SEVERANCE AGREEMENT
Exhibit 10.9 (a)
This Severance Agreement (this “Agreement”) is made and entered into this 30rd day of June,
2005 (the “Effective Date”), by and between CBS Personnel Holdings, Inc., a Delaware corporation
(“CBS”), and Xxxxxxx X. Xxxxxxx (“Executive”). Each of Executive and CBS are sometimes referred to
herein as a “Party” and collectively as the “Parties.”
BACKGROUND
Executive and CBS have been engaged in and wish to continue an “at-will” employment
relationship. The Parties are entering into this Agreement to provide Executive with certain
security and benefits in her continuing employment, and to provide CBS, its subsidiaries and
affiliates with certain covenants from Executive to protect the business interests of CBS and its
subsidiaries and affiliates during Executive’s continuing employment. Nothing contained herein
should be construed as a modification of the “at-will” nature of Executive’s employment with CBS.
AGREEMENT
In consideration of the mutual promises and consideration stated herein, the sufficiency of
which is hereby acknowledged, CBS and Executive agree as follows:
1. Employment
Executive agrees to continue her employment with CBS and CBS agrees to continue to employ
Executive, all subject to the terms and conditions set forth herein.
2. Termination of Employment
Executive’s employment with CBS may be terminated at any time and for any reason with or
without notice by CBS or by Executive. Except as otherwise expressly provided in this Agreement or
as otherwise required by applicable law, upon termination of Executive’s employment with CBS,
Executive will have no obligation or duty to further serve CBS in any capacity, nor will CBS or its
subsidiaries or affiliates be under any obligation to make any further payments or provide any
further benefits to Executive.
3. Termination Payments
Upon the termination of Executive’s employment, Executive will resign all positions of any
kind held with CBS or its subsidiaries or affiliates. Upon the termination of Executive’s
employment, CBS will be obligated to provide Executive only with such compensation as expressly
provided in this paragraph 3, and only upon the execution and delivery by Executive of a release
and waiver of all claims Executive may have against CBS, its subsidiaries, affiliates,
representatives and other related parties, in form and substance satisfactory to CBS.
a. Termination for Cause.
(i) If CBS terminates Executive’s employment hereunder for “Cause” then no further
compensation shall be paid to Executive after the date of termination.
(ii) For purposes of this Agreement, “Cause” shall be defined as any of the
following:
(1) Executive’s breach of this Agreement;
(2) Executive’s failure to adhere to any written policy of CBS or its subsidiaries or
affiliates in any material respect;
(3) Executive’s failure (as determined in good faith by the President or Board of Directors of
CBS) to effectively perform the duties assigned to Executive by CBS in any material respect;
(4) the appropriation (or attempted appropriation) of a material business opportunity of CBS
or its subsidiaries or affiliates, including attempting to secure or securing any personal profit
in connection with any transaction entered into on behalf of CBS or its subsidiaries or affiliates;
(5) the misappropriation (or attempted misappropriation) of any funds or property of CBS or
its subsidiaries or affiliates or the commission by Executive of any act of fraud against CBS or
its subsidiaries or affiliates;
(6) the conviction of, the indictment for (or its procedural equivalent), or the entering of a
guilty plea or plea of no contest with respect to, a felony, the equivalent thereof, or any other
crime involving moral turpitude; or
(7) the violation by Executive of the Confidentiality Agreement (as defined in paragraph 4
hereof) or the unauthorized use by Executive of the trade secrets or confidential information of
CBS or its subsidiaries or affiliates.
(iii) For purposes of this paragraph 3(a) the “date of termination” shall be the later of: (A)
the date CBS provides Executive with notice of termination of her employment, or (B) the last date
Executive provides services on behalf of CBS, as set forth in the notice of termination provided
to Executive by CBS. CBS is not required to give prior notice to Executive of termination for
Cause.
b. Resignation by Executive. If Executive resigns or retires at any time
for any reason other than that provided in paragraph 3(c) or 3(d) below, no further compensation
shall be paid to Executive after the date of termination; provided, however, Executive shall be
entitled to receive from CBS, subject to any deduction and withholding required by applicable law,
any base salary
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that was fully earned by Executive prior to the date of termination. For purposes of
this paragraph 3(b) the “date of termination” shall be the shall be the later of: (A) the date
Executive provides CBS with notice of termination of her employment, or (B) the last date Executive
provides services on behalf of CBS, as agreed to in writing by Executive and CBS.
c. Death of Executive. Executive’s employment with CBS automatically terminates upon
the death of Executive. In that event, no further compensation shall be paid to Executive after the
date of termination; provided, however, Executive (or her heirs, estate or personal representative,
as the case may be) shall be entitled to receive from CBS, subject to any deduction and withholding
required by applicable law, any base salary that was fully earned by Executive prior to the date of
termination.
d. Disability of Executive. If Executive’s employment with CBS terminates by reason of
Executive’s disability, as determined under any of CBS’s disability plans then applicable to
Executive, Executive will be paid in accordance with any disability plans or policies of CBS in
existence on the date of termination and applicable to Executive.
e. Termination Without Cause.
(i) If CBS terminates Executive’s employment for any reason other than Cause, disability or
death, then Executive shall be entitled to receive from CBS, subject to any deduction and
withholding required by applicable law:
(A) any base salary that was fully earned by Executive prior to the date of termination; and
(B) for a period of nine (9) consecutive months following the date of termination (the
“Severance Period”), continuation of base salary, payable according to the normal payroll schedule
and practices of CBS.
(ii) Any payments to Executive under this paragraph 3(e) are contingent upon Executive’s
continuing compliance with the Confidentiality Agreement (as defined in paragraph 4 of this
Agreement).
(iii) For purposes of this paragraph 3(e) the “date of termination” shall be the later of: (A)
the date CBS provides Executive with notice of termination of her employment, or (B) the last date
Executive provides services on behalf of CBS, as set forth in the notice of termination provided to
Executive by CBS.
(iv) CBS agrees that during the Severance Period, it will voluntarily fund the portion of
Executive’s COBRA premium that exceeds the dollar amount that Executive was required to contribute
towards health benefits as an employee of CBS immediately prior to termination.
4. Executive’s Covenants Protecting CBS’s Business Resources
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On October 28, 1998 Executive and CBS entered into that certain Agreement on Confidentiality
and Non-Competition, a copy of which is attached hereto as Exhibit A and incorporated
herein by reference (the “Confidentiality Agreement”). The Parties hereby reaffirm and ratify all
aspects of the Confidentiality Agreement. The covenants in the Confidentiality Agreement will
survive the termination of this Agreement.
5. Miscellaneous
a. Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of (i) CBS and its successors and assigns and (ii) Executive and Executive’s heirs and
personal representatives. This Agreement is not assignable by Executive.
b. Notices. All notices, requests, demands and other communications hereunder will be
in writing and will be deemed to have been duly given if personally delivered or delivered via
telecopy, overnight delivery, or prepaid certified or registered U.S. Mail, return receipt
requested, to the following addresses or to such other address as either Party may designate by
like notice.
If CBS, to:
|
Xxxxxxxxx X. Xxxxxx, President 000 Xxx Xxxxxx Xxxxx 000 Xxxxxxxxxx, Xxxx 00000 |
|
With a copy to:
|
Xxxxxxx X. Xxxxx, Esq. Squire, Xxxxxxx & Xxxxxxx L.L.P. 000 Xxxxxx Xxxxxx, Xxxxx 0000 . Xxxxxxxxxx, XX 00000 |
|
If to Executive, to:
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Xxxxxxx X. Xxxxxxx 0000 Xxxxxxx Xxx Xxxx Xxxxxxxxxx, Xxxx 00000 |
c. Entire Agreement: Modification. This Agreement and the Confidentiality Agreement
contain the entire agreement of the Parties about the subjects contained herein and therein, and
replace all prior contemporaneous oral or written agreements, understandings, statements,
representations and promises by either Party. No supplement, modification, or amendment to this
Agreement will be effective and binding unless the same is contained in a writing accepted and duly
executed by the Parties.
d. Paragraph Headings. The paragraph headings used in this Agreement are included
solely for convenience and will not affect, or be used in connection with, the interpretation of
this Agreement.
e. Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof.
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f. Governing Law. This Agreement will, except to the extent that federal law will be
deemed to apply, be governed by and construed and enforced in accordance with the laws of Ohio.
g. Arbitration of Certain Disputes. Any dispute between the Parties arising out of
this Agreement, including but not limited to any dispute regarding any aspect of this Agreement,
its formation, validity, interpretation, effect, performance or breach, or the Executive’s
employment (“Arbitrable Dispute”) shall be submitted to arbitration in Cincinnati, Ohio, before an
experienced employment arbitrator who is either licensed to practice law in Ohio, or is a retired
judge. The Parties agree to make a good faith effort to select a mutually agreeable arbitrator.
However, if the Parties are unable to reach agreement on an arbitrator, one will be selected
pursuant to the Employment Dispute Resolution Rules of the American Arbitration Association or any
successor rules thereto. The arbitration shall be conducted in accordance with the Employment
Dispute Resolution Rules or any successor rules. The arbitrator in an Arbitrable Dispute shall not
have authority to modify or change this Agreement in any respect. The prevailing Party in any such
arbitration shall be awarded its costs, expenses, and reasonable attorneys’ fees incurred in
connection with the arbitration. The Executive and CBS shall each be responsible for payment of
one-half the amount of the arbitrator’s fee(s). The arbitrator’s decision and/or award will be
fully enforceable and subject to an entry of judgment by any court of competent jurisdiction.
h. Jurisdiction and Venue in Judicial Proceedings. Any judicial action (not otherwise
subject to arbitration under paragraph 5(g) above) and arising under this Agreement, and not
otherwise prohibited by this Agreement, will be instituted only in state and/or federal courts
located in Cincinnati, Ohio. The Parties hereby expressly consent to the jurisdiction of and waive
any objection to venue in such courts.
i. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first
hereinabove written.
| CBS PERSONNEL HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||
| Its: | President | |||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx | ||||
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Exhibit A
Agreement on Confidentiality and Non-Competition
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