techniques of the Company,
including, without limitation, information pertaining to concepts, ideas, products, product
designs, business records, customer/client lists and records, pricing, financial data, marketing
practices, accounts, costs, computer programs, licenses, trade secrets, know-how, methods, plans,
intentions and any other intellectual property rights of any kind. For purposes of this Agreement,
it is presumed that any information relating to the Company or its business OT which is contained
in any of its records or documents shall constitute Confidential Information and within the
intended coverage of this Agreement, unless such information is generally known or readily
available to the general public or generally known in the industry of the Company.

(b) Without limiting the generality of the foregoing, Employee agrees that
while employed by the. Company he shall not copy or take. out of the Company's offices or
facilities any records setting forth or embodying Confidential Information, except in the
performance of his duties for the Company. Employee agrees that any and all records, writings
and other documents, including any and all copies thereof, setting forth or embodying any
Confidential Information are and shall remain the sole property of the Company and shall be held
in trust by Employee solely for the benefit of the Company. At any tine upon the wntten request
of the Company (and, in any event, no later than one (1) day following termination of
Employee's employment hereunder for any reason whatsoever), Employee agrees to immediately
deliver all Confidential Infbrmation in his possession or control to the Company. The
restrictions and protection provided for in this Section 6 shall be in addition to any protection
afforded to Confidential Inthrmation by law or equity,

7. Non-Solicitation. For a period of twelve (12) months from and after (a) the
termination of this Agreement for any reason whatsoever or (b) the expiration of this Agreement,

F.25241)51 :6 ;

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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

Employee agrees that he will not directly or indirectly whether as owner, partner, investor,
consultant, agent, employee or otherwise: (a) contact or solicit any customer of the Company
with which Employee has or had a relationship to enter into any business relationship with any
person„ firm or entity other than the Company; (b) solicit or accept the business of any customer
of the Company with which Employee has or had a relationship while an employee of the
Company; or (c) recruit, offer employment to, employ, engage as a consultant, lure or entice
away, or in any other manner persuade or attempt to persuade, any person who is an employee of
the Company to leave the employ of the Company. The time period during which the restrictions
set forth in this Section 7 apply shall be extended by the length of time during which Employee
violates any of the covenants contained in this Section 7.

8. Acknowledgment/Modification. Each of the parties agrees that the covenants
contained in Sections ..6 and 7 are necessary and reasonable in nature, However, if at any time it
shall be determined by any court of competent jurisdiction or arbitrator that any covenant, or any
portion thereof, as written herein, is unenforceable based on the fact that the restric₹ion is
unreasonable as to time period, geographical area or otherwise, each of the parties agrees that
such portion as shall have been determined to be unreasonably restrictive shall thereupon be
deemed to be amended so as to make such restriction reasonable to the maximum extent
permitted by law, and the determination of such court or arbitrator, and the said covenant, as so
modified, shall he enforceable between the parties to the same extent as if such amendment had
been made prior to the date of any alleged breach of said covenant.

9. Non-Disparagement. During the term of this Agreement and thereafter, Employee
agrees not to make negative comments or othery ise disparage the Company or its officers,
directors, employees, shareholders, agents, services or products.

10. Costs and Expenses. In the event either party has to enforce any part of this
Agreement in a court of law, the non-prevailing party shall pay to the prevailing party all fees and
costs incurred by the prevailing party including without limitation , reasonable attorney fees, costs
and expenses incurred.

It. Law. This Agreeinent shall be govCrned by and construed in atcordance with the
laws of the State:or New `ark, without reference to principles of conflicts of laws.

12. Waiver. Waiver by a party of a breach of any provision of this Agreement shall not
operate as nor be construed as a waiver of any subsequent breach thereof

13.. Assignment. No party shall have the right to •assign its rights or obligations:
hereunder without the prior written consent of all of the other parties. Any proposed assignment in
contravention of this Section shall be null and void.

14. Entire Agreement. This Agreement constitutes the entire agreement between the
parties regarding the subject matter contained herein and supersedes all prior and contemporaneous
undertakings and agreements of the parties, whether written or oral, with respect to the subject
matter herein.

a;?.-1f]5 I !6
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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
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15. Amendment. This Agreement shall not be amended except by a writing executed by
both parties.

16. Survivability. The terms and provisions of Sections 6, 7, 8, 9, 10 and 16 of this
Agreement shall survive any termination or expiration of this Agreement.

17. Parties Bound. This Agreement shall be binding upon and inure to the benefit of
each party and its respective successors and permitted assigns.

18. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the
same instrument.

19. Asset Purchase Agreement. This. Agreement is being entered into pursuant to an
Asset Purchase Agreement dated December 19, 2014 fix the purchase/sale of substantially all of the
assets of P.C. Business Solutions, Inc. For so long as this Agreement is in effect, the Company
agrees to allow Employee to personally service his former customers and will continue to allow
Employee to sei- ice these accounts with Employee's former employees Gerald Nutiella and Scott
Pettit or such other Company employees mutually agreed to by the Company and Employee. In the
event the Company restricts Employee's ability to service his former customers in any manner
Whatsoever (other than any restriction imposed in order to comply with any applicable law or
regulation), both this Agreement and the Asset Purchase Agreement may be immediately
terminated at Employee's sole discretion and any non compete provision in either this Agreement
or the Asset Purchase Agreement shall be deemed null and void, except that Section 7 of this
Agreement shall not apply to Seller Customers (I.e. Employee shall not be prohibited from
soliciting Seller Customers).

[SIGNATURE PACE FOLLOWS]

`252405'1:0:1
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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

IN WITNESS WHEREOF, this Agreement has been duly executed the date first above
written.

THE COMPANY: IEVOLVE,
d/bla I-EVOLVE TECHNOLOGY SERVICES

By.
Name: t vf
Title:

EMPLOYEE:
Gerald E. Hickson

2524051:6 j
[Signature Page to .EmplQyMent:Agreement]

I-EVOLVE_000065
FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

IN WITNESS WHEREOF, this Agreement has been duly executed the date first above
written.

THE COMPANY: IEVOLVE, INC.
d/bla 1-EVOLVE TECHNOLOGY SERVICES

By:
Name:
Title:

EMPLOYEE:
Gerald E. Hickson

(2524051;6 )
[Signature Page to Employment Agreement]

I-EVOLVE_000066
FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

EXHIBIT A

Commission-Based Compensation
Commission
Sale Type Commission Exam pies Commission Paid
Calculation

1:lardware, Software & 30%.0fGroSs Prolit ** Sell an HP ProLiatit Server G6 M1,350 (i'4 $584 x 30% $175.20.
Equipment* 20% markup, or $3,500 (paid by customer).
Gross Profit* is $584.

Technical Services & Support a.) 15% of Total. Revenues on T&M a.) Sell straight T&M at the non-converted a.) $100/hr x a.) $15 per service
at Seller's rates. 1-Evolve Bronze rate of $100/hr. (paid) 15% hour sold and paid
Rate .or flat fee projects.
b.) 17.5% of Total Revenues on h,) Sell a Platinum Retainer at $15,000 b.) $15,000 x b,) $2,625 per
T&M converted to Company Service (paid) 1 7.5N Platinum Retainer sold
levels (Silver, Gold and Platinum and paid
Level Retainers)

Cloud SerVices to any Seller 100% of 1St full month of services, Sell a 600 GB, 4 server license i-Standby S400. x •100°79 $400.00
Customer **:* excluding setup fees data backup service @ socvmonth to a
Seller Customer
(and paid)

Cloud Services to any non-Seller a.) 100% of 1st full month of Sell a 40-seat 36-month Vollp contract @ $900 x 200% $1,800.00
CUsibmer *** services for 12-Month contracts, $900/month to a non-Seller.Customer (and
&i.tluding setup fees paid)
h.) 200% of 1st full month of
services for 36-month contracts,
excluding: setup fees
MiniMum Mark-up of 10%;

** - Gross Profit'' shall be the sales price minus cost of goods sold (as calculated in Quotewerks or other sales/quoting software utilized by the Company).

*** "Seller Customer" shall be as defined in that certain Asset Purchase Agreement, dated Decembe 19; 2014, byand:aniong P.C. BusinesS SOlutiOnS, tile.; the
Company and Employee.

CommiSsiOns far any calendar month shall he (a) earned, dtie and payable only on arnountS/ftindS actually received by the Company and (h) paid by the. Company
L90000 3A10A3-1

to EMPlOyee on or before the 20' day of the next fallowing month.

12535961:41
FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

EXHIBIT B

CURRENT BENEFITS

252,1051:6
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FILED: ERIE COUNTY CLERK 04/27/2023 09:32 AM INDEX NO. 804173/2020
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/27/2023

IEVOLVE General Benefits:
• HEALTH.INSURANCE: Health coverage will be offered to Employee on the first of the month following 60 days of full
time employment. !EVOLVE will pay health care costs up to $265.00/month for single employee; $475,00/month for
employee plus spoUse, $40Q.00/month for employee plus child(ren) and $550.00/rnonth for family coverage. Dental
and Vision insurance is also offered within the health benefits plan but without contribution from !EVOLVE.
• VACATION: Employee will accrue 40 hciurs of vacation after 1040 hour of work; not to include overtime. Vacation
Must be approved two :weeks before start: date. Tothl accrued vacation time my never exceed 80 hours. Tinne
exceeding 80 hours will be lost without any reimbursement from IEVOLVE. After fiVe (5) years of employment 61:1
hours of vacation time will be giyen every 1040 hours and vacation time may never exceed 120 hours: Upon
termination, voluntary or involuntary, unused vacation time is forfeited.
• SICK TIME: Employee will receive two (2) paid sick days after 1040 hours of employment. After every:1040 hours of
enriployrrient„ two (2) days will be earned. Accrued sick time can never exceed four (4) days. After five (5) year's of
employment;. three (3) paid sick dayt will be earned :after 1040 hours of ernplOyment. Sick days will be lost if not
taken. Sick days cannot be added on to vacation time to extend a vacation. Upon termination, voluntary or
involuntary, unused sick time is forfeited.
• OVERTIME: Employee will be paid over-time when.IEVOLVE is billing customer at over time rate. Employee will need
to have over-time pre-approved before overtime can be allowed. Over-time will be calculated by Employee's annual
salary divided by 52 weeks, divided by 40 hours.
• PAID HOLIDAYS: IEVOLVE has paid hOlidays on the folloWing dayS if the hbliday falls on a normal businets day
(Monday through Friday): New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Thursday and
Friday, Christmas, Eve, Christmas; arid any other holidays predetermined by IEVOLVE. Some holidays require-offite
coverage and rriployees:may be chosen to work via lottery format. Employees will be compensated.
• 401K PLAN: Plan participation Is immediate. After one (1) year of full time employment, Employee is eligible for
matching contributions of an amount equal to 25% of Employee's Elective. Deferral which does not exceed 4% of
Employee Compensation.
• SHORT-TERWLONGJERM DISABILITY: lEyoLvE. pays for a short and long term disability plan which inchidet a life
insurance policy. Eligibility starts on the first of the month.following 60 days of full time emplOyment,
• MILEAGE REIMBURSEMENT: $0.45 per mile for travel to customer locations. No reimbursement for travel to the
office or work related travel such as training or test facilities: This reimburSeMent is for Employees who travel as a
requirement oftheir job description.
•• TECHNOLOGY TEST REIMBURSEMENT: Reimbursement for pre-approved tethncifogy tests that achieVe a passing
grade and study materials.
• CERTIFICATION AND PERFORMANCE REVIEWS: [EVOLVE agrees to increase Employee's salary based on successful
completion of certification exams that are pre-approved with the Supervisor. Periodic reviews of Employee
performance will be.conducted at the discretion.of !EVOLVE. Not all reViews will result in an increase in salary.
• GYM/FITNESS MEMBERSHIP CONTRIBUTION: IEVOLVE Will contribute $10/month towards gym/fitnes membership:
for full-time Employees. In order to receive the contribution, (EVOLVE .requires that Employees visit the gym at least
one time per week.

12579965:]:

l-EVOLVE_000069

Case Info

Judge

Emilio Colaiacovo Track Judge’s New Case

Case No.

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Document Filed Date

April 27, 2023

Case Filing Date

March 18, 2020

County

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Exhibit,Appendix: Ievolve, Inc. v. Gerald E. Hickson

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