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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of
October 1996, by and between Personnel Group of America, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company deem it to be in their
respective best interests to enter into an agreement providing for the
Company's employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of October 1996, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
President of Commercial Staffing Division commencing as of the Effective
Date for the "Term of Employment" (as herein defined below). In this capacity,
Executive shall devote his best efforts and his full business time and
attention to the performance of the services customarily incident to such
offices and position and to such other services of a senior executive nature as
may be reasonably requested by the Chairman and Chief Executive Officer of the
Company which may include services for one or more subsidiaries or affiliates
of the Company. Executive shall in his capacity as an employee and officer of
the Company be responsible to and obey the reasonable and lawful directives of
the Chief Executive Officer.
(b) Executive shall devote his full time and
attention to such duties, except for sick leave, reasonable vacations, and
excused leaves of absence as more particularly provided herein. Executive
shall use his best efforts during the Term of Employment to protect, encourage,
and promote the interests of the Company.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of two hundred
thousand dollars ($200,000) per calendar year and agrees that such salary
shall be reviewed at least annually. Such salary shall be subject to
discretionary annual increases as determined by the Board of Directors. Such
salary shall be payable in accordance with the Company's normal payroll
procedures. (Executive's annual salary, as set forth above or as it may be
increased from time to time as set forth herein, shall be referred to
hereinafter as "Base Salary.") At no time during the
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Term of Employment shall Executive's Base Salary be decreased from the amount
of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this Agreement,
Executive shall be eligible to receive an annual bonus ("Bonus") pursuant to a
performance bonus plan (the "Bonus Plan") which shall be established by the
Company for its senior executive officers and which shall provide for bonus
compensation to be payable based upon the financial and other performance of
the Company and its senior executives.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in
any life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation programs,
and other fringe benefit programs made available to senior executive employees
of the Company from time to time, and Executive shall be entitled to receive
such other fringe benefits as may be granted to his from time to time by the
Company.
(b) Executive shall be allowed 28 days of paid time
off (PTO) per calendar year and leaves of absence with pay on the same basis as
other senior executive employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties and
promoting the business of the Company, including, but not limited to,
reasonable entertainment expenses, travel and lodging expenses, following
presentation of documentation in accordance with the Company's business expense
reimbursement policies.
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the Effective
Date and ending on September 30, 1997; provided, however, that as of the
expiration date of each of (i) the initial Term of Employment and (ii) if
applicable, any Renewal Period (as defined below), the Term of Employment shall
automatically be extended for a one (1) year period (each a "Renewal Period")
unless either the Company or Executive provides six (6) months' notice to the
contrary. Notwithstanding the foregoing, the Term of Employment shall expire
on the first to occur of the following:
(a) Termination by the Company Without Cause or By
Executive With Good Reason. Notwithstanding anything to the contrary in this
Agreement, whether express or implied, the Company may, at any time, terminate
Executive's employment for any reason other than Cause (as defined below) by
giving Executive at least 60 days' prior written notice of the effective date
of termination. In the event Executive's employment hereunder is terminated by
the Company other than for Cause or by Executive for Good Reason (as defined
below), Executive shall be entitled to receive (y) his Base Salary as he would
have received
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such amounts during the period commencing on the effective date of such
termination and ending on the First Anniversary thereof (the "Salary
Continuation Period"), as if Executive were still employed hereunder during the
Salary Continuation Period; and (z) if it has not previously been paid to
Executive, any Bonus to which Executive had become entitled under the Bonus
Plan prior to the effective date of such termination. In addition, all of
Executive's stock options with respect to the Company's stock shall become
immediately and fully exercisable. During the Salary Continuation Period,
Executive and his spouse and dependents shall be entitled to continue to be
covered by all group medical, health and accident insurance or other such
health care arrangements in which Executive was a participant as of the date of
such termination, at the same coverage level and on the same terms and
conditions which applied immediately prior to the date of Executive's
termination of employment, until Executive obtains alternative comparable
coverage under another group plan, which coverage does not contain any
pre-existing condition exclusions or limitations; provided, however, that if,
as the result of the termination of Executive's employment, Executive and/or
his otherwise eligible dependents or beneficiaries shall become ineligible for
benefits under any one or more of the Company's benefit plans, the Company
shall continue to provide Executive and his eligible dependents or
beneficiaries, through other means, with benefits at a level at least
equivalent to the level of benefits for which Executive and his dependents and
beneficiaries were eligible under such plans immediately prior to the date of
Executive's termination of employment. At the termination of the benefits
coverage under the preceding sentence, Executive and his spouse and dependents
shall be entitled to continuation coverage pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any other
applicable law, to the extent required by such laws, as if Executive had
terminated employment with the Company on the date such benefits coverage
terminates.
For purposes of this Agreement, "Good Reason" shall mean, without the
express written consent of Executive, the occurrence of any of the following
events unless such events are fully corrected within 30 days following written
notification by Executive to the Company that he intends to terminate his
employment hereunder for one of the reasons set forth below:
(i) a material breach by the Company of any
material provision of this Agreement, including, but not
limited to, the assignment to Executive of any duties
inconsistent with Executive's position in the Company or an
adverse alteration in the nature or status of Executive's
responsibilities;
(ii) the Company's requiring the Executive
to be based anywhere other than the metropolitan area where he
currently works and resides; and
(iii) the occurrence of a "Change in Control"
as defined below.
For purposes of this Agreement a "Change in Control" shall mean an
event as a result of which: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")),
is or becomes the "beneficial owner" (as
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defined in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the voting stock of the Company; (ii) the Company
consolidates with, or merges with or into another corporation or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person, or any corporation consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding voting stock of the Company is changed
into or exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting stock of the Company is changed
into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of the Company (together with any new directors whose election by
such Board or whose nomination for election by the stockholders of the Company
was approved by a vote of 66-2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of the Company then in office; or (iv) the
Company is liquidated or dissolved or adopts a plan of liquidation, provided,
however, that a Change in Control shall not include any going private or
leveraged buy-out transaction which is sponsored by Executive or in which
Executive acquires an equity interest materially in excess of his equity
interest in the Company immediately prior to such transaction (each of the
events described in (i), (ii), (iii) or (iv) above, as provided otherwise by
the preceding clause being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by giving
Executive written notice of the effective date of termination (which effective
date may, except as otherwise provided below, be the date of such notice). If
the Company terminates Executive's employment for Cause, Executive shall be
paid his unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the Bonus Plan
prior to the effective date of such termination and the Company shall have no
further obligation hereunder from and after the effective date of termination
and the Company shall have all other rights and remedies available under this
or any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
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ii) substantial and willful failure to
perform specific and lawful directives of the
Board, as reasonably determined by the Board;
iii) willful and knowing violation of any
rules or regulations of any governmental or
regulatory body, which is materially
injurious to the financial condition of the
Company; or
iv) conviction of or plea of guilty or nolo
contendere to a felony;
provided, however, that with regard to subparagraph (ii) above, Executive may
not be terminated for Cause unless and until the Company has given his
reasonable written notice of its intended actions and specifically describing
the alleged events, activities or omissions giving rise thereto and with
respect to those events, activities or omissions for which a cure is possible,
a reasonable opportunity to cure such breach; and provided further, however,
that for purposes of determining whether any such Cause is present, no act or
failure to act by Executive shall be considered "willful" if done or omitted to
be done by Executive in good faith and in the reasonable belief that such act
or omission was in the best interest of the Company and/or required by
applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his employment
hereunder shall terminate on the date of his death and Executive shall be paid
his unpaid Base Salary through the date of termination and the amount of any
unpaid Bonus to which Executive had become entitled under the Bonus Plan prior
to the effective date of such termination. In addition, any other benefits
payable on behalf of Executive shall be determined under the Company's
insurance and other compensation and benefit plans and programs then in effect
in accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the
event that Executive's employment with the Company is voluntarily terminated by
Executive other than for Good Reason, Executive shall be paid his unpaid Base
Salary through the date of termination and the amount of any unpaid Bonus to
which Executive had become entitled under the Bonus Plan prior to the effective
date of such termination, and the Company shall have no further obligation
hereunder from and after the effective date of termination and the Company
shall have all other rights and remedies available under this Agreement or any
other agreement and at law or in equity. Executive shall give the Company at
least 60 days' advance written notice of his intention to terminate his
employment hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or the
North Carolina Handicapped Persons Protection Act if, as a result of
Executive's incapacity due to physical or mental illness (as determined in good
faith by a physician acceptable to the Company and Executive), Executive shall
have been absent from the full-time performance of his duties with the Company
for 120 consecutive days during any twelve (12) month period or if a physician
acceptable to the
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Company advises the Company that it is likely that Executive will be unable to
return to the full-time performance of his duties for 120 consecutive days
during the succeeding twelve (12) month period, his employment may be
terminated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to physical
or mental illness, he shall continue to receive his Base Salary, Bonus and
other benefits provided hereunder, together with all compensation payable to
his under the Company's disability plan or program or other similar plan during
such period, until Executive's employment hereunder is terminated pursuant to
this Section 5(e). Thereafter, Executive's benefits shall be determined under
the Company's retirement, insurance, and other compensation and benefit plans
and programs then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-Competition.
(a) During the Term of Employment and for two (2)
years thereafter, Executive shall not, except as may be required to perform his
duties hereunder or as required by applicable law, disclose to others or use,
whether directly or indirectly, any Confidential Information regarding the
Company. "Confidential Information" shall mean information about the Company,
its subsidiaries and affiliates, and their respective clients and customers
that is not available to the general public and that was learned by Executive
in the course of his employment by the Company, including (without limitation)
any proprietary knowledge, trade secrets, data, formulae, information, and
client and customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is specialized, unique in
nature and of great value to the Company, and that such information gives the
Company a competitive advantage. Upon the termination of his employment for
any reason whatsoever, Executive shall promptly deliver to the Company all
documents, computer tapes and disks (and all copies thereof) containing any
Confidential Information.
(b) During the Term of Employment and for two (2)
years thereafter, Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage in, work
for, consult, provide advice or assistance or otherwise participate in any
activity which is competitive with the business of the Company, in any
geographic area in which the Company is now or shall then be doing business,
including without limitation, those geographic areas set forth on Exhibit A
hereto. Executive further agrees that during such period he will not assist or
encourage any other person in carrying out any activity that would be
prohibited by the foregoing provisions of this Section 6 if such activity were
carried out by Executive and, in particular, Executive agrees that he will not
induce any employee of the Company to carry out any such activity; provided,
however, that the "beneficial ownership" by Executive, either individually or
as a member of a "group," as such terms are used in Rule 13d of the General
Rules and Regulations under the Exchange Act, of not more than five percent
(5%) of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the Company
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will or would suffer irreparable injury if Executive were to compete with the
Company or any subsidiary or affiliate of the Company in violation of this
Agreement and that the Company would by reason of such competition be entitled
to injunctive relief in a court of appropriate jurisdiction, and Executive
further consents and stipulates to the entry of such injunctive relief in such
a court prohibiting Executive from competing with the Company or any subsidiary
or affiliate of the Company in violation of this Agreement.
(c) During the Term of Employment and for two (2)
years thereafter, Executive shall not, directly or indirectly, influence or
attempt to influence customers or suppliers of the Company or any of its
subsidiaries or affiliates, to divert their business to any competitor of the
Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating to their
education, experience, skills, abilities, compensation and benefits, and
interpersonal relationships with customers of the Company. Executive
recognizes that the information he will possess about these other employees is
not generally known, is of substantial value to the Company in developing its
business and in securing and retaining customers, and will be acquired by his
because of his business position with the Company. Executive agrees that,
during the Term of Employment, and for a period of two (2) years thereafter, he
will not, directly or indirectly, solicit or recruit any employee of the
Company for the purpose of being employed by his or by any competitor of the
Company on whose behalf he is acting as an agent, representative or employee
and that he will not convey any such confidential information or trade secrets
about other employees of the Company to any other person.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
(f) Executive acknowledges that he was informed
of the time, territory, scope and other essential requirements of the
restrictions in this Section 6 when he agreed to become employed with the
Company under the terms set forth in this Agreement, and Executive further
acknowledges that he has received sufficient and valuable consideration for his
agreement to such restrictions.
7. No Offset - No Mitigation. Executive shall not be
required to mitigate damages under this Agreement by seeking other comparable
employment. The amount of any payment or benefit provided for in this
Agreement, including welfare benefits, shall not be reduced by any compensation
or benefits earned by or provided to him as the result of employment by another
employer, except as provided otherwise in Section 5(a) with respect to health
and insurance benefits provided during the Salary Continuation Period.
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8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter during
which amounts remain payable to Executive under Section 5, such payments (other
than the right to continuation of welfare benefits) shall thereafter be made to
such person or persons as Executive may specifically designate (successively or
contingently) to receive payments under this Agreement following Executive's
death by filing a written beneficiary designation with the Company during
Executive's lifetime. Such beneficiary designation shall be in such form as
may be prescribed by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the Company
during his lifetime. Beneficiaries designated by Executive may be any natural
or legal person or persons, including a fiduciary, such as a trustee or a trust
or the legal representative of an estate. Unless otherwise provided by the
beneficiary designation filed by Executive, if all of the persons so designated
die before Executive on the occurrence of a contingency not contemplated in
such beneficiary designation, then the amounts payable under this Agreement
shall be paid to Executive's estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state and
local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject to
the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right to
deliver, execute, and fully perform his or its obligations under this Agreement
in accordance with its terms.
(b) This Agreement contains a complete statement of
all the arrangements between the parties with respect to Executive's employment
by the Company; this Agreement supersedes all prior and existing negotiations
and agreements between the parties concerning Executive's employment; and this
Agreement can only be changed or modified pursuant to a written instrument duly
executed by each of the parties hereto.
(c) If any provision of this Agreement or any
portion thereof is declared invalid, illegal, or incapable of being enforced by
any court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force and
effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of North Carolina,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by merger,
consolidation, purchase or otherwise) to all or substantially all of the stock,
assets or business of the Company and this Agreement shall be binding upon
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and inure to the benefit of such successors and assigns. Except as expressly
provided herein, Executive may not sell, transfer, assign, or pledge any of his
rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or in which
he is a participant, including, but not limited to, any Company-sponsored
employee benefit plans. Provisions of this Agreement shall not in any way
abrogate Executive's rights under such other plans, agreements, or
arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the named Executive at the address set forth below under his
signature; provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Chief Executive Officer of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment
of, or failure to insist upon strict compliance with, any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times.
(j) 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.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration, conducted before a panel of three arbitrators in the City of
Charlotte, North Carolina in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive hereby agree
that the arbitrator will not have the authority to award punitive damages,
damages for emotional distress or any other damages that are not contractual in
nature. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of the provisions of Section 6, and
Executive consents that such restraining order or injunction may be granted
without the neces-
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sity of the Company's posting any bond except to the extent otherwise required
by applicable law. The expense of such arbitration shall be borne by the
Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by instituting
any action or proceeding in arbitration or a court to enforce any provision
hereof or to enjoin a breach of any provision of this Agreement, or for a
declaration of such party's rights or obligations under the Agreement, or for
any other remedy, whether in arbitration or in a court of law, then the
successful party shall be entitled to be reimbursed by the other party for all
costs and expenses incurred thereby, including, but not limited to, reasonable
fees and expenses of attorneys and expert witnesses, including costs of appeal.
If such successful party shall recover judgment in any such action or
proceeding, such costs, expenses and fees may be included in and as part of
such judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final judgment.
If no costs are awarded, the successful party shall be determined by the
arbitrator or court, as the case may be.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE COMPANY
XXXXX XXXXXXXX PERSONNEL GROUP OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------- -------------------------------
Title: President, Commercial Name: Xxxxxx X. Xxxxxx, Xx.
Staffing Division Title: Chairman of the Board and
Chief Executive Officer
Address:
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
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