EXHIBIT
10.13
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment ('Amendment') to an Employment Agreement
('Agreement'), dated as of February 9, 1998 by and between STAFF
BUILDERS INC., a New York Corporation ("Staff Builders" or the
"Corporation"), and XXXX X. XXXXX ("Executive") is Effective
December 1,1998.
NOW, THEREFORE, in consideration of their mutual promises and
other adequate consideration, Staff Builders and the Executive do
hereby agree as follows:
I. Paragraphs 1,3,4,5,6, and 10 of the Agreement are hereby
deleted in their entirety and are replaced by the following
Paragraphs:
1. EMPLOYMENT. Staff Builders will employ the Executive
as Chief Financial Officer and Chief Operating Officer, in
accordance with the terms and provisions of this Agreement.
2. TERM. This Agreement shall be effective upon execution
by Staff Builders and the Executive, and shall remain in effect
until February 28, 2002, unless terminated earlier pursuant to
the terms hereof.
3. COMPENSATION.
Salary. The Executive shall be paid a salary of $300,000
per annum during the term hereof, payable in weekly
installments. The Executive's salary will be reviewed
by Staff Builders on December 1, 1999, December 1,
2000 and December 1, 2001.
Benefits. The Executive shall be eligible to receive and
participate in all health, medical or other insurance
benefits which Staff Builders provides or makes
available to its employees. The Executive may enroll
in the Staff Builders health program effective upon
the first date of employment.
Expenses. Staff Builders shall reimburse the Executive
for all reasonable and necessary expenses upon
submission by the Executive of receipts, accounts or
such other documents reasonably requested by Staff
Builders.
Relocation Expenses. Staff Builders will reimburse
the Executive for relocation expenses incurred
during the first six (6) months of employment
directly related to the Executive's move to the Long
Island area. Reimbursable expenses will include:
packing and shipping of household goods, Realtor
fees and closing costs related to the sale of the
Executive's current residence. The total amount of
relocation expenses to be reimbursed to the
Executive will not exceed $40,000.
Car Allowance. The Executive will be paid a car
allowance of $725 per month.
Misc. Expense. In connection with the Executive's start
of employment at Staff Builders, the Executive will
be paid a one time payment of $18,000, on or before
February 27, 1998.
Vacation. The Executive shall be entitled to three (3)
weeks of paid vacation during each twelve (12)
month period of employment during the term.
Incentive Compensations. The Executive is entitled to
participate in the TIP TOP Program or other Program
as designated by the CEO or Board.
Deferred Compensation. The Executive is entitled to
participate in the Deferred Compensation Program as
described in the plan documents.
Employee Stock Purchase Plan. The Executive is entitled
to participate in the Employee Stock Purchase Plan
as described in the plan documents.
4. TERMINATION: RIGHTS AND OBLIGATIONS UPON TERMINATION.
If the Executive dies during the Term, then the
Executive's employment under this Agreement shall
terminate. In such event, the Executive's estate
shall be entitled only to compensation and expenses
accrued and unpaid as at the date of the Executive's
death.
If, as a result of the Executive's incapacity due to
physical or mental illness, whether or not job
related, the Executive is absent from his duties
hereunder for 90 consecutive days, or an aggregate of
120 days during the Term, the Executive's employment
hereunder and this Agreement shall terminate. In such
event, the Executive shall be entitled only to
compensation and expenses accrued and unpaid as at the
date of termination of the Executive's employment.
The Corporation shall have the right to terminate the
Executive's employment under this Agreement for Cause.
For purposes of the Agreement, the Corporation shall
have "Cause" to terminate the Executive's employment
if (i) the Executive assigns, pledges, or otherwise
disposes of his rights and obligations under this
Agreement, or attempts to do the same without the
prior written consent of the Corporation; or (ii) the
Executive fails to fulfill in a material aspect, when
taken as a whole, his obligations under this
Agreement, has breached any material term or condition
hereof, has engaged in willful misconduct or has acted
in bad faith; or (iii) the Executive has breached
Section 7 of this Agreement; or (iv) the Executive has
committed a felony or perpetrated a fraud against the
Corporation. If the Corporation terminates this
Agreement for Cause, the Corporation's obligations
hereunder shall cease, except for the Corporation's
obligation to pay the Executive the compensation and
expenses accrued and unpaid as of the date of
termination in accordance with the provisions hereof.
In the event that at any time after a Change of Control
(as defined below) but prior to the end of twelve
(12) months after such Change of Control, the
Executive is discharged for any reason other than
for Cause (as defined below) or resigns for any
reason (other than due to termination for Cause),
the Executive shall begin to receive within thirty
(30) days after such discharge or resignation a
severance payment equal to 2.99 times the 'average
annual base salary' paid to him at the same rate of
pay in effect at the date of the Change of Control
to be paid in weekly installments for the three (3)
year period following such discharge or resignation.
For the purposes of this Section 5, 'average annual
base salary' shall mean the average of Employee's
annual income in the nature of compensation payable
by the Company and includible in gross income over
the three most recent taxable years ending before
the Change of Control. Anything contained herein to
the contrary notwithstanding, for a Change of
Control occurring before 2001, 'average annual base
salary' shall be equal to the average salary paid
the employee as follows:
Years Considered in Calculating
Year of Change in Control Average Base Salary
1998-1999 1998
1999 1998
2000 1999
2001 2000
2002 2001
A 'Change of Control' shall be deemed to occur when
a person, corporation, partnership, association or
entity (x) acquires a majority of the outstanding
voting securities of Staff Builders, Inc., a
Delaware corporation ('SBD') or (y) acquires
securities of the bearing a majority of voting power
with respect to election of directors of SBD or (z)
acquires all or substantially all of SBD's assets.
Notwithstanding anything to the contrary contained
herein, all payments owed to the Executive upon
termination of this Agreement shall be subject to
offset by the Corporation for amounts owed to the
Corporation by the Executive hereunder or otherwise.
The obligations of the Corporation and the Executive
pursuant to this Section 5 shall survive the
termination of this Agreement.
5. NOTICES. Any written notice permitted or required under
this Agreement shall be deemed sufficient when hand delivered or
posted by certified or registered mail, postage prepaid, and
addressed to:
if to Staff Builders:
Staff Builders, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, President
or
if to the Executive:
Xxxx X. Xxxxx
00 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Either party may, in accordance with the provisions of this
Section, give written notice of a change of address, in which event
all such notices and requests shall thereafter be given as above
provided at such changed address.
6. STOCK OPTIONS. The Executive will be granted stock
options to purchase 700,000 shares of Staff Builders, Inc.
(Delaware) stock, which will be issued and will vest in accordance
with the terms of an Option Agreement between the Executive and the
Corporation.
7. Except as specifically amended by this Amendment the
terms and conditions of the Agreement remain unchanged.
IN WITNESS WHEREOF, Staff Builders and the Executive have
executed this Employment Agreement as of the date first above
written.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, CEO
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
